Zarling v. La Salle Coca Cola Bottling Co.

• Citation: 2 Wis.2d 596,87 N.W.2d 263
• Parties: Mary Hewett ZARLING, Respondent, v. LA SALLE COCA COLA BOTTLING CO., a corporation, Appellant.
• Decision Date: 07 January 1958
• Court: Wisconsin Supreme Court

Page 263

87 N.W.2d 263

2 Wis.2d 596

Mary Hewett ZARLING, Respondent, v. LA SALLE COCA COLA BOTTLING CO., a corporation, Appellant.

Supreme Court of Wisconsin.

Jan 7, 1958.

Rehearing Denied Feb. 28, 1958.

Quarles, Herriott & Clemons, Milwaukee, Lawrence C. Hammond, Jr., and William K. McKibbage, Milwaukee, of counsel, for appellant.

Anderson & Murphy, Milwaukee, for respondent.

BROADFOOT, Justice.

On May 8, 1954, plaintiff was a waitress in a restaurant in Milwaukee. Soft drinks, including bottled Coca Cola, were sold at the restaurant. All of the Coca Cola was purchased from the defendant. The route salesman for the defendant testified that he called at the restaurant once each week. He delivered two cases on April 26, two on May 3, and two on May 10, of 1954. He took the cases containing empty bottles from the restaurant and replaced them with other cases containing Coca Cola. The cases were placed on a shelf under a counter in the restaurant by the route salesman.

During the afternoon of the day in question the plaintiff was replenishing the bottled Coca Cola in the refrigerator from a case on the shelf. While in a squatting position back of the counter and between the counter and the refrigerator, she took one bottle of Coca Cola between the forefinger and middle finger of her right hand and another between the ring finger and the little finger of said hand and started lifting them out of the case when one of the bottles burst and her wrist was cut by a piece of glass from the bottle. The bottle burst at the base of the neck and after the explosion the plaintiff held the top of the bottle with the cap intact in her hand with the greater part of the bottle remaining in the case. The glass severed tendons leading to the fingers of the right hand and surgery was required to fasten the tendons together.

Defendant claims that there is no Wiscousin authority compelling the application of res ipsa loquitur to bursting-bottle cases; that other jurisdictions are in conflict as to the use of the doctrine in such cases, and that the application thereof in this state would permit juries to find negligence based on conjecture.

This court has determined that the doctrine of res ipsa loquitur applies in certain cases. In Ryan v. Zweck-Wollenberg Co., 266 Wis. 630, 639, 64 N.W.2d 226, 231, the conditions for the application of the doctrine were adopted as stated in Prosser, Torts (1941 ed.) p. 295, sec. 43, as follows:

"The conditions usually stated as necessary for the application of the principle of res ipsa loquitur are three: (1) The accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff."

As applied to bursting-bottle cases there is an annotation on the subject in 4 A.L.R.2d 466. From that annotation it appears that in the earlier cases recovery was denied on the ground that the bottle at the time of the injury was not in the exclusive control of the manufacturer. However, courts gradually began extending the doctrine until now a majority of the courts extend the doctrine or make an exception to the strict language of the condition. Dean Prosser in his Law of Torts (2d ed.) p. 203, indicates that now the great majority of the courts apply the doctrine. In the Ryan case we were dealing with a sealed unit in an electric refrigerator. The refrigerator with the sealed unit therein had passed from the manufacturer to the distributor and then to the purchaser. In that case we considered the application of the condition of control at the time of the injury and there held that the rule in bursting-bottle cases by analogy should be applicable to the sealed unit in the refrigerator.

On the question of control it is the theory of the majority of the courts that the jury may infer that the defendant (usually the bottler) had control of the bottle at the time the negligent act was performed and that it is not necessary that such exclusive control should exist at the time of the accident. The majority of courts also extend or change the third condition mentioned by Prosser to add thereto that the plaintiff produce evidence that the condition of the bottle has not been changed after it left the defendant's possession.

We have carefully reviewed the annotation and the cases cited in 4 A.L.R.2d 466. We feel that the logic of the majority rule as there outlined is compelling and therefore we adopt it as the rule in this state.

The defendant argues that even if the doctrine is applicable in Wisconsin the quantum of proof adduced by the plaintiff was insufficient under the majority rule. It is the contention of the defendant that in order to negate negligence on the part of someone other than the defendant it was the duty of the plaintiff in this case to produce as a witness every person who was employed in the restaurant to testify that the bottle which burst was in the same condition at the time of the injury as it was at the time the bottle was delivered and that it had not been abused or mishandled while in the restaurant. The sufficiency of negation of negligence on the part of someone other than the defendant is a question of fact to be found in each case. Plaintiff has the burden to prove by a preponderance of the evidence that such is a fact. Most of the employees in the restaurant were called as witnesses in the case and each testified that he had not moved or handled the bottles or cases of Coca Cola except to place some in the refrigerator. One witness who the testimony shows may have been on duty when the particular case of Coca Cola involved was on the shelf was not available as a witness. She was thought to be in Texas but no one knew her exact whereabouts.

To negate every possibility of handling by any person other than the defendant or its salesmen would place an impossible burden on the plaintiff where bottled beverages are located in a business place. It is conceivable that a customer in the restaurant might have reached over the counter and done something to the bottles. However, in this case the record shows that the Coca Cola was in a place practically inaccessible to customers; that it was moved from the cases to the refrigerator by the waitresses in small quantities, and the evidence was sufficient as shown by the record to present a jury question. The possibility that the case of Coca Cola or the particular bottle that burst was tampered with by some person other than those who testified is so remote that the trial court was correct in determining on the motion for a directed verdict that a jury question was presented.

The defendant further contends that because most of the bottle fragments were available at the time of the trial, the plaintiff was required to show by competent affirmative testimony that such fragments contain evidence of a defect or that the fragments which...