118 P.2d 601 | Kan. | 1941
The opinion of the court was delivered by
This was an action for damages for personal injuries sustained by plaintiff when a bottle of Pepsi-Cola exploded in her hand as she was putting it in the icebox. Upon a jury trial the jurors were unable to agree. Defendant has appealed from an order overruling its demurrer to plaintiff’s evidence.
Briefly stated, and so far as is pertinent here, it was alleged that defendant is engaged in the business of manufacturing and selling various bottled beverages, among others a carbonated beverage under the trade name of “Pepsi-Cola,” commonly referred to as a soft drink, extensively advertised and quite generally sold; that on April 13, 1940, and for some time prior thereto, plaintiff and her husband were jointly engaged in operating a small restaurant at a designated location in Wichita; that she assisted her husband in the work of operating the restaurant and waiting upon customers; that they kept for sale various beverages, including the one sold under the trade name of “Pepsi-Cola,” which defendant manufactured, bottled and sold; that about 5:30 o’clock on that date one Harley Glick, a duly authorized agent, servant and employee of defendant, in response to
Evidence on plaintiff’s behalf was in substantial accord with the allegations of her petition. Defendant’s agent Glick, or his helper, had brought a case of Pepsi-Cola into the restaurant and set it down on the floor only a few feet from the icebox. Glick was eating a light-lunch and plaintiff’s husband was paying him for the Pepsi-Cola. Plaintiff went to the case of Pepsi-Cola and took out four bottles, two in each hand, taking them by the tops, with a finger between the two bottles. She stepped over to the icebox. This was an oblong box, perhaps three feet high, with a compartment for ice in one end and water over the bottom. It was used for cooling bottled beverages, and also bottled milk, even half-pint bottles, and the water was not high enough to come over the top of any of the bottles. The top had two sliding doors, one toward each end, and a space upon which articles might be placed. Plaintiff set the four bottles on this space, slid one of the doors back, took the bottles, one at a time, and leaned over to place them in the icebox, upright. She had placed three of the bottles in the box and had taken hold of the fourth one,
It is stipulated that the highest temperature in Wichita that day was 86 degrees and was 72 at the time of plaintiff’s injury.
The brief of appellant points out that plaintiff in her petition charged defendant generally with negligence and not with specific acts of negligence, and that evidence on behalf of plaintiff related to the facts and circumstances of the injury and not to specific acts of negligence of defendant, and counsel say:
“Apparently the trial court in overruling the demurrer was of the opinion that the doctrine of res ipsa loquitur should be applied.”
Appellant contends that was error. In Mayes v. Kansas City Power & Light Co., 121 Kan. 648, 249 Pac. 599, we had occasion to consider the meaning of the phrase “res ipsa loquitur.” It was there said:
“Literally translated the phrase means ‘the thing itself speaks,’ or ‘the thing speaks for itself.’ It is a term used in a limited class of negligence cases, referring to the method of proof of general negligence (as distinct from proof of specific negligent acts or omissions), by proving the injury, together with the accompanying circumstances, from which it may be inferred, and is reasonable to infer, that the casualty happened only because of some negligence of defendant.” (p. 650.)
And the second paragraph of the' syllabus reads:
“In actions for damages because of defendant’s negligence, the negligence of defendant is never presumed, but must be established by proof. The cases in which res ipsa loquitur is applicable are no exceptions to this rule, but in such cases proof of negligence is made, if at all, by circumstantial evidence; that is, the proof of the casualty and of the surrounding circumstances is such as to leave no reasonable conclusion to be drawn therefrom other than that the casualty happened because of the negligence of the defendant.”
Appellant quotes Wigmore on Evidence, § 2509 (2d and 3d eds.), where after giving the history of the doctrine expressed by the phrase “res ipsa loquitur,” and noting its rapidly increasing use and its application to a great variety of situations, the author expresses his views as follows:
“What the final accepted shape of the rule will be can hardly be predicted. But the following considerations ought to limit it: (1) The apparatus must be such that in the ordinary instance no injurious operation is to be expected unless from a careless construction, inspection, or user; (2) Both inspection and user must have been at the time of the injury in the control of the party charged; (3) The injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party injured. It may be added that the particular force and justice of the rule, regarded as a presumption throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person.”
Overlooking the last sentence of this quotation, appellant emphasizes the phrase numbered (2) and argues the doctrine cannot apply here because in this case the bottle of Pepsi-Cola, when it exploded, had passed from the possession and control of defendant into the actual possession and control of plaintiff. The point is not well taken. In Benkendorfer v. Garrett (Tex. Civ. App.), 143 S. W. 2d 1020, two days after a case of “Dr. Pepper” was delivered to a retail dealer he took a bottle from the case to put it in a beverage cooler when the bottle exploded, causing him injury. In sustaining a judgment for plaintiff against the manufacturer and distributor of the beverage the court recognized the general rule that in the application
“The application of the res ipsa loquitur doctrine is not limited to cases where the injurious agency is in the control of the defendant at the time of the injury, but it is sufficient if it appears that such agency was in defendant’s control at the time of the negligent act which caused the injury.”
In Bottling Co. v. Sindell, 140 Md. 488, 117 Atl. 66, it was said:
“There is nothing, ... in the reason for the rule or in the principles upon which it is founded to support the contention that its application is limited to cases where the injurious agency is in the control of the defendant at the time of the injury, but it is sufficient if it appears that such agency was in his control at the time of the negligent act which caused the injury.”
See, also, Tayer v. York Ice Mach. Corp., 342 Mo. 912, 119 S. W. 2d 240; Stolle v. Anheuser-Busch, 307 Mo. 520, 271 S. W. 497; Payne v. Rome Coca-Cola Co., 10 Ga. App. 762, 73 S. E. 1087; Macon Coca-Cola Bottling Co. v. Crane, 55 Ga. App. 573, 190 S. E. 879; Lanza v. De Ridder Coca-Cola Bottling Co. (La. App.), 3 So. 2d 217; Macres v. Coca-Cola Bottling Co., 290 Mich. 567, 287 N. W. 922; Winfree v. Coca-Cola Bottling Works, 19 Tenn. App. 144, 83 S. W. 2d 903; Rozumailski v. Phila. Coca-Cola B. Co., Aplnt., 296 Pa. 114, 145 Atl. 700; Healey v. Trodd, 122 N. J. L. 603, 7 Atl. 2d 640; 124 N. J. L. 64, 11 Atl. 2d 88.
Appellant argues that the rule of res ipsa loquitur does not apply in a case involving the breaking or exploding of an ordinary beverage bottle and relies heavily upon the language of the annotator in 4 A. L. R. 1094, as follows:
“The decided weight of authority is to the effect that the rule res ipsa loquitur is not applicable to the breaking, bursting, or exploding of a container in which a commodity ordinarily harmless is sold.”
Subsequent annotations (39 A. L. R. 1006 and 56 A. L. R. 593), and cases decided subsequent to the compilation of those annotations, a few of which are cited above and others are cited in them, tend to show the weight of authority to be that the rule does apply to the explosion of a bottle of carbonated beverage. Breakage of a bottle, of course, may occur from external force. Even the early Kentucky cases cited by appellant are greatly weakened, if not overthrown, by the later case of Coca-Cola Bottling Works v. Shelton, 214 Ky. 118, 282 S. W. 778. There a judgment for plaintiff was sustained where other explosions were shown, and the case of Payne
The divergent views found in the opinions are well illustrated by Payne v. Rome Coca-Cola Co., supra, and Slack v. Premier-Pabst Corp., 40 Del. 97, 5 Atl. 2d 516.
In the Payne case, after stating the facts, the court said:
“If the plaintiff can recover at all, he can do so only upon an application of the maxim res ipsa loquitur. The occurrence was unusual. Bottles filled with a harmless and refreshing beverage do not ordinarily explode. When they do, an inference of negligence somewhere and in somebody may arise. There is no presumption of law, but merely an inference of fact. Negligence is not necessarily t.o be inferred merely from the act itself, but the tribunal designated by the law to decide the issues of fact may infer negligence from the happening of an event so unusual. . . . Under the proved facts, the occurrence speaks of the defendant’s negligence, and its alone. The inference is that it was negligent in the manner alleged in the petition. It charged the bottle with carbonic acid gas, it put together the constituent elements of the beverage, it. manufactured or procured the bottle to hold these elements, and it put the bottle in circulation, with an invitation to the public to use the contents as a harmless and refreshing beverage. The attempt to use it caused the plaintiff the' loss of his eye. Somebody is responsible, and the inference is that the defendant is the guilty party.” (Citing cases.) (pp. 763, 765.)
In the Slack case plaintiff’s eye was injured by glass from the bottle of beer which exploded while he was serving customers. He sued the manufacturer and distributor. The court sustained a demurrer to his petition and in doing so 'used the following language:
“Bottled beer is a commodity ordinarily harmless. ... It is common knowledge that bottled beverages are transported and handled with abandon. It will not do, we think, to say that, as the bottle exploded, inferentially someone was negligent; nor, by a process of exclusion, to permit an inference of negligence to fall upon the bottler after the commodity has passed out of his control. The bottler of carbonated or fermented beverages is not an insurer. There is room in cases such as this for the recognition of the doctrine of unavoidable accident. The existence of negligence is not an ineluctable conclusion.” (p. 104.)
Were we compelled to choose between the reasoning of these two cases we would choose that of the Payne case. It is true the bottlers
The doctrine of res ipsa loquitur is frequently applied in cases of injury resulting from an explosion. (20 Am. Jur. 215, 22 Am. Jur. 212, 214.)
After the jury had disagreed, defendant filed a motion for judgment. This was overruled. Appellant complains of that ruling and argues that the showing made by defendant established due care on its part as a matter of law. Passing the thought that the ruling on this motion was not an appealable order, the argument of appellant lacks merit. The procedure outlined in our own case of Mayes v. Kansas City Power & Light Co., supra, was properly followed by the trial court.
The judgment of the trial court is affirmed.