Wade C. GRAHAM
v.
WINSTON COCA-COLA BOTTLING COMPANY.
No. 383.
Supreme Court of North Carolina.
May 23, 1962.*433 Elledge & Mast, by David P. Mast, Jr., and Clyde C. Randolph, Jr., Winston-Salem, for plaintiff appellant.
Hudson, Ferrell, Petree, Stockton, Stockton & Robinson, by Ralph M. Stockton, Jr., and W. F. Maready, Winston-Salem, for defendant appellee.
PARKER, Justice.
Sam Martin, a witness for plaintiff, operates a grocery store in Winston-Salem, and bought bottled Coca-Cola from defendant in January 1959 for retail sale. He had no trouble in January. Plaintiff assigns as error that the court, on motion of defendant, excluded from the jury his testimony to the following effect: He has had bottles of Coca-Cola purchased from defendant to explode every summer until this last summer; he had them to explode in July and August 1958.
Plaintiff further assigns as error the exclusion by the court from the jury, on motion of defendant, of the testimony of *434 Jacqueline Canady to the following effect: In February 1960 she reached with her left hand in the refrigerator in her home in Winston-Salem and removed a bottled Coca-Cola from the regular racks on the inside of its door. She turned and placed it on the cabinet, and it exploded. One side of the bottle seemed to have disintegrated. The cap was still attached. The index finger on her left hand was badly cut by the explosion, and finally was amputated. The exploded bottle was purchased by her either from the A. & P. Store on Stratford Road or Mount Tabor.
Plaintiff also assigns as error the exclusion by the court, on motion of defendant, of the testimony of Jack F. Canady, husband of Jacqueline Canady, to the following effect: When he arrived home after his wife was injured by the explosion of a bottle of Coca-Cola, he examined the broken bottle. He saw on the bottle the words `Winston-Salem," or some abbreviation of "Winston-Salem." He made a report and claim for his wife's injury to the Claims Adjusting Division of Coca-Cola Bottling Company in Atlanta, Georgia, and a settlement was made for his wife's injury. He also made a report of her injury to defendant.
In cases where damages are sought for injuries caused by the explosion of a bottle of beverage, the law is well settled in this jurisdiction that it is competent for plaintiff to show that other bottles filled by the same bottler under substantially similar conditions and sold by it at about the same time have exploded under "substantially similar circumstances and reasonable proximity in time," as authorizing a permissible inference that the bottler has not exercised that degree of care required of him under the circumstances. Dail v. Taylor, 151 N.C. 284, 66 S.E. 135; 28 L.R.A.,N.S., 949; Cashwell v. Fayetteville Pepsi-Cola Bottling Works, 174 N.C. 324, 93 S.E. 901; Enloe v. Charlotte Coca-Cola Bottling Co., 208 N.C. 305, 180 S.E. 582; Ashkenazi v. Nehi Bottling Co., 217 N.C. 552, 8 S.E.2d 818; Davis v. Coca-Cola Bottling Co., 228 N.C. 32, 44 S.E.2d 337; Styers v. Winston Coca-Cola Bottling Co., 239 N.C. 504, 80 S.E.2d 253.
Plaintiff's allegations and proof are that the bottle of Coca-Cola here was in a carton with five other bottles of Coca-Cola, which was pulled off the display case by the long coat of Pauline Webb, and fell about eight inches to a cement floor, where it exploded. All of plaintiff's evidence tends to show that the bottle here exploded not by reason of internal pressure alone, but it exploded by reason of internal pressure, when the bottle fell eight inches to the cement floor and received "a mild impact" "over an internally damaged spot on the inside of the bottle." The excluded testimony of Sam Martin as to the explosions of bottles of Coca-Cola in his store in the summertime does not show the circumstances under which the bottles exploded. There is no evidence that the bottles in his store fell to the floor, or received any blow. In our opinion, and we so hold, the bottles of Coca-Cola purchased by Sam Martin did not explode under "substantially similar circumstances" as did the bottle in the present case, so as to make evidence of their explosions competent with the rule above stated.
Even if we assume, though we do not concede it (Elledge v. Pepsi Cola Bottling Co., 252 N.C. 337, 113 S.E.2d 435), that the evidence of the Canadys authorizes a permissible inference that the bottle of Coca-Cola that exploded and cut Jacqueline Canady's finger was bottled and distributed by defendant, it did not explode under "substantially similar circumstances" as did the bottle here, so as to make the evidence of its explosion competent. The court properly excluded the testimony of Jack F. Canady that he made a report of his wife's injury to defendant, and that he made a report and claim for his wife's injury to the Claims Adjusting Division of Coca-Cola Bottling Company in Atlanta, Georgia, and a settlement was made for his wife's injury. Wigmore *435 on Evidence, Third Ed., Vol. 4, p. 32; 31 C.J.S. Evidence § 292. See also Jones on Evidence, Civil and Criminal, Fifth Ed., Vol. 2, sec. 392.
The four assignments of error as to the exclusion of the testimony of Sam Martin, Jacqueline Canady, and Jack F. Canady, are overruled.
The remainder of plaintiff's assignments of error relate to the charge, except the 14th, which is formal.
Plaintiff's assignments of error, numbers 5 through 9, are to the failure of the court to give in form or in substance five prayers for special instructions. The first three prayers for special instructions are:
REQUEST #1: "The installation by the defendant of modern machinery and appliances, such as is in general and approved use, does not IPSO FACTO exculpate the defendant from liability. The standard of vigilance required of the defendant is due care, i. e., commensurate care under the circumstances. The defendant owed to plaintiff the duty not to put into his hands a bottle charged with gas that was dangerous to handle in the usual and customary method."
REQUEST #2: "It is not incumbent upon plaintiff to show what precautions the defendant should take. That duty devolved upon the defendant who would be liable for negligence in putting dangerous goods upon the market without sufficient precautions to make them safe. What is the best protection is a matter which the defendant must ascertain and use."
REQUEST #3: "If such defects as internal abrasions occur in used beverage bottles and substantially reduce the ability of the bottles to withstand impact and to withstand normal handling, it becomes the duty of the bottler to make appropriate tests before the bottles are refilled, and if such tests are not commercially practicable, the bottles should not be reused."
The trial court, inter alia, charged as follows:
"The defendant in bottling and marketing bottles of Coca-Cola had the duty to use due care to not excessively charge the bottles of Coca-Cola with carbonic acid gas so that in normal handling and reasonable rises in temperature the bottles would not explode from internal pressure, and to use due care to examine, inspect and test the bottles to discover and remove from public exposure any defective bottles liable to cause or increase the probability of an explosion from internal pressure. The court instructs you, members of the jury, that if the defendant bottled and sold to the plaintiff bottles of Coca-Cola and failed to use due care to not excessively charge the bottles of Coca-Cola with carbonic acid gas so that in normal handling and reasonable rises in temperature the bottles would not explode from internal pressure, or failed to use due care to examine, inspect and test the bottles and to discover and remove from public exposure defective bottles liable to cause or increase the probability of an explosion from internal pressure, then such would constitute negligence on the part of the defendant; and if such was the proximate cause or a proximate cause of injuries to the plaintiff, then such would constitute actionable negligence. * * *
"The Court instructs you that if the plaintiff has satisfied you by the greater weight of the evidence, the burden being upon the plaintiff to so satisfy you, that the defendant bottled and sold and delivered to the plaintiff a bottle of Coca-Cola contained within Plaintiff's Exhibits 2 and 3, and that the bottle was defective in that it had scratching and abrasions on the interior surface of the bottle, and the defendant failed *436 to use due care to not excessively charge the bottle of Coca-Cola with carbonic acid gas, so that in the normal handling and reasonable rises in temperature the bottle would not explode from internal pressure; or failed to use due care to examine, inspect and test the bottle to discover that the bottle was defective because of such interior scratching and abrasions and liable to cause or increase the probability of explosion from internal pressure, and that such was the proximate cause or a proximate cause of the plaintiff's injuries, then it will be your duty to answer the first issue YES."
The first three prayers for special instructions were given in substance by the court in its charge, as set forth above, except that the court did not charge that "the installation by the defendant of modern machinery and appliances, such as is in general and approved use, does not ipso facto exculpate the defendant from liability." While that is a correct statement of the law, Styers v. Winston Coca-Cola Bottling Co., supra, we do not consider the failure of the court to charge this under the facts here sufficiently prejudicial to warrant a new trial.
Defendant assigns as errors in respect to the parts of the charge above quoted, that the court "limited the jury's consideration to explosions `from internal pressure' rather than instructing them with regard to explosions caused by mild impact in the course of normal handling, as indicated by plaintiff's evidence," and further "that his Honor failed to instruct the jury that defendant had the duty to provide plaintiff with a beverage bottle of sufficient strength to withstand mild impact in the course of normal handling." These are assignments of error numbers 10 and 11.
Plaintiff's evidence is clear and uncontradicted to the effect that the bottle here, if it had not struck the floor or had some kind of an impact, would not have broken from internal pressure; it would not have broken at all, unless it had had an impact; the mild impact was delivered over an internally damaged spot on the inside of the bottle. The pulling of a carton of six bottled Coca-Colas from a display case, so that it falls eight inches to a cement floor is not normal handling. The court, when it applied the law to the facts on the first issue, charged in part: "The Court instructs you that if the plaintiff has satisfied you by the greater weight of the evidence, * * * that the defendant bottled and sold and delivered to the plaintiff a bottle of Coca-Cola * * *, and that the bottle was defective in that it had scratching and abrasions on the interior surface of the bottle, and the defendant * * * failed to use due care to examine, inspect and test the bottle to discover that the bottle was defective because of such interior scratching and abrasions and liable to cause or increase the probability of explosion from internal pressure, and that such was the proximate cause or a proximate cause of the plaintiff's injuries, then it will be your duty to answer the first issue Yes." The court did not limit the charge to "internal explosions," as contended by plaintiff. The assignments of error numbers 10 and 11 are not sustained.
Plaintiff's assignment of error number 13 is that the court failed to charge that in the event the jury should find that both defendant and Pauline Webb were negligent, and that the negligence of each was a contributing proximate cause of plaintiff's injuries, they should answer the first issue (negligence), Yes.
The trial court gave the jury a full and correct definition of the rules of negligence and proximate cause, to which plaintiff does not except, and then charged as follows:
"Now, members of the jury, under the law of this State there may be one proximate cause of an injury; there may be two proximate causes; for that matter there may be more than two proximate causes. These may originate from the same source, or they may originate from entirely seprate *437 and distinct sources; and yet, if they unite, concur and combine to proximately cause injury to some person, then the author of each would be liable to the person injured, and such person at his election could sue either or all for such injury."
Later the trial court charged as follows:
"You are further instructed that if a customer in the store of the plaintiff caused bottles of Coca-Cola to fall to the floor, creating an impact on the bottles, and that such was the sole proximate cause of the plaintiff's injury, then the defendant would not be liable; if the sole cause of the plaintiff's injury was the breaking of the bottle of Coca-Cola by external force, that is by an external impact, then the defendant would not be liable."
Later on the trial court in applying the law to the evidence on the first issue (negligence) charged in substance as above set forth that if the defendant was guilty of negligence, as detailed in the charge, and that such negligence "was the proximate cause or a proximate cause of the plaintiff's injuries, then it will be your duty to answer the first issue Yes."
While the charge might have been more precisely formulated, yet studying the charge in its entirety we are of opinion, and so hold, that the jury must have understood from the charge, that if Pauline Webb was negligent and defendant was negligent and their negligence concurred in contributing proximately to plaintiff's injuries, then the defendant would be liable.
Plaintiff's assignments of error numbers 8 and 9refusal to give plaintiff's 4th and 5th prayers for special instructions, and assignment of error number 12failure to charge, have been examined, and are overruled. They merit no discussion.
Plaintiff has not carried the burden of showing error sufficiently prejudicial to warrant a new trial. Johnson v. Heath, 240 N.C. 255, 81 S.E.2d 657.
No error.