Butterfield v. Pepsi-Cola Bottling Co. , 210 Kan. 123 ( 1972 )

Fatzer, C. J.,

concurring in the result and dissenting in part: Limitation of time precludes a lengthy treatment of the points raised by this appeal. While I agree with the result of this case, I have difficulty with the reasoning by which the result is reached.

Primarily, I object to the language found in special interrogatory No. 1, submitted to the jury for its special verdict:

“1. Was the bottle of Diet Pepsi-Cola reasonably fit for the purpose for which it was intended and reasonably safe at the time it was delivered to the plaintiff’s store?

“Answer: Yes.” (Emphasis supplied.)

In my opinion, that portion which is italicized is a relaxation of the law in this jurisdiction pertaining to a breach of implied warranty. I am reluctant to place the unqualified burden upon the plaintiff to show that the product was defective at the time it left the manufacturer’s control. The landmark case of Nichols v. Nold, 174 Kan. 613, 258 P. 2d 317, 38 A. L. R. 2d 887, is to the contrary, and places the burden upon the defendant in such a context to explain why the bottle exploded, in the absence of some evidence indicating an intervening cause. In that case, Mr. Chief Justice Harvey, speaking for this court, said:

“ ‘Viewing realistically the situation presented by the circumstances of the present case, it is obvious that, so far as the evidence discloses, the wife plaintiff was not injured through any fault of her own, and therefore, if the occurrence of the accident was due to negligence on the part of either of the defendants, plaintiffs should be entitled to redress. It is clear too that the breaking of the bottle could have resulted only from a defect in the bottle itself, or from an excessive internal pressure due to over-carbonation, or from subjection of the bottle to some extreme atmospheric or temperature changes, or from some mishandling, as for example, the striking of it by a hard object. Manifestly it would be entirely beyond the ability of the plaintiffs to ascertain and establish which of these possibilities was in fact the cause of the accident, whereas the defendant Beverage Company could readily explain the equipment and the methods employed by it in bottling the ale and the defendant A. & P. Company was equally in a position to explain the manner in which it handled, displayed and protected the bottles placed on its shelves for sale. It would seem, therefore, notwithstanding the limitations on the applicability of the doctrine of res ipsa loquitur and exclusive control previously referred to, that reason and justice alike should entitle plaintiffs to the benefits of those methods of establishing a prima facie case. Plaintiffs having testified to the manner in which the accident occurred, the burden should then rest upon the defendant A. & P. Company to show that after the bottle came into its possession it was not subjected to any mishandling or to any unusual atmospheric or temperature changes. The duty would then devolve upon the Beverage Company to establish that it conducted its operations with due care and according to the usual and proper methods generally employed in the bottling industry. It would then have been for the jury to decide whether such explanations satisfactorily exculpated either or both defendants from the charge of negligence, having in mind as to the defendant Beverage Company that it might be humanly impossible, even with the best of care, to discover every latent defect in every one of possibly hundreds of thousands of bottles or to prevent a possible excess of pressure in perhaps a single one of them, and having likewise in mind as to the defendant A. & P. Company that it might be equally impossible to prevent a bottle on a shelf from being struck or otherwise mishandled by some careless customer in a crowded store . . (1. c. 616, 617.)

There is a nebulous distinction between negligence and breach of implied warranty, and a breach of implied warranty may result from negligence or failure to use due care and skill. An allegation of negligence may be considered as the manner of the breach of the implied warranty, which is the sole cause of the injury (Crabb v. Swindler, Administratrix, 184 Kan. 501, 337 P. 2d 986), and evidence of specific acts of negligence, or reliance upon the doctrine of res ipsa loquitur is admissible to prove the breach of the implied warranty. (Nichols v. Nold, supra.)

The majority opinion states that it finds “nothing legally amiss with the language of the interrogatory.” I disagree. In my opinion, the interrogatory was legally amiss, misleading, and clearly inconsistent with the instruction No. 5, which states the law in this jurisdiction:

"The bottlers of a carbonated soft drink such as Diet Pepsi-Cola impliedly warrant that a bottle of Diet Pepsi-Cola is reasonably fit for the purpose for which it is intended and is reasonably safe. If this implied warranty of reasonable fitness and reasonable safety was breached by the defendant and if this breach was the proximate cause of the bottle exploding, then and in that event the defendant is hable to the plaintiff for her injuries.”

The words “and is reasonably safe” following the word “intended” in the first sentence of the instruction, is surplusage and should not have been included. However, that language standing alone, does not make the instruction faulty.

The record reflects the jury was confused as to the duty placed upon the appellee by special interrogatory No. 1. Language in the interrogatory substantially diluted the extent of the implied warranty by limiting the responsibilities of the manufacturer to merely warrant the product was “reasonably safe at the time it was delivered to the plaintiffs store.”

The implied warranty announced in Nold does not stop at the delivery of a bottle of beverage to the front door of the supermarket; rather, it is extended to all reasonable inference that the bottle exploded as a proximate cause of a defect in the bottle itself. The court’s opinion eliminates any duty on the part of the manufacturer to foresee the possibility of jostling of beverage bottles by clerks and customers at the supermarket after those bottles are placed upon its shelves and subsequently reach the hands of the consumer. In my opinion, the consumer has the right to rely upon the implied warranty the bottle will not explode and is reasonable fit for the purpose for which it is intended.

As stated above, I concur in the result because the plaintiff made no objection to the language employed in the interrogatory and for that reason cannot now complain on appeal. However, because the court now finds nothing wrong with the special interrogatory and approves by implication that language, I must dissent from that portion of the opinion.

Owsley, J., joins in the foregoing concurring and dissenting opinion.