Ballou v. Blitz-Weinhard Co.

• Decision Date: 01 March 1967
• Docket Number: BLITZ-WEINHARD
• Parties: Monte BALLOU, Appellant, v.COMPANY, an Oregon corporation, Respondent.
• Court: Oregon Supreme Court

Page 225

424 P.2d 225

246 Or. 179

Monte BALLOU, Appellant, v. BLITZ-WEINHARD COMPANY, an Oregon corporation, Respondent.

Supreme Court of Oregon, Department 2.

Argued and Submitted Jan. 6, 1967.

Decided March 1, 1967.

Ralph C. Sipprell, Portland, argued the cause for appellant. On the briefs were Buss, Leichner, Lindstedt & Sipprell, Portland.

Raymond J. Conboy, Portland, argued the cause for respondent. With him on the brief was William F. Thomas.

Before PERRY, C.J., and SLOAN, GOODWIN, HOLMAN, and LUSK, JJ.

LUSK, Justice.

Plaintiff brought this action to recover damages for injuries suffered by him as the result of the alleged explosion of a beer bottle containing beer manufactured and sold by the defendant. He sued for breach of implied warranty. The accident occurred in a restaurant where plaintiff's wife was employed as a bartender. Plaintiff testified that to assist his wife he was placing bottles of beer in a refrigerator when one of the bottles exploded. The jury returned a verdict for the defendant and plaintiff has appealed, assigning as error the court's refusal to give six instructions requested by him.

We find no reversible error.

The subject matter of two requested instructions explaining implied warranty of merchantability was adequately covered by instructions given by the court.

The plaintiff requested the court to charge that if the bottle exploded after being carefuly handled 'the burden of going forward with the evidence shifts to the defendant' and the jury could infer a breach of implied warranty. The request was faulty in several particulars. 'Going forward with the evidence' is lawyers' language, and even lawyers at times confuse it with burden of proof. Besides, the defendant had already gone forward and there was no point in that part of the instruction. The court was not required to inform the jury of the inference (see Centennial Mills, Inc. v. Benson, 234 Or. 512, 518--519, 383 P.2d 103). Finally, the instruction, as will hereinafter be shown, was inconsistent with another requested by the plaintiff which incorporated the doctrine of strict liability.

A request that the court tell the jury that a manufacturer has an affirmative duty 'to foresee what will happen to the product of manufacture as it goes through its normal work life' was properly refused, both because it is unintelligible and the question of fact as to whether there has been a breach of warranty is not dependent upon what the manufacturer may foresee.

As previously stated, the plaintiff asked for an instruction on strict liability. It reads:

'You are instructed that the manufacturer of any product who sells it in a condition dangerous for its intended use, is strictly liable to its ultimate consumer for injuries resulting from such use, despite the exercise of all reasonable care upon the part of the manufacturer.'

We need not decide whether the doctrine of strict liability announced in Wights v. Staff Junnings, 241 Or. 301, 405 P.2d 624, is applicable to this case, for the request was properly refused in any event. It is defective in that it speaks of liability to the 'ultimate consumer.' Since ...