Maybach v. Falstaff Brewing Corp.

• Citation: 222 S.W.2d 87,359 Mo. 446
• Decision Date: 11 July 1949
• Docket Number: 41169
• Parties: Evelyn Maybach, Plaintiff-Respondent, v. Falstaff Brewing Corporation, and the Kroger Company, a Corporation, Defendants, Falstaff Brewing Corporation, Appellant
• Court: Missouri Supreme Court

222 S.W.2d 87

359 Mo. 446

Evelyn Maybach, Plaintiff-Respondent, v. Falstaff Brewing Corporation, and the Kroger Company, a Corporation, Defendants, Falstaff Brewing Corporation, Appellant

No. 41169

Supreme Court of Missouri

July 11, 1949

Appeal from Circuit Court of City of St. Louis; Hon. Edward M Ruddy, Judge.

Affirmed.

SYLLABUS

Plaintiff was injured by the explosion of a beer bottle in a grocery store. After a verdict for defendant brewing company, a new trial was properly granted. A cautionary instruction as to a verdict based upon speculation may have been confusing to the jury, and evidence as to other beer bottle explosions was improperly rejected. While the res ipsa loquitur doctrine may not be applied, the petition and evidence were sufficient to make a submissible case on the theory of general negligence.

Moser, Marsalek, Carpenter, Cleary & Carter, Byron G. Carpenter and Wm. H. Allen for appellant.

(1) It was error to grant the new trial for the giving of Instruction 6. The instruction properly declared the law in a case of this character; this defendant was lawfully entitled to have it given; and the granting of the new trial because of the giving thereof was error as a matter of law. Gardner v. Turk, 343 Mo. 899, 123 S.W.2d 158; Mendenhall v. Neyer, 347 Mo. 881, 149 S.W.2d 366; Schipper v. Brashear Truck Co., 132 S.W.2d 993, 125 A.L.R. 674; McDonald v. Heinemann, 141 S.W.2d 177; Schlemmer v. McGee, 185 S.W.2d 806; Griffith v. Continental Casualty Co., 299 Mo. 426, 253 S.W. 1043; Palmer v. Hygrade Water & Soda Co., 236 Mo.App. 247, 151 S.W.2d 548; Hicks v. Vieths, 46 S.W.2d 604. (2) The granting of the new trial may not be sustained on the theory that it was a matter within the discretion of the trial court, for whether or not the court erred in giving Instruction 6 was purely a matter of law. "There is no discretion as to the law of a case." Schipper v. Brashear Truck Co., 132 S.W.2d 993, 125 A.L.R. 674; Mendenhall v. Neyer, 347 Mo. 881, 149 S.W.2d 366; McDonald v. Heinemann, 141 S.W.2d 177; Bailey v. Interstate Airmotive, Inc., 358 Mo. 1121, 219 S.W.2d 333; Loftus v. Metropolitan St. Ry. Co., 220 Mo. 470, 119 S.W. 942; Yuronis v. Wells, 322 Mo. 1039, 17 S.W.2d 518; City of Kennett v. Katz Const. Co., 273 Mo. 279, 202 S.W. 558; Sparkman v. Wabash R. Co., 191 Mo.App. 463, 177 S.W. 703. (3) A trial court may not exercise its discretion arbitrarily or injudiciously, and will not be permitted to set aside the verdict of a jury unless some legal ground is shown which may properly constitute the basis for such action. Bailey v. Interstate Airmotive, Inc., 358 Mo. 1121, 219 S.W.2d 333; Schipper v. Brashear Truck Co., 132 S.W.2d 993, 125 A.L.R. 674; McDonald v. Heinemann, 141 S.W.2d 177; Mendenhall v. Neyer, 347 Mo. 881, 149 S.W.2d 366. (4) Where, as here, the court granted plaintiff's motion for a new trial in the mistaken belief that an instruction misdirected the jury, and not on the ground of factual matters or incidents at the trial over which its discretionary powers might be exercised, the order granting the new trial will be set aside on appeal. Mendenhall v. Neyer, 347 Mo. 881, 149 S.W.2d 366; Schipper v. Brashear Truck Co., 132 S.W.2d 993, 125 A.L.R. 674; McDonald v. Heinemann, 141 S.W.2d 177; Loftus v. Metropolitan St. Ry. Co., 220 Mo. 470, 119 S.W. 942; Yuronis v. Wells, 322 Mo. 1039, 17 S.W.2d 518; Davis v. Hill Bros. Veneer Co., 20 S.W.2d 928; Fleming v. Jos. F. McMahon Contracting Corp., 45 S.W.2d 952; Darnall v. Lyons, 51 S.W.2d 159. (5) Since the trial court committed no error in giving Instruction 6, it was later without authority to grant a new trial on account of the giving thereof on the theory that the instruction is erroneous in form, when in fact it is not. Schipper v. Brashear Truck Co., 132 S.W.2d 993, 125 A.L.R. 674; McDonald v. Heinemann, 141 S.W.2d 177; Mendenhall v. Neyer, 347 Mo. 881, 149 S.W.2d 366. (6) Where the plaintiff fails to allege and prove facts showing a prima facie right to recover, it is plain error for the trial court to grant the plaintiff a new trial after an adverse verdict. Rose v. Thompson, 346 Mo. 395, 141 S.W.2d 824; Wallace v. Herman Body Co., 349 Mo. 1093, 163 S.W.2d 923. (7) The res ipsa loquitur rule cannot be invoked where there was divided control over the instrumentality in question. Where there are two or more persons or causes which might have produced the injury, some, but not all of which, were under the control of the defendant or for which the defendant was legally responsible, the maxim, res ipsa loquitur, is, by its very terms, inapplicable. State ex rel. and to Use of Brancato v. Trimble, 322 Mo. 318, 18 S.W.2d 4; Removich v. Bambrick Bros. Const. Co., 264 Mo. 43, 173 S.W. 686, L.R.A. 1917 E 233; Cantley v. M.-K.-T.R. Co., 353 Mo. 605, 183 S.W.2d 123; Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13; Tayer v. York Ice Machine Corp., 342 Mo. 912, 119 S.W.2d 240, 117 A.L.R. 1414; Estes v. Estes, 127 S.W.2d 78; Brown v. St. Louis County Gas Co., 131 S.W.2d 354; Sleater v. John R. Thompson Co., 173 S.W.2d 591; Holloway v. Skelly Oil Co., 68 F.Supp. 129. (8) Under our new Code for Civil Procedure it is still essential, in pleading a claim, that facts be stated showing that the pleader is entitled to relief. Bald legal conclusions, unsupported by issuable facts, are disregarded. Sec. 36, Code for Civil Procedure, Laws Missouri 1943, p. 369; Langenberg v. St. Louis, 355 Mo. 634, 197 S.W.2d 621. (9) Proof of such explosion and injury does not permit the application of the res ipsa loquitur rule. If, in the absence of pleading and proof of specific negligence on the part of the bottler, recovery may be had against the bottler at all, where, as here, the bottle that exploded had been out of his hands for some considerable period of time, the evidence must be such as reasonably to exclude defensive inferences; it must definitely exclude causes for the explosion which could reasonably have arisen after the product left the defendant's possession, and for which defendant could not be held responsible. Slack v. Premier-Pabst Corp., 1 Terry 97, 5 A.2d 516; Kees v. Canada Dry Ginger Ale, Inc., 239 Mo.App. 1085, 199 S.W.2d 76; Soter v. Griesedieck Western Brewing Co., 193 P.2d 575; Stodder v. Coca-Cola Bottling Plants, Inc., 48 A.2d 622; Howard v. Lowell Coca-Cola Bottling Co., 322 Mass. 456, 78 N.E.2d 7; Dunn v. Hoffman Beverage Co., 126 N.J.L. 556, 20 A.2d 352; Hughs v. Miami Coca-Cola Bottling Co., 155 Fla. 299, 19 So.2d 862; Stewart v. Crystal Coca-Cola Bottling Co., 50 Ariz. 60, 68 P.2d 952; Seven-Up Bottling Co. v. Gretes, 182 Va. 138, 27 S.E.2d 925; Wheeler v. Laurel Bottling Works, 111 Miss. 442, 71 So. 743, L.R.A. 1916E 1074; Ruffin v. Coca-Cola Bottling Co., 311 Mass. 514, 42 N.E.2d 259; Berkens v. Denver Coca-Cola Bottling Co., 109 Colo. 140, 122 P.2d 884; Glaser v. Seitz, 35 Misc. 341, 71 N.Y.S. 942; Stone v. VanNoy R.R. News Co., 153 Ky. 240, 154 S.W. 1092; Loebig's Guardian v. Coca-Cola Bottling Co., 259 Ky. 124, 81 S.W.2d 910; Annotations, 8 A.L.R. 501, 39 A.L.R. 1006, 56 A.L.R. 593. (10) It has long been an established rule of law in this state that if, under the surrounding circumstances, the accident could reasonably have been occasioned by the conduct of the plaintiff or that of another for whose act the defendant, under the facts, could not be held liable, the res ipsa loquitur doctrine does not apply; that the evidence as to the accident and its surrounding circumstances must identify the defendant as the wrongdoer whose negligence was the proximate cause of the accident, and must reasonably exclude defensive inferences. Removich v. Bambrick Bros. Const. Co., 264 Mo. 43, 173 S.W. 686, L.R.A. 1917E 233; Sleater v. John R. Thompson Co., 173 S.W.2d 591; State ex rel. and to Use of Brancato v. Trimble, 322 Mo. 318, 18 S.W.2d 4; McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S.W. 872; Grindstaff v. Goldberg & Sons Structural Steel Co., 328 Mo. 72, 40 S.W.2d 702; Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13.

Orville Richardson for respondent.

(1) The trial court did not err in granting a new trial to plaintiff on the ground that it had committed error in giving Instruction 6 for the defendant brewery. The jury is permitted to guess, surmise or speculate in a res ipsa loquitur case. An instruction of this kind is confusing and misleading in a res ipsa case where the whole foundation of plaintiff's case is an inference, and where a jury may find fault though the precise negligent act remains in doubt. Reynolds v. Maryland Casualty Co., 274 Mo. 83, 201 S.W. 1128; Zesch v. Abrasive Co. of Philadelphia, 353 Mo. 558, 183 S.W.2d 140; Schlemmer v. McGee, 185 S.W.2d 806; Lavender v. Kurn, 327 U.S. 645, 66 S.Ct 740, 90 L.Ed. 916. (2) The trial court has a measure of discretion in giving or refusing cautionary instructions and in granting or refusing to grant new trials on account of the giving of such instructions. There was no abuse of that discretion in the case at bar. Zesch v. Abrasive Co. of Philadelphia, 353 Mo. 558, 183 S.W.2d 140; Mendenhall v. Neyer, 347 Mo. 881, 149 S.W.2d 366; Morris v. E.I. DuPont de Nemours & Co., 351 Mo. 479, 173 S.W.2d 39. (3) The Brewing Company's motion for a directed verdict was properly overruled. The res ipsa loquitur doctrine is applicable in determining the liability of a manufacturer of bottled beverages for injuries caused by an explosion of a bottle. Stolle v. Anheuser-Busch, Inc., 307 Mo. 520, 271 S.W. 497, 39 A.L.R. 1001; Stephens v. Coca-Cola Bottling Co., 215 S.W.2d 50; Counts v. Coca-Cola Bottling Co., 149 S.W.2d 418; Bradley v. Conway Springs Bottling Co., 154 Kan. 282, 118 P.2d 601. (4) The petition states a cause of action under the res ipsa loquitur doctrine. Welch v. Thompson, 357 Mo. 703, 210 S.W.2d 79; Walsh v....