Ferrell v. Royal Crown Bottling Co. of Charleston

Given, President: Plaintiff, Jean C. Ferrell, instituted her action of trespass on the case in the Court of Common Pleas of Ka-nawha County, against The Royal Crown Bottling Company of Charleston, West Virginia, for damages alleged to — 466 — have resulted from an injury occasioned by an exploding bottle containing a carbonated beverage, manufactured and bottled by defendant. A jury returned a verdict in favor of plaintiff, in the amount of fifteen thousand dollars. The Circuit Court of Kanawha County, on writ of error to the judgment entered on the verdict, on the theory that the res ipsa loquitur rule was inapplicable to the facts proved, reversed the judgment of the Court of Common Pleas of Kanawha County, set aside the verdict and granted defendant a new trial. On Monday, September 17, 1956, about 5:00 P.M., plaintiff went to the K T Market, a self-service market, obtained a “push” basket, and proceeded to the place in the market where carbonated drinks were stacked on a shelf. She selected a. carton of six bottles of Royal Crown Cola and placed it in the push basket. Almost immediately she “heard a fizzing noise”, and was struck by flying glass from a Royal Crown exploded bottle. The exploded bottle came from a carton remaining on the shelf. Plaintiff had never touched the carton which contained the exploded bottle, or the bottle itself. After the explosion there was on the shelf a carton which contained only five bottles of Royal Crown Cola. Controlling or essential facts relied on by plaintiff to raise an inference of negligence on the part of defendant are not in dispute, or are so definitely supported by a clear preponderance of the evidence that a court would not be justified in disturbing the verdict on such ground. The defendant manufactured, bottled and delivered the soft drink to the K T Market and placed it on the shelf reserved by the market for that particular type of soft drink. The bottle was contained in a paper carton containing six bottles. The delivery was made by the truck driver of defendant, almost certainly, on the Monday afternoon on which the bottle exploded. While there existed a possibility that some employee of the market, or some customer, handled or mishandled the bottle which exploded, or the carton in which it was delivered, there is no proof, indeed no attempt to prove, that the bottle or — 467 — the carton was probably handled or mishandled by any such person. The evidence, we think, excludes any such probability. There is no contention by plaintiff, however, that the actual control of the particular bottle had not passed from defendant before the time of the explosion. On behalf of defendant, it is shown that Royal Crown Cola is manufactured and bottled by use of “standard makes of machines and they are modern machines”; that bottles re-used are “mechanically brushed” inside, and thoroughly washed and cleaned in a manner approved by the industry; and that the bottles are carefully and thoroughly inspected twice, by experienced persons using proper lights, for the purpose of discovering and eliminating any defective bottle, or any bottle not properly filled, before placing them on the market. No evidence related to the specific bottle which exploded, and defendant admits that some defective bottles may get past the inspectors. Part of the ingredients of the soft drink are “Water and CCL gas”. Glass from the exploding bottle severed a tendon of plaintiff’s right foot, “the tibialis anticus”, and, because of infection, second surgery was necessarily performed. Plaintiff’s right foot and leg were kept in a plaster cast approximately six weeks, and she used crutches for a considerable period of time thereafter. A permanent “residual scar” resulting from the surgery was exhibited to the jury. That plaintiff suffered much pain appears not to be questioned. The physician who performed the last surgery testified that, in his opinion, the restriction in the movement of the foot, resulting from the injury to the tendon, would return to normal, “I will say in years”. There is no contention to the effect that the amount of the verdict returned by the jury was excessive. The contention of plaintiff is that though physical control of the instrumentality which caused the injury had passed from the defendant prior to the time of the explosion, the rule of res ipsa loquitur applies, since plaintiff established by proof that negligence of persons who — 468 — subsequently had, or may have had, control of the bottle, did not proximately contribute to the cause of the explosion, and that such rule represents the view of a great majority of the courts, and was followed by this Court in Rutherford v. Huntington Coca-Cola Bottling Co., 142 W. Va. 681, 97 S. E. 2d 803. Defendant concedes that the so called “modern view” contended for by plaintiff has been “adopted in West Virginia”, but insists that plaintiff has not, in her evidence, negatived “all reasonable inferences of negligence, save that of the defendant”. In Blevins v. Raleigh Coca-Cola Bottling Works, 121 W. Va. 427, 3 S. E. 2d 627, this Court stated: “In so far as the proof of negligence is concerned, it is now the established rule in this state affecting the preparation and distribution of foodstuffs that the rule of res ipsa loquitur applies between the packer and the ultimate consumer, and that it rests with the jury to determine whether the packer-defendant’s proof of a method and system showing the exercise of extraordinary care, but not relating to the specific article consumption of which it is contended injured the plaintiff, is insufficient to overcome the prima facie presumption [inference] of negligence. Webb v. Brown & Williamson Tobacco Co., 121 W. Va. 115, 2 S. E. (2d) 898; Parr v. Coca-Cola Bottling Works, 121 W. Va. 314, 3 S. E. (2d) 499.” In that case and the cases cited therein, in the Rutherford case and in the Holley v. Purity Baking Company case, 128 W. Va. 531, 37 S. E. 2d 729, 167 A.L.R. 648, alleged liabilities were founded on the presence in the original packages of deleterious or harmful substances. In the instant case, and in Keffer v. Logan Coca-Cola Bottling Works, 141 W. Va. 839, 93 S. E. 2d 225, the injuries complained of resulted from exploding bottles. The factual differences are not controlling. In each type of case the question involved related to whether exclusive control of the bottle by the bottler remained an essential element of proof by the plaintiff, before he is entitled to have the benefit of the inference arising from the application of the res ipsa loquitur rule. — 469 — In the Keffer case, after carefully pointing out the insufficiency of the evidence to permit the application of the res ipsa loquitur rule, the Court stated: “It is unnecessary for this Court in the case at bar to decide whether in some circumstances the doctrine of res ipsa loquitur may be applied in a case for personal injuries allegedly caused by the bursting of a bottle, where, unlike in the case at bar, there was no intervening cause shown to have caused the bottle to burst * * In the Rutherford case the rule, of res ipsa loquitur was applied, though control of the bottle had passed from defendant, after the Court had carefully pointed out that “* * * There is no evidence in this case from which the jury could conclude that it was more likely that some evilly disposed person took the cap off of the bottle of coca-cola, from which the plaintiff later drank, inserted some small particles of glass therein, and carefully replaced the cap while the bottle sat near the vending machine, than that such procedure could have been effected after the bottles passed the final inspection at the defendant’s plant, and before they were delivered to the Borden Company * * The Court, in that case, further stated: “* * * A comprehensive review of the cases in other jurisdictions upon this question indicates that the views herein expressed represent the great weight of authority, although there are cases to the contrary. No attempt will be made to refer to specific cases, but believing that it might be helpful, the following general citations are pertinent: 14 Va. and W. Va. Dig., Negl. 121 (2, 3) ; 9 Va. and W. Va. Dig., Food § 25; 13 M J., Negl. § 25; 38 Am. Jur., Negl. § 295; 22 Am. Jur., Food § 117; 4 A.L.R. 1560; Windram Mfg. Co. v. Boston Blacking Co., 239 Mass. 123, 131 N. E. 454, 17 A.L.R. 672; Heckel v. Ford Motor Co., 101 N.J.L. 385, 128 A. 242, 39 A.L.R. 992; 47 A.L.R. 153; 63 A.L.R. 340; Baxter v. Ford Motor Co., 168 Wash. 456, 12 P. 2d 409, 88 A.L.R. 527; McSpedon v. Kunz, 271 N. Y. 131, 2 N. E. 2d 513, 105 A.L.R. 1502; Chanin v. Chevrolet Motor Co., 7 Cir., 89 F. 2d 889, 111 A.L.R. 1239; Johnson v. Stoddard, 310 Mass. 232, 37 N. E. 2d 505, 140 A.L.R. 191; 142 A.L.R. — 470 — 1490; 20 Minn. L. Rev. 241; 25 Va. L. Rev. 246; 40 Va. L. Rev. 951.” The Court, in the Rutherford case, having clearly followed the rule representing “the great weight of authority”, should not now question that rule. It must not be concluded, however, that the holding extends to cases like Cunningham v. Parkersburg Coca-Cola Bottling Co., 137 W. Va. 827, 74 S. E. 2d 409. In such cases the rule requiring proof of exclusive control is applicable. Neither can it be concluded that, as to a package of food or a bottle containing a deleterious or harmful substance, or as to an exploded bottle, that the packer or the bottler is precluded as to any meritorious defense. It does afford a plaintiff a method whereby he may obtain jury consideration of a set of facts permitting recovery where exclusive control of the package or bottle has passed to another person, upon proof that no probability existed that negligence of any person other than the defendant contributed proximately to the injury. The inference arising from proof of a proper set of facts is merely a permissive inference. There is, perhaps, more logic in applying the rule in the case of an exploded bottle than where a foreign substance, say broken glass, is found in the bottle. In the case of an exploded bottle, there can hardly arise even a suspicion that the person injured could have committed any act which would have injured the inside of the bottle, or increased the usual inside pressure thereof. The res ipsa loquitur rule came into existence for the purpose of affording a plaintiff a method of establishing a prima facie case not otherwise provable. There existed sound reason for the creation of the rule, and the same reasoning, as followed in the Rutherford case, under present day methods of packaging food and bottling carbonated beverages, justifies the variation of the rule. Those who bottle and deliver carbonated drinks are aware of the ever potential danger to an ultimate user by the explosion of an improperly designed or defective bottle, or a bottle with too great inside pressure. They also have knowledge that the bottle will reach the hands of the consumer without further inspection. The consumer has — 471 — little or no knowledge of the potential danger and, in most cases, at least, no way of discovering such danger. In such circumstances, the bottler can not complain that too great a burden is placed on him by the variation of the rule. We are further of the opinion that the proof of plaintiff was sufficient, at least for the jury determination, to exclude any probability that the explosion of the bottle was caused, or partly caused, by any negligence or improper act of any person • who may have handled the bottle subsequent to its delivery by defendant. In fact, there is no proof worthy of jury consideration to the effect that the bottle, or the carton in which it was placed, was handled by any person subsequent to its delivery by the driver of defendant. We have carefully examined the other errors complained of by defendant as justifying the action of the circuit court in setting aside the verdict. We believe them sufficiently answered by what has been said, or that they are without substantial merit. The judgment of the circuit court complained of is reversed, the verdict of the jury and the judgment of the Court of Common Pleas of Kanawha County are reinstated, and the case is remanded. Reversed and remanded.