Macon Coca-Cola Bottling Co. v. Crane , 55 Ga. App. 573 ( 1937 )

Sutton, J.

The plaintiff brought suit against the defendant for damages on account of injuries alleged to have been sustained from the explosion of a bottle of coca-cola which, in the performance of his duties, he had placed in an ice-box in the restaurant of his employer. He alleged that the bottled drink had been obtained by his employer from the defendant, and that he placed the bottle in the ice-box in the usual and customary manner, and was free from negligence, and that the bottle was negligently carbonated, so that when its temperature was reduced 'by being placed in the ice-box the bottle exploded, and that if the carbonation had been regulated in accordance with the advertisement of the defendant that the beverage was harmless, the explosion would not have occurred. The defendant denied the material allegations of the petition, and charged that the injuries of the plaintiff were the result of 'his own negligence. By amendment- the plaintiff alleged that the bottle used was insufficient and contained thin places, so that it was not capable of withstanding, upon handling in a normal way, the pressure of the carbonating gas, and that if it had been suited to the purpose for which it was used, and had been in proper condition, a proper charge of carbonation would not have exploded the bottle. In the trial of the case the plaintiff relied on the doctrine of res ipsa loquitur. The evidence is not here set out, but the main facts are discussed in the opinion. The jury returned a verdict in favor of the plaintiff. The defendant filed a motion for new trial, and by amendment added a ground in elaboration of the general grounds. The court overruled the motion, and the defendant excepted.

The maxim res ipsa loquitur, as was said by Judge Hill in Cochrell v. Langley Manufacturing Co., 5 Ga. App. 317, 322 (63 S. E. 244), “has been a prolific inspiration to much useless and .wasted juridic erudition,” and it was added in the same case: “Practically, as we said in [Monahan v. National Realty Co.], 4 Ga. App. 680 (62 S. E. 127), the doctrine is simply a rule of evidence, which permits an inference to be drawn from proved facts. It furnishes a working basis for reasonable hypothetical conjecture, and gives scope for legitimate reasoning by the jury. The philosophy of the doctrine is stated in section 5157 of the Civil Code [Code of 1933, § 38-123]. ‘In arriving at a verdict, the jury, from facts proved, and sometimes from the absence of counter-evidencé, may infer the existence of other facts reasonably and logically consequent on those proved.’” This doctrine has been sanctioned for many years in other jurisdictions, but strangely enough it did not find recognition in any of the reports of this State in personal-injury cases until Chenall v. Palmer Brick Co., 117 Ga. 106 (43 S. E. 443). That case involved a suit against the master by a servant, and notwithstanding that relationship the Supreme Court held that the maxim could be applied. It was there said, with reference to deductions that might be made by the jury, and quoting from the old English case of Scott v. London & St. Katherine Docks Co., 3 Hurl. & C. 596: “There must be reasonable evidence of negligence; but where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it. .affords reasonable evidence, in the absence of explanation by defendant, that the accident arose from want of care.” That deduction that might be made by the jury under this maxim of res ipsa loquitur has been referred to in many jurisdictions as a presumption of law, and in many others it has been designated as an inference of fact; for a full and interesting discussion as to which the reader may consult the elaborate annotations following the report of the ease of Glowacki v. Northwestern Ohio R. &c. Co., in 53 A. L. R. 1486. That it is not a substantive rule of law but only a rule of evidence was pronounced by the Supreme Court of this State when the Chenall case was again before that court in 119 Ga. 837, 842 (47 S. E. 329), where it was said: “The maxim res ipsa loquitur is simply a rule of evidence. The general rule is that negligence is never presumed from the mere fact of injury; yet the manner of the occurrence of the injury complained of, or the attendant circumstances, may sometimes well warrant an inference of negligence. It is sometimes said that it warrants a presumption of negligence; but the presumption referred to is not one of law but of fact. It is, however, more correct and less confusing to refer to it as an inference rather than a presumption; and not an inference which the law draws from the fact, but an inference which the jury are authorized to draw.” These principles were restated and applied to questions of negligence in Atlanta Coca-Cola Bottling Co. v. Danneman, 25 Ga. App. 43 (102 S. E. 542); Atlanta Coca-Cola Bottling Co. v. Shipp, 41 Ga. App. 705 (2) (154 S. E. 385); Atlanta Coca-Cola Bottling Co. v. Dean, 43 Ga. App. 682 (160 S. E. 105). As distinguished from a presumption of law, which may be overcome, the inference which the jury is authorized to draw as to negligence, when once drawn, is never overcome. The only inquiry thereafter is: Whose negligence is it? And the defendant may satisfy the jury that it was not his negligence that caused the injury, although the cause of the occurrence, as well said by Judge Russell in Sinkovitz v. Peters Land Co., 5 Ga. App. 788, 795 (64 S. E. 93), “might still be involved in unsolvable mystery.”

The above would seem to make unnecessary any consideration of presumptions of law or of how they may be overcome, and to leave us to examine the present case with reference to the doctrine of res ipsa loquitur authorizing the jury to draw cm inference of negligence. In the Sinkovitz case, supra, which involved a suit brought by one not a servant of the defendant, Judge Russell, now Chief Justice of the Supreme Court of this State, said: “Upon the second appearance of the Chenall case in the Supreme Court (119 Ga. 837), the particular question involved was how far the application of the maxim res ipsa loquitur was affected by the fact that the plaintiff was a servant of the defendant, and thereby had assumed the risks incident to his employment and to the negligence of his fellow-servants. In so far as the opinion in the later case, delivered by Justice Cobb, appears to confine or limit the application of the maxim, it must be borne in mind that the lehrned judge was dealing only with that specific point. But there was no retraction or modification of the original holding (where the relation of master and servant does not exist), that ‘ordinarily, extraordinary and external causes may be treated as the exception, to be established by the defendant Judge Russell then laid down the burden which rests on the plaintiff, quoting from the Chenall case when it first appeared in the Supreme Court, 117 Ga. 109: “All that the plaintiff should be required to do in the first instance is to show that the defendant owned, operated, and maintained, or controlled and was responsible for the management and maintenance of the thing doing the damage; that the accident was of a kind which, in the absence of proof of some external cause, does not ordinarily happen without negligence. When he has shown this he has cast the burden upon the defendant, who may then proceed to show that the accident was occasioned by vis major, or by other causes for which' he was not responsible.” Headnote 2(b) is as follows: "If the extraordinary character of the occurrence is sufficient to raise an inference of the negligence alleged, a prima facie case is established, and the burden of disproving negligence, especially in a case where the parties do not sustain to each other the relation of master and servant, is cast upon the defendant, to disprove negligence upon his part; this for the reason that it is more particularly within his power to explain the character and condition of the instrumentality which may have occasioned injury than within the power of the injured party.” Headnote 2(c) is: "In the absence of any satisfactory explanation that the occurrence was accidental or providential, or other sufficient explanation, if something unusual happens in respect to a defendant’s property or to something over which he has control,- whereby the plaintiff is injured, and the natural inference on the evidence is that the unusual occurrence is due to the defendant’s act, the occurrence, being unusual, is said to speak for itself that such act was negligence. Bahr v. Lombard, 53 N. J. L. 233 (21 Atl. 190).” Thus it is seen that the burden upon the plaintiff, when the maxim res ipsa loquitur is applicable, is short of being required to prove actual negligence by direct evidence, and that he may make a prima facie case by proving an unusual occurrence under circumstances referred to in the above-quoted headnotes, and thereby cast upon the defendant the burden of exculpating himself by showing to the jury that the accident (using the word in its loose sense) was occasioned by vis major or by other causes for which he was not responsible. The defendant is not freed from responsibility, therefore, by showing that the negligence might have been that of an external agency. He must show that he did not act negligently, or that the accident was due to causes for which he was not responsible.

But can the doctrine of res ipsa loquitur be applied in a case like the present one, where the injury is alleged to have been caused by the explosion of a bottle of carbonated beverage which was too highly charged with gas or too weak to stand a normal pressure ? It is true that in other jurisdictions the decided weight of authority is to the effect that the maxim res ipsa loquitur is not applicable to the breaking, bursting, or exploding of a container in which a commodity, ordinarily harmless, is sold. See annotations following Grant v. Graham Chero-Cola Bottling Co., 4 A. L. R. 1090, where many cases are discussed, including some from Southern States. But in Georgia, in Payne v. Rome Coca-Cola Bottling Co., 10 Ga. App. 762 (73 S. E. 1087), it was squarely held that “Where an action is brought to recover damages for an injury caused by the explosion of a bottle, the contents of which were manufactured, bottled, and sold by the defendant as a harmless beverage, an inference of negligence on the part of the manufacturer arises, when it is shown that all the persons through whose hands the bottle had passed were free from fault, and that the condition of the bottle and its contents had not been changed since it left the defendant’s possession.” In that case a bottle of coca-cola, manufactured and sold by the defendant, exploded, and fragments of glass flew into the plaintiff’s eye and destroyed the sight. The plaintiff alleged that the water in the bottle had been charged with carbonic acid gas, and that the explosion was due to the fact that the bottle was too highly charged with the gas by the defendant. A nonsuit was awarded, and the plaintiff excepted. This court said: “Granting, for the sake of the argument, that prima facie inferential negligence will be imputed to the person who sold the bottle to plaintiff’s brother, or to the brother himself, the inference is completely rebutted when it affirmatively appears, as it does here, that neither was at fault, that neither handled the bottle improperly or did anything to change the condition from that in which it was when received. Since for every effect there is a cause, where negligence exists some one must have been the responsible author. If he can be found, it is right that he should pay the penalty. The bottle exploded. Inferentially some one was negligent. It was not Cook, the last vendor of the bottle, nor the plaintiff’s brother, nor the plaintiff, nor yet Barnett, because they all stand exonerated by direct or circumstantial evidence of their freedom from fault. But the inference of negligence remains, and some one is prima facie to blame. By a process of elimination we get back to “the manufacturer who set the dangerous agency in motion, and upon whom the blame ought inferentially to be fastened. It is certainly no hardship to require at the manufacturer’s hands an explanation of the occurrence, that the jury may say whether it, like the other persons who handled the bottle, has been exonerated. If a manufacturer should sell to a jobber a gun, and, after passing through the hands successively of the wholesaler and retailer, it finally reaches the marksman, and explodes in his hands while being used in the ordinary and usual manner, and injury results, it is plain there was a defect in the gun. Somebody ought to be responsible. Conqéde that inferentially it could be said that the marksman must have done something to the weapon to cause it to explode, if he disproves this, and the retailer, the wholesaler, and the jobber all in turn show that they kept and handled the gun in the usual way, and did nothing to change its condition, the inference of negligence would be shifted back upon the manufacturer, who put the weapon of destruction in circulation with his endorsement that, when used in the ordinary and usual manner, no harm would come to him who used it. In such a case it would be no answer, when the maxim that the thing spoke for itself is invoked, to say that when the injury resulted, the thing was not in the possession, power, or control of the manufacturer.” Although that decision dealt with the question of a nonsuit, it was unequivocally ruled that the doctrine of res ipsa loquitur might be applied in a ease where a bottle of carbonated beverage explodes, and showed what sort of evidence from the plaintiff will make a prima facie case, requiring the defendant to exculpate himself as in other cases where the doctrine has been held. It is true that the court added: “As to whether an inference of negligence would arise against the manufacturers upon mere proof of the explosion, without more, we express no opinion,” but this, of course, had reference to the necessity of affirmative proof that none of the intermediaries had been negligent.

In Atlanta Coca-Cola Bottling Co. v. Danneman, supra, it was held: “But where the event is unusual and extraordinary in its nature, and there is nothing to indicate an external cause, but the peculiar character of the accident is sufficient within itself to indicate that it must have been brought about by negligence on the part of some one, and where the most reasonable and probable inference which can be rationally drawn from the happening of such an event is that it would not and could not have taken place had not the person charged with furnishing or maintaining the instrumentality causing the accident been guilty of the particular acts or omissions set forth by the plaintiff as constituting the actual cause, then the jury is authorized to apply the rule of evidence known as the doctrine of res ipsa loquitur, in determining whether or not the accident must’ have been thus occasioned.” See also Atlanta Coca-Cola Bottling Co. v. Shipp, supra. In the Monahan case, supra, the plaintiff was injured by the fall of a heavy window in a new building, and it was said by the court that neither the trial judge nor the appellate court could say that the jury were not authorized to apply the maxim res ipsa loquitur in that case against the landlord; and on the question of a prima facie case being made, it was said: “In the present case there was a heavy window in a new building, which fell, certainly without any fault of the plaintiff, and according to some of the testimony, without any apparent cause. In determining whether it was an accident for which no one would be liable, • or whether it was due to negligence on the part of the landlord in the original construction of the building, it is to be borne in mind that where injury is shown, and it is also shown that the party injured is free from fault, and there is no proof of any external cause, a prima facie case of negligence may be raised, because the party managing or controlling the agency which created the injury is naturally the one responsible, and the burden is thereby placed upon the defendant to show proper original construction. . . Whether the explanation that the chains used in the windows in the defendant company’s building were improved appliances, similar to those used 'in two other modern buildings in the City of Savannah, was sufficient to rebut the- inference of negligence in construction, due to the unaccountable fall of the window in question, which was reinforced by evidence of continual recurrence of similar accidents all over the building and the fact that there was never any test of the tensile strength of the window chains, was a question for the jury.” If, as we hold, the maxim res ipsa loquitur is applicable under the facts of the present case, it follows that whether the defendant’s explanation that the machinery used in bottling coca-cola and introducing gas into-the bottles was improved, and modern and equal to that used by the best equipped bottlers, was sufficient to rebut the inference of negligence due to the unaccountable explosion, was a question for the jury.

The judge properly charged the jury that they might apply the maxim res ipsa loquitur in the present ease, and that their verdict should be based on a preponderance of the evidence. It can not be said that the jury did not apply the doctrine in returning a verdict for the plaintiff. We now proceed to ascertain if that verdict was authorized. The evidence showed that the plaintiff was injured by a fragment of glass which flew from a bottle of coca-cola which exploded'as he was removing his hand from an ice-box into which he had placed several bottles of the beverage. They were taken from a case near the ice-box, and had been purchased directly from the defendant. It was shown that on the morning of the injury the temperature was such that a bottle of the beverage taken from the case, the bottle being properly constructed and carbonated, would not explode merely because of the cooling process when introduced into the ice-box. It was testified by an expert witness of the defendant that if such a bottle, at the temperature that existed at the time, were placed in ice-water or in an ice-box on top of ice, without anything between the bottle and some other object, and if an explosion occurred upon the bottle being subjected to the cooling process, the explosion would be due to a defect in the bottle or to excess earbonation. For six years the plaintiff had been handling bottles of the beverage from the case to the ice-box; and he testified that on the occasion of the injury he handled them in a very careful manner, that he did not strike'any bottle against another or against any piece of ice, and that the explosion did not' occur until he had leaned over to close the lid of the ice-box. One of the defendant’s employees testified that he made deliveries to the plaintiff’s employer, and that there was no opportunity for any tampering with the bottles from the time they left the defendant’s premises until delivered to the customer. Therefore it can not be said that the jury was not authorized to find that the bottles had not been negligently handled by any intermediaries, and that the plaintiff was himself free from fault. That being true, a prima facie case was made against the defendant. The jury would next consider whether the defendant had exculpated itself by showing freedom from negligence, or that the injury was the result of vis major or causes for which it was not responsible. Evidently the jury did not find that the defendant had satisfactorily explained the occurrence, and in our opinion it was justified in so finding. Notwithstanding the testimony of the defendant’s witnesses as to the operation of its plant, its modern machinery, and its usual care in bottling its product, it was testified by its general manager that “The water is carbonated before it goes into the bottle, and is put in by an automatic measuring machine, measuring five ounces for each bottle, making six ounces as the total contents of the bottle. There is a possibility, but slight, that this machine may get clogged up and out of gear.” If the device on the machine, intended to prevent excess earbonation by dissipating into the air any excess of gas, becomes clogged, the only reasonable inference to be drawn from a clogged condition is that under such circumstances excess earbonation would result. Obviously, the very purpose of placing the device upon the machines was to prevent just that thing. It is not shown that the defendant, as was its burden to do, established any vis major or external causes for which it was not responsible.

Great stress is laid by the defendant on the fact that the bottles were purchased from an efficient and reputable manufacturer; but the best of bottles will naturally explode from super earbonation. To prevent that eventuality, proper machinery is necessary, and likewise adequate inspection is necessary; and yet there is nothing in the record which shows any inspection at any time of the device upon which so much depended. In the absence of any information on that subject, and from the admission of the defendant’s general manager, the jury could reasonably have inferred that the plaintiff had been injured by the explosion of a bottle which had been filled and carbonated at a time when the automatic device, so called, was clogged, and when an excess of gas was introduced with water into the bottle, or that the bottle was weak and insufficient to withstand a normal and proper pressure. Because of the above facts, as shown by the record, we are of the opinion that the jury was authorized to apply the doctrine of res ipsa loquitur, to find that the plaintiff was free from fault, that no external cause of the operation was shown, that no intermediaries had handled the bottle from the time it left the possession of the defendant, and that the defendant did not show that it was not its negligence that caused the explosion, or that it was due to vis major or causes for which it was not responsible. Accordingly, the verdict will not be disturbed.

Judgment affirmed.

Stephens, P. J., concurs. Felton, J., dissents.