JOSEPH RAFFERTY vs. THE HULL BREWING COMPANY (and a companion case [Note 1]).

SPALDING, J. The plaintiff was working as a clerk in a small variety store in Roxbury on March 30, 1957, when a bottle of Old India ale which he was handling exploded, causing injury to his left eye. As a result of that injury, these actions in tort were brought against The Hull Brewing Company (Hull), bottler of the ale, and against The Handy Beer and Wine Company (Handy), distributor of the ale to the plaintiff's employer. In each of the declarations, the plaintiff alleged negligence in failure to inspect the bottles for defects, and general negligence. The cases were tried together and a jury returned verdicts for the plaintiff against both defendants. The defendants excepted

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to the denial of their motions for directed verdicts, to various rulings on evidence, and to portions of the charge.

We summarize the pertinent evidence as follows: The plaintiff worked part time during 1957 for the E & F Food Store, Inc., usually two evenings on weekends. The store was operated by Frank Fialcow and his wife, and sold beer and wine in addition to numerous other items. On the weekend of the accident, the plaintiff worked from 7 to 10:30 P.M. on Friday, and came to work the next night, March 30, at 6:30 P.M. "He noticed that the Old India pale ale in the beer refrigerator had to be replaced." About fourteen bottles of Old India were usually kept in the refrigerator. The rest were stored in the heavy fiber boxes in which they had been delivered, and which were stacked "in a corner under shelves . . . located on the Delle Avenue side of the store." These boxes were in close proximity to the refrigerator. The plaintiff took two bottles out of a case, placed one in the refrigerator, "[a]nd . . . passed the bottle in . . . [his] right hand to . . . [his] left hand and there was an explosion." He did not, in transferring the bottle, strike it against any object.

There was evidence to support the inference that the bottle which exploded was taken from one of the ten cases delivered to the store by Handy on March 26, 1957. Both Fialcow and his wife were present when this delivery was made, and Mrs. Fialcow testified that she watched Handy's employees bring the ten cases into the store and stack them "under the shelves on the Delle Avenue wall." Customers were not permitted in the area where the cases of Old India were stored, and there was testimony that none of the bottles was struck from the time they were placed under the shelves by Handy's employees until the time of the accident, and that with the exception of those which were transferred from the cases to the refrigerator, none was moved. The plaintiff testified that while "it was not unusual for . . . [one] to kick a case of beer under the shelves with . . . [one's] toe," in reaching for customer items

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placed high on the shelves, he did not believe he had done so while working the night before the accident.

Answers to interrogatories propounded to the defendants were introduced in evidence. The defendant Handy stated that due care was used in handling the bottles; the defendant Hull stated that the bottles were duly inspected. Each statement rightly was limited to the defendant which made it. Bean v. Security Fur Storage Warehouse, Inc. 344 Mass. 674, 675.

Inasmuch as there was no evidence of the specific cause of the bottle's explosion, the cases were properly submitted to the jury only if an inference was permissible from the explosion itself that it would not have happened unless in some respect each defendant was negligent. Roscigno v. Colonial Beacon Oil Co. 294 Mass. 234, 235. This principle is often referred to as the doctrine of res ipsa loquitur. See Evangelio v. Metropolitan Bottling Co. Inc. 339 Mass. 177, 181-182.

The case against Handy raises the question whether this principle, however denominated, is applicable against a party which exercised control over the bottle only during some period after the bottling process had been completed. We are of opinion that the doctrine cannot be so applied. The inference of negligence which is permissible in cases where a bottle containing a charged beverage [Note 2] explodes without observable cause is based upon the likelihood that some defect or error occurred in the bottling process. See Gardner v. Coca Cola Bottling Co. of Minnesota, Inc. 267 Minn. 505, 516; Evangelio v. Metropolitan Bottling Co. Inc. 339 Mass. 177, 182. Though there is some possibility that a bottle might be damaged or weakened in some manner through mishandling by a distributor or other middleman, this is not enough to support an inference of negligence against such party. See Kusick v. Thorndike & Hix, Inc. 224 Mass. 413.

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The case against Hull is governed by the principles set forth in Evangelio v. Metropolitan Bottling Co. Inc. 339 Mass. 177. We held there that the doctrine discussed above was applicable against the company which both manufactured and distributed the carbonated beverage involved, one bottle of which had exploded injuring the plaintiff. The present case differs in two respects: The Old India ale was distributed by a separate party; and it was in the possession of the retailer for a considerably longer period. [Note 3] We see no reason, however, why either of these factors should affect the principles there stated. Indeed, our formulation of the rule in the Evangelio case expressly provides for such circumstances. "Where, as here, the accident occurs after the defendant has surrendered control of the instrumentality involved, it is incumbent upon the plaintiff to show that the instrumentality had not been improperly handled by himself or by intermediate handlers." 339 Mass. 177, 183.

The plaintiff has not, however, sustained his burden of proof in this regard. The rule of the Evangelio case requires that he submit some evidence of due care in handling on the part of both the store and the distributor, Handy. The only evidence introduced as to the distributor's due care was the statement to that effect in Handy's answer to the interrogatory, which was inadmissible against the defendant Hull.

In each case, the entry must be

Exceptions sustained.