Holley v. Baking Co.

With the utmost deference, I cannot but be impressed by the fact that the majority in taking its position that the doctrine of res ipsa loquitur does not raise a prima facie presumption of negligence has been unduly influenced by merely persuasive decisions from other jurisdictions and the professorial reasoning of recent texts, without realizing the breadth and depth to which the exact contrary is rooted in West Virginia precedent.

The first West Virginia case in which the doctrine was dealt with by name is that of Snyder v. Wheeling ElectricalCo. (1897), 43 W. Va. 661, 667, 28 S.E. 733, the opinion written by Judge Brannon. The case involved death by electrocution from coming in contact with a fallen live wire. In the course of the opinion Judge Brannon quoted with approval from 16 Am. Eng. Enc. Law, p. 448, as follows: "As a rule, negligence is not presumed. But there are cases where the maxim, 'res ipsa loquitur,' is directly applicable, and from the thing done or omitted negligence or care is presumed." The third syllabus, in speaking of the doctrine, says: "* * * it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care."

The Snyder case was cited in Veith v. Salt Co. (1902), 51 W. Va. 96, at page 99, 41 S.E. 187, and the rule laid down therein referred to by Judge Brannon as creating a prima facie presumption of negligence. The principle was not applied in theVeith case because the facts did not warrant it.

The principle enunciated in West Virginia by theSnyder case has been either followed as a point of decision or referred to with approval in the following West Virginia cases:Mannon v. Railway Co. (1904), 56 W. Va. 554, 556, 49 S.E. 450, (railroad case, opinion by Judge Dent); Bice v. WheelingElectrical Co. (1907), 62 W. Va. 685, 691, 59 S.E. 626, (live wire case, opinion by Judge Miller); Runyan v. Water LightCo. (1910), 68 W. Va. 609, 611, 71 S.E. 259, (live wire case, opinion by Judge Brannon; Humphreys v. Coal Coke Co. (1914),73 W. Va. 495, 500, 80 S.E. 803, (live wire case, opinion by Judge Poffenbarger); Edmonds v. Traction Co. (1916), 78 W. Va. 714,717, 90 S.E. 230, (live wire case, opinion by Judge Poffenbarger); Lindamood v. Light Power Co. (1919), 85 W. Va. 85,91, 100 S.E. 868, (wire case, opinion by Judge Poffenbarger); Jankey v. Gas Co. (1925), 98 W. Va. 412, 417,127 S.E. 199, (gas case, opinion by Judge Hatcher); Laurent v.Gas Co. (1926), 101 W. Va. 499, 511, 133 S.E. 116, (gas case, opinion by Judge Lively); and Martin v. Appalachian ElectricPower Co. (1930), 109 W. Va. 129, 134, 153 S.E. 245, (live wire case, opinion by Judge Woods). Thomas v. Traction Co. (1922),90 W. Va. 681, 112 S.E. 228, (railroad case, opinion by Judge Ritz), while not citing the Snyder case, adheres to the same rule, as does McLaughlin v. Railroad Co. (1914), 75 W. Va. 287,289, 83 S.E. 999. An examination of the first syllabus inJacobs v. Railroad Co. (1911), 68 W. Va. 618, 70 S.E. 369, of the second syllabus in the Runyan case, of the second syllabus in the McLaughlin case, of the second syllabus in the Thomas case, and of the first syllabus in the Jankey case, cited above, I believe will be sufficient to demonstrate that the doctrine of res ipsa loquitur has been repeatedly held to give rise to a rebuttable presumption of negligence in West Virginia. No West Virginia case, including the majority opinion in the case at bar which does not refer to it nor to one of the cases above cited, has commented adversely on the Snyder opinion.

In Jankey v. Gas Co. (1925), 98 W. Va. 412, 127 S.E. 199, the first point in the syllabus reads as follows:

"The rule of res ipsa loquitur as defined in Snyder v. Wheeling Electric Company, 43 W. Va. 661, Bice v. Wheeling Electrical Company, 62 W. Va. 582, and in Jones v. Bridge Company, 70 W. Va. 374, followed and applied."

In the opinion, prepared by Judge Hatcher, the following language from the Bice case is approved:

"In a case of negligence where the rule of res ipsa loquitur is applicable * * * the rebuttable presumption of negligence retains its original force until overcome by proof of affirmative acts of due care of the defendant."

In Runyan v. Kanawha Water Light Company (1910), 68 W. Va. 609,71 S.E. 259, the second syllabus reads as follows:

"If a person, at a place where he has right to be, is injured by contact with an electric light wire, there is a prima facie presumption that the wire was not properly insulated, which presumption, unless rebutted, will establish negligence in the owner of the wire in failing to have a properly insulated wire."

In the opinion Judge Brannon uses the following language: "* * * But beyond this the doctrine of res ipsa loquitur proves negligence prima facie, and aids the oral evidence. Our cases surely apply this rule in such cases, holding when injury comes to a person by contact with an electric wire at a place where he has a right to be, and where there should be good insulation, it is a case of negligence rendering the companyprima facie liable. We need not go over this principle again."

In Jacobs v. Railroad Co. (1911), 68 W. Va. 618, 70 S.E. 369, the first syllabus reads as follows:

"In an action against a railroad company for destruction of a house by fire alleged to have started from sparks from a locomotive, the burden is on the plaintiff to prove that the fire started from a spark; but when that has been proven, a presumption arises that the company was negligent, which presumption it must repel by disproving negligence."

The rule in Virginia is the same. Murphy's Hotel, Inc. v.Cuddy's Administrator (1919), 124 Va. 207, syllabus Point 2, 97 S.E. 794.

It is of course true that the decided cases from other jurisdictions are not binding upon this Court concerning the application of the doctrine of res ipsa loquitur. Some attempt to distinguish between an inference and a rebuttable presumption, a few holding that an inference can be met as a matter of law by the defendant, others that the proof of the defendant and of the plaintiff where an inference, as distinguished from a presumption, is raised, must be submitted to the jury, but nearly all agree that if the doctrine creates a rebuttable presumption the proof of both the plaintiff and the defendant must be submitted to a jury. The difference, in effect, of an inference and of a rebuttable presumption seems to be that an inference of negligence in cases where the defendant offers no evidence would not entitle the plaintiff to a directed verdict, but that the case must go to the jury, whereas, if the doctrine raises a prima facie presumption, in a case where the defendant offers no evidence the plaintiff is entitled to a directed verdict. In that situation the quantum of damages, of course, is a jury question, although the right of recovery is decided by the court. I believe that I have shown that West Virginia is strongly committed to the latter doctrine treating res ipsaloquitur as raising a presumption of law, as distinguished from one of fact, buttressed, at least in foodstuff cases, by a substantial public policy, as I attempted to state in my concurrence in the case of Webb v. Brown Williamson TobaccoCo., 121 W. Va. 115, 2 S.E.2d 898.

In Diotiollavi v. Coal Co., 95 W. Va. 692, 122 S.E. 161, cited in the majority opinion, the doctrine of res ipsaloquitur was not applied nor was there anything concerning it cited in that case, the Court simply saying, probably by way ofdicta, in the course of its opinion that the doctrine would not relieve the plaintiff from carrying the burden of proof as to the negligence of the defendant.

In quoting from Sweeney v. Erving, 228 U.S. 233,57 L.Ed. 815, the majority opinion does not comment upon the fact that the Sweeney case was decided in 1912 and was followed in this State by the Humphreys case, the Edmonds case, the Lindamood case, the Jankey case, the Laurent case and the Martin case, all taking the contrary point of view. The Virginia case ofMurphy's Hotel, Inc., v. Cuddy's Admr., (1919) 124 Va. 207,97 S.E. 794, also followed in time the Sweeney case. The Sweeney case went to the Supreme Court from the District of Columbia where possible conflict between State and Federal decisions does not arise. Of course, our own decisions have always controlled in our own courts, but now since Erie Railroad Co. v. Tompkins (1938), 304 U.S. 64,58 S.Ct. 817, 82 L.Ed. 1188, overruling Swift v. Tyson, 16 Pet. 1, the Federal Courts abide by our decisions in cases arising within this State. It is rather awkward to follow their reasoning at a time they are, in principle, following ours.

In the case of Webb v. Tobacco Co., 121 W. Va. 115,2 S.E.2d 898, the Court held that the doctrine of res ipsa loquitur gave rise to an inference of negligence but that the defendant's proof of an extremely careful system could not, as a matter of law, overcome that inference, and that the jury had a right to believe that the system was not sufficient to prevent the presence of a foreign substance in its chewing tobacco. The plaintiff's witnesses had sworn that the substance was there. The Court's opinion, in effect held that proof of a high degree of care did not, as a matter of law, overcome the effect of the doctrine of res ipsa loquitur, called an inference in the Court's opinion in spite of the fact that the doctrine had been treated as creating a presumption in the above referred to West Virginia cases decided before the Webb case. I was not in accord with the Court's reasoning in the Webb case, and filed a concurring opinion in which I attempted to direct attention to the fact that applying the res ipsa loquitur doctrine to a manufacturer or packer of foodstuff sold to the consumer in the original sealed package, the contents of which injured him, is unnecessarily resorting to a legal principle difficult of application, and with the same practical result that would be brought about by applying the doctrine of an implied warranty on the part of the packer, which I favored. The Court, however, thought differently. I believed, and still believe, that as a matter of sound, and in this day of mass production, necessary, public policy the law applicable to the manufacture, packing and distribution of foodstuff should be made as simple and direct as possible because the health of the people is vitally involved.

In the case of Parr v. Bottling Works, 121 W. Va. 314,3 S.E.2d 499, the question of whether the rule of res ipsaloquitur creates merely an inference or gives rise to a rebuttable presumption was before the Court, and in the first syllabus this Court plainly declared, without calling the doctrine by name, that it does give rise to a prima facie presumption, following the line of West Virginia cases then thought to be too well known to require citation.

The Parr case was followed by Blevins v. Bottling Works,121 W. Va. 127, 3 S.E.2d 627, the first syllabus of which cites and approves Point 1 of the syllabus of the Parr case. In theBlevins case exactly the same point was argued and submitted as in the Parr case and as in this case, with the result that the Court, as then constituted, adhered to the rule of rebuttable presumption rather than to adopt a theory which I, with all respect, regard as highly artificial and, from a practical point of view, thoroughly unsound. Those who wish to examine the confusion in the decided cases that distinguish presumptions of fact from inferences and discuss the question of whether a presumption constitutes evidence, may do so by referring to the following annotations: 53 A.L.R. 1494 and 95 A.L.R. 878. See also Jones on Evidence (2nd Ed.) 69.

With every regard for the majority, in my opinion they have plainly overlooked the rule of stare decisis spoken of by Judge Johnson for the Court in Clarke v. Figgins (1886), 27 W. Va. 663,672, as follows:

"* * * The common law was only builded into a magnificent structure by the fathers laying a broad foundation, and the judges who followed them, being careful that every successive stone placed upon the foundation should not be different from those already laid. Thus we see harmony in the building throughout. If a different course had been pursued, and hasty and ill-advised decisions made without regard to the precedents, the common law instead of showing symmetry in its perfection would be one incongruous mass, and no one could form any idea how a matter would be decided, as in each case the judge would decide according to his own peculiar notion of what in that particular case might be right; and we know, that it is often true, that what one would consider right in the particular case another would regard as wrong. Nothing keeps a judge so strictly in the line of his duty, as the feeling and constant realization of the fact, that he is bound by precedents. He knows, that his opinion will be by the legal profession with all its astuteness subjected to the severest criticism, and if he dares to depart on a given question from the well marked line of precedents, either his ability or integrity is in great danger of being impugned. There is too much clamor in this day to be governed less by precedents and to decide as each judge may think right in the particular case, and the reason given is, that the law as laid down by the precedents is uncertain. The only cause of its uncertainty is that some courts in the hurry of business have rendered hasty decisions, without that consideration which ought to have been given to them, and perhaps have not cited a single authority, and then another judge or court in a great hurry has cited that case as an authority for another bad decision. It is only safe to know how the question has been settled, if settled at all, and then not depart from the rule; and if it has not been settled, to settle it after a thorough examination of the principles, upon which it must rest."

Judge Lovins authorizes me to say that he concurs in this memorandum. We do not dissent from the third syllabus in the main opinion and therefore concur in a reversal for that reason only.