Stolle v. Anheuser-Busch Incorporated

• Decision Date: 09 April 1925
• Docket Number: 24652
• Parties: HENRY J. STOLLE, Appellant, v. ANHEUSER-BUSCH INCORPORATED
• Court: Missouri Supreme Court

271 S.W. 497

307 Mo. 520

HENRY J. STOLLE, Appellant, v. ANHEUSER-BUSCH INCORPORATED

No. 24652

Supreme Court of Missouri

April 9, 1925

Appeal from St. Louis City Circuit Court; Hon. Frank Landwehr, Judge.

Reversed and remanded.

Hall & Dame and J. B. Garber for appellant.

(1) The doctrine of res ipsa loquitur applies to the facts set out in the petition. Riecke v. Anheuser-Busch Brewing Assn., 206 Mo.App. 246, 227 S.W. 631; Payne v. Rome Coca Cola Bottling Co., 10 Ga.App. 762. (2) The principle underlying the application of the rule of res ipsa loquitur governs and is made applicable by the facts, including the surrounding circumstances set out in the petition. Thompson v. Ry. Co, 243 Mo. 336, 353, 23 A. L. R. 484, 8 A. L. R. 502. (3) The explosion of the bottle of "Budweiser" gives rise to an inference of negligence, and the allegations of the petition eliminating negligence of others brings this inference back to the manufacturer, defendant. Payne v. Coca Cola Co., 12 Ga.App 762, 8 A. L. R. 502.

Nagel & Kirby and Everett Paul Griffin for respondent.

(1) A petition stating only conclusions as to vital matters without the facts on which based, is subject to general demurrer. Mallinckrodt Chemical Works v. Nemnich, 169 Mo. 388; Roberts v. Anderson, 254 S.W. 723; 29 Cyc. Law & Procedure, pp. 566, 567, 570. (2) A demurrer admits the correctness only of facts well pleaded. Custer v. Kroeger, 243 S.W. 770; State ex rel. Rabiste v Southee, 254 S.W. 166. (3) There was no privity between the parties. Heizer v. Mfg. Co., 110 Mo. 605. (4) The petition does not state a cause of action because it does not plead either general or specific negligence. (5) The doctrine of res ipsa loquitur has no application to the facts in the case at bar. Russell v. Ry. Co., 245 S.W. 590; Wheeler v. Laurel Bottling Works, 111 Miss. 442; Glaser v. Seitz, 71 N.Y.S. 942; Stone v. Van Noy News Co., 153 Ky. 240; Bates v. Batey & Co., 3 K. B. (Eng.) 351; Guinea v. Campbell, 22 Quebec S. C. 257, 4 A. L. R. 1094, 8 A. L. R. 502, 13 A. L. R. 1176, 23 A. L. R. 484.

Higbee, C. Railey, C., concurs.

OPINION

HIGBEE

This is an action by plaintiff for loss of the services of his wife and medical and other expenses incurred as a result of personal injuries to her caused by the explosion of a bottle of "Budweiser," manufactured and bottled by the defendant, to his damage in the sum of $ 10,000. The court sustained a demurrer to the petition. Plaintiff declining to plead further, judgment was rendered for the defendant and plaintiff appealed.

Appellant contends that the petition stated a cause of action and that the court erred in sustaining the demurrer. The petition is, in part, as follows:

"Plaintiff for cause of action against the defendant states that on or about July 3, 1920, while said Virginia Stolle, wife of plaintiff, was lawfully in the butcher shop of plaintiff, at 1233 North Taylor Avenue in the city of St. Louis, Missouri, and while she was standing resting her right hand and arm upon a counter therein and exercising ordinary care for her own safety, a glass bottle containing defendant's said product, Budweiser, which said bottle and its contents had shortly prior thereto been manufactured by the defendant for sale to and use by the public, and placed by one Mrs. Phil Martin, the customer who bought said bottle of Budweiser, upon said counter a few feet from where plaintiff's wife was standing as aforesaid, on account of and as a direct result of the negligence of the defendant, exploded, and a large pointed and sharp piece of glass therefrom, driven by the violence of the explosion, flew and struck with great force her right hand upon the back thereof near the knuckles, and severed, cut and lacerated the tendons, leaders, blood vessels, nerves, muscles, skin and flesh thereof, inflicting on her painful and permanent injuries.

"Plaintiff says that the defendant manufactured said bottle and its said contents and bottled and sealed said Budweiser at its said plants in the city of St. Louis, and at all times had complete and exclusive control of said bottle and contents until defendant sold same to one Philip Polinsky, and delivered same to said Philip Polinsky, as a dealer, for the purpose of re-sale to the customer, at his grocery store, which was adjoining and connected by a door with the said butcher shop of plaintiff, and plaintiff says that Mrs. Phil Martin, in due course of business, purchased said bottle and contents from said Polinsky and carried it from said grocery store into said butcher shop and placed it upon said counter, where, a few minutes later, it exploded and injured plaintiff's wife as aforesaid.

"Plaintiff says that said bottle of Budweiser was properly and carefully handled by said Polinsky and said Mrs. Phil Martin and by all persons into whose hands it came after leaving the possession of defendant, and that said explosion was not caused by the fault, negligence or improper handling of said Budweiser on the part of anyone into whose hands it came after leaving the possession of defendant.

"Plaintiff further says that said Budweiser, when manufactured and bottled by defendant, was a carbonated beverage; that it was charged with carbon dioxide, or carbonic acid gas, which exerts an exploding pressure upon the bottle in which it is confined; that the bursting of said bottle of Budweiser would not have occurred if due care had been used by defendant, and plaintiff further says that all the facts and circumstances of and concerning the manufacture of said Budweiser and bottle are peculiarly and exclusively within the knowledge of the defendant and not within the knowledge of plaintiff."

The petition then pleads the injuries inflicted and special damages sustained by plaintiff.

The respondent's contentions in support of the action of the court in sustaining the demurrer, are, so far as need be noted: (1) the petition states conclusions as to vital matters without stating the facts on which the conclusions are based, and is demurrable; (2) there was no privity of contract between the parties, and (3) the doctrine of res ipsa loquitur has no application to the facts in the case at bar.

I. The petition alleges that the bottle would not have exploded if due care had been used by the defendant; that all the facts and circumstances concerning the manufacture of the beverage and bottle were exclusively within the knowledge of the defendant and not within the knowledge of plaintiff. "Less particularity is required when the facts lie more in the knowledge of the opposite party." [Bliss on Code Pleading, (3 Ed.) secs. 310 and 310a, where pertinent illustrations are given.] The petition charges general negligence and, in the circumstances admitted by the demurrer, is sufficient.

II. The defendant's responsibility rests not on contract but in tort, "and therefore the contention as to want of contractual relation is wholly irrelevant." [Waters-Pierce Oil Co. v. Deselms, 212 U.S. 159, 178; Wellington v. Oil Co., 104 Mass. 64; Weiser v. Holzman, 33 Wash. 87, and cases cited.]

III. Much diversity of opinion exists as to whether the doctrine of res ipsa loquitur applies to a case of this character. Among the cases cited by respondent are the following:

Russell v. Railway Co. (Springfield Court of Appeals), 245 S.W. 590. In that case plaintiff was employed by the defendant to go in the fire box of an engine to make repairs. The defendant installed an electric light in the fire box to enable plaintiff to see. The bulb exploded and some parts were driven into plaintiff's eye. On page 591, Cox, J., said: "There is no allegation that defendant manufactured and supplied its own light bulbs and the electricity to produce the light or that an explosion would not occur without some negligence in the use of the bulb and electricity or in the faulty construction of the bulb." The case is an authority against respondent's contention.

In Guinea v. Campbell, 22 Quebec Superior Court, 257, a bottle of cream soda manufactured and sold by defendant burst, inflicting injuries on plaintiff's child. The defendant made a showing which, in the opinion of the judge, exonerated him. The headnote concludes: "The extent of obligation of persons selling gaseous waters as to the receptacles which contain them is to take every reasonable precaution that such receptacles shall be sufficient for the purpose." This case lends no support to defendant's contention.

In Stone v. Van Noy Railroad News Co., 153 Ky. 240, it was held that the bursting of a pop bottle afforded no presumption that it was defective or overcharged. Other cases relied on by respondent are found in the annotations to Chiles v. Ft. Smith Comm. Co., 216 S.W. 11, 8 A. L. R. 493. On page 502, the learned editor says:

"However in Payne v. Rome Coca-Cola Bottling Co. (1912), 10 Ga.App. 762, 73 S.E. 1087, an action against bottlers, for personal injuries due to the explosion of a bottle of coca-cola, it was held that, as there was direct or circumstantial evidence of freedom from fault on the part of all persons through whose hands the bottle passed after it left the bottler, it was a case for the application of the doctrine of 'res ipsa liquitur.' The court said that 'since for every effect there is a cause, where negligence exists someone must have been the responsible author. If he can be found, it is right that he should pay the penalty. The bottle exploded. Inferentially, someone was negligent. It was not Cook, the last vendor of the bottle, nor the plaintiff's brother, nor the plaintiff, nor yet Barnett, because they all stand exonerated by direct or circumstantial evidence of their freedom from fault. But the inference of negligence remains, and someone is primafacie to...