Canada Dry Ginger Ale, Inc. v. Fisher
| Decision Date | 19 October 1948 |
| Docket Number | 33282. |
| Citation | 201 P.2d 245,201 Okla. 81,1948 OK 222 |
| Parties | CANADA DRY GINGER ALE, Inc. v. FISHER. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Nov. 30, 1948.
Application for Leave to File Second Petition for Rehearing Denied Jan 4, 1949.
Appeal from District Court, Muskogee County; O. H. P. Brewer, Judge.
Action for personal injuries by Wayne W. Fisher against Canada Dry Ginger Ale, Inc. Judgment for plaintiff, and defendant appeals.
Reversed and remanded with directions.
Syllabus by the Court.
The doctrine of 'res ipsa loquitur' is inapplicable to the bursting of a bottle of carbonated beverage after it has passed from the bottler into the hands of third parties where the record is silent as to how the beverage is handled after it leaves the possession of the bottler until received by the retailer.
Green & Farmer and Robert J. Woolsey, all of Tulsa for plaintiff in error.
Pierce & Pierce and A. L. Brook, all of Muskogee, for defendant in error.
The defendant in error, Wayne Fisher, as plaintiff, filed this action in the District Court of Muskogee County, Oklahoma against the plaintiff in error, Canada Dry Ginger Ale Incorporated, as defendant, to recover for personal injuries received by him when a bottle of Canada Dry Sparkling Water exploded. The parties will be referred to as they appeared in the trial court.
Plaintiff relied entirely upon the rule of 'res ipsa loquitur' to establish negligence on the part of the defendant. Judgment was for plaintiff for $1,266.00 based upon a jury verdict. Defendant, for reversal, urges the failure of the petition to state a cause of action and the insufficiency of the evidence to sustain the verdict and judgment. We need consider only the latter since it is decisive of the issues involved.
Plaintiff was an employee and fountain manager for a drugstore when, on the night of June 25, 1946, he had returned to the establishment to clean the kitchen. He cleaned and dusted all the stock of Canada Dry products on the shelves and then pulled a case of Sparkling Water from under the counter to replace the bottles that had been sold. He picked up four bottles, two in each hand, and, as he turned to set them down, the inside bottle in his right hand exploded, severely injuring his left arm. The case of beverage, from which the exploding bottle had been taken, was purchased in November 1945, and was delivered about December 22, 1945, by a wholeasale grocery of Muskogee, Oklahoma, having been manufactured in the plant of the defendant at Dallas, Texas.
Plaintiff testified that he handled the bottle in the usual manner at the time of and preceding the explosion and, further, to the best of his knowledge, it had been in the case under the counter and unmolested during the six months between the time of its delivery to the store and the time plaintiff removed it. There was no testimony as to who manufactured the glass bottle or as to what treatment it received and by whom it was handled from the time it left defendant's possession until it was received by the plaintiff. The evidence of defendant went to the care used in inspecting the bottles in filling them with the beverage and in the other steps prior to their distribution.
Although this case is described as one subject to the application of the rule of 'res ipsa loquitur,' it is, in reality, one wherein the rule is sought to be extended, as has been done in some jurisdictions, and, as so extended, applied.
This court has adopted the definition of the original rule of res ipsa loquitur as expressed by Thompson on Negligence, Vol. 8, sec. 7635, pgs. 1022-1224. It is quoted and approved in the case of Carter Oil Co. v. Independent Torpedo Co., 107 Okl. 209, 232 P. 419, 421, wherein many cases from other jurisdictions in harmony therewith are collected and cited. It is as follows:
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