Plaintiff Patricia Rose Beuttenmuller, twenty-six months old at the time of her injury and approximately seven years old at trial, brought suit against The Great Atlantic and Pacific Tea Company, Inc., and Vess Bottling Company of St. Louis for injuries sustained when a bottle of Vess 3-V Cola supposedly exploded in an A & P Store. The amount of her prayer was $25,000. In a second count her father sought to recover $2000 for his medical expense, past and future. The injury occurred on Monday, October
7,
1963. When we use the term “plaintiff” in the singular we are referring to the child. The trial court sustained a motion of A & P (as we shall hereafter designate it) to dismiss both counts as to it on the ground that no claim was stated upon which relief could be granted. Plaintiffs appealed, and this court dismissed the appeal as premature since
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the litigation had not been disposed of as to all parties. Beuttenmuller v. Vess Bottling Co. of St. Louis, et al., Mo.,
It will be necessary to set out the essential facts and also the gist of the pleadings. The A & P Store at 9751 Manchester Road in St. Louis County was a supermarket where customers had access to all the merchandise and served themselves. In a front corner of the store (from the confusing descriptions we cannot tell which) there was a display rack for soft drinks of various kinds, including Vess 3-V Cola; the rack seems to have consisted of 5 or 6 shelves. Two photographs were received to show the general location, but they were very poorly explained. We gather that this display rack adjoined, or was very close to, an office or “cage” provided for the cashier and manager. On the Monday morning in question Doris Beuttenmuller, plaintiff’s mother, went to this store with plaintiff and another daughter who was 4 years old; the mother selected a few items, put them in her cart, and walked to the cashier’s cage where she cashed a check and put the money in her handbag. She noticed at this time that there were “quite a few” bottles on the floor along the front of the display and also along the wall of the “cage”; some of these were in cartons and some were loose. She testified that most of the loose ones were along the wall by the manager’s cage. After disposing of her money, the mother took plaintiff by the hand, took hold of her cart and moved over to the bottle display where she reached up for a bottle of Vess Cola; at this instant plaintiff pulled away and the mother heard her feet “moving” on the floor; as the mother again reached for the bottle of cola she heard a noise which proved to be the breaking or explosion of a bottle of Vess Cola. The mother'described it as an “explosion,” the court struck out that statement as a conclusion, and plaintiffs’ counsel made an offer of proof to which an objection was sustained. Much further colloquy occurred on this subject during the continued testimony of the mother. The court took the position that the mother admittedly did not see any explosion and that some foundation would be necessary. Continuing, the mother testified that she had previously heard bottles break, and twice more she referred to this occurrence as an explosion, with persistent objections and motions to strike. The court finally ruled, if we properly understand it, that the term would merely be considered as her designation of what the noise sounded like to her and not as tending to establish the fact that there was an explosion; and hence, that such testimony, per se, would not be sufficient to take the case to the jury. Defendant’s motion for a mistrial was denied. The mother further testified, that there was a “loud, terrifying, shattering sound,” and that it was “completely different” from the mere breaking of glass; she also described the sound as “unusually loud.” Hearing the noise, the mother turned immediately, took two steps and grabbed the child. She testified: that there was “shattered glass” and brown liquid on the floor around plaintiff, scattered over an “area” of 4 or 5 feet; that the glass was mostly in small pieces, though the neck of the bottle was intact; that plaintiff was standing about 18 inches from the “cage” and about 6 inches from bottles on the floor. The child was bleeding from the arm; the manager came out immediately, first aid was administered and plaintiff was taken to a hospital where an operation was performed on her arm later and a cast applied. We need’ not consider the extent of the injury, but there was evidence of a substantial injury to the elbow (apparently involving a nerve), with a rather slow but generally good recovery. The mother further testified: that no other cus *522 tomer had been nearby for several minutes; that she only saw 3 other customers in the store; that she did not see plaintiff pick up any bottle; that plaintiff was behind her when the incident took place; that plaintiff had nothing in her hand when she first turned and saw her. The manager fixed the position of the child (when he first saw her) as considerably further out on the floor, probably several feet from either wall; this was done by marking one of the photographs.
Employees of the A & P mopped up the debris from the floor and threw away all the fragments. Nothing was available as an exhibit or for examination. The assistant manager of the store regularly on duty five days a week, corroborated in large part by the manager, testified: that the Vess delivery truck called every Monday morning; that the driver would check to see what was needed and made all deliveries through the back door; if anything was needed on the display rack he wheeled it to that point and set it out on the floor, apparently in wooden cases; some employee of the store then put the cartons of bottles on the shelves of the display rack; any additional material was put in the basement in wooden cases, being taken there on an electrical chain conveyor which ran beside the steps; in the basement they were taken off by hand and stacked; when needed for the display the material was taken up and handled in the same way; that there was no unusual jerking on the conveyor; that the temperature both in the basement and in the store was regulated automatically and kept at approximately 70 degrees; (one witness thought the basement might be a little cooler); that all the bottled soft drinks were handled by hand and no mechanical equipment was used except the conveyor; that it was not practical to tell how long any individual bottle of cola had been in the store but that an “order” was generally used up in a week or two, possibly three; that it was not possible to say whether there had been an actual delivery on that (Monday) morning; that customers often moved bottles around and frequently left them on the floor; that the store was always swept out before it was closed on Saturday night, and that any bottles then on the floor would have been put on the shelves. The assistant manager had “ordered” soda for the store for eleven years and was, in part, in charge of that business. The manager of the store (from the “cage”) heard the noise of the bottle, which he described as “like dropping a bottle on the floor”; he testified, after some refreshing from his deposition, and with some slight equivocation, that the glass was all in small pieces except the neck of the bottle; he corroborated the fact that glass and liquid were spread over an area of 4]/o to 5 feet in diameter on the floor around the plaintiff.
Plaintiff offered the answers of Vess to certain interrogatories, the substance of which answers were as follows: that Vess 3-V Cola contained carbonated water, sugar, caramel color and a “combination of about IS flavoring ingredients”; that the bottles were washed and sterilized and filled with the product automatically; that the syrup (containing the above ingredients) was pumped into a blender mixed with water, pumped into a carbonater, cooled to a temperature of about 35 degrees, and that CO2 gas was then introduced into the mixture; thereafter it was pumped to a filling apparatus where the bottles were automatically filled and capped; that the defendant did bottle the cola at the time in question; that, as aforesaid, CO2. gas was used, which is also described as carbon dioxide; that automatic controls regulated the temperature of the water and the pressure of the gas during the introduction of the gas and that the gas content was also checked manually by the operator of the filling machine.
In their petition the plaintiffs, aside from formal facts, alleged: that plaintiff was injured by a bottle which “popped and exploded” in the A & P Store; that she and her mother were invitees in the store; that plaintiff was standing near some bot- *523 ties on the floor which were loose and not in containers but were negligently permitted by A & P to be and remain on the floor; that suddenly one of said bottles, being one of Vess 3-V Cola, “popped, exploded and broke” spreading glass and injuring plaintiff in the left arm and left leg; that Vess bottled the product and had exclusive possession and control until it was sold to A & P; that the bottle “was properly and carefully handled” by A & P “except for the fact that it was caused, suffered and permitted” by the defendant A & P to be and remain in the open on the floor in the corner of their said store and “not placed in a carton or container”; that such fact had nothing to do with the explosion itself, which “was not caused or contributed to by the fault, negligence, or improper handling” of said bottle by anyone after leaving Vess; that the bottle contained a carbonated beverage manufactured and bottled by Vess and that it contained carbon dioxide which exercises an exploding pressure; that the explosion would not have occurred if due care had been used by Vess, and that it was an unusual and extraordinary occurrence. As to the A & P, plaintiffs further alleged: that it negligently caused and permitted the bottle (as already stated) to be and remain on the floor, not in a carton or container, and that as a result thereof, when the bottle did “pop or explode,” pieces of the glass traveled “from some distance” before striking plaintiff; that if it had been in a carton or container, the glass “would have been stopped” or its flight “greatly diminished by the carton or container”; further, that A & P negligently failed to place the bottle in a carton or container although it had sufficient time to have done so; that it negligently failed to warn plaintiff and others that the bottles were on the floor loose, when it knew or should have known of the danger (as stated above).
Defendant A & P filed its motion to dismiss both counts of the petition upon the ground that they did not state claims upon which relief could be granted. As already stated, that motion was sustained by an order which constituted a final judgment. Defendant Vess answered each count, admitting the formal allegations which applied to it and denying all substantive allegations.
As to Vess, plaintiffs pleaded only general negligence, but the sufficiency of the petition was not questioned by defendant’s pleadings. We shall first consider the liability of A & P and the propriety of the judgment in its favor. The one point as made by appellants is probably too indefinite to comply with our Rule 83.05(e) but we have determined to consider the sufficiency of the petition. When the petition is analyzed, it is seen that the only causative negligence claimed against A & P is that it failed to put the bottle (or bottles) into a “carton or container” although it had sufficient time to do so; in fact plaintiffs alleged that otherwise the bottle was carefully handled by A & P, and that the explosion was not caused or contributed to by any negligence of A & P. So far as the petition is concerned, it would appear that A & P would in nowise have been negligent if it had merely put the offending bottle in a carton, wherever it was, and that defendant was not charged with negligence by reason of the fact that the bottle was on the floor. We all know what soft drink cartons essentially are; in fact the Vess cartons are rather vividly shown in Exhibits 1 and 2. They are of paper, and at their highest point cover less than one-half of the height of the bottle. We have concluded that the allegation that plaintiff’s injury was caused by the bottle not being in a carton (on the floor or on the shelf), rests upon pure speculation, and that this charge of negligence does not state a claim, either as negligence or as a legal causative element. We therefore affirm the trial court’s ruling as to the A & P.
No cases are cited which are directly applicable on this feature of the case. However, in Sweeney v. Blue Anchor Beverage Co., 325 Pa, 216,
At the outset of our consideration of the liability of defendant Vess we are met with an extended contention of error and much argument concerning interrogatories. The points of alleged error now made in the brief are: (1) in not requiring Vess to state the “exact ingredients” of its cola; (2) in not requiring it to state how much CO2 gas was “supposedly introduced” into the mixture and into “the bottle”; and (3) in not requiring it to state whether CO2 gas had “any explosive properties when compressed in a confined area.” It will be necessary to review the transcript briefly, but we shall confine our review to these specific points. On February 12, 1968, plaintiffs filed interrogatories asking, among other matters not now material, the exact contents (later amended to “exact ingredients”) of Vess 3-V Cola. An objection to this interrogatory was overruled and Vess answered that it contained “carbonated water, sugar, caramel color and a combination of about fifteen flavoring ingredients.” In the same group of answers it also stated that CO2 or carbon dioxide was the gas introduced into the mixture and the bottles, and the process was described in considerable detail. On March 6, 1968, plaintiffs filed additional interrogatories asking, among other things: (1) “how much CO2 gas was supposedly introduced into the mixture; (2) into the bottle; and (5) “whether or not CO2 gas has any explosive properties when compressed in a confined area.” On the same day plaintiffs filed a motion to strike Vess’s answer stating the ingredients, asserting in effect that the answer was meaningless, and to require a more specific answer; the motion also sought relief as to other answers not involved in plaintiffs’ presently *525 briefed points. Defendant Vess objected to the additional interrogatories (1), (2) and (5) ; to the first two as repetitions, argumentative and ambiguous, and as an attempt to elicit a trade secret; to No. 5, as calling for an opinion or conclusion and also because the term — “confined area”— had no definite or readily ascertainable meaning. On March 15, 1968, the court made the following order, which is here quoted in full: “ ‘Defendant’s obj ections to plaintiffs’ additional interrogatories No. 1 and No. 2 argued, heard and sustained as to form. Defendant’s objection to plaintiffs’ additional interrogatory No. 5 argued, heard and sustained.’ ” There is no order ruling on plaintiffs’ motion mentioned above; correspondence placed in the file after the oral argument indicates that plaintiffs’ counsel claims that the motion was submitted and in fact ruled. We necessarily follow the transcript.
It is obvious that the court sustained objections to the
form
of additional interrogatories 1 and 2 because they asked for the amount of gas “supposedly” introduced into the mixture and the bottle. The term carries a connotation of speculation and it is argumentative. Plaintiffs thereafter made no attempt to correct the form of these interrogatories or to amend them, (as they might have done, State ex rel. Williams v. Vardeman, Mo.App.,
Finally, we reach the merits of the court’s ruling in directing a verdict for defendant Vess. The question really boils down to two points: (1) was there substantial evidence of an explosion? (2) if so, was there substantial evidence tending to negative independent causes arising after the bottle left Vess’s possession? The trial court ruled that the mother’s statements that she heard an “explosion” would not be considered as substantial evidence that there
was
an explosion, but merely as a statement that she heard what
sounded
to her like an explosion. This is a rather tenuous distinction. In so ruling the court seems to have relied almost entirely upon the opinion in Abernathy v. Coca-Cola Bottling Co., Mo.App.,
There are few phases of the law of evidence where there has been more controversy than in that regarding the ad
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missibility of opinions of lay witnesses. Wigmore on Evidence, 3rd Ed. Vol. 7, §§ 1917-1929. That author apparently felt that a lay witness should be permitted to give his opinion if based upon facts within his observation, and he considers the later limitations (to the effect that the inferences from the facts must be drawn by the jury) to be entirely illogical. The opinion of a lay witness is inadmissible unless the fact in issue is “open to the senses.” Aetna Life Ins. Co. of Hartford, Conn. v. Kelley, C.A.8,
At this point we note defendant Vess’s statements in its brief that plaintiffs “would like this Court to assume that the bottle was on a shelf * * There is no evidence to indicate that, and we do not so assume. All the debris was on the floor, the petition alleged that the bottle was loose on the floor and plaintiffs’ counsel at the trial stated (during a colloquy) that the bottle was not on the shelf but on the floor. We do not quite understand defendant’s argument. Plaintiffs have not argued this “assumption” here.
Lastly, was there substantial evidence tending to negative matters of causation occurring after the bottle left Vess’s possession ? We assume that the trial court did not find it necessary to consider this point, for it ruled that there was no substantial evidence of an explosion. It is necessary, however, that we decide the question. Before discussing it specifically
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we note that such suits as this are not strictly res ipsa loquitur, but that the negligence of a bottler may be shown by circumstantial evidence, — i. e., the explosion, plus substantial evidence to indicate that the bottle had not been damaged or negligently handled or subjected to unusual temperature changes after leaving the bottler’s hands. Maybach v. Falstaff Brewing Corp.,
It is rather difficult to find any specific guide from the few Missouri cases which have discussed this subject. In May-bach, supra, the court merely noted that the evidence
tended to show
due care in the manner of keeping and handling the bottles after they left the control of the bottler; there an order granting a new trial was affirmed, but the court declined to rule that a submissible case of negligence had not been made. If it had believed otherwise it would seem that the judgment for defendant would have been reinstated. In Ferrell v. Sikeston Coca-Cola Bottling Co., Mo.App.,
In Abernathy, supra,
The above cases illustrate the contrasting views and the very close line of demarcation. We shall not review the facts on other Missouri cases, as: Kees v. Canada Dry Ginger Ale, Inc., Mo.App.,
We have concluded that there was substantial evidence here tending to negate mishandling of the bottle or bottles after leaving Vess. The question of temperature was adequately covered. The methods of moving the wooden crates to and from the basement on the electric conveyor, and of filling of the display rack were reasonably well covered. The manager and assistant manager both testified; they were apparently in as good a position as anyone in the store to state the actual conditions and testify to the handling. The exhibits, although they do not purport to show the exact condition existing at the time of plaintiff’s injury, show that an orderly arrangement and apparently good shelving was provided for the display. The cola was delivered regularly and apparently disposed of and replaced with reasonable regularity. We note that it would be impossible in such a case as this to trace the travels and history of an individual bottle. The witnesses very naturally admitted that customers handled the bottles and sometimes left bottles on the floor; the employees replaced them from time to time. It would be virtually impossible to prevent this in any self-service market. The evidence here strongly indicates that the bottle which burst was on the floor; no one knows precisely where it was at the time. Clearly plaintiff’s mother had not touched it, and, although defendant argues the fact, it is mere speculation to assume that the plaintiff herself picked it up and dropped it; her mother said that she heard the child’s feet moving almost at the instant of the explosion, which tends to show that the child had not stopped to pick something up. We cannot hold, as a matter of law, that the fact of the bottle being on the floor at some location (whether put there by A & P or by a customer) was in itself negligence; nor can we assume that the fact that it was on the floor caused it to explode. Under all the circumstances we hold that the question of causation, including the issue of subsequent negligent handling, was a fact question for the jury, under proper instructions.
The judgment in favor of The Great Atlantic and Pacific Tea Company, Inc., *529 is affirmed on both counts. The judgment in favor of Vess Bottling Company of St. Louis is reversed on both counts and the cause as to that defendant is remanded for a new trial.
PER CURIAM.
The foregoing opinion by HENRY I. EAGER, Special Commissioner, is adopted as the opinion of the Court.