Beck v. Royal Crown Bottling Company

433 S.W.2d 764

• Court: Court of Appeals of Texas
• Decided: October 3, 1968
• Docket: 15339
• Status: Published

Opinions

COLEMAN, Justice.

This is a suit for damages for injuries suffered by the appellant, Mrs. Ann Beck, when a soft drink bottle exploded in her hand. Appellee, the defendant in the trial court, was the manufacturer of the drink. Appellant operated a business selling food and drinks, and had purchased the drink for resale on the morning of the explosion.

The case was tried and submitted to the jury upon special issues incorporating the concept of “strict liability”. The jury failed to find that the bottle was defective when sold to appellant and failed to find any amount in answer to the damage issue.

Appellant contends that the trial court erred in refusing to grant a new trial because the evidence was insufficient to support the jury’s answers to these issues and because these findings were contrary to the great weight and preponderance of the evidence.

On the date of the accident appellant purchased three cases of R C Cola, which were delivered to her place of business by one of appellee’s employees. Appellant testified that she had no R C Colas on hand before the delivery. She showed the delivery man where to place the drinks in a storage room where she kept her supplies. She kept the room locked and no one else had a key. She testified that she placed four or five of the bottles in her refrigerator and that she handled them very carefully. She did not bump or hit either of the bottles against anything. These events, with the exception of the fact of the purchase, were established only by her testimony, which was not directly contradicted.

As she withdrew a bottle from the refrigerator to make a sale, the bottle exploded and she suffered injuries. One of her customers testified that she and a friend ordered soft drinks, but she thought that she must have turned her back just as the refrigerator door opened and she did not see the explosion. She heard it, saw the broken bottle, and the injured woman. Appellant’s testimony was that no one but herself had access to or handled in any manner the bottle that exploded.

Parts of the bottle were introduced into evidence and were examined by an engineer who qualified as an expert. It was his opinion that the bottle had at some time suffered an impact blow. This impact damage testimony was corroborated by appellee’s plant superintendent in charge of production, who stated that the bottle had had a hard blow. The testimony of the expert witness explained the basic sci-' entific facts from which he formed his opinion as to why the impacted bottle, filled under pressure with a carbonated beverage, exploded. The slight change in temperature caused the bottle to crack and the internal pressure then resulted in an explosion. This testimony was corroborated to some degree by appellee’s witness.

Appellee’s witness testified to plant procedures which involved considerable changes in temperature and resulted in the breakage of many bottles before they were filled. Other bottles broke after they were filled and capped. New bottles were tested by special equipment if there was any reason to suspect them of being defective. The procedure for loading the cases onto the trucks was detailed. The cases are taken off the truck and delivered by the route man. The wood dividers in the cases protect the bottles and prevent them from hitting any other bottle. “It would take a tremendous jolt to make them hit against one another.” He testified that he had been with the company twenty years and that he did not know of any bottle having exploded after it had been filled and capped, and had left the bottling line. He testified that the bottle would not fail unless it had some kind of rough treatment, “a blow or something”.

Appellee’s witness gave this testimony:

“After that the bottles go through this heat, where they experience what they call a thermal shock. If there is a flaw in a bottle, why, chances are it will either break inside of the machine or when it comes out it will have a crack in it, and the inspectors will pick it off. In case the crack is not visible, when the pressure hits it on the filling machine, it will blow up then and there, * * *

“That pretty well eliminates anything that might be wrong with the bottle before it ever gets to the case packing machine.”

There was no testimony contradicting or impeaching the testimony of appellee’s witness in any material respect. His testimony did not eliminate the possibility that the bottle had sustained an impact blow before it was received at the plant, or while it was in the possession of the delivery man. If his testimony was believed by the jury, however, it was clearly sufficient to support a conclusion that the bottle was not defective when it was delivered to appellant by appellee.

On the other hand, if appellant’s testimony had been accepted as true by the jury, the possibility of an impact blow after it came into her possession was completely eliminated. The evidence suggests no reason for the explosion other than that it resulted from an impact blow. While appellant’s testimony was not contradicted, the vital fact to which she testified, that the bottle had received careful handling while in her possession, was known only to her, and could not readily have been controverted by appellee. Under such circumstances the jury was not required to accept the testimony of an interested witness even though there was no testimony to the contrary. R. T. Herrin Petroleum Transport Co. v. Proctor, 161 Tex. 222, 338 S.W.2d 422 (1948).

The jury did not find that the bottle was in good condition when it was delivered. The jury refused to find from a preponderance of the evidence that the bottle was in a defective condition when it was delivered. The burden of proving that the product was in a defective condition when it left appellee’s hands was upon appellant. McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.Sup.1967); Coca Cola Bottling Company of Houston v. Hobart, 423 S.W.2d 118 (Houston Tex.Civ.App., 14th Dist., 1967, ref., n. r. e.).

While the evidence was sufficient to raise issues of fact for the jury, after reviewing and considering all of the testimony, we cannot say that the verdict of the jury was so contrary to the great weight and preponderance of the evidence as to be clearly wrong.

The evidence as to injury and damage is such that the failure of the jury to find some amount of money in answer to the issue on damages was clearly wrong. Since the answers made to the previous issues failed to establish a basis for a judgment in favor of appellant, the damage issue became immaterial, and the answer made to the issue on damages did not result in the rendition of an improper judgment. Southern Pine Lumber Co. v. Andrade, 132 , 124 S.W.2d 334 (1939); Le Compte v. Sanders, 378 S.W.2d 861 (Houston Civ.App., 1st Dist. 1964, error ref., n. r. e.).

The Trial Court did not err in denying appellant’s motion for new trial. The judgment is affirmed.