CYNTHIA STEWART and JAMES S. STEWART, Her Husband, Appellants,
CRYSTAL COCA-COLA BOTTLING COMPANY, a Corporation, Appellee
APPEAL from a judgment of the Superior Court of the County of Pima. Wm. G. Hall, Judge. Judgment affirmed.
Messrs. Robles & Dodd, for Appellants.
Messrs. Conner & Jones, for Appellee.
[50 Ariz. 61] McALISTER, C.J.
A bottle of coca-cola sold by the defendant, the Crystal Coca-Cola Bottling Company, a corporation, to the plaintiffs Cynthia Stewart and her husband, James S. Stewart, exploded, and a piece of the glass struck the hand of the former and injured it quite seriously. She and her husband brought suit for the damages suffered by them as a result of the explosion and at the close of their case the court granted a motion by the Bottling Company for a directed verdict in its favor and entered judgment thereon. Believing this order erroneous the Stewarts have brought the judgment here for review. The parties will be referred to here as they were in the trial court.
The plaintiffs were operating a restaurant in the city of Tucson and in connection therewith purchased from the defendant for sale to the public coca-cola, a beverage charged with carbon dioxide gas and prepared and bottled by the defendant in Tucson under [50 Ariz. 62] conditions and circumstances exclusively within its knowledge and under its control. The bottles in which the beverage was placed were manufactured in Los Angeles, California, and purchased there by the defendant, but the label, "Tucson, Arizona," appeared on the bottom of each bottle. The coca-cola was delivered by the defendant to the plaintiffs' place of business in cases and left on the floor near an ice-box in which it was placed for cooling. On July 16, 1935, about 11:30 A.M. the plaintiff, Cynthia Stewart, placed several bottles of this coca-cola in an upright position in the ice-box in ice water which covered the bottles to within two inches of their top and about 1:30 P.M. opened the box and took from it one of these bottles and handed it to a customer who returned it, stating that it was not cold enough. She set it back in the ice-box against a cake of ice which had been placed therein a short time before and began arranging the other bottles when, being shaken by their movement in the water, it turned over and exploded, a piece of the glass striking her right hand and seriously injuring it. She and the person to whom she offered it for sale were the only ones who had anything to do with the bottle after it left the possession of the defendant and they handled it in a careful and proper manner. The plaintiffs had been selling coca-cola for years and this was the first bottle they had ever seen explode in an ice-box.
In addition to these facts the plaintiffs alleged that the defendant was under a duty to them to prepare, bottle and furnish them coca-cola in a condition and in bottles that were safe and suitable to keep, cool and dispense in the usual manner but that it breached this duty by negligently and carelessly preparing, bottling and selling to them bottles of coca-cola which, together with their contents, were unsafe and dangerous for this purpose and that the said explosion [50 Ariz. 63] would not have happened had the defendant exercised due care therein.
In its answer the defendant admitted bottling the coca-cola and selling it to the plaintiffs but denied that it was negligent in bottling it.
It appeared from the testimony of the manager of the defendant, who was placed on the stand by the plaintiffs for cross-examination, that the defendant purchased the coca-cola syrup from the Western Coca-Cola Bottling Company and that it bottled the beverage, coca-cola, with an automatic bottling device; that the constituent elements thereof are coca-cola syrup and carbonated water, that is, water containing a percentage of carbon dioxide; that the contents of the syrup are unknown to the defendant but whatever they may be the syrup itself is not an explosive, nor is it such under normal conditions when mixed with carbonated water; that the defendant did not know whether the bottle in question was new or how long it had been in use or how many times it had been filled; that ninety per cent of defective bottles break on the first filling; that forty-three to forty-five pounds of gas pressure remain in the bottles after they are filed and capped; that the bottles filled and put out by defendant are inspected for defects by two persons, one before they are filled and one afterwards, 1200 to 1500 an hour being examined.
The two errors assigned are both based on the order directing a verdict. In the first the plaintiffs contend that the evidence was sufficient to take the question of the defendant's negligence to the jury under the doctrine of res ipsa loquitur, and in the second that it was such that the jury could have inferred from it that the explosion was caused either by the negligent overcharge of the bottle or by a defect in the bottle which the defendant could have discovered by a careful examination.
[50 Ariz. 64] In support of the first assignment the plaintiffs rely upon the proposition that where a bottle of coca-cola of other beverage is prepared and bottled under the exclusive control of the bottler and by means exclusively within his knowledge, and it explodes and causes injury to the person handling it, the explosion being one that does not ordinarily occur when those handling it exercise due care, the doctrine of res ipsa loquitur applies, and the inference of negligence which the application of that rule raises is sufficient, in the absence of an explanation by the defendant, to justify a verdict for the plaintiff. The trial court held that the facts did not call for or even permit the application of this rule and there being no evidence without it upon which the jury could find the defendants guilty of negligence directed a verdict in its favor. The principal question presented by the appeal, therefore, is Was this order correct?
The complaint, it will be observed, charges general negligence only and proceeds upon the theory that the evidence brings the case within the doctrine of res ipsa loquitur. This rule is merely one of evidence and is applicable only when the instrumentality causing the injury is under the control of the defendant and the accident is of such a character that in the ordinary course of events would not happen if those having control of it use due care. Hence, when these factors appear it is reasonable to infer, in the absence of an explanation by the defendant, that the accident occurred because of a lack of proper care on his part. San Francisco v. Circle Tours Sightseeing Co.,125 Or. 80, 265 P. 801. The fact that the plaintiff may, in a proper case, rely on this rule does not mean, however, that he is excused from proving negligence, for there is no exception to the rule that one seeking damages for an injury caused thereby must establish that negligence by a preponderance of the evidence. It is true [50 Ariz. 65] the purpose of the rule of res ipsa loquitur is to aid the plaintiff in a proper case in making this showing by supplying sufficient proof of negligence to require a defendant claiming that the accident did not occur through any fault of his to produce evidence to show this and take the case to the jury. Sawyer v. People's Freight Lines, Inc.,42 Ariz. 145, 22 P.2d 1080. Instead of the law's demanding of the plaintiff the impossible in the matter of proof, facts about which he could not have any knowledge, it permits this rule to come to his rescue in certain cases and act as a substitute therefor. And it is the contention of the plaintiffs that they brought themselves within its purview when they showed that the preparation and bottling of the coca-cola was under the exclusive control and management of the defendant, that they had no knowledge whatever how either of these processes was performed, that the explosion under the circumstances was unusual, this being the first that ever occurred in the way it did during the many years plaintiffs had been selling coca-cola in Tucson, and that all those who had anything to do with the bottle after ...