Appeal from the Circuit Court of Lake County, Nineteenth
Judicial Circuit; the Hon. L. ERIC CAREY, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT. Rehearing denied and supplemental opinion July 17, 1968.
This is a products liability case brought by Helga Neubauer against the Coca Cola Bottling Company of Chicago for injuries allegedly sustained by reason of the consumption of part of a bottle of Coca Cola, herein called Coke, which contained a foreign substance. The plaintiff charged that the defendant was the bottler and distributor of the Coke in question. The jury returned a verdict for the plaintiff, from which the defendant appeals.
The defendant contends that the trial court erred in refusing to grant its motions for directed verdict or for judgment notwithstanding the verdict. The basis for such motions was that the plaintiff failed in her proof to establish that the defendant manufactured or sold the bottled Coke in question, or that any deleterious condition existed in the product when and if it left the supervision of the defendant, or that the bottle of Coke was not tampered with after it left the control of the defendant. In the alternative, the defendant contends that the judgment should be reversed and remanded for a new trial on the basis of evidentiary and other errors occurring at the trial.
The plaintiff testified that on Saturday, June 4, 1966, she and her husband, with the help of two other men, were moving into a new apartment. At about 11:00 a.m., she went to Tony's Liquor Store, which was nearby, where she selected six bottles of Coke and six bottles of Seven-Up from a cooler, and brought them back to the new apartment. She opened four of the Coke bottles, using the same procedure and attaining the same result which she had experienced in the past when opening other bottles of soft drinks. The plaintiff's Coke was cold and carbonated; she quickly drank about one-half of it and noticed nothing unusual about its taste.
One of the men, who was helping the plaintiff and her husband move, noticed something unusual in the plaintiff's Coke. An examination revealed a dark film on the inside of the bottle, with particles floating in the Coke and sediment at the bottom.
The plaintiff was well until approximately 6:00 p.m., when her stomach started to hurt. Later she became nauseated and had diarrhea. She was sick on Sunday, went to work on Monday, but was not able to do much. On Tuesday, she again went to work but was forced to leave at noon, and went to the hospital where she remained until the following Tuesday, June 14, 1966.
The bottle in question was a ten-ounce bottle. An officer of Tony's Liquor Store testified that he bought his Coke from the defendant but had never purchased a ten-ounce bottle from it. An employee of the defendant testified that the defendant is the only company bottling and distributing Coke to dealers in Lake County the area in which Tony's Liquor Store is located. Employees of the defendant also testified that no ten-ounce bottles were sold to Tony's Liquor Store.
It is the defendant's contention that the plaintiff's evidence failed to establish that the defendant manufactured or bottled the Coke in question. It may be conceded that this is the first essential element of the plaintiff's case. Welch v. Coca-Cola Bottlers' Ass'n (Tex), 380 S.W.2d 26, 30 (1964); Hart v. Coca-Cola Bottling Co., 119 Ohio App. 90, 188 N.E.2d 817, 818 (1963); 36A CJS, Food, § 69(1), p 921.
The defendant relies, primarily, on the fact that the Coke in question was in a ten-ounce bottle; that the store owner and the defendant's employees testified that ten-ounce bottles of Coke were not sold to the store; that the defendant's witnesses stated that ten-ounce bottles are sold to business entities where there is on-the-premises consumption through coin operated coolers, and to certain other outlets for resale in case lots as leader items.
It is not denied, however, that the defendant is the only Coca Cola bottler and distributor in this area; that Tony's Liquor Store purchased Coke from the defendant; or that the plaintiff testified, unequivocally, that she purchased the Coke from Tony's Liquor Store. The proximity of the store to the apartment renders it somewhat logical that she would get the Coke there. There is no reason for the plaintiff to testify falsely concerning where she purchased the Coke, and it is not likely that she would forget where she purchased it.
We cannot say that the plaintiff's testimony, and the further evidence that the defendant was the exclusive distributor in the area, and that Tony's Liquor Store purchased its Coke from the defendant, is of insufficient probative value to show that the Coke in question was bottled by the defendant. The direct, positive evidence relative to the ten-ounce bottle was conflicting. From this evidence the jury might well have determined that a ten-ounce bottle was mistakenly delivered to Tony's Liquor Store by the defendant. Whatever else it may have determined on the basis of these facts, there was adequate evidence for a jury to decide that the Coke in question was bottled and sold by the defendant.
Unlike Welch v. Coca-Cola Bottlers' Ass'n, supra, cited by the defendant, there was no evidence in the case at bar that any other Coca Cola bottler sold or distributed Coke in the defendant's exclusive franchise area.
In order to hold the defendant a remote seller liable, the plaintiff need not prove negligence but must establish as in any other products liability case: (1) that her injury resulted from a condition of the product; (2) that the condition was an unusually dangerous one, and (3) that the condition existed at the time the product left the manufacturer's control. The plaintiff must also prove the exercise of due care for her own safety. People ex rel. General Motors Corp. v. Bua, 37 Ill.2d 180, 196, 226 N.E.2d 6 (1967); Suvada v. White Motor Co., 32 Ill.2d 612, 623, 210 N.E.2d 182 (1965).
The defendant strongly suggests that the third requisite listed above has not been met. In a food products case, such as this one, where the product is contained in a bottle with a crown cap, proof that an unusually dangerous condition existed at the time it left the defendant's control may be met in either one of two ways: by proof that there was no reasonable opportunity for tampering with the bottle; or, if there was such an opportunity, then by proof that there actually was no tampering. Harris v. Coca-Cola Bottling Co., 35 Ill. App.2d 406, 415, 183 N.E.2d 56 (1962); Sharpe v. Danville Coca-Cola Bottling Co., 9 Ill. App.2d 175, 178, 132 N.E.2d 442 (1956); Williams v. Paducah Coca Cola Bottling Co., 343 Ill. App. 1, 11, 98 N.E.2d 164 (1951).
It must be conceded that there was less than an abundance of proof on either of these issues. There was no evidence as to the manner of delivery to, or the storage of the Coke at Tony's Liquor Store. By the plaintiff's own testimony, the Coke was obtained from a cooler in the store which was accessible to the general public. It cannot be said that there was an absence of ...