37 S.E.2d 729 | W. Va. | 1946
Lead Opinion
W. A. Holley, plaintiff, instituted in the Court of Common Pleas of Kanawha County this action of trespass on the case against Purity Baking Company, a corporation, to recover for personal injuries alleged to have been sustained by him as the result of eating a portion of a cake made by defendant, in which a small piece of wire was imbedded. The Common Pleas Court entered a judgment for plaintiff in the amount of thirty-five hundred dollars, based upon a jury verdict, to which judgment the Circuit Court of Kanawha County refused a writ of error. The instant writ of error is prosecuted to the judgment of the said circuit court. *533
On September 11, 1944, plaintiff and his wife bought certain groceries at a store in Charleston, at which they were accustomed to deal. Among the items purchased, there was a cake, bearing defendant's name and label, which, so the record substantially shows, had been made by defendant in its baking plant and sold to the grocery for retail trade. The record discloses that from the time the cake was taken to plaintiff's home until it was served on the evening of the alleged injury, it was kept in a utility cabinet in plaintiff's kitchen, during which time the cellophane wrapper, which entirely covered the cake, remained intact. On the day following its purchase, while eating a portion of the cake during the course of the evening meal at his home, plaintiff felt "something like a pin stick me and I coughed the cake up in my hand and when I did that I seen a little piece of wire." Plaintiff threw the wire and cake which he had removed from his mouth into the yard. The wire is variously described as being about the size of, or a little heavier than, that of an ordinary window screen wire, and when removed from plaintiff's mouth seems to have been bent.
On the day after the alleged injury, plaintiff's throat began to get sore. His condition became worse, and he consulted Dr. H. M. Mican of Charleston, who advised hospitalization. Plaintiff was then taken in an ambulance to the Charleston General Hospital, where he remained for fourteen days. For two or three days while there, he was unable to swallow, his neck was greatly swollen, and for a time it was necessary to feed him intravenously. Finally, his throat became abscessed near the left side of the jaw, and an operation was performed and the abscess drained.
Dr. Mican testified that, in his opinion, the infection was caused by the tissues of the throat having been punctured by a foreign object "which carried the germ into the deeper structures of the neck". Defendant's witness, Dr. O. H. Bobbitt, an eye, ear, nose and throat specialist, who made no examination of plaintiff during *534 the course of his illness, testified on defendant's behalf that infections may be caused, without trauma, from bacteria in the throat.
As a result of the operation plaintiff has a scar on the left side of his throat. From Dr. Mican's testimony it appears that infection caused plaintiff to become "very sick". From his testimony and that of plaintiff, it clearly appears that during the course of the illness plaintiff suffered great pain. The record contains substantial evidence to the effect that since the injury plaintiff experienced hoarseness, which interferes with his talking and singing, and plaintiff testified, without contradiction, that he has "pains every now and then that shoots through" his throat. Hospital and medical expenses in the respective amounts of $95.26 and $94.00 were proved, and proof was made of loss of wages in the amount of $280.00 to $300.00, though this latter item is not declared upon in plaintiff's declaration.
Two assignments of error are asserted here: (1) The giving of plaintiff's instruction No. 1, and (2) the verdict was excessive.
Plaintiff's instruction No. 1 told the jury, among other things, that if it should believe from a preponderance of the evidence "that at the time said cake was taken from said cellophane wrapper, that said cake contained a small metallic substance, as testified to by said plaintiff, and that the plaintiff suffered injuries as testified to by him, as the proximate result of his attempting to eat a piece of said cake, which contained said small metallic substance, the prima facie
presumption of law is that said defendant was guilty of negligence, and you should find for the plaintiff, unless you believe that the said defendant has overcome, by competent evidence, said presumption of negligence, or unless you find from the evidence that the plaintiff was guilty of negligence which proximately contributed to his own injury if any". Defendant objected to the giving of this instruction on the ground that the presence of a foreign object in the cake *535
is sufficient to allow the jury to draw the inference that defendant was negligent, but is not "prima facie evidence of negligence on the defendant's part." Plaintiff cites Parr v.Coca Cola Bottling Works of Charleston,
Upon reexamination we find that the reasoning of this Court in the opinion in Parr v. Coca-Cola Bottling *536 Works, supra, was based upon the holding in Webb v. Brown Williamson Tobacco Co., supra. Both cases involved the alleged liability of the manufacturer to an ultimate consumer. In the opinions in both cases the defendants were held liable upon the theory of the doctrine of res ipsa loquitur. In the Parr case the Court, in disposing of the second assignment of error therein that the doctrine of res ipsa loquitur was erroneously applied, said that this, as well as the first assignment of error, is "disposed of by this Court's holding in" the Webb case. The following statement appears in the Webb case: "The jury had the right to believe that the system used by the manufacturer was not sufficient to prevent the presence of a foreign substance in the manufactured product involved in this case. Realizing the difficulties surrounding our decision, we hold that the question of negligence was one for jury determination, and that on the question of liability of the manufacturer, its verdict cannot be disturbed." After using the foregoing quotation, the Parr opinion continues with the observation: "This, we think, disposes of the question of negligence and the question of applying the doctrine of resipsa loquitur." But in the Webb case this Court held that the doctrine of res ipsa loquitur "does nothing more than warrant certain inferences from established facts"; while in point 1 of the syllabus of the Parr case the Court held that the proof of the presence of a deleterious substance in a bottle of Coca-Cola gave rise to "a prima facie presumption of negligence on the part of the bottling company", and it was for the jury to determine whether proof of a careful bottling system which did not single out the specific article consumed "meets the presumption so arising." So it seems to us upon this reappraisement of the two cases that point 1 of the syllabus in the Parr case is inconsistent with the position which this Court took in the Webb case.
By our holdings in the Webb, Parr and Blevins cases, we are committed to the proposition that the doctrine of res ipsaloquitur should be applied to an action by the *537
ultimate consumer against a manufacturer of products designed for human consumption, to recover for alleged injuries caused by the presence of deleterious or harmful matter in the product. The decision in the Webb case differs from the decisions in the Parr and Blevins cases only in that this Court gave a different effect to the application of "res ipsaloquitur". This diversity in our own decisions represents a diversity in the authorities in other jurisdictions. Many American courts have entertained the view that "res ipsaloquitur" is a presumption, and many others have held the contrary view, that is, that "res ipsa loquitur" is a mere permissive inference. For a collation of authorities, see note to Glowacki v. Northwestern Ohio Railway Power Co.,
For these reasons we think that point 1 of the syllabus in the Parr case, as well as the syllabus and opinion in theBlevins case, should be modified to conform with the holding of this Court in the Webb case.
Plaintiff's instruction No. 1, we think is erroneous for the foregoing reasons, and for the further reason that it tells the jury, in effect, that if it should believe from a preponderance of the evidence that at the time "said cake was taken from said cellophane wrapper, that said cake contained a small metallic substance, * * * and that the plaintiff sustained injuries * * * as a proximate result of his attempting to eat a piece of said cake", there is a "prima facie presumption of law" that *539
said defendant was "guilty of negligence." (Italics supplied). A prima facie presumption, as suggested in the Parr case, does not, where the presumption is met and overcome by evidence, preclude jury determination; but a presumption of law is a rule of law that a particular inference shall be drawn by a court or jury from a particular circumstance. State v. Dodds,
As a new trial will be had, we do not reach defendant's second assignment of error, that the verdict is excessive.
For the foregoing reasons the judgments of the Common Pleas and Circuit Courts are reversed, the verdict set aside, and a new trial awarded.
Judgments reversed; verdict set aside; new trial awarded.
Concurrence Opinion
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 *540
was dealt with by name is that of Snyder v. Wheeling ElectricalCo. (1897),
The Snyder case was cited in Veith v. Salt Co. (1902),
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),
In Jankey v. Gas Co. (1925),
"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),
"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),
"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),
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 *543
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.,
In Diotiollavi v. Coal Co.,
In quoting from Sweeney v. Erving,
In the case of Webb v. Tobacco Co.,
In the case of Parr v. Bottling Works,
The Parr case was followed by Blevins v. Bottling Works,
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),
"* * * 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 *546 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. *547