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District Court of Appeal, Second District, Division 3, California.


Civ. 15992.

Decided: July 14, 1948

Eugene S. Ives and Schell & Delamer, all of Los Angeles, for appellant. Mitchell & Cold and Samuel A. Rosenthal, all of Los Angeles, and Leonard G. Ratner, of Beverly Hills, for respondent.

On the morning of August 23, 1944, plaintiff, who was the owner of a cocktail bar and cafe, was severely injured in his right eye when a bottle of ABC beer exploded in his hand while he was transferring it from the case in which it was delivered to a refrigerator in his establishment. Subsequently this action for damages was brought against the alleged manufacturer of the beer and the wholesale distributor thereof from whom plaintiff had acquired the beer. The complaint named as defendants Aztec Brewing Company, a corporation; Black and White, doing business as Axtec Brewing Company, also known as ABC Brewing Company; Aztec Brewing Company, a copartnership, also known as ABC Brewing Company; Associated Brewers Distributing Company; and a number of ‘Doe’ defendants. Two causes of action were set forth, the first being based on negligence and the second on implied warranty. At the commencement of the trial, a motion for judgment on the pleadings in favor of the defendants was granted by the court in respect to the second cause of action, and that matter is not own before us.

The complaint was served upon Associated Brewers Distributing Company, the wholesale dealer, but during the trial this defendant was voluntarily dismissed from the case by plaintiff. It was also served upon one F. M. Brick, who was designated in the return of service as the assistant general manager and superintendent of Aztec Brewing Company, a corporation. At no time was service had upon any other named defendant, and no appearance was had on behalf of any of them. An answer was filed by Aztec Brewing Company, a corporation, which stated that it was ‘answering for itself alone and not for any of its co-defendants.’ This answer denied that at any time mentioned in the complaint the answering defendant bottled, sold, or distributed ABC beer; denied that plaintiff at any time purchased any ABC beer from the answering defendant; and denied the allegations of negligence and proximate cause. It admitted the existence of the partnership doing business under the name of Aztec Brewing Company.

The following instruction was given on the court's own motion: ‘It has been established in this case that Aztec Brewing Company, a corporation, is the ‘alter ego or other self’ of the Aztec Brewing Company, a co-partnership. Therefore, if one is liable, both are liable.' The jury returned a verdict in favor of plaintiff and against Aztec Brewing Company a corporation, and Aztec Brewing Company, a limited partnership. The present appeal has been taken by Aztec Brewing Company, a corporation, from the judgment entered upon and in accordance with that verdict.

The following facts were established by undisputed evidence. At the time of the injury to plaintiff, ABC beer was produced solely by Aztec Brewing Company, a copartnership which was the successor to the corporation of the same name which filed an answer, as stated above. The said corporation was organized in 1932 with its place of business in San Diego. In March, 1944, primarily in order to reduce income tax liability, the structure of the company was changed to a limited copartnership, but the firm name remained the same, namely, Aztec Brewing Company. All of the corporate assets were at this time transferred to the partnership. The corporation ceased to manufacture, bottle, or sell beer after March 31, 1944, and remained in existence thereafter merely in order to collect certain claims due it. The members of the newly formed partnership were identical with the stockholders in the corporation, the president and vice-president of the latter becoming general partners, and all other shareholders becoming limited partners. The financial interests of all the partners were in exactly the same ratio as had been their interest in the corporation. The partnership carried on the beer manufacturing business of Aztec Brewing Company without any interruption; was issued licenses under that name; and used the same manufacturing plant, equipment, offices, trucks, labels, packing cases, letterheads, and invoices as the old firm. It retained in its employment substantially the same personnel. For a short period of time, the corporation continued to use the company offices for the purpose of completing its unfinished business. During this time, separate bank accounts were maintained for each entity, checks on these accounts being differentiated by use of the words, ‘corporation,’ or ‘a partnership.’ Whereas the executive authority of the president of the corporation had been paramount, under the partnership organization it was joint and co-extensive with that of the other general partner.

On the basis of the foregoing evidence, the trial court ruled that the corporation was the alter ego of the partnership as a matter of law. Defendant's motion for a directed verdict and for a nonsuit were denied on this ground, and requested instructions submitting the alter ego issue to the jury were refused, the court giving instead the instruction quoted above.

Appellant challenges the correctness of these rulings of the court in four particulars. It is first contended that since alter ego was not pleaded, it was not an issue properly before the court. In support of this proposition, reliance is placed upon Dos Pueblos Ranch & Imp. Co. v. Ellis, 8 Cal.2d 617, 67 P.2d 340, Minifie v. Rowley, 187 Cal. 481, 202 P. 673, and Davis v. Perry, 120 Cal.App. 670, 8 P.2d 514. None of these cases dealt with a situation similar to that in the present case. The Dos Pueblos Ranch case involved an appeal from a judgment for plaintiff entered on the pleadings, and held only that defendant's answer failed to allege facts sufficient to put alter ego in issue, that being the only defense upon which defendant relied. Minifie v. Rowley involved a ruling sustaining a demurrer to a complaint, and the court held that the complaint did allege sufficient facts to raise the issue of alter ego. In Davis v. Perry, the court states that when alter ego is relied upon as an equitable defense, it must be pleaded in order to render admissible evidence based thereon. Although undoubtedly a correct statement of the law as applied to the facts there before the court, it was unnecessary to the decision, for the court went on to hold that even had the alter ego relationship been provent, it would have been an inadequate defense. The three cases hold at most that under the circumstances there being considered, pleadings were necessary to put alter ego in issue. None of them can be deemed authority of the proposition that under different and more appropriate circumstances specific allegations may not be dispensed with. See, for example, Mirabito v. San Francisco Dairy Co., 1 Cal.2d 400, 35 P.2d 513, where alter ego does not appear to have been pleaded.

Nevertheless, if we were to assume arguendo that plaintiff should have pleaded the alter ego relationship, we think the present case would fall within the principle enunciated in Marr v. Postal Union Life Ins. Co., 40 Cal.App.2d 673, 680, 105 P.2d 649, which holds that the failure of a complaint to specifically allege an alter ego relationship upon which reliance is placed by plaintiff, may be cured by denials in the answer. In the case at bar, the corporation's answer specifically denied that it was in the business of bottling, selling, or distributing ABC beer at the time of the injury to plaintiff. This answer was clearly sufficient to put in issue the question whether the corporation was a party properly chargeable with any liability which might have resulted from plaintiff's injury; and the existence of an alter ego relationship could be reasonably considered to be involved in that determination in view of the admission of the existence of a partnership doing bsusiness under an identical firm name.

Furthermore, examination of the record discloses that from the very outset of the trial, defendant consistently maintained that the corporation known as Aztec Brewing Company had not produced the bottle of beer which injured plaintiff, but that the partnership of the same name had done so. When, early in the trial, counsel for defendant, who was called as a witness by plaintiff, testified to this effect, plaintiff, on the ground of surprise, requested and was granted a continuance for the purpose of taking the deposition of the president of the defendant corporation in order to determine whether or not the corporation was the alter ego of the partnership, and on the basis thereof, to decide whether the action against the corporation should be dismissed voluntarily. Most of the evidence summarized above showing the details of the relationship was contained in this deposition. Relying thereon, plaintiff elected to continue the action against the corporation on the alter ego theory. Throughout the rest of the trial, defendant continued to argue on the merits that the alter ego doctrine was inapplicable, but produced no evidence to contradict that contained in the deposition of its president.

As was said in Marr v. Postal Union Life Ins. Co., supra, 40 Cal.App.2d 673, 681, 105 P.2d 649, 654, ‘the foregoing immediately suggests that appellant's counsel was not surprised or misled by presentation of the alter ego theory at the trial, but on the contrary was fully prepared to meet such issue and defend against it. Not having actually misled appellant to its prejudice in presenting its defense, the variance, if any, between the allegations of the complaint and the proof cannot be considered as a material variance. Code Civ.Proc. secs. 469, 470.’ The departure from the pleadings in the present case was merely technical, and could not possibly be deemed to have resulted in a miscarriage of justice. Since pleadings are a means to an end, rather than an end in themselves, the determination of an issue fairly and fully tried should not be denied effect merely because that issue was not squarely within the framework of the pleadings. See Swanson v. Hempstead, 64 Cal.App.2d 681, 682, 683, 149 P.2d 404. Under the circumstances here presented, appellant cannot fairly deny that the question of the alter ego relationship was considered to be an issue in the case and was fully tried.

Appellant further contends that the evidence was insufficient as a matter of law to establish the existence of an alter ego relationship in the present case. On the contrary, as we have seen, the undisputed evidence shows the existence of two ostensibly separate and distinct business entities which were actually the same economic unit, owned by the same persons in the same proportions. The partnership was admittedly created as a conduit through which the former corporate business could be conducted with diminished tax liability. The very fact that one entity conveyed its assets and relinquished control to the other without interruption in the conduct of the business or any outward manifestation of change in the nature of the enterprise well illustrates the essential unity of interest between them. As said in Mirabito v. San Francisco Dairy Co., 8 Cal.App.2d 54, 59, 47 P.2d 530, 532, ‘Separate corporate identity, however, is not always available as a defense. Where there is such a unity of interest and ownership that the separateness of the corporations has ceased and the facts are such that an adherence to the fiction of separate existence of the corporation would under the particular circumstances sanction a fraud or promote an injustice, separate identity will be disregarded.’ Under the rule quoted, it is well settled that actual fraud need not be shown. It is sufficient if a refusal to recognize the alter ego relationship ‘will bring about inequitable results.’ Minifie v. Rowley, supra, 187 Cal. 481, 488, 202 P. 673; Wenban Estate, Inc. v. Hewlett, 193 Cal. 675, 698, 227 P. 723.

These principles are clearly applicable to the present facts. From the evidence considered as a whole, we think the only logical conclusion which could have been reached was that Aztec Brewing Company, a corporation, was the alter ego of Aztec Brewing Company, a limited partnership, insofar, at least as liability for plaintiff's injury is concerned. Cf. Mirabito v. San Francisco Dairy Co., 1 Cal.2d 400, 406, 35 P.2d 513. A contrary decision would not only be highly inequitable, but would also confer an undeserved importance upon legal technicalities and, ‘upon the facts herein would be to deny respondent the fruits of fairly contested litigation, place a premium upon acts and conduct which have misled a litigent, and frustrate the very purpose of our jurisprudence.’ Mirabito v. San Francisco Dairy Co., supra, 8 Cal.App.2d 54, 60, 47 P.2d 530, 533.

The conclusion we have reached on this phase of the case disposes also of appellant's further contention that the issue of alter ego should have been submitted to the jury under proper instructions. Since, as we have seen, the evidence concerning alter ego was clear and uncontradicted, and there was no evidence which would have supported a contrary finding, the question was one for the court rather than for the jury. Isenberg v. California Empl. Stab. Comm., 30 Cal.2d 34, 40, 41, 180 P.2d 11; Curcic v. Nelson Display Co., 19 Cal.App.2d 46, 64 P.2d 1153. Cf. Wenban Estate, Inc. v. Hewlett, supra, 193 Cal. 675, 695–697, 227 P. 723.

The further contention that enforcement of the judgment against appellant corporation would deprive it of its property without due process of law is likewise without merit. The action was fully and fairly litigated. Defendant corporation had full knowledge of the facts, and there is nothing in the record to indicate that the partnership could have presented any additional evidence which would have affected the results of the trial in the slightest manner. As we have seen, the court clearly had jurisdiction over both business entities known as Aztec Brewing Company. Since the corporation is bound by the acts of its alter ego, any evidence which would support the judgment against the partnership likewise supports the judgment against the corporation to an equal extent. It follows that enforcement of the judgment against the latter would not be open to the alleged constitutional objection.

The second major issue presented by this appeal involves the correctness of the instructions which introduced the doctrine of res ipsa loquitur. As we shall presently see, the court instructed that the evidence established as a matter of law an inference of negligence on the part of appellant. By this instruction the court withdrew from the jury two essential questions of fact, namely, whether plaintiff had established by his evidence that the bottle was probably not rendered unsafe while it was in the hands of other persons after it left possession of the defendant, and whether the defective or dangerous condition of the bottle would probably have been discovered by defendant in the exercise of ordinary care. We shall proceed to demonstrate that this application of the doctrine was clearly erroneous and prejudicial.

We think the problem of making correct application of the legal principles involved in the exploding bottle cases is not as difficult as it has often been made to appear. There has been much disagreement in the cases over the application of the res ipsa loquitur doctrine. It has been properly applied where it has been assumed, as a matter of common knowledge, that a bottle of pressurized liquid does not ordinarily explode except through someone's negligence. But the proposition that the explosion of the bottle, in and of itself, raises an inference of negligence has not been declared in any California case and we adhere to the view that the mere occurrence of the explosion does not bring the doctrine into play.

It has become customary in the trial of these cases to make use of expert testimony. That course was pursued in the present case and, as we shall see, the expert testimony, when considered with other evidence to which we shall refer, if given full credit by the jury, raised an inference of negligence on the part of defendant under general principles of negligence law. Where an inference of negligence arises because, and only because, the jury gives credit to the testimony of a number of witnesses testifying on different subjects, it is incorrect, as a matter of definition, and also redundant, to say that the inference arises under the res ipsa loquitur doctrine. Mere mistakes of nomenclature, however, are unimportant. The basis of our decision, as will be developed, is that it is erroneous to apply the doctrine upon the assumption that a factual basis for it exists, where such factual basis must first be determined from conflicting evidence or inferences.

We take it that the following may be assumed as facts which are of common knowledge. (1) That glass is a breakable substance and should be handled with care. (2) That a glass bottle of liquid under pressure does not ordinarily explode unless the bottle is defective or under excessive pressure. (3) That it is known in the trade that there are certain methods used by manufacturers and bottlers for the testing of bottles.

The nature of the commonly used tests and their effectiveness in the discovery of defects, as well as the customary practices of manufacturers and bottlers in making use of them, are not matters of common knowledge, but are properly the subject of expert testimony. If such expert testimony is comprehensive, it will inevitably appear therefrom that defects are frequently discovered and that it is the customary practice of bottlers to make inspections or tests of bottles before they are sent out to the trade.

From the testimony of several of plaintiff's witnesses, it was revealed that bottles of ABC beer frequently exploded during pasteurization, and occasionally did so afterwards, during labelling, or while resting in storage, or during transportation. This evidence was sufficient, if indeed any proof was required, to establish that defendant was under a duty to examine its bottles carefully for defects before parting with possession of them. An expert on the manufacture of glass bottles, testifying for plaintiff, described several technical methods commonly used by glass manufacturers for disclosing various types of defects in bottles, and stated that if all of these tests were used all defects would be revealed. In the opinion of this expert, the explosion which injured plaintiff was caused by such a discoverable defect. He also described a test made by suddenly thrusting bottles alternately into hot and cold water, and testified that this was one of the best tests used. This method of testing, as described by the witness, could well have been regarded by the jury as a reasonable and practicable one for a bottler to use, and an efficient one as well.

Whether a defect was discoverable in the exercise of ordinary care is a fact to be inferred from expert testimony. The bottler must be deemed to have had knowledge of all facts that would have been developed in the exercise of ordinary care. The expert evidence to which we have referred above, would have justified the conclusion that defective bottles are discoverable in the exercise of ordinary care. It would follow as a corollary thereto that if a bottle explodes while in the hands of a bottler an inference of negligence arises. Therefore, if such testimony is deemed reliable and sufficient by the jury, an inference of negligence of the bottler must be drawn, and the jury should be instructed to this effect.

However, the jury was not bound to give full credit to the expert testimony. The weight to be given to such testimony is within the sound discretion of the fact finding tribunal. This rule is well established. Maryland Casualty Co. v. Industrial Acc. Comm., 64 Cal.App.2d 162, 166, 148 P.2d 95; see cases collected in 10 Cal.Jur. 972. The considerations which enter into the determination whether the testimony of an expert witness should be deemed reliable and sufficient have been stated much too often to require repetition here.

The ultimate conclusion, upon this branch of the case, whether the bottler did or did not exercise ordinary care to discover a defective or dangerous condition was to be reached by weighing the evidence as to the availability of reasonable and practicable tests, and their effectiveness, against the evidence as to the methods employed by the bottler.

It appeared that defendant made no tests or inspections of its bottles, whether new or used, except that which was furnished by a pasteurization process, in which filled and capped bottles were slowly subjected to heat, to reveal defective ones. While the evidence as a whole, with respect to the matter of the use of care, was sufficient to justify a finding that defendant was negligent, we cannot say that it proved negligence as a matter of law.

Another issue of fact arose from evidence that after defendant parted with the bottle it passed through several other hands before it exploded. Under these circumstances proof that defendant had failed to exercise ordinary care while the bottle was in its possession would not alone justify a conclusion that defendant's negligence was the cause of the explosion, since the defective or dangerous condition of the bottle might have developed after it left defendant's possession. It was therefore necessary for plaintiff to produce evidence sufficient to prove, directly or by reasonable inference, that the bottle was in a defective or dangerous condition when it left the hands of defendant. Testimony that the bottle was carefully handled while in the hands of such other persons and was not exposed to extraneous damaging forces, if believed by the jury, would have met this requirement. Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 458, 150 P.2d 436.

Plaintiff attempted to meet this requirement of proof as part of his case. The beer presently involved was bottled and cased at Aztec Brewing Company's San Diego plant. The cases were then placed by Aztec's employees on conveyors which carried them into trucks operated by La Salle Trucking Company. They were transported by these trucks to the Los Angeles warehouse of Associated Brewers Distributing Company, where La Salle's drivers unloaded them onto conveyors which carried them into the warehouse. Subsequently, on receipt of plaintiff's order for fifteen cases of ABC beer, the requisite number of cases were loaded by Associated employees onto an Associated delivery truck during the night of August 21, 1944. An Associated driver delivered them to plaintiff the next day. During August, 1944, due to a shortage of beer, cases never remained in the Associated warehouse for more than three days. Shipments to Associated by La Salle of ABC beer were made on August 9th, 11th, 12th, 14th, 17th, and 21st. The cases delivered to plaintiff were not included in the shipment of the 21st, for it arrived in Los Angeles too late to be loaded for delivery on the 22nd. The plaintiff's fifteen cases evidently came from the shipment of the 17th. The driver who made this shipment testified that no accident occurred to his truck and trailer while making this delivery. Mr. La Salle, of the La Salle Trucking Company, testified that none of his trucks was involved in any accident while delivering ABC beer during the month of August, 1944.

The manager of the Associated warehouse testified that during the period when the beer delivered to plaintiff was in his warehouse, he was not aware of any accident which might have affected the bottles in any way. He testified further that in loading and stacking cases of beer, it frequently happended that a bottle would break, depending on how the case was handled. Before delivery to customers of Associated, however, broken bottles would always be detected by a loader from the diminished weight of the case and from the rattle of broken glass, and intact bottles would be substituted therefor. The fifteen cases of ABC beer, as delivered to plaintiff, therefore contained only bottles which were unbroken, but the evidence did not disclose whether or not any breakage, with a subsequent substitution of bottles, had occurred in any of these cases.

The Associated driver who made the delivery to plaintiff on August 22 stated that he did not become involved in any accident en route, that he did not bump or otherwise roughly handle the cases, and that he handled them carefully in making the delivery to plaintiff's storage room. He stated that not only was there nothing to indicate that there was anything wrong with any of these cases or their contents, but that in fact ‘they were in excellent condition.’ The plaintiff himself also testified that he used due care in handling the bottles of beer in question, and described in detail his actual movements in transferring the cases from the storage room to the bar room on the night before the explosion. There are several particulars in which the proof was somewhat inconclusive. There was no affirmative testimony that the beer was carefully handled by La Salle Trucking Company, but merely testimony of lack of accidents to the trucks. Similarly, there was nothing to indicate that these cases were not subjected to rough handling at the Associated warehouse, unless such an inference could be drawn from the unequivocal statement of the delivery truck driver that the cases delivered to plaintiff were in excellent condition. Since additional evidence may be produced on a retrial we shall merely assume, for present purposes, that the evidence presented was sufficient to justify the jury in finding that it met plaintiff's burden of proof above stated.

At the request of plaintiff, the court gave the following instruction: ‘From the happening of the accident involved in this case, as established by the evidence, there arises an inference that the proximate cause of the occurrence was some negligent conduct on the part of the defendant. That inference is a form of evidence, and if there is none other to overthrow it, or if the inference preponderates over contrary evidence, it warrants a verdict for the plaintiff. Therefore, you should weigh any evidence tending to overcome that inference, bearing in mind that it is incumbent upon the defendant to rebut the inference by showing that it did, in fact, exercise ordinary care and diligence or that the accident occurred without being proximately caused by any failure of duty on its part.’

The first sentence of the questioned instruction can be interpreted only as a direction to the jury that, as a matter of law, under the facts as established by the evidence, the res ipsa loquitur inference of negligence was applicable to the defendant; and the succeeding two sentences limited the duty of the jury to weighing this inference against any contrary evidence. This instruction would have been proper only if the mere bursting of the bottle raised an inference that someone had been negligent, and also if it had been proved by clear and uncontradicted evidence that the bottle had been carefully handled by all persons who had possession of it, and that it was not exposed to injury, after it left the hands of the bottler. The bursting of the bottle did not raise an inference of negligence. However, in view of the uncontradicted testimony that the beer bottle was carefully handled by plaintiff, the explosion in itself justified an inference that, when delivered to plaintiff, the bottle was either defective or under excessive internal pressure, for, as said in the Escola case, ‘sound and properly prepared bottles of carbonated liquids do not ordinarily explode when carefully handled.’ 24 Cal.2d 453, 459, 150 P.2d 436, 439. As we have seen, the expert testimony was to be weighed with the evidence of the methods employed by defendant in determining whether the inference arose that defendant had been negligent. The instruction took this issue from the jury and was prejudicially erroneous.

Moreover, whether this dangerous condition of the bottle developed while it was in possession of the defendant, rather than one of the intermediate parties who handled it, presented a question of fact as to the manner in which it was handled by these latter persons. We cannot say that the jury could not have reasonably found that the evidence was insufficient to prove that the bottle was carefully handled, and was not subjected to extraneous harmful forces after it left defendant's control. By taking this additional issue of fact from the jury, the foregoing instruction was again prejudicial to defendant.

Plaintiff, however, refers to the established rule that in determining the propriety of instructions, they must be considered as a whole (Crooks v. White, 107 Cal.App. 304, 312, 290 P. 497), and maintains that this additional error in the quoted instruction was cured by other instructions which followed it. The record shows that the court stated to the jury that the inference of negligence referred to in the quoted instruction was applicable only under certain special circumstances, one of which was that the instrumentality causing the injury ‘was in the possession and under the exclusive control of the defendant at the time the cause of the injury was set in motion.’ The court then gave the following instructions: ‘A defendant is deemed to have control of an instrumentality where it had control at the time of the alleged negligent act although not at the time of the accident, provided plaintiff first proves that the condition of the instrumentality had not been changed after it left the defendant's possession. The defendant is not charged with the duty of showing that something happened to the bottle after it left its control and management. In order to be entitled to the benefit of the doctrine of res ipsa loquitur, the plaintiff must show that every person who moved or touched the bottle after it left the control of the defendant, did so with due care, and that during said time the bottle was not accessible to extraneous harmful forces.’ It is to be noted that nowhere in these later instructions did the court direct the jury that it must find the indicated facts to be true before the supposed inference of negligence might be applied to defendant. Plaintiff's contention that these later instructions did submit the issue of careful handling to the jury is an insufficient answer, for so construed, they would be in direct conflict with the previous instruction which, as we have seen, took that issue from the jury. It is well settled that reversible error in the form of erroneous instructions cannot be cured by giving other correct instructions, where the effect is to create a clear conflict, and it is impossible to determine which instructions governed the jury's determination. Wright v. Sniffen, 80 Cal.App.2d 358, 363, 181 P.2d 675; Ross v. Baldwin, 44 Cal.App.2d 433, 436, 112 P.2d 666; Akers v. Cowan, 26 Cal.App.2d 694, 699, 80 P.2d 143. The two sets of instructions may be reconciled, but only on the theory that the court was informing the jury that, as a matter of law, the prerequisite fact of subsequent careful handling after the bottle left defendant's control, had been conclusively established. Under this view, the additional error in the original instruction was clearly not cured by the later instructions, but was actually emphasized and further impressed upon the minds of the jury.

Opposing counsel evidently both appreciated fully the necessity for submitting the issue of subsequent careful handling of the bottle to the jury. Defendant requested, but was refused, the following instruction: ‘You are instructed that the plaintiff in this case does not have the benefit of the doctrine of res ipsa loquitur, that is, ‘the thing speaks for itself’, unless the preponderance of the evidence affirmatively shows that after the bottle which plaintiff claims to have exploded left the control of the defendant it was not accessible to extraneous harmful forces, and that it was carefully handled by plaintiff or any third person who may have moved or touched it.' Plaintiff likewise requested, and was refused, an instruction of substantially similar effect. We are not prepared to say, however, that even if the requested instructions had also been given, the presently considered error in the general instruction would have been cured, for a substantial conflict would have still remained.

The res ipsa loquitur instruction which was erroneously given is intended for use only where the particular instrumentality was clearly in the exclusive control of the defendant at the time of the injury, so that no issue of subsequent careful handling is presented; and, where as a matter of law, the accident involved would probably not have occurred without negligence. Radisich v. Franco-Italian Packing Co., 68 Cal.App.2d 825, 840, 158 P.2d 435, and Dieterle v. Yellow Cab Co., 53 Cal.App.2d 691, 696, 128 P.2d 132, relied upon by appellant, were such cases. In the present case these issues were not only clearly questions of fact, but were necessarily the controlling elements in the decision.

Under the evidence, as we have summarized it, the jury should have been instructed substantially to the effect that if they believed from the evidence that the bottle was carefully handled and not exposed to injury after leaving the hands of appellant, and if they believed that there was a defective or dangerous condition of the bottle which was discoverable by appellant in the exercise of ordinary care, an inference should be drawn that appellant was negligent, and that such negligence was the proximate cause of the injury.

The judgment is reversed.

SHINN, Acting Presiding Justice.

WOOD, J., and McCOMB, J., Assigned, concur.