Slack v. Premier-Pabst Corp.

• Decision Date: 06 April 1939
• Citation: Slack v. Premier-Pabst Corp., 5 A.2d 516, 40 Del. 97 (Del. Super. 1939)
• Court: Delaware Superior Court
• Parties: DARREL SLACK v. PREMIER-PABST CORPORATION, a corporation of the State of Delaware

5 A.2d 516

40 Del. 97

DARREL SLACK v. PREMIER-PABST CORPORATION, a corporation of the State of Delaware

Superior Court of Delaware, New Castle County

April 6, 1939

Superior Court for New Castle County, No. 35, September Term 1938.

Demurrer to declaration.

The first count of the plaintiff's declaration alleged that the plaintiff was a servant of Norfolk Health Center, Inc. at its place of business in Norfolk, Virginia, employed to serve customers with divers beverages; and that while in the performance of his duties and engaged in serving a customer with a bottle of beer, made, bottled, sold and distributed by the defendant, and before any attempt had been made to remove the metal cap from the top of the bottle, it exploded whereby a piece of glass was driven into the right eye of the plaintiff, and permanently injuring it. The defendant demurred.

Demurrer sustained.

Harold B. Howard (of Hering, Morris, James and Hitchens) for plaintiff.

William Prickett for defendant.

LAYTON C. J., RODNEY and SPEAKMAN, J. J., sitting.

OPINION

LAYTON, C. J.

In support of the count of the declaration demurred to, the plaintiff invokes the doctrine of Res Ipsa Loquitur. Interpretations of the doctrine will be found in comparatively recent decisions of this Court in Edmanson v. Wilmington & P. Traction Co., 2 W. W. Harr. (32 Del.) 177, 120 A. 923; Starr v. Starr, 5 W. W. Harr. (35 Del.) 556, 170 A. 924, and Thompson v. Cooles, 7 W. W. Harr. (37 Del.) 83, 180 A. 522.

The rule, being one of evidence, of a limited and restricted scope, and not arbitrary or inexorable in its nature, is to be applied with a cautious judgment and not in a manner to work injustice to a defendant. Apart from circumstances imposing an absolute duty, it is not applied except where the transaction was in the exclusive management of the defendant, and all the elements of the occurrence within his control, and the result is so unaccountable that the defendant's negligence as a proximate cause of injury is the only fair inference to be drawn from the circumstances.

The plaintiff concedes that formerly, by the weight of authority, the doctrine was denied application to injuries caused by bursting bottles in which an ordinary harmless commodity is sold, but he contends that the trend of authority is now to the contrary, and since 1917 no reported case has denied application of the rule in such case with the exception of Stewart v. Crystal Coca-Cola Bottling Co., 50 Ariz. 60, 68 P.2d 952.

The Georgia Courts, it is said, were among the first to apply the doctrine of Res Ipsa Loquitur to exploding bottles, and Payne v. Rome Coca-Cola Bottling Co., 10 Ga.App. 762, 73 S.E. 1087; Atlanta Coca-Cola Bottling Co. v. Danneman, 25 Ga.App. 43, 102 S.E. 542; Macon Coca-Cola Bottling Co. v. Crane, 55 Ga.App. 573, 190 S.E. 879, and Georgia-Alabama Coca-Cola Bottling Co. v. White, 55 Ga.App. 706, 191 S.E. 265, are cited.

There is, we think, little in the Georgia decisions to sustain the particular count of the declaration under attack. In all of the cases cited specific acts of negligence were averred. In the Payne case, the court definitely declined to express an opinion as to whether negligence should be inferred against a bottler of a carbonated beverage upon proof of an explosion of a bottle, without more. In the Danneman case it was said that reliance on the doctrine of Res Ipsa Loquitur was not necessary, as there was direct proof of the defective character of the bottle. In the White case, which arose on demurrer, the petition charged, specifically and sufficiently, several acts of negligence. In the Crane case, it was admitted that the decided weight of authority in other jurisdictions denied application of the doctrine to the bursting of a bottle in which an ordinarily harmless commodity is sold; nevertheless, upon the reasoning of the Payne case, it was held that the doctrine should apply although the instrumentality which caused the injury was not in the possession, power or control of the defendant at the time of the occurrence which caused the injury.

The reasoning employed in the Payne case was: The bottle exploded. Inferentially some one was negligent. Eliminating, therefore, negligence on the part of those persons through whose hands the bottle had passed from the time of its delivery by the defendant, an inference of negligence remains, and the jury may reasonably infer negligence on the part of the defendant, the bottler.

This reasoning is not acceptable. It ignores the well recognized bases of the doctrine so clearly pointed out in Chenall v. Palmer Brick Co., 117 Ga. 106, 43 S.E. 443, and the well considered dissenting opinion of Felton, J., in the Crane case, exposes its sophistry.

The plaintiff cites the Missouri decisions in Riecke v. Anheuser-Busch Brewing Ass'n., 206 Mo. App. 246, 227 S.W. 631, and Stolle v. Anheuser-Busch, Inc., 307 Mo. 520, 271 S.W. 497, 39 A. L. R. 1001. In the Riecke case, lip service, at least, was paid to the doctrine. The plaintiff, at the defendant's invitation, was injured by the explosion of a bottle while going through its plant on a tour of inspection. It was conceded that the bottle belonged to the defendant, and that it had been under its control from the time of its delivery to it by the bottle manufacturer. There was evidence also that the bottle had been pushed with considerable force by an operator at a table against other bottles thereon, and that it exploded when it struck them. The court, apparently on the theory that the bottle was in the exclusive control of the defendant, held the doctrine applicable. In the Stolle case, the plaintiff was injured by the explosion of a bottle of beer sold to her by a dealer. The court, while it noticed the Georgia decision in the Payne case, seemed to rest its decision on the case of Grant v. Graham Chero-Cola Bottling Co., 176 N.C. 256, 97 S.E. 27, 4 A. L. R. 1090, which characterized bottled carbonated beverages as highly dangerous merchandise. In the Grant case, specific acts of negligence were charged, and the court did not advert to the doctrine of Res Ipsa Loquitur. The decision in the Stolle case converts a simple rule of evidence into what, in effect, is a police regulation making the bottler liable as an insurer.

The New York cases cited by the plaintiff do not aid him. In Willey v. Mynderse, 165 App. Div. 620, 151 N.Y.S. 280, one of the specific charges of negligence was that the bottle which exploded and caused the injury was weak and defective. There was evidence tending to show that it had been bought at second hand from a junk dealer, that it was not uniform in thickness, and was otherwise defective. In Torgesen v. Schultz, 192 N.Y. 156, 84 N.E. 956, 18 L. R. A. (N.S.) 726, 127 Am. St. Rep. 894, the state of the pleadings does not appear, but the doctrine of Res Ipsa Loquitur was not suggested as a basis of recovery. The plaintiff, a domestic servant, was injured by the explosion of a glass siphon charged at a pressure of 125 pounds to the square inch. It appeared that, while the siphons were tested by the defendant upon their purchase and delivery, they were not tested again after having been returned to him by customers to whom they had been distributed, and the defendant had no means of knowing how many times the siphons had been refilled and sent out. In Weiser v. Holzman, 33 Wash. 87, 73 P. 797, 99 Am. St. Rep. 932, the complaint charged that the defendant had sold and delivered to a retailer a dangerous explosive, knowing it to be such, under the name of "champagne cider", without warning the retailer of its dangerous character, and that the plaintiff, an employee of the retailer, was injured by an explosion of a bottle containing the commodity. The complaint also averred negligence in bottling, and in failing to test the bottles. The doctrine under discussion was not mentioned.

The doctrine was applied in Auzenne v. Gulf Public Service Co., (La. App.) 181 So. 54, the court citing with approval Stolle v. Anheuser-Busch, Inc., supra. In Taylor v. Berner, 146 A. 674, 7 N.J. Misc. 597, the Supreme Court of New Jersey, in a per curiam opinion without discussing the authorities, held the doctrine applicable to the bursting of a bottle of vichy as against the bottler. The Court of Errors and Appeals (106 N.J.L. 469, 150 A. 371) likewise with no discussion of the principles of the doctrine or citation of authorities, affirmed the holding. In Noonan v. Great A. & P. Tea Co., 104 N.J.L. 136, 139 A. 9, 56 A. L. R. 590, the applicability of the doctrine was denied, as against a retailer, to the explosion of a bottle of ginger ale.

There are decisions, as in Dail v. Taylor, 151 N.C. 284 66 S.E. 135, 28 L. R. A. (N.S.) 949, which hold that the doctrine of Res Ipsa Loquitur should not be allowed to apply to the bursting of a bottle of carbonated beverage without more, for, in such case, the matter still rests in conjecture; but, that where this proof is supplemented by proof of the bursting of other bottles of the beverage furnished by the same defendant bottler, an inference of negligence...