United States District Court, Eastern District of Illinois
August 7, 1956
RICHARD E. BARBOUR, PLAINTIFF,
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY, A CORPORATION, AND PEPSI-COLA BOTTLING COMPANY OF VINCENNES, INDIANA, INC., A CORPORATION, DEFENDANTS.
The opinion of the court was delivered by: Juergens, District Judge.
Plaintiff, Richard E. Barbour, husband of Marjorie L. Barbour,
filed suit against the two above named defendants, charging the
Bottling Company with carelessly and negligently (1) filling and
capping "said bottle, or one or more of them" so as to cause the
same to explode when * * * the same was being handled; (2)
filling "weak and insecure bottles"; (3) placing "said bottles in
weak and unsafe" cardboard containers whereby they "would be
caused to strike against one another and an explosion of one or
more of said bottles would result"; (4) placing "defectively
capped or leaky" bottles in cardboard containers.
The plaintiff, in its charge against the defendant, A & P, did
not repeat the charges as set forth in Paragraphs 1, 2, 3, and 4
of its charge against the bottling company but in its charge
against the A & P stated that the A & P (5) "Placed such
containers and bottles described in (1), (2) and (3) above, on
its shelves for resale * * * well knowing the facts alleged in
said paragraphs * * *"; (6) placed upon its shelves and offered
for sale bottles of Pepsi-Cola that were "improperly filled,
capped, placed into defective and insecure containers".
The plaintiff further charges that as a direct and proximate
result of the explosion of a bottle of Pepsi-Cola that a particle
of such glass struck plaintiff's wife in her right eye, cutting
her eyeball and destroying the sight of said eye. He asks $25,000
damages because, as a result thereof, "she became and is now
disabled and incapacitated from performing a substantial part of
her marital duties, including the care of her family and
household, and plaintiff was and has ever since been deprived of
her services as his wife, and has suffered and sustained a loss
of her consortium".
On March 29, 1955, said Marjorie L. Barbour filed her suit in
this Court against the defendants, being Civil Action No. 3155,
charging both defendants with the same negligence as is alleged
herein. Issue was joined on said complaint, and her case was
tried to a jury and a general verdict of guilty was returned as
to both defendants wherein her damages were fixed at $30,000.
Judgment was rendered on said verdict and according to the
defendants' motion to dismiss plaintiff's suit in action, the
said judgment was satisfied.
The defendants have filed their joint motion to dismiss
complaint and action alleging, among other things not necessary
for this opinion, that the complaint is based upon an injury to
and loss of the right eye of Marjorie L. Barbour, wife of
plaintiff in suit; that she has maintained her suit and has
recovered $30,000 against these defendants; that plaintiff in
suit's action is based upon his wife's disability and incapacity
from performing a substantial part of her marital duties,
including the care of her family and household, his deprivation
of her services as his wife, and his loss of her consortium; that
said $30,000 constituted a full and complete satisfaction for
said injury to her; and that plaintiff in suit did not and could
not have suffered any additional loss sufficient to state a claim
in him against defendants upon which the relief prayed in this
action can be granted.
The Court having considered the defendants' motion to dismiss
complaint and action, having read the briefs and authorities
submitted and being fully advised in the premises, finds that,
for the injuries received by a married woman, two causes of
action may lie: one by the wife for the damages resulting to
herself, and if, by reason of such injuries the husband has been
deprived of her services as his wife, and has suffered and
sustained a loss of her consortium, or has been put to expense
which was not recovered in the suit by the wife, he may bring an
action in his own name. Chicago & Milwaukee Electric Ry. Co. v.
Krempel, 116 Ill. App. 253; Blair v. Bloomington & Normal Railway,
Electric & Heating Company, 130 Ill. App. 400; Stephens v. Weigel,
336 Ill. App. 36, 82 N.E.2d 697.
The Court further finds that both defendants are now estopped
from contesting their negligence, and due care on the part of
said Marjorie L. Barbour, as alleged in the suit by said Marjorie
L. Barbour as above set forth, for the reason that the said
Marjorie L. Barbour recovered a judgment for $30,000 against the
two named defendants and has been fully compensated by the
judgment of this court "and the satisfaction thereof".
It is therefore the order of this Court that the defendants'
motion to dismiss complaint and action be and the same is hereby
It is the further order of this Court that both defendants be
and they are hereby estopped from contesting their negligence and
due care on the part of said Marjorie L. Barbour for the reasons
above set forth.
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