Riecke v. Anheuserbusch Brewing Association
| Decision Date | 08 February 1921 |
| Citation | 227 S.W. 631,206 Mo.App. 246 |
| Parties | MARTHA RIECKE, Respondent, v. ANHEUSERBUSCH BREWING ASSOCIATION, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Kent K. Koerner, Judge.
AFFIRMED.
Judgment affirmed.
Nagel & Kirby, Everett Paul Griffin and Oliver T. Remmers for appellant.
(1) The verdict, assuming that the plaintiff was entitled to recover at all, was grossly excessive. Mitchell v. United Railways Co., 125 Mo.App. 1; St. L., I. M. & S. Ry Co. v. Woodruff, 89 Ark. 9; Weiner v. Minneapolis Street Ry. Co., 80 Minn. 312; Central Texas & N.W Ry. Co. v. Gibson, 35 Tex. Civ. App--; Martagna v Aztec Asphalt Co., 154 N.Y.S. 184. (2) The court erred in giving instruction No. 1 for the plaintiff in that it instructed the jury that negligence was presumed on the part of the defendant by reason of the fact that the bottle of Bevo referred to in the evidence exploded. The doctrine of res ipsa loquitur does not apply in this case. Wheeler v. Laurel Bottling Works, 111 Miss. 442; Glaser v. Seitz, 71 N.Y.S. 942; Stone v. Van Noy R. News Co., 153 Ky. 240; Bates v. Batey & Co., 1913, 3 K. B. (Eng.) 351; Burnham v. Lincoln, 225 Mass. 408; Guinea v. Campbell, Rep. Jud., Quebec, 22 C. S. 257. (3) The court committed error in failing to give the defendant's instructions Nos. 2, 3 and 4.
Edward W. Foristel and Frank H. Haskins for respondent.
(1) This case is within the doctrine of res ipsa loquitur. Payne v. Rome Coca Cola Bottling Co., 10 Ga.App. 762. (2) Where an accident is such as under ordinary circumstances does not happen if those who have the management use proper care it creates a presumption of negligence. Johnson v. Railway, 104 Mo.App. 588; Gallagher v. Edison, 72 Mo.App. 576; Orcutt v. Century Bldg., 214 Mo. 35. (3) An explosion creates a prima-facie presumption of negligence and the doctrine of res ipsa loquitur applies. Rose v. Stephens Trans. Co., 20 Blac. 411; I. C. R. R. v. Phillips, 55 Ill. 294; Spear v. P. W. & B. R. Co., 119 Pa. 61; Posey v. Scoville, 10 F. Rep. 140. (4) The verdict was not excessive.
With the permission of and at the invitation of defendant, plaintiff went upon a tour of inspection of defendant's plant, where it manufactures a non-intoxicating beverage called Bevo. While thus engaged plaintiff received injuries by reason of the explosion of a bottle of Bevo, and on account thereof she recovered a judgment for $ 1,000, from which defendant has appealed.
Two questions are presented: namely, (1) whether the facts warrant the application of the doctrine of res ipsa loquitur; and (2) whether the verdict and judgment are excessive.
The charge was general negligence, and plaintiff relies entirely upon the application of the doctrine of presumptive negligence to the facts in evidence. The jury were instructed that if they believed from the evidence that whilst plaintiff was in the plant, a bottle filled with liquid, which was being handled by one of defendant's servants, exploded and a piece of glass struck and injured plaintiff, and that the contents of said bottle was manufactured and placed in said bottle by defendant, that the law presumes that the explosion of the bottle and the consequent injury to plaintiff was caused by defendant's negligence, and that the verdict should be for plaintiff unless the jury should find that notwithstanding this presumption said explosion and injury to plaintiff was not caused by negligence on the part of defendant.
The facts are these: While inspecting the plant at the invitation of defendant and under the guidance of an employee, plaintiff with others arrived at what is termed the "Bevo Room," and while watching a girl employee of defendant place labels on bottles of Bevo, one of the bottles exploded and a piece of glass struck plaintiff an the end of her nose. At the time, plaintiff was standing about six feet from the girl labeling the bottles. It appeared that the bottles were on a long table and the girl employee would push them from her after labeling each and that she pushed one with considerable force and when it hit the others it exploded. It was conceded that the bottle belonged to defendant; that the contents was manufactured and put in the bottle by defendant, and that it was in the hands of and under the control of defendant from the time they received the bottles from the glass manufacturers until the explosion. It appeared that defendant purchased all its bottles from three manufacturers; that they bought only the highest grade of bottles; that a part of each order of bottles was tested before purchase, and that all of the bottles were made from a steel mold, which was also examined and tested by the defendant before it was used in the manufacture of bottles.
It was shown by defendant that Bevo was not naturally an explosive substance and is not a highly charged liquid, but that if too much gas were put in the bottle it would burst. According to one of defendant's witnesses, this was the first time that a bottle had ever exploded.
It is not contended by the plaintiff that there is any direct evidence of negligence on the part of defendant that caused the explosion, but the plaintiff relies entirely upon the presumption that arises from a showing that the explosion occurred. It is asserted that from the fact of the explosion under the conditions and circumstances, the law presumes some negligent act on the part of the defendant, and that the burden was then cast upon the defendant to acquit itself of negligence which arose against it by reason of the presumption.
Defendant has cited us to several cases from other jurisdictions, which hold that the mere explosion of a bottle filled with a liquid charged with gas to the injury of another, does not raise a presumption of negligence, and hence it was incumbent upon the plaintiff to prove some specific act of negligence on the part of the defendant. . In these cases either the plaintiff did not rely upon the doctrine of res ipsa loquitur, or else the bottle that exploded was no longer in the hands of the defendant, but had passed from it, and at the time of the explosion was under the control of another. The cases referred to are not authoritative in support of defendant's position, as the facts of this case are entirely different from the facts in the cases referred to.
The case of Payne v. Rome Coca Cola Company, 10 Ga.App 762, 73 S.E. 1087, applies the doctrine even to a case where the bottle exploded in the hands of a dealer, and where the bottle had passed through several hands since leaving the possession of the defendant. This was upon the theory that the evidence showed that due care had been exercised by all of the parties who handled the product since it left...
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