Criswell Baking Co. v. Milligan

My opinion is that the excerpt from the charge, complained of in ground three of the amended motions for new trials, is erroneous. The charge complained of is as follows: "Where either plaintiff might establish the unwholesome quality of the food and establish injury to the plaintiff from its consumption, and establish that the food as consumed by them was in the same condition as when it left the custody, possession and control of the defendant, these facts in themselves would sufficiently set forth defendant's negligence and make out a prima facie case, and then, gentlemen, the burden would be upon the defendant to show that the defendant used due care in the premises." The exceptions to this charge are as follows: "(a) Because it was an incorrect statement of the law; (b) Because the same was an expression on the part of the court that the proof of certain facts constituted actionable negligence on the part of defendant; (c) Because the same imposed a greater burden upon the defendant than that imposed by law; (d) Because the same amounted to an invasion of the province of the jury in that the latter was instructed by the court that negligence must be inferred from the proof of certain facts, whereas the law prescribed, in a case wherein the doctrine of res ipsa loquitur is applicable, that the jury alone and exclusively has the right to infer negligence from certain proven facts. The court has no power or authority for so doing." The charge was error because it required the jury to infer negligence from the facts stated in the charge in the absence of an affirmative showing of diligence by the defendant. It gave to the rule of res ipsa loquitur the force of a presumption of law, which is not the law of Georgia, or it treated the proof of those facts as negligence per se, which is not true. So much has been written on this question that I do not relish writing any more but the error in the charge is so plain that I can not refrain. It is clearly the law of Georgia that, except in plain and indisputable cases, and this case is not predicated on that basis, upon proof of the happening of such occurrence as would not have happened without negligence, etc., a jury is authorized but not required to infer that the defendant was negligent. There is some loose language in a few of the Georgia cases which might indicate that the rule is treated as a presumption but an examination of all the cases will clearly show the contrary to be true. I believe that what confuses the majority in this case, and only two concur in the majority opinion, is that the common law is codified in Code § 105-1101. That Code section merely states what the law is and would be if there were no such section. It is not a part of the Pure Food Law. It is not a penal statute, and it requires the selling of unwholesome provisions to be done knowingly or carelessly. When the court told the jury that upon proof of the facts stated in the aforesaid excerpt, the burden would be on the defendant to exonerate itself he expressed an opinion as to what acts would be negligent and this a court can not do unless the law itself defines the negligence; which it does not do in this case. This case is not predicated on negligence per se. It is based on common-law negligence. Under the judge's charge, if the defendant had not offered any evidence, and if the plaintiff had proved the facts stated in the charge to the satisfaction of the jury it would have been required to find for the plaintiff. I say that the jury should have been permitted to find in favor of the defendant even if the facts stated in the charge were proved, for the reason that under our law the jury may or may not apply the rule of res ipsa loquitur, or they may refuse to infer negligence from the proof of such facts as authorize the application of the rule.

It would prolong this discussion too long to discuss and cite outside authorities. Georgia law is plain and I cite only a few cases: Palmer Brick Co. v. Chenall, 119 Ga. 837 (1-4) (supra); Macon Coca-Cola Bottling Co. v. Crane, 55 Ga. App. 573 (supra); Cochrell v. Langley Mfg. Co., 5 Ga. App. 317 (63 S.E. 244); Monahan v. National Realty Co., 4 Ga. App. 680 (62 S.E. 127); Bowers v. Fred W. Amend Co., 72 Ga. App. 714 (35 S.E.2d 15). It is error to instruct a jury what ordinary care requires except where a particular act is declared by law to be negligence. Farrar v. Farrar,41 Ga. App. 120(5) (152 S.E. 278), and cases cited. See especiallyGainesville Coca-Cola Bottling Co. v. Stewart,51 Ga. App. 102(4) (179 S.E. 734), in which the proper charge in a res ipsa loquitur case is shown. See also especially Augusta Ry. Electric Co. v. Weekly, 124 Ga. 384 (52 S.E. 444), to the effect that in a res ipsa loquitur case it is erroneous for the court to charge the jury that a given state of facts either constitutes, or affords prima facie proof of, negligence, when there is no statutory definition — Section 105-1101 does not seek to define negligence. The fact that a plaintiff makes out a prima facie case does not justify a charge to that effect, without more, unless the prima facie case is one as a matter of law. If the jury must say whether there is a prima facie case even where the facts are not disputed it is error to charge that a prima facie case has been made and that the burden shifts upon proof of stated facts. Discussions in opinions and textbooks are often erroneous when given in charge to a jury so we get no help from definitions of a prima facie case here. McPherson v. Capuano Co., supra, was a ruling on a nonsuit and surely if a nonsuit was erroneous the court could not say as a matter of law that the defendant was liable in the absence of exoneration. The same applies to Copeland v.Curtis, supra. The fact that the court, immediately before the excerpt excepted to, charged the jury that it expressed no opinion as to whether the facts stated in the excerpt had been proved or not, did not help matters any. Nevertheless, the meaning of what he told them was that if these facts were proved the defendant was negligent as a matter of law unless the defendant introduced other evidence and proved otherwise. I think the charge was error and that in approving it this court reverses the fixed law of this State. It is contrary to the Supreme Court decisions and will create confusion unless this court corrects its own misapplication of the law.

What is stated above applies, of course, merely to the charge as it relates to a case involving common-law negligence, where the rule of res ipsa loquitur applies.

I dissent from division 4(b) of the opinion, as well as 4(a), on the ground that even if a case is alleged which could be proved by showing a violation of the Pure Food Law, there is no evidence authorizing a finding that there was a violation of the Pure Food Law, as there is no evidence to show that the pie contained or consisted of putrid or unwholesome vegetable or animal substance. And even if the evidence did authorize such a finding, it was solely circumstantial, and the charge was error on the same principle as applied to common-law negligence. It is improper for a judge to state to a jury just what circumstantial evidence will prove a fact or make out a prima facie case unless it is true as a matter of law. As stated before, this dissent is not predicated on a holding by the majority that the facts stated by the court in the excerpt excepted to proved negligence as a matter of law in the sense that the facts proved as a matter of law constituted negligence or showed as a matter of law that the Pure Food Law was violated.

I am authorized to say that, GARDNER, J., concurs in this dissent.