Judith Ann CIOCIOLA, by her next friend, Joseph P. Ciociola, and Joseph P. Ciociola, individually, Plaintiffs Below, Appellants,
DELAWARE COCA-COLA BOTTLING COMPANY, Defendant Below, Appellee.
An appeal from the Superior Court in and for New Castle County.
[53 Del. 479] H. B. Rubenstein, of Leshem & Rubenstein, Wilmington, for appellants.
Albert W. James, Arthur J. Sullivan and Henry N. Herndon, Jr., of Morris, James, Hitchens & Williams, Wilmington, for appellee.
SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.
This is an action for damages for personal injuries and medical expenses. The plaintiffs are Joseph P. Ciociola and his minor daughter, Judith, suing by her next friend. The complaint contains three causes of action: first, that the minor plaintiff is entitled to damages by reason of the breach by the defendant, Delaware Coca-Cola Bottling Company, of an implied warranty that a bottle, the breaking of which caused the injuries, was fit for its intended purpose; second, that the defendant was guilty of negligence which caused the injuries; and, third, that the doctrine of res ipsa loquitur establishes the liability of the defendant.
At the close of the plaintiffs' case a verdict for the defendant was directed on all causes of action. As to the cause of action based upon breach of implied warranty, the verdict was directed because of the lack of privity of contract between the minor plaintiff and the defendant. As to the cause of action based on the negligence of the defendant, the verdict [53 Del. 480] was directed for lack of sufficient facts to require the submission to the jury of the issue of defendant's negligence. As to the causes of action based upon the doctrine of res ipsa loquitur, the verdict was directed because of the inapplicability of the doctrine.
At the argument before us, counsel for the plaintiffs disclaimed as to the father any contention in his behalf based upon breach of implied warranty, no such contention having been made in the court below. Accordingly, upon the question of whether or
not a verdict was properly directed for the defendant upon the issue of implied warranty, we are concerned solely with the right of the minor plaintiff to maintain the action upon this theory.
It is necessary to state the facts in some detail, which we necessarily do in the light most favorable to the plaintiffs.
Joseph Ciociola operates with his wife a retail grocery store in Richardson Park, a suburban community near Wilmington. The store is physically part of their home located on a corner property. Mr. and Mrs. Ciociola have three minor children, one of whom, Judith, is the minor plaintiff in this action.
The Ciociola store consists of one room and is operated partly as a self-service and partly as a customer-waited-on store. The front portion of the store is devoted to the display and sale of groceries. In the rear of the store is a large cooler in the upper part of which is kept fruit, milk and vegetables, and in the lower part of which is kept various types of bottled soda drinks. Alongside the cooler are racks in which are stored warm bottled soda drinks. It was the custom of the patrons of the Ciociola store to help themselves to warm soda drinks and occasionally to cooled soda drinks stored in the cooler, but ordinarily either Mr. or Mrs. Ciociola served their customers with cooled soda drinks. It was also the custom for [53 Del. 481] the three minor Ciociola children to help themselves to cooled soda drinks from the cooler.
One brand of bottled soda drink kept in the cooler for sale was Coca-Cola, bottled, capped, sold and delivered by the defendant to the Ciociolas. Deliveries of bottled Coca-Cola to the Ciociolas were made on defendant's behalf by its employee described as a driver-salesman who made deliveries, accepted payment, and took back empty bottles. Deliveries were made ordinarily on Mondays and Thursdays of each week, except that if Thursday of a particular week was a holiday, delivery would be made on the day before.
The manner of making delivery of bottled Coca-Cola by defendant's driver-salesman was as follows: Upon arrival at the Ciociola store, defendant's employee would remove cases of Coca-Cola from his truck, place them on a hand dolly, pull the dolly up several steps into the store, and then remove the cases from the dolly and place cartons of bottled Coca-Cola in the rack next to the cooler, placing the cartons thus delivered on top of those still left in the rack so that, ordinarily, the most recently delivered cartons would be located at the top of the rack.
Defendant's driver knew that the members of the Ciociola family, including the minor plaintiff, consumed some of the bottled Coca-Cola so delivered.
The accident which gives rise to this action happened on Thanksgiving Day. On the day before defendant's driver made a customary delivery of bottled Coca-Cola, received payment for it and took away such empty bottles as there were. On the day of delivery, Mrs. Ciociola, at 2:00 p. m. and again at 8:30 p. m., filled the cooler with bottled Coca-Cola from the top of the rack by filling empty spots in cartons already in the cooler with individual bottles and by placing whole cartons of bottled Coca-Cola in the back of the cooler, at the [53 Del. 482] same time moving cartons already in the cooler toward the front.
Any hitting of one bottle against another could have been heard and would have been noticed by either Mr. or Mrs. Ciocola. Prior to the accident in question no such noise had been heard. From this, plaintiffs argue that the inference is that the bottled soda drinks had been handled with care. On neither Thanksgiving Day nor the day before had there been any unusual temperature change either in the store proper or in the cooler, itself.
On Thanksgiving Day, about 2:00 p. m., one of the Ciociola children, not the minor plaintiff, took three bottles of Coca-Cola from the cooler for consumption by the
three Ciociola children. He noticed nothing unusual about the bottles. The minor plaintiff rested the one given to her on a table, holding it with her left hand grasping the bottle at about the middle, and attempted to open the bottle with an ordinary bottle opener held in her right hand. She applied normal pressure to the opener whereupon the bottle broke in two parts. The break started at the top of the bottle in the area of the lip and extended diagnoally down to the level of the liquid. The break was clean and the two parts thereafter fitted together perfectly. The minor plaintiff looked at the bottle before she attempted to open it but noticed no defect in it.
As a result of the breaking of the bottle, a tendon in the left hand of the minor plaintiff was severed in the area of the base of the thumb and index finger.
In order to establish negligence on the part of the defendant, plaintiffs proved the method of the defendant's bottling operation. ...