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GREAT ATLANTIC & PACIFIC TEA CO. v. PEPSI-COLA BOTTLING CO.

October 11, 1962

THE GREAT ATLANTIC AND PACIFIC TEA COMPANY, A CORPORATION, FOR THE USE OF THE TRAVELERS INDEMNITY COMPANY, A CORPORATION, PLAINTIFF,
v.
PEPSI-COLA BOTTLING COMPANY OF VINCENNES, INDIANA, INCORPORATED, A CORPORATION, AND UNDERWRITERS AT LLOYD'S OF LONDON, SIGNATORY TO POLICY NO. 3283, NOT INCORPORATED, DEFENDANTS.



The opinion of the court was delivered by: William G. Juergens, District Judge.

This removed cause is before the court on the complaint of The Great Atlantic and Pacific Tea Company, a corporation (hereinafter referred to as "A & P"), for the use of The Travelers Indemnity Company, a corporation (hereinafter referred to as "Travelers"), and is against Pepsi-Cola Bottling Company of Vincennes, Indiana, Incorporated, a corporation (hereinafter referred to as "Pepsi-Cola"), and Underwriters at Lloyd's of London, Signatory to Policy No. 3283, not incorporated (hereinafter referred to as "Lloyd's").

Jurisdiction in this cause is founded on diversity. A & P is a corporation organized and existing under and by virtue of the laws of a state other than the State of Illinois or the State of Indiana and does not have its principal place of business in the State of Illinois. Pepsi-Cola is a corporation organized and existing under the laws of the State of Indiana and does not have its principal place of business in the State of Illinois. Lloyd's is an association of insurance underwriters, being citizens of the United Kingdom, not citizens of the United States, and does not have a principal place of business in the State of Illinois. The amount in controversy fairly exceeds the sum of $10,000.00, exclusive of interest and costs.

Plaintiff A & P and defendant Pepsi-Cola were defendants in a suit filed by one Marjorie L. Barbour on March 29, 1955 in the United States District Court for the Eastern District of Illinois in Cause 3155 (herein sometimes referred to as the "original suit"). In that action plaintiff alleged she received injuries as the result of the negligence of A & P and Pepsi-Cola in bottling, packing, handling and distributing cartons and bottles of Pepsi-Cola and that as a result of that negligence a bottle of Pepsi-Cola, distributed by Pepsi-Cola and sold in an A & P store, broke, which was the proximate cause of the injury.

From the deposition of Ralph H. Freels, manager of the A & P store in Mount Carmel, Illinois, the place of the injury, it appears that Mr. Freels, although present, did not actually see the accident but that he heard the noise which he described as "Well, it sounded like a liquid compressed when it breaks. It makes this kind of like a combustion sound."; that he looked up and saw Mrs. Barbour standing alongside a checkout counter, holding her hand to her eye; that he went over to the counter and found a six-pack Pepsi-Cola carton lying on the floor with at least one or two broken bottles in a pool of Pepsi-Cola liquid; that he noticed Mrs. Barbour's eye had been pierced by a piece of flying glass and that a fluid was flowing out of the eye; that he then took Mrs. Barbour to the doctor and afterward returned to the store; that upon his return the Pepsi-Cola carton and the broken bottles had been cleaned up; that the carton was soaked wet and soggy, apparently from the fluid in which it had lain in the floor after the accident; that one of the bottles had been removed to his office for keeping for future reference; that this bottle was not full; that part of the fluid had leaked from the bottle; that the carton had the bottom or side torn out of it; that Pepsi-Cola was delivered to the A & P store in question in six-pack cartons in wooden half shells, which were placed in the back room of the A & P store by a Pepsi-Cola distributor, namely, the Tenbarge Distributing Company; that the deliveries were paid for by making payment to one Burns; that the Pepsi-Cola was bottled by the Pepsi-Cola Bottling Company of Vincennes, Indiana; that after the Pepsi-Cola was deposited in the storage room, employees of A & P then removed it to the shelves for sale in the cartons.

The accident from which Mrs. Barbour received her injuries arose out of the handling of a Pepsi-Cola product in a store owned and operated by A & P.

At the original trial the jury returned a verdict in favor of plaintiff Marjorie L. Barbour and against defendants A & P and Pepsi-Cola in the amount of $30,000.00.

Subsequently, Richard E. Barbour filed suit against defendants A & P and Pepsi-Cola, which suit was settled for $2,500.00 plus cost of suit.

The evidence further shows that pursuant to stipulation A & P and Pepsi-Cola each paid in settlement one-half of the amounts to the Barbours as follows:

In the case of Marjorie L. Barbour:

  One-half the amount of judgment
  plus interest .......................   $15,108.26
  One-half the court costs ............       207.40

In the case of Richard E. Barbour:

  One-half the amount of settlement ...   $1,250.00
  One-half the court costs ............        38.80
  For a total expenditure by
  each of .............................   $16,604.46

In Count I the plaintiff seeks to recover from the defendants the amount that was paid on the judgment, the settlement, the court costs and its attorney fees expended in defending the original suit and expenses.

By Count II it seeks to recover five-eighths of the sum which it expended as shown in Count I in the event that it is found not to be entitled to recover under Count I and bases its ...


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