ZENTZ v. COCA COLA BOTTLING CO OF FRESNO

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District Court of Appeal, Fourth District, California.

ZENTZ v. COCA COLA BOTTLING CO. OF FRESNO.

Civ. 4308.

Decided: June 19, 1951

Ray W. Hays, James N. Hays, Fresno, for appellant. L. Kenneth Say, Fresno, for respondent.

Plaintiff was injured from the breaking of a coca cola bottle placed in plaintiff's cooler by defendant company. The facts surrounding this appeal are quite fully related in Zentz v. Coca Cola Bottling Co., 92 Cal.App.2d 130, 206 P.2d 653, where a judgment for plaintiff was reversed on account of an erroneous instruction offered by plaintiff and given by the trial court.

The first contention of defendant on this appeal is that plaintiff failed to lay the proper foundation for the giving of an instruction on the doctrine of res ipsa loquitur, and that such instruction was not applicable to the facts established, i. e., that there was no showing that the defendant had exclusive control of the instrumentality causing the injury; that plaintiff failed to show that there was a probability of defendant's negligence, and failed to show that she exercised due care during the period she was in possession of the bottle, citing Honea v. City Dairy, Inc., 22 Cal.2d 614, 618, 140 P.2d 369; La Porte v. Houston, 33 Cal.2d 167, 169, 199 P.2d 665; Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 457, 150 P.2d 436.

Additional evidence was produced on the retrial pertaining to these features of the case. Plaintiff testified that several cases of coca cola were delivered to her place of business about 3 p. m. and placed in her cooler by the driver of defendant company; that no other brand of bottles were in the case and that a short time thereafter, to serve a customer, she reached in and a bottle exploded and the leaders in her arm were cut; that she never touched a bottle at that time or after defendant's driver placed them in the cooler.

The general manager for defendant company testified under sec. 2055 of the Code of Civil Procedure that he was familiar with the operation of defendant's plant; that it operated about eight hours per day in September, 1946, and that from four to eight hours per day, five days a week, would be a fair average for the year 1946; that the plant produced approximately 140 bottles of coca cola per minute, in excess of 42,000 per day, and in excess of 10,000,000 per year; that one man made visual inspection of these bottles as they passed by him in such rapidity; that two other employees made general inspections of the washed and reissued bottles at the time they were thus cleansed; that during that year no outside nor independent laboratory tests were made of any bottles purchased by it from the manufacturer of glass bottles. He then explained the method of bottling and stated that the only test given them in the plant was a visual inspection from the outside as to any apparent defects; that after the year 1946, the company had tested, in outside laboratories, about 256 bottles. He then stated that occasionally bottles burst during the process of bottling and while loading on trucks but the ones he saw, burst by reason of the manner in which the bottle were handled. Pictures of the cleaning and bottling machines were received in evidence and their operation was fully explained to the jury.

The driver who delivered and placed the coca cola bottles in the coolar at plaintiff's place of business testified that he remembered seeing bottles, other than coca cola bottles, in the cooler at the time; that when putting the coca cola bottles in the cooler he remembered breaking a bottle of it because he took four bottles at a time in his hand and reached in the cooler and hit a bottle, other than a coca cola bottle, with one of the coca cola bottles and it broke in his hand. Plaintiff stated that she was ‘sure’ there were no bottles other than coca cola bottles in the cooler when the driver filled it because she was completely out of cold drinks until the driver brought the cases of coca cola indicated.

It is the rule that res ipsa loquitur does not apply unless (1) defendant had exclusive control of the thing causing the injury, and (2) the accident is of such a nature that it ordinarily would not occur in the absence of negligence by the defendant. However, many authorities state that the happening of the accident does not speak for itself where it took place sometime after defendant had relinquished control of the instrumentality causing the injury. Under the more logical view the doctrine may be applied upon the theory that defendant had control at the time of the alleged negligent act, although not at the time of the accident, provided plaintiff first proves that the condition of the instrumentality had not been changed after it left the defendant's possession. Escola v. Coca Cola Bottling Co., supra.

Upon an examination of the record, the evidence appears sufficient to support a reasonable inference that the bottle here involved was not damaged by any extraneous force after delivery to the restaurant by defendant. It follows, therefore, that the bottle was in some manner defective at the time defendant relinquished control, because sound and properly prepared bottles of carbonated liquids do not ordinarily explode when properly handled.

In Escola v. Coca Cola Bottling Company, supra, where a bottle of beverage breaking in a restaurant employee's hands was charged with gas under pressure and the charging of the bottle was within the exclusive control of the defendant bottling company, it was held that an inference of defendant's negligence would arise, under the doctrine of res ipsa loquitur, if the bottle was excessively charged, or where an explosion resulted from a defective beverage bottle containing a safe pressure; and that the bottling company would be liable if it negligently failed to discover the flaw if the defect were visible. It held the doctrine of res ipsa loquitur may well be applied on the theory that defendant had control of the instrumentality causing the injury at the time of the alleged negligent act, although not at the time of the accident, provided plaintiff first proves that the condition of the instrumentality had not been changed after it left defendant's possession and that when a defendant produces evidence to rebut the inference of negligence which arises on application of the doctrine of res ipsa loquitur it is ordinarily a question of fact for the jury to determine whether the inference has been dispelled.

While there was evidence that employees of plaintiff made prior sales of coca cola that day, we conclude that the evidence sufficiently established plaintiff's right to a proper instruction on the doctrine of res ipsa loquitur. See cases cited in Escola v. Coca Cola Bottling Co., supra, 24 Cal.2d at page 457, 150 P.2d at page 438.

The next complaint is that the instruction, as given, was prejudicially erroneous in that it made the general statement: ‘* * * from the happening of the accident involved in this case, as established by the evidence, there arises an inference that the proximate cause of the occurrence was some negligent conduct on the part of the defendant * * *.’ Such a general instruction would be erroneous unless properly qualified. Gordon v. Aztec Brewing Co., 33 Cal.2d 514, 203 P.2d 522; Honea v. City Dairy, Inc., supra; Zentz v. Coca Cola Bottling Co., supra. The only question is whether the instruction, as given, was properly qualified. All the qualifications set forth in the instruction given in the case on the former appeal, 92 Cal.App.2d at page 132, 206 P.2d at page 655, were repeated, and these additional qualifications were added: ‘A defendant is deemed to have control at the time of the alleged negligent act although not at the time of the accident, provided plaintiff first proves that the condition of the instrumentality had not been changed after it left the defendant's possession. The defendant is not charged with the duty of showing that something happened to the bottle after it left its control and management. In order to be entitled to the benefit of the doctrine of res ipsa loquitur, the plaintiff must show that every person who moved or touched the bottle after it left the control of the defendant, did so with due care, and that during said time the bottle was not accessible to extraneous harmful forces.’

In this connection the argument is that by the general instruction, the court, in effect, told the jury that plaintiff was injured by a coca cola bottle belonging to defendant, as distinguished from some other bottle, and did not leave to the jury the determination of that question. Had this been the only provision of the instruction on that subject, defendant may have had cause for its complaint. One of the qualifying clauses states that before such an instruction may be applied it must be shown that the ‘instrumentality’ by which the injury to plaintiff was proximately caused, was in the possession and under the exclusive control of defendant at the time the cause of the injury was set in motion, and the injury was caused by some act or omission incident to defendant's management. No prejudicial error thus appears. Gordon v. Aztec Brewing Co., 33 Cal.2d 514, 520, 203 P.2d 522.

The instruction, as qualified, met the complaint pointed out on the previous appeal. No prejudicial error appears in giving the instruction as thus qualified.

Defendant does not attack the sufficiency of the evidence to support the verdict of $2500 damages rendered to plaintiff by the jury.

Judgment affirmed.

GRIFFIN, Justice.

BARNARD, P. J., and MUSSELL, J., concur.