Frank Fehr Brewing Co. v. Corley

• Decision Date: 19 June 1936
• Citation: 96 S.W.2d 860,265 Ky. 308
• Parties: FRANK FEHR BREWING CO. v. CORLEY.
• Court: Kentucky Court of Appeals

96 S.W.2d 860

265 Ky. 308

FRANK FEHR BREWING CO. v. CORLEY.

Court of Appeals of Kentucky

June 19, 1936

Rehearing Denied Oct. 16, 1936.

Appeal from Circuit Court, Hardin County.

Action by F. G. Corley against the Frank Fehr Brewing Company and another. Judgment for the plaintiff against the named defendant, and the named defendant appeals.

Reversed with directions.

Wilson W. Wyatt and Peter, Heyburn, Marshall & Wyatt, all of Louisville, and J. R. Layman, of Elizabethtown, for appellant.

Faurest & Faurest, of Elizabethtown, for appellee.

MORRIS Commissioner.

On May 11, 1934, appellee, operating a lunch and soft drink stand in Elizabethtown, was severely injured by the explosion of a beer keg, in the manner later described. He filed suit against the Jefferson Woodworking Company and appellant charging that the woodworking company had negligently manufactured and furnished a keg made of defective material and that the brewery, knowing the proposed use of the keg, that it would be subjected to heavy pressure from the inside, negligently, without inspection, filled the keg with beer and furnished it to appellee, and further that the brewery made the beer sold to him "in a manner and to an extent *** that said beer fermented after it came into his hands," and that such fermentation contributed directly to the explosion.

Defendants by answers denied the allegations of the petition and pleaded contributory negligence, completing issues which were, after proof, submitted to the jury under instructions which are not subjected to criticism. The jury exonerated the manufacturer of the keg, but returned a verdict for $1,500 against appellant. Appellee sought recovery of $3,000.

The woodworking company admits the manufacture of the keg, and the brewery admitted making the beer which was sold to a distributor and by it sold to appellant. Reversal is sought on the ground that the verdict of the jury is not sustained by the evidence and is contrary to law, and that the evidence was not sufficient to take the case to the jury.

Appellant contends: That as to the keg appellee's evidence fails to show (a) that the keg was defective at the time it left the hands of the brewery or (b) that any alleged defect could have been detected by the brewery upon inspection. That as to the beer appellee's evidence fails to show (a) that the beer was negligently brewed, or (b) that it generated, or could have generated by fermentation the pressure which caused the blowing out of the head of the keg, and that the doctrine of res ipsa loquitur had no application.

The jury had before it parts of the keg and the apparatus which controlled the flow of the beer from the keg, and some parts of the gas tank, but these exhibits are not presented here, hence it is difficult to accurately describe the combined outfit, more so because of the numerous exemplifying expressions of witnesses, such as "here" and "there," and "at this or that point." However, it appears that there was in use a tank of carbon dioxide gas, which supplied pressure to force the beer into and through the coils to and out the faucet. At the top of this tank was a square head valve, turned with a small removable wrench, which controlled the flow of gas from the tank through a short metal pipe to a gauge, thence to a rubber hose, thence into a metal pipe which fitted with the siphon or spigot into the head of the beer keg. The tank supplied gas to two kegs of beer.

At some distance from the gauge the rubber tube connected with two rubber tubes, one to supply each keg of beer; in each of these there was a stopcock, which closed the flow of gas to its particular keg. The spigot, by a double tube arrangement in the head thereof, permitted the gas to enter the keg. It was forced through a bung hole and went to the bottom of the keg, the beer entering the spigot through the holes near the lower end, thence into the coils, its flow being controlled by still another valve.

The accident occurred on May 11, 1934. Appellee had left his place of business the evening before prior to the time his helper, Payne, closed the stand. Early on this morning appellee opened up, went first to the beer stand, packed ice around the coils, and turned the valves which permitted the beer to run into the coils. He then looked after his hot-dog stand, and in passing the beer stand first noticed beer spewing or foaming out around the metal tube or spigot. Believing that something was wrong, he reached to turn off the valve in the line which carried the beer from the spigot into the coils. He does not recall whether or not he turned it off, because at this point the head of the keg blew out with such force as to break appellee's arm, otherwise injuring it, and throwing splinters in his face. The force was so great as to throw parts of the beer keg through the ceiling. He says that the valves controlling the flow of gas into the kegs were closed. He does not claim to have looked at the valve on the head of the tank, and on cross-examination says that he only glanced at the others.

Immediately after the explosion, appellee was taken to the office of a near-by doctor who rendered him first aid, and while there he asked Riney to go back and see if the gas was cut off, and this witness did go back to the stand where quite a crowd had gathered, and says he found the gas cut off.

Appellee in brief urges that the evidence satisfactorily shows that the explosion was not, nor could it have been, caused by pressure from the gas tank. The jury eliminated from the case the contention that the keg was made of inferior timber, which conclusion obviates necessity of discussion on this point, or on lack of inspection, except incidentally. In speaking of alleged defects in the material, the appellee in brief says: "The jury decided that question in favor of the defendants, thus holding that the keg was sufficient and that the injury came from some other source," contending that the improper manufacture of the beer resulted in fermentation, thus creating gas to such extent as to force the head from the keg in the manner described.

Mr. Goranflo, a plumber and steamfitter, said that he installed a gas apparatus for appellee some time in 1933, and supposed it was the same one in use at the time of the explosion. He set the regulator at 8 pounds' pressure; no more gas could go through the line, "unless the regulator was out of condition." "If the pressure is needed you turn the regulator to the right and to reduce you turn to the left. It is easily turned." He never saw it after it was installed.

Witness Payne gave a detailed description of the outfit used in supplying gas pressure, and just how the appliance was rigged. He says the gauge was set at 8 pounds, and, as far as he knew, it had not been changed since installation by Goranflo. Payne tapped this keg of beer at 3 o'clock in the afternoon of May 10th. It was known as a "half-barrel" and contained 15 1/2 gallons. He says when he gave this keg gas he would turn it off down at the gas tank, and also at the stopcock. He had never noticed any leak in the valves up to the time of the explosion; he put on gas twice during the afternoon and closed the stand at 12 o'clock that night. When he came down immediately after the explosion, he mopped up the floor and wrung beer out of the mop several times; mopped up as much as 2 or 3 gallons. Witness had never used apparatus of this kind prior to working for appellee. He says when he quit work the gas was off; that he always turned the gas off because of fear of a leak in the gas line. Goranflo had advised him to do so. As to the amount of beer that was in the keg when he closed, Payne says he had only sold out 2 or 3 gallons; appellee says that there were only 2 or 3 gallons left in the keg after the day's sales. Riney says that there was about 8 inches of beer, or from 2 1/2 to 3 gallons left in the keg. Appellee and Payne said there appeared to be nothing wrong with the beer; that it looked clear, had the proper taste, and there was no complaint from the customers; it drew out the usual way. It is shown that the same outfit was used some time after the explosion, but was finally supplanted by a device that pumped air into the keg.

Several witnesses stated that after the explosion there was a white or blue fog or haze appearing in the keg. None of the beer from the keg was saved nor was any examination made to ascertain whether or not it was sour or had set up fermentation.

On the part of appellant (and its co-defendant below) it was shown by witnesses experienced in making beer kegs that the material from which this particular keg head was made was of good oak; that the manufacturers tested all their kegs before sale, subjecting them to 40 pounds' direct pressure. After a keg is furnished the brewery, it is inspected; this keg had been in use some time prior to May, 1934. After use, they were inspected by coopers before refilling. In this case inspection was made by a cooper who had been in the business for many years, examining the heads, staves, and hoops for defects. There was also an inner inspection for cleanliness. While no one of the inspectors could identify this particular keg, it was shown that their duties required them to, and they did, inspect every keg bought and used by the brewery before, and more particularly after, each use.

Testimony showed that beer kegs are strongly made of extra heavy material so that refrigeration would be maintained; weight and bulk are required because of rough handling of the kegs. The average life of a beer keg was said to be about 10 years coopers had known some to last for as long as 40 years. As to the quality of the beer, it will be noticed from appellee's proof that no...