Opinion
No. 33438
Decided January 20, 1954.
Negligence — Res ipsa loquitur — Rule not applicable, when — Party not having exclusive possession and control of instrumentality — Fireworks — Aerial salute bomb — Manufacturer sold to wholesale supplier — Supplier sold to retail jobber — Purchaser from jobber lighted bomb, suffering injury — Rule not applicable against wholesale supplier.
1. Ordinarily the rule of res ipsa loquitur is not applicable against a party because of an instrumentality causing injury and damage to another unless such party had exclusive possession, control and management of the instrumentality at the time it caused the injury.
2. In an action for personal injuries caused by the explosion of an aerial salute bomb, the rule of res ipsa loquitur is not applicable against a wholesale supplier, where plaintiff purchased the bomb from a retail jobber who had purchased it from the wholesale supplier who had purchased it from its manufacturer, and where such bomb had been out of the custody, control and management of the supplier for at least approximately two months and had been lying loose in the retail jobber's warehouse, and where there is no evidence as to nonaccess to the bomb by others or as to the condition of the warehouse, and there is evidence that the bomb could have become defective by its being dropped, by something being dropped upon it, by someone stepping upon it, by its fuse being manipulated, or by its becoming damp, and where plaintiff after purchasing the bomb from the retail jobber transported it approximately 40 miles in his automobile, stored it for five days in a building to which he testified only he had access, and, at the end of those five days, fired the bomb and sustained his injuries by its premature explosion.
APPEAL from the Court of Appeals for Montgomery county.
Joseph W. Koktavy of New Prague, Minnesota, hereinafter designated plaintiff, instituted an action in the Common Pleas Court of Montgomery County against United Fireworks Manufacturing Company, Inc., a corporation organized and existing under the laws of the state of Ohio and hereinafter designated defendant.
In his amended petition plaintiff alleges that defendant is engaged in the manufacture and sale of fireworks for the general use of the public; that among other merchandise sold by defendant is a so-called aerial salute bomb, a device so designed and constructed that when the fuse is ignited a small charge is exploded which propels a larger charge into the air, the larger charge exploding while in the air; that on May 27, 1950, plaintiff purchased from the Arrowhead Fireworks Company (hereinafter designated Arrowhead) of St. Louis Park, Minnesota, a retail jobber, one of defendant's aerial salute bombs, sold by it to Arrowhead for resale to the general public; that, when it sold such aerial salute bomb to Arrowhead, defendant knew that in the usual course of Arrowhead's business the bomb would be resold to one of its customers, to be exploded as usual in the case of such bombs; that the bomb purchased by plaintiff was so constructed as to be dangerous to the life and limb of anyone who might use it in the ordinary way; that on June 2, 1950, plaintiff lighted the bomb in the usual manner, and within a few seconds thereafter it exploded prematurely and violently on the ground, causing plaintiff grievous physical and mental injuries; and that such explosion was the direct and proximate result of the defective construction of the bomb.
Plaintiff prays for damages for the injuries he sustained.
Defendant filed an answer, admitting its corporate capacity and that it is engaged in the business of manufacturing fireworks, denying generally, for its first defense, the allegations in the petition, and alleging, for a second defense, that the use of the bomb by plaintiff was in violation of the law of Minnesota, which defense is not important here.
Plaintiff filed a reply, admitting the existence of certain statutes of Minnesota set forth in defendant's answer and alleging that the bomb was exploded, in connection with a public ceremony, at the specific request of and on signal from the mayor of New Prague.
The evidence discloses that in the year 1950 defendant was not making the type of aerial salute bomb involved in this cause but purchased such bombs from another manufacturer, and that the particular bomb involved was a part of a supply manufactured by the Rhode Island Fireworks Company.
Early in 1950 Arrowhead purchased a supply of fireworks from defendant, which were shipped to St. Louis Park, Minnesota, and received by Arrowhead some time between the last of February and the middle of April 1950.
On May 27, 1950, plaintiff, acting for the American Legion Post No. 45 of New Prague, purchased a supply of fireworks from Arrowhead for use in the coming Fourth of July celebration and transported these fireworks, including the bomb involved in this cause, a distance of about 40 miles in his automobile.
The aerial bomb, such as is involved in this cause, is a cylindrical object about five inches high and nine inches in circumference, having a fuse approximately 18 inches long. It is intended to be fired from a mortar. The cap on the end of the fuse is removed, the fuse lighted, which in turn ignites a lifting or propelling charge, and the gases therefrom cause the other powder charge to be propelled into the air where it explodes.
Plaintiff set off the bomb on a sidewalk in the business center of New Prague, the mortar being held upright with four two-by-four boards, two of such boards being placed parallel and the other two boards being laid on top and at right angles to the bottom two boards.
The mortar in which the bomb was placed and with which defendant had nothing to do was furnished by plaintiff, was made of cast iron, and was rusted and pitted.
After plaintiff lighted the fuse and had run a distance of 15 or 20 feet, an explosion took place, the mortar split along its welded seam, and a piece of the mortar struck plaintiff in the leg, causing such a deep cut that it was necessary to amputate the leg slightly above the knee.
Plaintiff alleges no specific acts of negligence and did not offer any evidence of any negligent act upon the part of defendant but relied entirely upon the rule of res ipsa loquitur.
At the close of plaintiff's evidence, on motion by defendant, the trial court directed the jury to return a verdict for defendant.
Judgment was entered on the verdict, plaintiff's motion for a new trial was overruled, and an appeal was taken to the Court of Appeals for Montgomery county.
That court held that the rule of res ipsa loquitur should have been applied by the trial court and remanded the cause to the Common Pleas Court for a new trial.
The cause is before this court on the allowance of a motion to certify the record.
Additional facts are stated in the opinion.
Messrs. Coolidge, Becker, Wall Wood, for appellee.
Mr. Frederick W. Howell and Messrs. Baggott Johnston, for appellant.
The defendant asserts that the questions of law presented are:
(1) Does the rule of res ipsa loquitur apply where the instrumentality causing the injury was not in the possession, management or control of the defendant at the time of the injury?
(2) Should the rule of res ipsa loquitur be applied where the force causing the explosion was applied by the plaintiff?
(3) Does the rule of res ipsa loquitur apply where the accident itself is as suggestive of some other cause as it is of the negligence of the defendant?
On the other hand, plaintiff asserts that there is only one question of law presented, namely, is the doctrine of res ipsa loquitur applicable despite the fact that the instrumentality left the defendant's possession, where the plaintiff negatived the possibility of the defect having arisen in the instrumentality after it left defendant's hands? Or, stating it another way, where the circumstantial evidence pointing to defendant's negligence is sufficiently persuasive and was not rebutted or explained by defendant, should the case have gone to the jury, although plaintiff did not produce direct evidence of specific negligence?
Plaintiff is relying solely on the rule of res ipsa loquitur which, in this state, is not a rule of liability or of substantive law but is a rule of evidence which permits the jury, but not the court, in a jury trial to draw an inference of negligence, where the instrumentality causing the injury was under the exclusive possession, management and control of the defendant, and the accident occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed. Fink v. New York Central Rd. Co., 144 Ohio St. 1, 56 N.E.2d 456.
A whole series of Ohio cases have announced in both their syllabi and opinions the doctrine that the res ipsa loquitur rule is applicable only where the instrumentality causing the accident and injury was under the exclusive control and management of the one charged with responsibility for the accident. Cincinnati Traction Co. v. Holzenkamp, 74 Ohio St. 379, 78 N.E. 529, 113 Am. St. Rep., 980; Glowacki, a Minor, v. North Western Ohio Ry. Power Co., 116 Ohio St. 451, 157 N.E. 21, 53 A.L.R., 1486; Hiell v. Golco Oil Co., 137 Ohio St. 180, 28 N.E.2d 561; Worland v. Rothstein, 141 Ohio St. 501, 49 N.E.2d 165; Fink v. New York Central Rd. Co., supra; Loomis v. Toledo Railways Light Co., 107 Ohio St. 161, 140 N.E. 639; St. Marys Gas Co. v. Brodbeck, Admr., 114 Ohio St. 423, 151 N.E. 323; Sherlock v. Strouss-Hirshberg Co., 132 Ohio St. 35, 4 N.E.2d 912; Renneckar v. Canton Terminal Restaurant, Inc., 148 Ohio St. 119, 73 N.E.2d 498; Soltz v. Colony Recreation Center, 151 Ohio St. 503, 87 N.E.2d 167; and Feinberg v. Hotel Olmsted Co., 152 Ohio St. 417, 89 N.E.2d 569.
In the Hiell case, supra, Chief Justice Weygandt quoted with approval the following summary of the rule as stated in 9 Wigmore on Evidence (3 Ed.), 380, Section 2509:
"(1) The apparatus must be such that in the ordinary instance no injurious operation is to be expected unless from a careless construction, inspection, or user; (2) Both inspection and user must have been at the time of the injury in the control of the party charged; (3) The injurious occurrence or conditions must have happened irrespective of any voluntary action at the time by the party injured."
In the Renneckar case, supra, Judge Zimmerman, in his opinion, stated:
"By several of its later decisions this court is now committed to the proposition that res ipsa loquitur is a rule of evidence which permits, but does not require, the jury to draw an inference of negligence in a case where the instrumentality causing injury is shown to have been within the exclusive management and control of the defendant and where the circumstances attending the injury were of such a character in themselves as to warrant the conclusion that a lack of ordinary care on the part of the defendant was responsible for the occurrence or condition causing the injury."
If this court were to literally follow its many pronouncements in syllabi and opinions, we would perforce have to say that the Court of Appeals was in error in reversing the judgment of the Common Pleas Court, for plaintiff neither pleaded nor offered any evidence of negligence on the part of defendant but relied solely on the rule of res ipsa loquitur, and it is undisputed that at the time of the accident causing plaintiff's injuries the bomb had been out of defendant's possession and in the possession, for at least two months, of the jobber, Arrowhead, and for five days in the exclusive possession and control of plaintiff himself. Further, plaintiff fired the bomb from the surface of the ground although, in his five years of fireworks experience, out of approximately 200 times he had fired such bombs he had buried the mortars containing the bombs in the ground approximately 160 times.
However, plaintiff strenuously argues that in the many cases on the subject decided by this court the statements to the effect that, in order for the res ipsa loquitur rule to be applicable against a defendant, it is necessary that the instrumentality causing the injury was within the exclusive control and management of such defendant are merely obiter dicta. Plaintiff asserts that the Ohio decisions fall into two groups: first, those in which the court held the rule applicable, and, second, those in which the court held the rule inapplicable. In the first group are the Holzenkamp, Glowacki, Hiell, Worland and Fink cases. Plaintiff argues that, since in each of those cases the court permitted the plaintiff to invoke the res ipsa loquitur rule and the instrumentality causing injury was within the exclusive control and management of the defendant, the statement that in order for the rule to be applicable there must be such exclusive control and management was wholly unnecessary and is merely obiter dictum. In the second category are the Loomis, St. Marys Gas Co., Sherlock, Renneckar, Soltz and Feinberg cases. Plaintiff contends that an analysis of each of those cases discloses that the test was whether the evidence showed that the accident was equally as referable to other causes as to defendant's negligence, and that in the application of this test the question of who was in control of the instrumentality was simply one factor.
Plaintiff contends further that the mere fact that he had the control, custody and management of the bomb at the time he fired it went only to the question of whether he was guilty of contributory negligence and had nothing to do with the question of defendant's negligence in furnishing a defective bomb.
Plaintiff contends further, and this is the cornerstone of his argument, that in recent actions in other courts against manufacturers, where the res ipsa loquitur rule was applied and where the injuries resulted from exploding bottles of carbonated beverages in the possession of retailers, the strict necessity of exclusive possession, control and management has been modified, and that, where it is shown that the instrumentality was in the same condition as it was when it left the manufacturer's possession, it was still constructively in the manufacturer's custody and control at the time of the accident.
Plaintiff contends further that by his evidence he has shown that it was not reasonably possible for there to have been any change in the bomb herein involved from the time it left defendant's possession until the explosion.
In answer to this contention it must be remembered that in each of the bottle cases the explosion occurred without any action on the part of the one injured and so soon after the delivery of the bottle to the retailer that it was easy to demonstrate that it was in the same condition as it was when it left the manufacturer's or bottler's possession.
Defendant contends that in the present case the explosion was initiated by the act of the plaintiff and at a place and time selected by him, and that plaintiff had exclusive control and possession of the bomb, which facts differed from those in the cases of persons injured by exploding bottles.
In connection with such cases, it may be noted that the courts were far from unanimous in allowing the application of the res ipsa loquitur rule, and those which permitted it required that it be shown that the articles could have in no way been subjected to improper handling by others between the time they left the manifacturers or bottlers and the time of the explosions.
The cases recognizing liability as to impure foods and drugs are based upon warranties in pure food and drug acts, and in this case no warranty has been pleaded, proved or relied on.
Plaintiff relies on defendant's catalog for 1950, furnished by Arrowhead, which contained on the cover the trademark and seal of defendant.
In order to show that defendant was a manufacturer, the plaintiff cross-examined its president and manager, who testified that the aerial salute bombs were shipped to it by the manufacturer and thereafter sold and delivered to Arrowhead in the same boxes, on which labels had been affixed bearing a trademark of the defendant. This is the only evidence in the record showing that the defendant in any way altered the original shipping cartons. The record shows that plaintiff never saw such boxes with such labels or knew that they existed. However, in our opinion, under the state of the record it is unimportant to discuss the question whether defendant is considered the manufacturer of the bomb involved in the present case.
Plaintiff concedes that in order to extend the res ipsa loquitur rule so as to render it applicable against one not in the possession, control or management of an instrumentality causing injury, all those having subsequent possession, control or management of such instrumentality must have exonerated themselves from responsibility, that is to say, it must be shown that the instrumentality was not reasonably subject to access and mishandling by others.
So far as plaintiff is concerned, he gave himself a clean bill of health. He testified that he received the bombs, among which was the one in question, from bins constructed with shelves which tilted backward toward the wall and in which the bombs were loosely placed. He transported them in his automobile over 40 miles of concrete highway, without jolting, the fording of any rivers and any unusual incident. He stored them for five days in a room to which he had the only key and which was dry, had a roof, did not leak and was inaccessible to anyone except plaintiff.
However, as to Arrowhead there is no such exoneration.
It is undisputed that Arrowhead had possession, custody and control of the bombs, including the one herein involved, for at least two months, and possibly four months.
The only testimony with reference to the handling of the bombs while they were in the possession of Arrowhead is that they were received sometime between the last week of February and the middle of April; that from their external appearance nothing out of the ordinary was observed; that they were placed loose in a shelf bin in the St. Louis Park warehouse of Arrowhead; and that on May 27, 1950, the loose bombs were sold to plaintiff, taken out of the bin and repacked for delivery to him, at which time they appeared to be all right as far as could be seen.
There is no evidence as to the nature of the warehouse, whether it was damp or dry, who, if any, worked in it who might have had access to the bin containing the loose bombs, and who, if any, reasonably could have handled or mishandled such bombs. In fact, there is no evidence concerning the bombs during at least two months while they were in Arrowhead's warehouse.
There was testimony that the bomb involved in the present case could have been so damaged as to cause a defect which would have caused it to fire prematurely, by dropping it, by mishandling of the shells at the time of loading, by the hanging on to a fuse, by some one stepping upon it, by something falling upon it or by its getting wet from rain or dampness.
Assuming plaintiff to be right in his contention that the rule of res ipsa loquitur should be applicable against a defendant even though the instrumentality causing injury had left his control, custody and management, where it can be shown that nothing happened to it from the time it left defendant's possession until the time of the accident and injury, it follows that the rule was not applicable in the present case since there is an entire absence of evidence that during at least two months' custody of the bomb by Arrowhead one or more of the various causes of damage to such bomb resulting in its defectiveness could not reasonably have happened.
We conclude, therefore, that ordinarily there must be custody, control and management of an injury-causing instrumentality by a party in order to render applicable against him the rule of res ipsa loquitur, and that before the rule may be applicable against a party out of such custody, control and management, there must be a complete showing that the instrumentality could not have been mishandled or tampered with between the time of its leaving the custody of the one sought to be charged and the time of the accident causing the injury.
For the reasons stated, we hold that the Court of Appeals was in error in reversing the judgment of the Court of Common Pleas. Accordingly, the judgment of the Court of Appeals is reversed and that of the Court of Common Pleas affirmed.
Judgment reversed.
WEYGANDT, C.J., MIDDLETON, TAFT and HART, JJ., concur.
ZIMMERMAN, J., dissents.
LAMNECK, J., not participating.
Since the defendant marketed the aerial bomb in issue under its (defendant's) own name and label, the rule should be applied that where "one * * * puts out as his own product a chattel manufactured by another [h3] is subject to the same liability as though he were its manufacturer." 2 Restatement of the Law of Torts, 1086, Section 400.
There can be no doubt in the instant case that the premature explosion of the bomb itself, and not the explosion of the "lift" charge, shattered the mortar into which the bomb had been inserted.
It is a matter of common knowledge that ordinarily after the fuse of an aerial bomb is ignited the initial result is the propulsion of the bomb upwards in the air, and subsequently the bomb itself explodes due to the ignition of a second charge inside it. Where such a bomb, which is not a particularly fragile object, explodes prematurely, as the one here involved did, the cause of such an abnormal occurrence would be attributed by the average individual first to faulty construction. Here the plaintiff traced with a satisfactory degree of thoroughness the history of the bomb from the time it left defendant's place of business until it was placed in the mortar. To my mind, such evidence reasonably warranted the inference that the bomb had been treated with due care after it left the hands of the defendant and had not been subjected to extraneous forces which would tend to cause a dislocation or impairment of its interior parts.
In circumstances of this kind, I see nothing pernicious or objectionable in invoking the rule of res ipsa loquitur. See Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 150 P.2d 436, and Groves v. Florida Coca Cola Bottling Co. (Fla.), 40 So.2d 128.
After all, such rule merely gives rise to a permissible inference of negligence on the part of the one against whom it is invoked and requires him to proceed with explanatory evidence to rebut the inference so raised. Then it becomes the function of the trier of the facts, usually a jury, to determine liability or nonliability, under proper instructions from the court.
On the question of "control" in a case like the one at bar, it should suffice to show that the defendant had control of the offending instrumentality at the time of the negligent act claimed, and a showing of control at the time of the injury is unnecessary. See 3 Cooley on Torts (4 Ed.), 386, Section 480.
Of course, I agree that the rule of res ipsa loquitur should not be extended so as to produce unreasonable or absurd results.
In my opinion, the judgment of the Court of Appeals herein should be affirmed.