Tennebaum v. Pendergast

89 N.E.2d 490, 55 Ohio Law. Abs. 231

• Court: Court of Common Pleas of Ohio, Franklin County, Civil Division
• Decided: May 20, 1948
• Docket: No. 171026
• Status: Published

Opinions

OPINION

By LEACH. J.

On demurrer of defendant to first cause of action

The cases, as both sides agree, are not in harmony as to the application of the doctrine of “res ipsa loquitur” to cases of this kind.

On thorough consideration the court is of opinion that the better and more logical rule is as stated in the following two cases:

“1. The rule ‘res ipsa loquitur’ applies in case of the explosion of a bottle of highly charged beverage, to the injury of a bystander, where the bottle is shown to have been transported and handled in the usual course of business with reasonable and ordinary care.

2. A petition for damages for injuries caused by the explosion of a bottle of liquid put up by defendant, which charges general negligence, and states that the facts and circumstances concerning ^ the manufacture of the bottle and contents are exclusively'within the knowledge of defendants, is sufficient.

3. Absence of contractual relations between one bottling a beverage for sale and a bystander injured by its explosion after it had reached the market is immaterial in an action based on tort to recover for the resulting injuries.” Stolle v. Anheuser-Busch, Missouri Supreme Court, 307 Mo. 520; 271 S. W. 497; 39 A. L. R. 1001.

“2. Res ipsa loquitur is a rule of evidence whereby negligence of the alleged wrongdoer may be inferred from the mere fact that the accident happened, provided the character of the accident and the circumstances attending it lead reasonably to the belief that, in the absence of negligence, it would not have occurred, and the thing which caused the injury is shown to have been under the management and control of the alleged wrongdoer.

3. The doctrine of res ipsa loquitur is applicable in cases based on the alleged negligence of a manufacturer of carbonated beverages toward one injured by the explosion of a bottle, if the plaintiff can show that the bottle was handled with ordinary care by all persons touching it after it left the manufacturer’s hands and that its condition had undergone no change.” Honea v. Coca Cola Bottling Co; Texas Supreme Court — 160 A. L. R. 1445; 2nd & third syllabi.

In the instant case in addition to pleading the happening of the explosion it is pleaded that “the manufacture, distribution and selection of the contents and the bottle which exploded were under the exclusive control of defendant.” This takes the bottle to the possessiion of the retailer — there are no facts pleaded, however, which show that thereafter, said bottle was handled with ordinary care by the retailer and by the purchaser, the plaintiiff, after his purchase. Before the doctrine of res ipsa loquitur can be invoked and before a cause of action can be held to have been stated, the court is of the opinion that this gap should be closed by proper averments in the petition — for as it stands now" almost any treatment or mistreatment might have been given to the bottle, during the period of this hiatus, and before and up to the time of the explosion.

For this reason,

Demurrer Sustained.

On demurrer to second cause of action

Here again there is a conflict of authority. While this court would not go so far as to hold that there is an implied warranty as to containers of all goods sold and would confine such warranty to the goods alone, in some cases, yet where, as here the thing purchased is a bottle of Royal Crown Cola — a soft drink or beverage the consuming or drinking of which drink is by common knowledge ordinarily from the bottle itself, the court is of opinion that the purchaser’s use of both bottle and the liquid therein contained are so closely associated and related that he cannot ordinarily consume the one without at the same time handling and using the other. It is common knowledge that the drink is kept in the bottle till the purchaser wishes to consume the liquid. The bottle and the contemplated use thereof is much more closely related to the contents than, for instance a crate and oranges therein contained.

The court is therefore in agreement with the cases of Cooper v. Newman, 11 N. Y. S. 2nd 319 and Naumann v. Wehl Brewing Co., 127 Conn. 44, 15 A 2nd 181 as to the applicability of the doctrine of implied warranty.

On the matter of pleading however, the court is of opinion that the doctrine can not be invoked if there was anything in the handling of the bottle after it was delivered to the retailer which could reasonably be the proximate cause of the explosion — that the same gap or hiatus in the pleading of the second cause of action, exists, as is pointed out with reference to the pleading of the first cause of action, and generally for the same reasons. Demurrer to second cause of action sustained.

Exceptions — Leave to file second amended petition within rule.