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District Court of Appeal, Second District, Division 2, California.

SAPORITO et al. v. PUREX CORP., Limited.*

Civ. 18908.

Decided: May 02, 1952

Moss, Lyon & Dunn, Sidney A. Moss, Los Angeles, Bert W. Hendrickson, New York City and Henry F. Walker, Los Angeles, for appellants. Gray, Binkley & Pfaelzer and John T. Binkley, Los Angeles, for respondents.

From a judgment in favor of plaintiffs in an action to recover damages for personal injuries, defendant appeals.

The accident occurred when a bottle of Purex burst in the hands of plaintiff Lenora Saporito as she started to open it, causing the contents to be propelled into her face and onto her clothing, with particles of glass being driven into her hair, face and eyes.

Appellant contends (1) the evidence is insufficient to invoke the doctrine of res ipsa loquitur, and (2) without the application of that doctrine the evidence is not sufficient to support a finding of negligence.

There is no substantial dispute as to the facts. The bottle in question was purchased by Mrs. Saporito at Jarman's Grocery, a small neighborhood store in Columbus, Kansas. Mr. Jarman took the bottle from the shelf and handed it to plaintiff's daughter and watched her as she walked out to Mrs. Saporito, who was waiting in her car in front of the store. Mrs. Saporito and her daughter drove to their home, about three blocks away, and Mrs. Saporito took the bottle from the automobile to her garage where she intended to do the family washing. She walked to and stood directly in front of the wash bench which was about three feet high. She held the bottle in her left hand about level with her breasts so that it was 15 to 18 inches from her face. As she started to unscrew the cap with her right hand the accident occurred with the resulting injuries.

The Purex was bottled at defendant's St. Louis plant. No pressure test was employed by defendant to discover weakness in or injury to the bottles. Some forty odd bottles were broken a day in the bottling process.

About ten days prior to the accident Mr. Jarman purchased from different concerns two cartons of Purex which were delivered to him by truck, one from Joplin, Missouri, and the other from Pittsburg, Kansas. The bottle in question came from one or the other of those cartons. Mr. Jarman testified the Purex was delivered to his store in sealed, corrugated, cardboard cartons; that he did not see any holes, tears or breaks in them; that they ‘appeared to be in good condition,’ and that while they were in his possession (prior to being unpacked) he did not know of their being dropped or damaged. Although Mr. Jarman did not recall personally placing these bottles on the shelf he was present in the store when it was done and was sure none of them were dropped. He did not know of anything that happened to any of these bottles that could have injured them in any way. This store was only 18 x 24 feet, and was operated by Mr. Jarman, his wife, and a high school girl who assisted from 3:00 to 6:00 P.M. He only carried about a dozen bottles of Purex at a time, and when a new carton was opened the bottles were placed on the shelf, behind the bottles already there so that the older bottles would be sold first.

The evidence is clear that the bottle was carefully handled by Mrs. Saporito; that it was not bumped against anything from the time it was taken by Mr. Jarman from the shelf and handed to plaintiff's daughter until it burst in Mrs. Saporito's hands.

Plaintiffs' expert testified the bursting of the bottle was due to a combination of three things: (1) a bruise on the bottle; (2) internal pressure, and (3) the force used by Mrs. Saporito in starting to open the bottle.

The first question to be determined is, whether on the facts presented, the plaintiffs were entitled to rely on the doctrine of res ipsa loquitur. In Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 150 P.2d 436, the court rejected the contention that the instrumentality must have been in the possession of the defendant at the time of the accident. It was there said: ‘Many authorities state that the happening of the accident does not speak for itself where it took place some time after defendant had relinquished control of the instrumentality causing the injury. Under the more logical view, however, the doctrine may be applied upon the theory that defendant 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.’ 24 Cal.2d at page 458, 150 P.2d at page 438. In order for plaintiff to get to the jury—in this case to the court as a trier of the facts—on the theory of res ipsa loquitur where the instrumentality has passed out of the possession of the defendant at the time of the mishap, the evidence must directly show or reasonably justify the inference that it has been carefully handled by plaintiff and all intermediate persons. Escola v. Coca Cola Bottling Co., supra. The evidence, however, need not go so far as to eliminate every remote possibility of injury by third persons. DeCorsey v. Purex Corp., 92 Cal.App.2d 669, 672, 207 P.2d 616. If such evidence is presented the question becomes one for the trier of fact. Escola v. Coca Cola Bottling Co., supra.

Defendant, being in business on a large scale, was, of course, skilled and experienced in preparing its merchandise for shipment, and familiar with the manner in which various transportation facilities handle their cargo. It naturally packed Purex with the care and used the quality of containers and cartons its experience indicated was necessary for it to reach its destination in good condition under usual handling practices of the transportation industry. The cartons in which the bottle of Purex was shipped in this case did not reveal any marks indicating they had been subjected to any unusual or rough handling. They appeared to Mr. Jarman to be ‘in good condition.’ He did not know of any abuse of the cartons in his store prior to their being unpacked, nor did he know of anything happening that could have damaged any of the bottles. It seems that if anything had happened to either the unpacked cartons or the bottles in the Jarman store he would likely have known of it for the had a small one-room store and no help other than his wife and a high school girl for three hours in the afternoon. Although some customers served themselves in this store the chances of their doing anything to damage the Purex bottles seems very remote. The product is standard; all the bottles are alike so there is no problem of choice by the customer and consequently no occasion for handling them for the purpose of making a decision as to which bottle to take. Only about a dozen bottles were ordinarily carried in stock on a shelf about four feet high. Purex was thus easily accessible, hence slight excuse for damage to a bottle in originally placing it on the shelf or in replacing it in the event a customer changed his mind about buying a bottle. Also, in such a location there would be virtually no reason on the part of self-service customers to move the Purex bottles around on the shelf. Further, it may be inferred that Purex bottles are of such quality that they may be subjected to normal handling in a store without the likelihood of serious damage to them. As to the handling of the bottle from the time sale was made until it burst, the evidence is clear that this was careful.

A somewhat similar situation was presented in Gordon v. Aztec Brewing Co., 33 Cal.2d 514, 203 P.2d 522. There the bottle of beer that exploded in plaintiff's hand in Los Angeles had been produced in San Diego. The case containing this bottle had been loaded on a truck of a trucking company at defendant's San Diego plant and delivered to a warehouse in Los Angeles where it remained about three days. It was then loaded on another truck and delivered to plaintiff's place of business. The only showing of careful handling insofar as the transportation and storage of the beer was concerned was that the trucks had not been involved in an accident while transporting this beer and, so far as the manager of the warehouse knew, no accident had happened while the beer was in storage that affected it, although the manager admitted breakage from handling in the warehouse was a common occurrence. 33 Cal.2d at pages 525–526, 203 P.2d 522. In that case it was held there was a sufficiently satisfactory showing of probable negligence on the part of the defendant to warrant its determination by the jury, and that it was the jury's province to determine whether the plaintiff had sufficiently proved the absence of intervening harmful forces after the defendant shipped the bottle to entitle the plaintiff to rely on an inference inherent in the res ipsa loquitur doctrine that the defendant's lack of care was the proximate cause of his injury. In like fashion these questions were for the determination of the trier of fact in this case.

The circumstances attending the bursting of the bottle throw light upon the cause thereof. A hole about an inch in diameter was blown out of the shoulder of the bottle nearest the plaintiff with the result that she got the contents fully in the face. The gas pressure in the bottle was sufficient to propel fragments of glass upward into Mrs. Saporito's eyes, face and hair. One sliver three or four millimeters long was so imbedded in the inner side of her eyelid that it was not discovered, despite several examinations by eye specialists, until fifteen months after the accident. The appearance of the dress plaintiff was wearing, particularly the splashes around the neckline and shoulders, justifies the inference that the contents of the bottle sprayed rather than spilled on her. There was also evidence by plaintiffs' expert that a fragment of glass about an inch long was pushed outward by pressure from inside the bottle at the time it burst.

Defendant did not wash its bottles before filling. Purex is a solution of sodium hypochlorite. It is chemically unstable when in contact with rust, hair, or other metallic or organic substances which may remain in unwashed bottles. When Purex decomposes it develops gas causing an increase of gas pressure within the bottle. The physical facts here justify an inference that there was considerable pressure inside this bottle when it burst, and lend support to the opinion of plaintiffs' expert that the bursting of the bottle was caused ‘in part by internal pressure * * *’ It was a question of fact for the trial court as to whether the gas pressure was partially responsible for the bottle bursting and whether it resulted from any negligent act or omission on the part of defendant. DeCorsey v. Purex Corp., supra, 92 Cal.App.2d at page 674, 207 P.2d 616.

Plaintiffs' expert included as one of the causes of the bottle bursting the application of force by Mrs. Saporito in attempting to unscrew the cap. Defendant, however, insists she had not actually applied any force when the accident occurred. She testified, ‘I started to twist the cap.’ Other testimony of hers, however, creates some uncertainty as to whether or not she had actually applied any force to the cap. The court made no finding on this point. This question, however, is immaterial because there is no claim that Mrs. Saporito was guilty of any negligence in her attempt to open the bottle.

The trial court having resolved the issues of fact in favor of plaintiffs, we cannot say as a matter of law that the evidence is insufficient to support the findings and ensuing judgment.

The judgment is affirmed.

FOX, Justice.

McCOMB, J., concurs. MOORE, P. J., deeming himself disqualified, does not participate herein.