Reichert Milling Co. v. George

The petitioner feeling aggrieved at the conclusion of the Court of Appeals in holding that, under the facts in this case, as found by that court, the defendant, the Reichert Milling Company, was due the general affirmative charge in its behalf, has applied to this court, by proper petition, for a writ of certiorari to review and revise the opinion and judgment of the Court of Appeals.

The opinion of the Court of Appeals states:

"Appellee's testimony tended to prove the following facts:

" 'That her brother purchased for her a sack of flour manufactured, sacked, and put upon the market by appellant; that said flour, in said sack, was in the same condition when procured for appellee as it was when so put upon the market by appellant; that appellee's said brother took the sack of flour immediately upon its purchase to the home of appellee; that he took down the tin flour bin — a part of appellee's 'kitchen cabinet' — from its place, thoroughly cleaned out said flour bin, including the sifter; that at the time this operation was performed there was no foreign substance of any kind in the bin; that said brother placed the bin back together and dumped the sack of flour into the bin; that he then fastened the top on the bin and the cap on the sifter; that the top was never removed from the bin, and that the cap was removed from the sifter only when appellee was sifting flour through the sifter at the bottom of the bin; that on the morning of the day after the purchase of the flour — approximately twenty-four hours after it was dumped into said bin — the partially dried out body of a rat or mouse was discovered in the flour; that appellee's brother who bought, emptied up, etc., the said flour observed same when it was so emptied up — to so denominate dumping it into the flour bin — and that he saw no rat or other foreign substance in said flour at that time."

With further reference to facts appearing in the evidence in the case, the opinion of the Court of Appeals proceeds:

"While the above statement, taken with enough literalness, we think, to justify the quotation marks, from the excellent brief filed here on behalf of appellee, is, we believe, fully borne out by the bill of exceptions, still we feel that it should be observed that a part of the testimony supporting same consisted of the bald statement — allowed without objection — of her witnesses that the 'flour bin' was not opened, etc., during the approximately twenty-four hours, above mentioned, when the testimony conclusively showed that the cabinet, containing the bin, etc., stood in the kitchen of the home of appellee, where she and three others lived, etc., and spent the night that elapsed, etc., if not in bed asleep, at least not in the kitchen, etc., guarding, or in view of said cabinet, bin, etc. Such testimony, as to facts about which the witness obviously, and physically, could not know, has been denominated somewhere in the books a 'testimonial non-entity,' etc. But we will not bother about that phase of it here; we will treat the case as though this part of appellee's claim had been properly adduced in the testimony.

"The pertinency of the remarks contained in the preceding paragraph is, we think, sufficiently shown by the further observation that at least one of the occupants of appellee's home, who ate dinner, supper, and breakfast there, after the morning upon which the flour was dumped into the bin, and before the alleged 'rat' was discovered in the flour, etc., and who spent the night there, was not examined as a witness upon the trial. What he did to the bin, etc., is left a matter of conjecture."

Upon the foregoing testimony, the Court of Appeals, in the opinion before us, concluded the defendant was entitled to the general affirmative charge, which it duly requested in writing.

We may here state that the action is in tort against the appellant — defendant in the court below. The complaint charges that the defendant was engaged in the business of manufacturing, preparing, or packing a certain brand of flour, and which, after being prepared and packed in sacks or bags, was sold through local stores at retail for the purpose of human consumption.

The complaint avers that the defendant negligently caused, permitted, or allowed said flour contained in the sack sold to the plaintiff to be unsuitable and unfit for human consumption, by reason of it having therein the body, or parts of the body of a decomposed rat or mouse, which caused said flour to be nauseating, sickening, and dangerous to any person who consumed the said flour as a food. The complaint then proceeds to aver that the plaintiff made bread from said flour and consumed a portion of it, and as a result she was made sick and nervous, and was caused to suffer great bodily and mental pain and anguish. Then follows a catalogue of her injuries and suffering.

The facts, as found by the Court of Appeals, support a fair and reasonable inference, to say the least of it, that the flour manufactured and sacked by the defendant, and sold to the plaintiff at a retail store, contained in the flour so sacked and sold, at the time it was placed on the market by the defendant, the body of a "rat or mouse." While there was in the case no direct evidence of the above facts, yet the circumstances detailed in evidence were such as to afford a reasonable inference that such was the case.

The general charge should never be given when the evidence is such as to reasonably support an inference adverse to the party requesting such charge. Alaga Coach Line, Inc., v. Foy,227 Ala. 506, 150 So. 493; Alaga Coach Line, Inc., v. McCarroll,227 Ala. 686, 151 So. 834; Byram v. Livingston, 225 Ala. 442,143 So. 461; McMillan v. Aiken, 205 Ala. 35, 88 So. 135; Southern B. L. Ass'n v. Bryant, 225 Ala. 527, 144 So. 367.

In the case of Rochester-Hall Drug Co. v. Bowden, 218 Ala. 242,118 So. 674, it was observed:

"While the rule has frequently been referred to by this court that, upon certiorari to the Court of Appeals to review its rulings, it will not review the facts 'for the purpose of revising the application of same to the law by said Court of Appeals' (Postal Telegraph-Cable Co. v. Minderhout, 195 Ala. 420,71 So. 91; Ex parte Steverson, 177 Ala. 384, 58 So. 992; Ex parte Savannah Williams, 182 Ala. 34, 62 So. 63), this court, however, will review the rulings of said court, to ascertain if it has correctly determined legal conclusions from facts found by it to exist in the record, or has misapplied the law to such facts (Lancaster v. State, 214 Ala. 2,106 So. 617)."

The rule of review declared in the Rochester-Hall Drug Co. Case, supra, was reaffirmed in the cases of Craft v. Standard Accident Ins. Co., 220 Ala. 6, 123 So. 271; Fairbanks, Morse Co. v. Dees et al., 220 Ala. 41, 126 So. 624; Home Ins. Co. v. Pettit, 225 Ala. 487, 143 So. 839.

The above being the established rule of this court in reviewing the opinions and judgments of the Court of Appeals, it follows that we are required in this case to determine whether or not that court has misapplied the law to the facts as found by it, or has reached an incorrect legal conclusion from the facts found by it to exist in the record.

We have said that the facts as found to exist by the Court of Appeals afford a reasonable inference that the body of the rat was in the sack of flour when the defendant, manufacturer, placed it with the retailer for sale to the consumer, and was bought by the plaintiff, then what presumption is indulged by the law as to negligence on the part of the manufacturer, there being no evidence, so far as we are advised, to show that the defendant was not guilty of any actual negligence in the manufacture, preparation, and sacking of the flour.

In 45 Corpus Juris, § 768, page 1193, the rule of res ipsa loquitur is thus broadly stated by the author: "Where the thing which caused the injury complained of is shown to be under the management of defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in the absence of explanation by defendant, that the accident arose from want of care. This statement of the rule of res ipsa loquitur, based on the expression in an early English case, which has been widely quoted with approval, has been in substance most frequently adopted and applied in subsequent decisions, so that the occurrence of an injury under the circumstances therein set forth raises a presumption or permits an inference that the party charged was guilty of negligence." (Italics supplied.)

At section 59 of 1 Shear. and Red. on Neg. (5th Ed.) it is said: "In many cases the maxim 'res ipsa loquitur' applies. The affair speaks for itself. The accident, the injury and the circumstances under which they occurred are in some cases sufficient to raise a presumption of negligence, and thus cast upon the defendant the burden of establishing his freedom from fault. Proof of an injury occurring as the proximate result of an act of the defendant, which would not usually, if done with due care, have injured any one, is enough to make out a presumption of negligence. When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, itaffords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care. So also: 'Where it is shown that the accident is such that its real cause may be the negligence of the defendant, and that, whether it is so or not, is within the knowledge of the defendant, the plaintiff may give the required evidence of negligence, without himself explaining the real cause of the accident, by proving the circumstances, and thus raising apresumption that, if the defendant does not choose to give the explanation, the real cause was negligence on the part of the defendant.' " (Italics supplied.) The rule above stated was cited by this court with approval in the case of Bloom v. City of Cullman, 197 Ala. 490, 73 So. 85.

In 45 Corpus Juris 773, page 1205, the reason for the doctrine of res ipsa loquitur is "based in part upon the consideration that, as the management and control of the agency which produced the injury is, under the circumstances to which the doctrine applies, exclusively vested in defendant, plaintiff is not in a position to show the particular circumstances which caused the offending instrumentality to operate to his injury, while defendant, being more favorably situated, possesses the superior knowledge or means of information as to the cause of the accident, and should, therefore, be required to produce the evidence in explanation."

This statement of the reason or theory of the doctrine of res ipsa loquitur seems to find direct support and approval in our own case of Lawson v. Mobile Electric Co., 204 Ala. 318,85 So. 257.

The Supreme Court of New Jersey in Bower v. Bower,78 N.J. Law, 387, 74 A. 522, 525, in an opinion by Justice Garrison, points out the basic or fundamental distinction between "presumption" and "inference," with reference to the doctrine of res ipsa loquitur in which he observed:

"It is proper therefore to point out that the fundamental distinction between a 'presumption' and an 'inference' does not arise from any consideration as to the greater persuasive quality of the former, but solely from a rule of law by force of which, in the case of a presumption, a given evidential fact is invested with certain consequences touching the further production of proof. For the term 'presumption' denotes that a force is accorded by law to a given evidential fact, whereby the duty of producing further testimony is affected. A presumption therefore is an inference to which definite legal consequences are attached. An inference, however persuasive, that does not affect the duty of producing testimony, is not a presumption."

This distinction between a "presumption" and "an inference" was cited with approval by this court in the case of Mathews v. Alabama Great So. Ry. Co., 200 Ala. 251, 76 So. 17.

In the Mathews Case, supra, it is expressly held that, in this jurisdiction, the rule expressed in the maxim res ipsa loquitur takes effect and operates, in a proper case, in consequence of "presumption," and not "inference." And it was on this theory or reason that it was held in the Mathews Case that a servant suing the master for an injury received in themaster's service cannot be aided by a presumption that negligence characterized the cause of the injury; and so, because there is no presumption of negligence in such cases. The Mathews Case is, therefore, for the reason above stated, differentiated from the instant case, in which the maxim of res ipsa loquitur applies in full force.

Bouvier defines the maxim of res ipsa loquitur as a "phrase often used in actions for injury by negligence where no proof of negligence is required beyond the accident itself, which is such as necessarily to involve negligence." And this court has time and again given its approval to this definition by Bouvier. The maxim connotes a "presumption" of negligence from a given injury which falls within the principle of the rule, and not an inference, as supposed by the Court of Appeals.

The presumption here referred to is an administrative presumption, casting upon the defendant the duty of producing evidence to overcome this presumption so indulged for administrative purposes. Cruse-Crawford Mfg. Co. v. Rucker,220 Ala. 101, 123 So. 897.

This court, in the cases of Coca-Cola Bottling Co. v. Crook,222 Ala. 369, 132 So. 898, and Try-Me Beverage Co. v. Harris,217 Ala. 302, 116 So. 147, 148, has held that "the presence of foreign matter deleterious to health sealed up in a bottle of soft drink is evidence of negligence."

There can be no substantial difference in fact between being "sealed up in a bottle" and being sewed up in a bag.

The facts as found by the Court of Appeals do not simply afford an inference of the presence of the partially decomposed rat in the flour at the time the defendant prepared and sacked the flour, but they are persuasive that this foreign body was in fact in the sack of flour at the time the flour left the possession of the defendant. It is not a case where one inference is attempted to be predicated upon another inference, as supposed by the Court of Appeals. It is essentially a case where an injury has occurred under such circumstances that the law raises a presumption of negligence, which will supply proof of actual negligence until this presumption is overcome by proof on the part of the party to whom the presumption of negligence is thus imputed. So far as the opinion of the Court of Appeals discloses to the contrary, there was no such exculpatory evidence. In this state of the evidence as found by the Court of Appeals, the defendant was not due the affirmative charge in its behalf, and in so holding the Court of Appeals committed error, and for which its judgment must be reversed.

It, therefore, follows that the writ prayed for will be granted, and the judgment of the Court of Appeals will be, and is, reversed, and the cause remanded to that court for further proceedings in accordance with this opinion.

Writ granted.

GARDNER, THOMAS, BOULDIN, and FOSTER, JJ., concur.