Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. No. TH 71 C 40 JAMES E. NOLAND, Judge.
Swygert, Chief Judge, Hastings, Senior Circuit Judge, and O'Sullivan, Senior Circuit Judge.*fn1
Defendant Glenshaw Glass Company is appealing from a judgment entered on a jury verdict in favor of plaintiff Joan Smith for $100,000, for injuries she received when a bottle exploded. We reverse.
Glenshaw is a manufacturer of glass bottles. It manufactured and sold to Michigan Beverage the 28-ounce non-returnable bottle that is involved in the case. Michigan Beverage filled the bottle with a carbonated root beer beverage and then sold it to Allied Supermarkets. This bottle of root beer, along with two others, was purchased by Smith in the week before the accident. She took the bottles home and placed two of them on the floor in a space between the side of the refrigerator and a wall. Behind the bottles there was a gas pipe running parallel to the back wall and near the back baseboard. One of the bottles was taken from this storage place and used without incident. When Smith reached down and picked up the other bottle, it broke and she was injured by the broken glass.
She then filed this diversity action against Allied, Michigan Beverage, and Glenshaw. Her amended complaint contained four counts. Counts III and IV were based on res ipsa loquitur and were dismissed on Smith's own motion at the start of trial. Count I was based on negligence and contained two allegations of negligence by Glenshaw: (1) failure "to inspect the bottle for flaws and weaknesses before delivery to Michigan Beverage Company;" and (2) failure "to maintain quality control of the bottles in order that such bottles would be safe for intended use." Count II alleged breach of implied warranties of merchantibility and fitness for intended use.
At trial, Smith testified that just as she picked up the bottle it exploded. On cross-examination she admitted she did not know whether she hit the gas pipe with the bottle, but admitted that it was possible that she had. However, she testified that if she had hit the pipe, it was not even hard enough that she was aware of it.
Dr. Andrew Dingle, a consulting scientist was called by Smith as an expert witness on glass fracture. He testified that the bottle broke when it received an external force, but that there was no way to determine the amount of external force necessary to cause the failure. On cross-examination he admitted that there was nothing unusual about this bottle and that at the time it left the Glenshaw plant it had no mechanical or material defects. But, he did state that although this bottle had no physical defect, it had what he termed a "philosophical" defect since "it failed during normal use." He testified that in his opinion this bottle was not reasonably fit for use in a house where it is expected to receive several bumps or bruises, "because it failed; it broke."
Evidence was also introduced by the plaintiff concerning the amount and purpose of the testing done by Glenshaw. The only evidence offered by Glenshaw was a report by a Dr. Fryer which indicated that "the glass walls were free of bubbles, stones, or any other blemishes that would render the bottle unfit for use in the trade."
At the close of the evidence the district court granted Allied Market's motion for a directed verdict and denied such motions on behalf of Michigan Beverage and Glenshaw. The case was submitted to the jury on the negligence theory only.*fn2 The jury found Glenshaw liable and exonerated Michigan Beverage. After appropriate post-trial motions were denied, this appeal followed.
Glenshaw argues that the district court erred by not granting its motions for a directed verdict or judgment notwithstanding the verdict and by refusing to give some of its tendered jury instructions. Since we agree with Glenshaw's first contention, we do not reach the question of the instructions.
The question in this appeal is whether sufficient evidence was introduced to prove that this bottle was defective and that this defect was the proximate cause of plaintiff's injuries. We must determine if the evidence "considered in its aspect most favorable to the plaintiff" exhibits "a total failure to prove any necessary element of the cause." Rice v. Ringsby Truck Lines, 324 F.2d 146, 148 (7th Cir. 1963).
We begin by examining the evidence supporting the allegation that the proximate cause of this accident was Glenshaw's negligent failure "to inspect the bottle for flaws and weaknesses before delivery to Michigan." In fact, there is no evidence supporting this contention. The plaintiff's own expert testified that this bottle had no material or mechanical defect. He stated that as far as he could tell it was "a reasonably, normal commercial bottle of its type." Indeed, even the trial court felt that a defect had not been proven: "There was really no defect ...