Koktavy v. United Fireworks Mfg. Co.

• Decision Date: 20 January 1954
• Citation: 117 N.E.2d 16,160 Ohio St. 461
• Parties: , 52 O.O. 351 KOKTAVY v. UNITED FIREWORKS MFG. CO., Inc. No 33438.
• Court: Ohio Supreme Court

Page 461

160 Ohio St. 461

117 N.E.2d 16, 52 O.O. 351

KOKTAVY v. UNITED FIREWORKS MFG. CO., Inc.

No 33438.

Supreme Court of Ohio.

Jan 20, 1954.

Syllabus by the Court.

1. Ordinarily the rule of res ipsa loquitur is not applicable against a party because of an instrumentality causing injury and damage to another unless such party had exclusive possession, control and management of the instrumentality at the time it caused the injury.

2. In an action for personal injuries caused by the explosion of an aerial salute bomb, the rule of res ipsa loquitur is not applicable against a wholesale supplier, where plaintiff purchased the bomb from a retail jobber who had purchased it from the wholesale supplier who had purchased it from its manufacturer, and where such bomb had been out of the custody, control and management of the supplier for at least approximately two months and had been lying loose in the retail jobber's warehouse, and where there is no evidence as to nonaccess to the bomb by others or as to the condition of the warehouse, and there is evidence that the bomb could have become defective by its being dropped, by something being dropped upon it, by someone stepping upon it, by its fuse being manipulated, or by its becoming damp, and where plaintiff after purchasing the bomb from the retail jobber transported it approximately 40 miles in his automobile, stored it for five days in a building to which he testified only he had access, and, at the end of those five days, fired the bomb and sustained his injuries by its premature explosion.

Joseph W. Koktavy of New Prague, Minnesota, hereinafter designated plaintiff, instituted an action in the Common Pleas Court of Montgomery County against United Fireworks Manufacturing Company, Inc., a corporation organized and existing under the laws of the state of Ohio and hereinafter designated defendant.

In his amended petition plaintiff alleges that defendant is engaged in the manufacture and sale of fireworks for the general use of the public; that among other merchandise sold by defendant is a so-called aerial salute bomb, a device so designed and constructed that when the fuse is ignited a small charge is exploded which propels a larger charge into the air, the larger charge exploding while in the air; that on May 27, 1950, plaintiff purchased from the Arrowhead Fireworks Company (hereinafter designated Arrowhead) of St. Louis Park, Minnesota, a retail jobber, one of defendant's aerial salute bombs, sold by it to Arrowhead for resale to the general public; that, when it sold such aerial salute bomb to Arrowhead, defendant knew that in the usual course of Arrowhead's business the bomb would be resold to one of its customers, to be exploded as usual in the case of such bombs; that the bomb purchased by plaintiff was so constructed as to be dangerous to the life and limb of anyone who might use it in the ordinary way; that on June 2, 1950, plaintiff lighted the bomb in the usual manner, and within a few seconds thereafter it exploded prematurely and violently on the ground, causing plaintiff grievous physical and mental injuries; and that such explosion was the direct and proxmate result of the defective construction of the bomb.

Plaintiff prays for damages for the injuries he sustained.

Defendant filed an answer, admitting its corporate capacity and that it is engaged in the business of manufacturing fireworks, denying generally, for its first defense, the allegations in the petition, and alleging, for a second defense, that the use of the bomb by plaintiff was in violation of the law of Minnesota, which defense is not important here.

Plaintiff filed a reply, admitting the existence of certain statutes of Minnesota set forth in defendant's answer and alleging that the bomb was exploded, in connection with a public ceremony, at the specific request of and on signal from the mayor of New Prague.

The evidence discloses that in the year 1950 defendant was not making the type of aerial salute bomb involved in this cause but purchased such bombs from another manufacturer, and that the particular bomb involved was a part of a supply manufactured by the Rhode Island Fireworks Company.

Early in 1950 Arrowhead purchased a supply of fireworks from defendant, which were shipped to St. Louis Park, Minnesota, and received by Arrowhead some time between the last of February and the middle of April 1950.

On May 27, 1950, plaintiff, acting for the American Legion Post No. 45 of New Prague, purchased a supply of fireworks from Arrowhead for use in the coming Fourth of July celebration and transported these fireworks, including the bomb involved in this cause, a distance of about 40 miles in his automobile.

The aerial bomb, such as is involved in this cause, is a cylindrical object about five inches high and nine inches in circumference, having a fuse approximately 18 inches long. It is intended to be fired from a mortar. The cap on the end of the fuse is removed, the fuse lighted, which in turn ignites a lifting or propelling charge, and the gases therefrom cause the other powder charge to be propelled into the air where it explodes.

Plaintiff set off the bomb on a sidewalk in the business center of New Prague, the mortar being held upright with four two-by-four boards, two of such boards being placed parallel and the other two boards being laid on top and at right angles to the bottom two boards.

The mortar in which the bomb was placed and with which defendant had nothing to do was furnished by plaintiff, was made of cast iron, and was rusted and pitted.

After plaintiff lighted the fuse and had run a distance of 15 or 20 feet, an explosion took place, the mortar split along its welded seam, and a piece of the mortar struck plaintiff in the leg, causing such a deep cut that it was necessary to amputate the leg slightly above the knee.

Plaintiff alleges no specific acts of negligence and did not offer any evidence of any negligent act upon the part of defendant but relied entirely upon the rule of res ipsa loquitur.

At the close of plaintiff's evidence, on motion by defendant, the trial court directed the jure to return a verdict for defendant.

Judgment was entered on the verdict, plaintiff's motion for a new trial was overruled, and an appeal was taken to the Court of Appeals for Montgomery county.

That court held that the rule of res ipsa loquitur should have been applied by the trial court and remanded the cause to the Common Pleas Court for a new trial.

The cause is before this court on the allowance of a motion to certify the record.

Additional facts are stated in the opinion.

Frederick W. Howell and Baggott & Johnston, Dayton, for appellant.

Collidge, Becker, Wall & Wood, Dayton, for appellee.

STEWART, Judge.

The defendant asserts that the questions of law presented are:

(1) Does the rule of res ipsa loquitur apply where the instrumentality causing the injury was not in the possession, management or control of the defendant at the time of the injury?

(2) Should the rule of res ipsa loquitur be applied where the force causing the explosion was applied by the plaintiff?

(3) Does the rule of res ipsa loquitur apply where the accident itself is as suggestive of some other cause as it is of the negligence of the defendant?

On the other hand, plaintiff asserts that that there is only one question of law presented, namely, is the doctrine of res ipsa loquitur applicable despite the fact that the instrumentality left the defendant's possession, where the plaintiff negatived the possiblity of the defect having arisen in the instrumentality after it left defendant's hands? Or, stating it another way, where the circumstantial evidence pointing to defendant's negligence is sufficiently persuasive and was not rebutted or explained by defendant, should the case have gone to the jury, although plaintiff did not produce direct evidence of specific negligence?

Plaintiff is relying solely on the rule of res ipsa loquitur which, in this state, is not a rule of liability or of substantive law but is a rule of evidence which permits the jury, but not the court, in a jury trial to draw an inference of negligence, where the instrumentality causing the injury was under the exclusive possession, management and control of the defendant, and the accident occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed. Fink v. New York Cent. R. Co., 144 Ohio St 1, 56 N.E.2d 456.

A whole series of Ohio cases have announced in both their syllabi and opinions the doctrine that the res ipsa loquitur rule is applicable only where the instrumentality causing the accident and injury was under the exclusive control and management of the one charged with responsibility for the accident. Cincinnati Traction Co. v. Holzenkamp, 74 Ohio St. 379, 78 N.E. 529, 6 L.R.A.,N.S., 800, 113 Am.St.Rep. 980; Glowacki, a Minor, v. North Western Ohio Ry. & Power Co., 116 Ohio St. 451, 157 N.E. 21, 53 A.L.R. 1486; Hiell v. Golco Oil Co., 137 Ohio St. 180, 28 N.E.2d 561; Worland v. Rothstein, 141 Ohio St. 501, 49 N.E.2d 165; Fink v. New York Cent. R. Co., supra; Loomis v. Toledo Rys. & Light Co., 107 Ohio St. 161, 140 N.E. 639; St. Marys Gas Co. v. Brodbeck, Adm'r, 114 Ohio St. 423, 151 N.E. 323; Sherlock v. Strouss-Hirshberg Co., 132 Ohio St. 35, 4 N.E.2d 912; Renneckar v. Canton Terminal Restaurant, Inc., 148 Ohio St. 119, 73 N.E.2d 498; Soltz v. Colony Recreation Center, 151 Ohio St. 503, 87 N.E.2d 167; and Feinberg v. Hotel Oimsted Co., 152 Ohio St. 417, 89 N.E.2d 569.

In the Hiell case, supra [137 Ohio St. 180, 28 N.E.2d 562], Chief Justice Weygandt quoted with approval the following summary of the rule as stated in 9 Wigmore on Evidence (3rd Ed.), 380, Section 2509:

"(1) The apparatus must be such that in the ordinary instance no injurious operation is to be expected unless from a careless construction, inspection,...