495 S.W.2d 489 | Mo. Ct. App. | 1973
For personal injuries caused by fragments of an exploding bottle, plaintiff Maurine Edwards sued Springfield Coca-Cola Bottling Company, a corporation (hereinafter “Coke”), and Thrifty Foodliner, Inc. (hereinafter “IGA”). In the course of a three-day jury trial, defendant IGA paid plaintiff $12,500 (which was in addition to voluntary pretrial payments aggregating $4,947.96), whereupon plaintiff voluntarily dismissed as to IGA and executed a covenant not to sue that defendant. Proceeding to a conclusion against defendant Coke, plaintiff had a nine-member jury verdict assessing her damages at $25,000 but deducting therefrom (pursuant to instruction 6) the sum of $17,447.96 (the aggregate amount theretofore paid by IGA), leaving a “net amount due” of $7,552.04, for which judgment was entered against Coke. How
During 1965, IGA opened a supermarket on East Commercial Street in Springfield. Edwin R. Jones, Coke’s “home market manager” for some twenty years, contacted Gene Hudson, who was in charge of “setting up” this IGA supermarket, and explained the services Coke would provide for such stores. In the ensuing conversation, Jones told Hudson that Coke would construct and install, at its expense, the entire display unit (usually referred to in the transcript and sometimes hereinafter as “the soft drink department”) for the display of not only Coke’s products but also those of other soft drink bottlers, if in return IGA would allow Coke to choose the location within the soft drink department where its products would be displayed. With this understanding, Coke constructed and thereafter maintained the display unit in this IGA supermarket.
At the time of plaintiff’s injury, the soft drink department (moved from its initial location) was in the northwest corner of the market, with the display unit along the north wall, facing south, just west of the meat counter. Although we find no definite testimonial statement on this factual detail, the photographic exhibits indicate that the display unit was some 24 feet in length. The base of the display unit, the bottom shelf (perhaps four inches above the floor), both ends, the five intermediate vertical supports (spaced at intervals of about four feet), and the top shelf (approximately 54 inches above the floor) were constructed of ¾" plywood. In the space between the bottom and top plywood shelves, three rows of “spring-away” shelves purchased by Coke from the Spring-Away Company in Chicago were affixed to the back of the display unit, According to the only evidence on this subject, “spring-away” shelves were “commonly and generally used” in soft drink display units not only in Springfield but also “around the country.”
By examination and measurement of the two “spring-away” shelves received as exhibits in the trial court and presented here, we find that each such shelf was ffi/⅛" in width and either 26" or 21" in length
In keeping with the customary practice in supermarkets, a cooler for the dispensa
The products of Coke and four other Springfield bottlers, as well as IGA’s “privately owned and bottled brand,” were displayed in the soft drink department. Of course, each bottler initially stocked its own products, and from time to time thereafter replenished that stock, in a certain designated section of the display unit. Coke’s route salesman or “deliveryman” usually came to this IGA soft drink department three times each week; but, during a week when Coke had a “promotion,” the deliveryman probably would be there four or five times. Coke’s “home market manager” Jones also checked the Coke display “about twice a week.” There was no showing as to when or how frequently any other bottler checked its stock in this display unit. Customers in this, as in other, supermarkets handled and frequently left on the floor single bottles removed from cartons in the display unit; and when, on his visits to this market, Jones found any such bottle on the floor, he always placed it in a carton and never set it individually on any shelf.
Late in the afternoon of Friday, April 4, 1969, plaintiff Mrs. Maurine Edwards, then 59 years of age, went to the IGA supermarket on East Commercial Street, where she had done her “main shopping . for a long time.” When she entered the store that afternoon, she got a shopping cart, picked up some fruit on the north side of the market, and pushing her cart in front of her proceeded west to the soft drink department where she intended to pick up some canned Pepsi. Observing a lady standing in front of that section of “the pop display,” plaintiff stopped behind but “a little to the right of her.” Plaintiff’s account of the accident on direct examination was that “while she (the other lady) was standing there she moved her [right] foot and tipped a bottle over,
With respect to the bottle “tipped” or “kicked” over by the other lady, plaintiff professed no knowledge, and the transcript reveals nothing, other than that it was “a green bottle.”
That the tedious winnowing and recordation of additional factual detail may be minimized, we now turn to the issue submitted by plaintiff in the trial court and to her theory on this appeal. In her second amended petition upon which she proceeded to trial, plaintiff charged specific negligence on the part of both defendants in twelve assignments and additionally on the part of defendant Coke in four more assignments. However, plaintiff’s submission in her verdict-directing instruction 2 (characterized by her counsel as “MAI 31.-01, MAI 22.03, MAI 19.01, and MAI 7.01 modified”) did not track any of the sixteen assignments of negligence in her second amended petition but directed a verdict for plaintiff upon findings that “First” defendant [Coke] built the soft drink department, “Second, the soft drink department did not contain a shelf for the placement of individual bottles of soft drink and was thereby dangerous to persons in the vicinity of its probable use while it was being used in the manner and for the purpose intended,” “Third” defendant knew or by using ordinary care could have known of such dangerous condition,
Thus, plaintiff’s submitted theory was that “the soft drink department did not contain [or, as stated in the “Fifth” hypothesis, did not “provide”'] a shelf for the placement of individual bottles of soft drink.”
On this appeal, plaintiff’s position, as recorded in the “Points Relied On” in her brief, is that: “The trial court incorrectly set aside the jury’s verdict for plaintiff and entered judgment for defendant in accordance with its motion for directed ver-
Under Point A, plaintiff’s counsel cite Restatement of Torts 2d §§ 392, 395, 398; LaGorga v. Kroger Company, 275 F.Supp.373 (W.D.Pa.1967); and Stevens v. Durbin-Durco, Inc., 377 S.W.2d 343 (Mo.1964). After quoting segments of Section 392 of the Restatement supra, pertaining to the potential liability of a supplier of a “Chattel Dangerous for Intended Use” and Section 395, pertaining to the potential liability of a manufacturer for “Negligent Manufacture of Chattel Dangerous Unless Carefully Made,” counsel quote a portion of Section 398 dealing with the potential liability of a manufacturer of a “Chattel Made Under Dangerous Plan or Design,” which they characterize as being “a special application [of Section 395] meaningful to our case,” said Section 398 in its entirety being as follows: “A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel or to be endangered by its probable use for physical harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design.” (Italicized language omitted in brief.)
Proceeding to Stevens v. Durbin-Durco, Inc., supra, in which the injured plaintiff, who sought to recover from the defendant manufacturer on the theory of the latter’s alleged negligence in the design of a “load binder” not equipped with a safety ratchet to prevent a kick-back, was denied recovery as a matter of law, instant plaintiff’s counsel quote the following paragraph from the opinion in that case [377 S.W.2d at 346], however significantly omitting therefrom the meaningful citations here enclosed in brackets: “The manufacturer of a product which is potentially dangerous when applied to its intended use [Tayer v. York Ice Machinery Corp., 342 Mo. 912, 119 S.W.2d 240] or reasonably certain to place life and limb in peril when negligently made [Zesch v. Abrasive Co. of Philadelphia, 353 Mo. 558, 183 S.W.2d 140, 145, 156 A.L.R. 469; McLeod v. Linde Air Products Co., supra (318 Mo. 397, 1 S.W. 2d 122); Jacobs v. Frank Adams Electric Co., Mo.App., 97 S.W.2d 849; Restatement, Law of Torts, § 395] is under a duty to a remote user to exercise ordinary care in its manufacture, and is liable to a remote user injured thereby if the injury results from a latent defect bespeaking lack of ordinary care in making the product. [Zesch v. Abrasive Co. of Philadelphia, supra (abrasive cutting-off wheel exploded) ; McLeod v. Linde Air Products Co., supra (clogged valve in an oxygen tank) ; McCormick v. Lowe & Campbell Athletic Goods Co., 235 Mo.App. 612, 144 S.W.2d 866 (bamboo vaulting pole broke); Jacobs v. Frank Adams Electric Co., supra (electric panel board exploded).]” (Emphasis by plaintiff’s counsel.)
As we have seen, plaintiff’s charge in Point B is that “Coke breached its duty to use reasonable care by designing, building and supplying a soft drink display with a latent defect”; and, in the argument under this point, we are told what allegedly constituted this latent defect, to wit, “Coke did not design or build a soft drink department containing any provision for the placement of unwanted single bottles and by reason thereof, the soft drink department contained a latent defect.” Plaintiff’s case in the trial court was developed, and on appeal is presented, along the line that no shelf in the display unit was suitable for
As hereinbefore noted, single small bottles were dispensed from a cooler just inside the entrance to this supermarket but in keeping with modern supermarket merchandising policies only cartons of un-cooled small bottles were stocked and displayed in the soft drink department. Hence, no portion of the display unit was “designed” for that use. However, it does not necessarily follow that such unit would not safely accommodate or hold individual small bottles. Rather, both testimonial
Furthermore, both the bottom and top shelves in this display unit were solid and immovable plywood shelves, and there is no room for argument about the fact that they were suitable for, and would safely accommodate and hold, single small bottles.
We have pointed out in other cases, and here reiterate, that “[i]t is a well-known fact of present-day business life that customers in self-service stores indubitably have and freely exercise the practically unrestricted privilege of moving, picking up, handling, examining and relocating items displayed for sale [Hart v. Emery, Bird, Thayer Dry Goods Co., 233 Mo.App. 312, 317, 118 S.W.2d 509, 512; Cohen v. Penn Fruit Co., 192 Pa.Super. 244, 159 A.2d 558, 560(4)].” Copher v. Barbee, 361 S.W.2d 137, 143 (Mo.App.1962). See also Abernathy v. Coca-Cola Bottling Co. of Jackson, 370 S.W.2d 175, 178 (Mo.App.1963). And others, commenting concerning the propensity of customers in self-service markets to handle bottles of soft drinks and “sometimes” leave them on the floor, likewise have recognized that “[i]'t would be virtually impossible to prevent this in any self-service market.” Beuttenmuller v. Vess Bottling Co. of St. Louis, 447 S.W.2d 519, 528 (Mo.1969). The record in the instant case convincingly confirms the accuracy and demonstrates the applicability of the foregoing judicial pronouncements, for plaintiff’s witness Richey, the IGA “stock-er and checker” who swept and mopped after closing hours, not only came upon individual bottles on the floor in front of the soft drink department some “half to three-quarters” of the time but also found other products on the floor “in other departments ... all over the store” just as frequently. As for broken bottles, Richey said “you get something usually, in the store broken every day, not necessarily pop,” e. g., “pickle jars and other things that break.”
We conclude this portion of our discussion with the comments (1) that after an extended study of the transcript and briefs .in this case we are satisfied that plaintiff’s case was neither pleaded nor submitted in the trial court, and is neither briefed nor presented in this court, on a failure to “reserve” theory, (2) that, in any event, an attempt to inhibit and for-fend the placing of single bottles on the floor by reserving portions of a shelf in a supermarket soft drink department would, from a practical standpoint, be utterly in-utile and wholly ineffectual, and (3) that there was a fatal failure of factual proof on the sole submitted theory in plaintiff’s verdict-directing instruction 2, i. e., that “the soft drink department did not contain [or did not “provide”] a shelf for the placement of individual bottles of soft drink.”
In our comprehensive consideration of the case, we also have noted the want of any evidence which would have permitted a finding (a) as to whether the “green bottle” on the floor was a Coke product, (b) as to whether that bottle, when “tipped” or “kicked” over and then righted by another, was in front of that section of the soft drink department retained by Coke for the stocking and displaying of its products or was in front of some other section of the soft drink department in which the products of one of the other five bottlers displaying their products in that department were stocked,
Still another reason, wholly aside from those hereinbefore discussed, precludes plaintiff’s success on this appeal. For, even if (contrary to our stated opinion) the display unit, hereinbefore described in detail, might be said to have been designed with some “defect” (by us neither perceived nor perceptible), plaintiff’s firm position that there was “a latent defect” cannot be honored. “[N]o defect can be considered latent which is discoverable by the exercise of due care” [Forbis v. Hessing, 328 Mo. 699, 704, 41 S.W.2d 378, 380(1) (1931)] or “reasonable diligence.” O’Gorman v. Kansas City, 233 Mo.App. 124, 134, 93 S.W.2d 1132, 1137(3) (1936). The character of defect, which properly may be found to be latent, is exemplified by the cases thus cited in Stevens v. Durbin-Durco, Inc., supra, 377 S.W.2d at 346, namely, “Zesch v. Abrasive Co. of Philadelphia, supra [353 Mo. 558, 183 S. W.2d 140, 156 A.L.R. 469] (abrasive cutting-off wheel exploded); McLeod v. Linde Air Products Co., supra [318 Mo. 397, 1 S.W.2d 122] (clogged valve in an oxygen tank); McCormick v. Lowe & Campbell Athletic Goods Co., 235 Mo.App. 612, 144 S.W.2d 866 (bamboo vaulting pole broke); Jacobs v. Frank Adams Electric Co., supra [Mo.App., 97 S.W.2d 849] (electric panel board exploded).” Any “defect” in design of the display unit, such as that professedly detected by plaintiff’s counsel, would have been far removed from the category of those in the cited cases and, as we are convinced, necessarily would have been discoverable by instant plaintiff in the exercise of “due care” or “reasonable diligence.”
The judgment of the circuit court is affirmed.
. The rods in the lower rows of “spring-away” shelves were 26" in length, while the rods in the top rows were 21" in length.
. On cross-examination plaintiff confirmed her prior depositional testimony that “actually the [other] lady kicked the bottle over.”
. In the statement of facts in plain tiff ⅛-appellant’s brief, counsel identify and describe this bottle as a “green 16 ounce bottle,” referring us to a specific page of
. There was no “Fourth” paragraph in this instruction, as found in the transcript.
. This submitted theory would seem to be akin to, but narrower and more restricted than, assignments (e) and (d) of the twelve pleaded assignments against both defendants, which charged negligence “(c) in failing to have sufficient suitable shelves abatable (sic) for placing single bottles of soft drinks” and “ (d) in failing to design, build, install, furnish and maintain sufficient suitable shelves for holding single bottles of soft drinks.”
. This was the plain and unmistakable import (a) of witness Jones’ testimony as repeatedly manifested at six widely-separated points in the record of his extended examination covering 123 pages of the transcript, and (b) likewise of the testimony of witness Richey, the IGA “stocker and checker,” who readily agreed that the “spring-away” shelves “will hold single bottles without any problems.”
. Among the exhibits received in evidence were four photographs, each of which showed a single small bottle as the only object on a “spring-away” shelf lowered to a horizontal position in this IGA soft drink department. In one of those photographs, the single small bottle was standing upright on the front or outer end of the shelf, in another the bottle was standing upright midway between the front and rear ends of the shelf, in another the bottle was standing upright on the rear end of the shelf, and in another the bottle was lying on its side, crosswise of and on the front or outer end of the shelf.
. If an inference concerning this matter were permissible (which we need not determine), it would place the “green bottle” in front of the Pepsi section, since plaintiff intended to pick up some canned Pepsi and her narrative account of “what happened” when she “got down to the pop display” indicates that the unidentified lady who “tipped” or “kicked” over the “green bottle” was then standing at such point that plaintiff could not conveniently reach the canned Pepsi, so she (plaintiff) “stayed back of a (sic) her, a little to the right” until the other lady “walked on,” after which plaintiff picked up her Pepsi, “turned around,” and was struck by pieces of the exploding bottle.