Royal Crown Bottling Co. v. Terry

Frank Holt, Justice. This is an exploding bottle case. The appellee suffered injury to an eye which resulted in its removal. The injury occurred while appellee, an employee of a grocery store, was handling a six-pack carton of Royal Crown Cola bottles. Appellee filed a complaint alleging specific acts of negligence and, alternately, negligence on the theory of res ipsa loquitur. In a separate complaint appellee alleged breach of warranty. Appellant’s answers raised the defenses of contributory negligence and assumption of risk and specified that it had been notified of the subrogation rights of an insurance carrier as provided by the workmen’s compensation laws where compensation is paid to an injured employee. Upon trial the two complaints wore consolidated by agreement of the parties. Appellant struck from its answers the defenses of contributory negligence and assumption of risk. Appellant introduced no testimony. The court denied appellant’s motion for a directed verdict on each complaint. The jury returned a verdict favorable to the appellee and this appeal comes from the judgment on that verdict. Appellant argues that appellee’s allegations of specific acts of negligence and, alternately, negligence on the theory of res ipsa loquitur are inconsistent and, therefore, impermissible. However, in a recent opinion this court said that allegations of specific acts of •negligence and res ipsa loquitur are compatible and may be relied upon in the same proceeding. Moon Distributors, Inc. v. White, 245 Ark. 627, 434 S.W. 2d 56 (1968). Appellant contends that the court erred in denying its motion for a directed verdict on each complaint. Appellee ably states that crucial to appellant’s cause is its-contention that res ipsa loquitur does not apply. We are of the view that res ipsa is not applicable in the case at bar. The basic components of the doctrine of res ipsa loquitur are found in AMI 610 which was the instruction given in this case. They are: (1) exclusive control; (2) no opportunity for condition of bottle to have changed; and (3) in normal course of events, no injury would have occurred if the bottler had used ordinary care while the bottle was under its exclusive control. The element of exclusive control is flexible and has not been applied literally in exploding bottle cases. Coca-Cola Bottling Co. of Ft. Smith v. Hicks, 215 Ark. 803, 223 S.W. 2d 762 (1949); Coca-Cola Bottling Co. of Helena v. Mattice, 219 Ark. 428, 243 S.W. 2d 15 (1951); Coca-Cola Bottling Co. v. Jones, 226 Ark. 953, 295 S.W. 2d 321 (1956); Dr. Pepper Bottling Co. of Newport v. Whidden, 227 Ark. 13, 296 S.W. 2d 432 (1956). In the Hicks case we said that the requirement of exclusive control is satisfied when the plaintiff shows that there was practically “no opportunity for the content or character of the charged bottle to have been changed from the time it left defendant’s hands unti' it exploded.” In the above cited cases we adopted the view that the doctrine of res ipsa loquitur was applicable to the facts in each case, even though at the time of the alleged injury tlie bottle was not strictly under the exclusive control of the defendant bottler. There was evidence presented in these cases that, after delivery by the defendant bottler and while in the retailer’s possession, no one had disturbed or mishandled the offending bottle. In the case at bar, the appellee, while attempting to dust some cans on the top shelf of a soft drink self-service display counter, owned and serviced by the appellant and other bottlers, removed a six-pack of Royal Crown Cola from the bottom shelf and placed it on the floor. He accidentally tipped it over on the floor on its side as he stepped upon the shelf. No bottle fell from the carton. After cleaning the upper shelf, appellee attempted to raise the carton to an upright position by grasping the top of one of the bottles in the carton and pulling up on it. At that instant the bottle exploded, injuring appellee’s eye. The bottle fragments were reassembled later and introduced in evidence as proof that the explosion resulted from a crack in the neck of the bottle caused by a blow from a hard, round object. The bottle in question was transported from Little Rock to Bryant on an open truck stocked with cartons or cases of soft drinks. The offending bottle was on the premises for at least three full business days before the accident, and possibly longer since deliveries were made each week. Customers would serve themselves and handle soft drinks individually and in cartons. Sometimes six-bottle cartons would contain a mixture or variety of soft drinks. The carton in question contained only Royal Crown Cola bottles. Appellant and other soft drink companies restocked the shelves of the display counter as needed. Appellee testified that before his injury he had at no time handled the bottle nor worked in the soft drink section. He had started to work there a few days previously. His employer, who was the store owner, and his -wife ’were present when the incident occurred. They testified that from the time of the delivery until the accident they had done nothing to disturb or damage the bottle in any manner. An expert in analysis of bottle failures testified that lie found three factors which contributed to the explosion. First, there was an initial blow by a hard, round object, causing a partial cracking through the neck of the bottle. The object could have been another bottle, but could not have been the metal base of a grocery cart nor the base of a can. The examination revealed that the hardness of the object which struck the bottle would have to be equivalent to the hardness of glass. The impact could not have occurred when appellee upset the bottles. Second, there was internal pressure due to agitation of the contents, and third, there was the stress of the leverage which was applied when appellee attempted to set the carton upright. This was “the straw that broke the camel’s back.” Appellant points to the fact that there was ample opportunity for the character of the bottle to have been changed after leaving the appellant’s possession, especially since customers were allowed to handle and mix soft drinks as desired. However, in the case at bar there was evidence of more than the mere possibility of customer mishandling and abuse. There was undisputed evidence that bottles were abused by the customers. The store owner’s wife (appellee’s witness), on cross-examination, testified: “Q. Was that the first noise you heard, the thump and the glass? A. Yes, sir. Q. When you heard that, did you'know what had happened? A. Yes. Q. From the sound of it? A. From the sound of it. You get used to those things in the grocery store. Q. That had happened on previous occasions, people knocking drinks off shelves? A. I have heard them explode before. Some has been dropped. Some has been dropped off the bottom of the shopping carts.” In view of this uncontradicted evidence, we cannot say that in the case at bar the doctrine of res ipsa loquitur is applicable. Appellant relies upon Weggeman v. Seven-Up Bottling Co. of Watertown, 5 Wis, 2d 503, 93 N.W. 2d 467 (1958); Ferrell v. Royal Crown Bottling Co. of Charleston, 144 W. Va. 465, 109 S.E. 2d 489 (1959); and Escola v. Coca-Cola Bottling Co. of Fresno, 24 Cal. 2d 453, 150 P. 2d 436 (1944), where the possibility of “customer mishandling” was satisfactorily answered. In Weggeman the court said: “ * * * It is not essential that the possibility of other causes of the accident be altogether eliminated, but only that their likelihood be so reduced that the greater probability lies at defendant’s door. The evidence must afford a rational basis for concluding that the cause of the accident was probably such that the defendant would be responsible for any negligence connected with it.” In Escola the court said: “ * * * It is not necessary, of course, that plaintiff eliminate every remote possibility of injury to the bottle after defendant lost control, and the requirement is satisfied if there is evidence permitting a reasonable inference that it was not accessible to extraneous harmful forces and that it was carefully handled by plaintiff or any third person who may have moved or touched it.” Also, see Prosser, Law of Torts (2d ed. p. 205), where he states: * * Again, however, the evidence need not ■ be conclusive, and only enough is required to permit a finding as to the greater probability.” In the case at bar there is undisputed evidence of customer abuse. Therefore, in view of this, we cannot say that the possibilities of the cause of this accident are so reduced that the greater probability of the cause lies at the defendant’s door. Further, we are of the view that the appellee’s evidence is insufficient to establish a submissible issue based upon the allegation of warranty. Appellee urges that we also consider that he should prevail on the issue of strict liability. This issue was first raised on appeal and, therefore, we do not reach it in this case. Reversed and dismissed. Harris, C.J. and Jones, J., dissent.