Soter v. Griesedieck Western Brewery Co.

• Decision Date: 04 May 1948
• Docket Number: 33128.
• Citation: 193 P.2d 575,200 Okla. 302,4 A.L.R.2d 458,1948 OK 106
• Parties: SOTER v. GRIESEDIECK WESTERN BREWERY CO.
• Court: Oklahoma Supreme Court

193 P.2d 575

200 Okla. 302, 4 A.L.R.2d 458, 1948 OK 106

SOTER v. GRIESEDIECK WESTERN BREWERY CO.

No. 33128.

Supreme Court of Oklahoma

May 4, 1948

Appeal from District Court, Oklahoma County; Albert C. Hunt, Judge.

Action by James Soter against the Griesedieck Western Brewery Company to recover damages for injuries. Judgment for defendant, and plaintiff appeals.

Affirmed.

Syllabus by the Court.

1. The fact that an injury has occurred does not give rise to the presumption of negligence, but it is an affirmative fact for the injured party to establish in order to show that the defendant has been guilty of negligence.

2. A bottling company is not an 'insurer' against the bursting of a bottle of beer.

3. In an action against a bottler by a dealer who purchased beer from a wholesaler for injury to dealer's hand which was cut by broken glass when bottle burst, record examined and held, that the evidence was insufficient to establish that bottler was negligent.

4. A bottler who sells bottled beer is not liable to a third party who is injured by a bottle which explodes upon the theory of breach of implied warranty in the absence of a showing of negligence on the part of bottler.

5. The doctrine of 'res ipsa loquitur' is inapplicable to the bursting of a bottle of beer after it has passed from the bottler into the hands of third parties, where the record is silent as to how the beer is handled after it leaves the possession of the bottler.

Paul Dudley and Albert D. Lynn, both of Oklahoma City (Dudley Duvall & Dudley, of Oklahoma City, of counsel), for plaintiff in error.

Gilliland Ogden, Withington, Shirk & Vaught and W. R. Withington, all of Oklahoma City, for defendant in error.

BAYLESS Justice.

Plaintiff in error, hereinafter referred to as plaintiff, brings this appeal from a judgment of the District Court of Oklahoma County denying the plaintiff relief sought in an action to recover damages for injuries to his right hand occasioned by an explosion of a bottle of Stag beer, brewed and bottled by the defendant in error, hereinafter referred to as defendant, which occurred as he was placing same in a beverage cooler in his place of business.

Plaintiff alleged that in removing the bottle of beer, which was manufactured by the defendant, from the case furnished by the defendant, he handled the particular bottle of beer carefully, but said bottle exploded from one of two causes, to wit: (1) the container or bottle used was insufficient and defective, or (2) in bottling said bottle of beer, defendant caused too much carbonic gas to be included. Plaintiff relies upon the doctrine of res ipsa loquitur as well as upon the above-stated acts of negligence. Plaintiff also alleged there was a breach of the implied warranty of fitness by the defendant in placing said article on the market knowing that it would be handled without inspection, in selecting an insufficient container, or in excessively charging said beer as before alleged. He then alleged the damages sustained by the plaintiff. The defendant filed a general denial.

A jury was waived in said cause and at the conclusion of the evidence the court took the case under advisement and rendered judgment in favor of the defendant. The journal entry contained the following recitations:

'Findings of Fact.

'(1) That the plaintiff owns and operates a sandwich shop in Oklahoma City, Oklahoma, near the Midwest Theater, where he sells, among other things, Stag Beer, which is brewed and bottled by the defendant at Belleville, Illinois. At about 9:00 o'clock P.M. the evening of August 26, 1944, plaintiff was replenishing the supply of bottled Stag Beer in the cooler from the cases thereof which had been delivered to his place of business some three days before by the Collins-Dietz-Morris Company, distributors of Stag Beer in Oklahoma City. He was pulling the beer bottles, two bottles in each hand, from the case and placing them in the cooler. He had placed several bottles from this case in the cooler when suddenly the bottle he then held in his right hand exploded with great force and pieces of the broken glass cut deep into the palm surface of his right hand.

'(2) In removing the bottle of beer that exploded from the case plaintiff handled the same carefully and in the manner he handled the bottles before it; that the container or bottle used was insufficient and defective.

'(3) The explosion inflicted painful and permanent injuries to the right hand of plaintiff, and he has been damaged in the amount of $1848.00.

'Conclusion of Law.

'Upon the foregoing Findings of Fact the Court Makes and enters the following Conclusions of Law:

'(1) The Court has jurisdiction of the parties and of the subject matter of this action.

'(2) The Court concludes as a matter of law, based upon the foregoing Findings, that the same are insufficient to allow recovery on the theory of negligence or breach of implied warranty, and that the plaintiff should take nothing, and the defendant should be discharged with its costs.'

Plaintiff's first proposition is as follows: 'Where a manufacturer with information before him of the nature of the use to which an article manufactured by him is to be put and from the nature of such use must know that if the article when put to such use, if defective, will be imminently dangerous to persons who he knows must come in contact therewith, a duty rests upon such manufacturer to use ordinary care to ascertain the condition of the article to see that it is safe. If he fails to exercise ordinary care in this regard, and as a result sells the article in a defective condition, he is liable for personal injuries to that class of persons who must necessarily come in contact with such article, and liability is not limited to those with whom the manufacturer contacts.' In support of said rule plaintiff cites Crane Company v. Sears, 168 Okl. 603, 35 P.2d 916, which sustains this proposition.

In determining the liability of the defendant for failure to exercise ordinary care in the selection of a bottle it becomes necessary to review the evidence concerning said selection and also to discuss the evidence regarding the cause of the accident.

The proof concerning the cause of the accident was supplied by a chemist who testified that three things could have caused the same: (1) a blow, which he stated the evidence did not disclose that the bottle had received, (2) improper manufacture of the beer under a high carbonization, and (3) a defective bottle improperly annealed. He testified in substance that in his opinion had the bottle received a blow after leaving the factory it would have exploded at that time. He therefore concluded that the bottle had not received a blow. As to cause number who, the improper manufacture of the beer under very high carbonization, he said that 'there is no reason to believe that that circumstance existed.' As to number three, he testified that the bottle was defective in that it was improperly annealed, had an internal stress, and that the shock of cold water was sufficient to cause the bottle to burst by reason of the internal stress, which stress could have been caused by improper annealing. He further testified that the stress which did cause the explosion would not be revealed by its appearance and could not have been observed by an ordinary inspection, but would required a separate examination with polarized light to discover the defect.

This witness did not see the broken bottle or any part of it. The evidence disclosed that the official temperature in Oklahoma City on August 23, the day of delivery of the beer, was 99 degrees at 3:00 p. m., and that at 10:30 p. m., August 26, the approximate time of the alleged explosion, the temperature was 67 degrees.

The evidence on the part of defendant disclosed that the bottling company which manufactured the beer was located in Belleville, Illinois, and the beer was shipped from their factory to Collins-Dietz-Morris Company, wholesalers. Testimony disclosed that the bottles and contents are examined several times before same are sealed; that the last inspection made is under a large magnifying glass with lights on the bottles and contents; that small hairlines or cracks in the bottles will be shown up under such examination; and that defective bottles are not used. The evidence disclosed that beer is pasteurized before being bottled and that the temperature under which beer is pasteurized is approximately 180 degrees. All bottles are cleaned by a sterilizing machine which cleans them by use of live steam and jets of water. There is further testimony that heat and agitation under certain circumstances would cause a bottle to explode. One witness for the defendant testified that he did not think that, at 72 degrees of heat, the gas contents of the beer would be increased.

The record does not disclose the comparative carbonization in beer and beverages designated as 'soft drinks' but the parties in their briefs cite numerous 'soft drink' cases, and since they treat the liability of a manufacturer of beer and 'soft drinks' as being the same, in our discussion of the liability of defendant we will treat his liability as being the same as the bottler of 'soft drinks'.

The defendant contends that since no requests was made for findings of fact by either party that this court should disregard the findings of fact made by the trial court as disclosed in the journal entry and should treat the judgment of the trial court as finding for the defendant on all questions raised. In support of its proposition, it cites Midland Savings & Loan Co. v. Donohoo, 181 Okl. 498 74 P.2d 1147, and other cases, holding in effect that where no request has been made for specific findings...