148 So. 2d 840 | La. Ct. App. | 1963
Lead Opinion
Plaintiffs, Gail and Jerry Hudnall, instituted this suit against the defendants, The Louisiana Coca-Cola Bottling Company, Ltd. and its liability insurer, The Travelers Insurance Company, endeavoring to recover the sum of $29,402.00, representing the monetary value of personal injuries and medical expenses incurred by them when a bottle containing Coca-Cola exploded on November 28, 1960 in Giordano’s Super Market and a piece of glass emanating therefrom severed the Achilles tendon above the heel of plaintiff’s left foot.
Plaintiffs initially invoked the doctrine of res ipsa loquitur, and in the alternative, they insisted that the negligence of the defendant’s agent caused the accident and the injuries resulting therefrom.
The defendants denied any liability for the accident and asserted that the bottle was caused to explode when a customer of the super market inadvertently knocked it from the shelf, where it was displayed, to the floor of the establishment.
From a judgment in favor of Gail Hud-nall in the amount of $8,000 for personal injuries and in favor of her husband, Jerry Hudnall, in the amount of $973.22 for medical expenses incurred by, the community, the defendants have prosecuted this appeal.
The litigants agree that the plaintiff incurred an injury to the Achilles tendon above her left heel when a glass fragment emanating from an exploded Coca-Cola bottle pierced her leg during the course of a shopping trip in Giordano’s Super Market. The defendant concedes that the plaintiff was not responsible for the rather unusual chain of events which occurred on that day, and which ultimately resulted in her injury.
The trial court predicated its judgment for the plaintiffs on a finding that the defendant’s agent was negligent, in that he kicked the bottle which' caused it to explode; however, our review of the record convinces us that the plaintiffs did not actually prove the negligence of the agent in this respect by a reasonable preponderance of the evidence.
Therefore, the initial question which this appeal has posed for our consideration is whether the doctrine of res ipsa loquitur is applicable to the facts hereof which, if so, would have the ultimate effect of shifting the burden of proof upon the defendant to establish its freedom from fault in order tó avoid liability. The answer to this question requires a careful analysis of the record.
The record reveals that on the day she was injured, plaintiff was visiting Giorda-no’s Super Market, a rather small self-service store located in Belle Chasse, in order to purchase foodstuffs. She and the proprietress were conversing near the bread counter when their attention was attracted by an explosion.
Plaintiff instinctively turned to ascertain the cause thereof, and at that instant she noticed that her leg was- bleeding profusely. Simultaneously, Mrs. Giordano, the proprietress, likewise turned and observed that a “coke” bottle had exploded leaving the liquid contents thereof and glass fragments emanating therefrom, scattered in the aisle. The noise originated in front of the shelf where full cartons of Coca-Cola were displayed and which was located approximately 12 feet from where plaintiff and Mrs. Giordano were engaged in an animated conversation.
Mrs. Giordano was unable to explain the cause of the explosion but related that there were four people in the store when it occurred; namely, herself, the plaintiff, a colored helper employed on the beverage delivery truck, who, together with a hand-
Mrs. Braud fully confirmed the proprietress’ testimony in the foregoing respect. In addition thereto she recounted that she was moving her cart into the aisle adjacent to the Coca-Cola rack when she noticed the colored helper near the rack pushing a handtruck loaded with full cases of Coca-Cola. Just before the explosion occurred, the helper started to back into her and in order to avoid coming in contact with him, she stepped backward. In the course of this maneuver, she heard the explosion and subsequently noticed a piece of the broken bottle near the front of her grocery cart.
Although Mrs. Giordano and Mrs. Braud unequivocally testified that the colored helper was moving around with his hand truck in front of the rack preparing to replenish the shelves thereof with filled cartons of “coke”, the defendant’s witnesses, both of whom were its employees, laboriously insist that it was the white driver who was standing by the rack and the colored helper was in the storeroom.
The driver, in order to sustain the foregoing assertion, explained that it was his routine when making a delivery to enter the store and arrange the beverage rack for the reception of new stock and then to determine how many cases of “coke” are required to fill the shelves. In the meantime, the helper is normally engaged in loading cases thereof on a handtruck which are then wheeled into the storeroom. Once the driver ascertains how many bottles of Coca-Cola should be placed on the display shelves, he walks to the storeroom and instructs his helper to bring in the required amount.
The driver related that on the day of the accident he had just finished determining the amount of Coca-Cola which the store required, when the explosion occurred. He further laboriously asserted that just before the explosion occurred he heard bottles tumbling “like rocks” from the root beer rack, which, he speculates, possibly knocked the coke bottle over.
The helper corroborated the driver’s version of what occurred, and reiterated that from his remote position in the storeroom he also heard a cascade of bottles hitting the floor. The helper insisted that he had not been in the main part of the store when the accident occurred. Of course, as we have said, this is very definitely disputed by both Mrs. Giordano, the proprietress, and Mrs. Braud, a customer, who place the colored helper and his handtruck next to the Coca-Cola shelves when the explosion occurred.
Both employees of the Coca-Cola Company testified that after the explosion there were several root beer bottles on the floor, which contradicts the testimony of the proprietress and Mrs. Braud who observed only the broken fragments of the Coca-Cola bottle and the liquid contents thereof on the floor. Significantly, the colored helper who cleaned up the debris asserted that the only glass which he picked up emanated from a broken Coca-Cola bottle.
As we have observed herein-above, the record does not support the trial court’s conclusion that the explosion occurred when the colored helper accidently kicked over a bottle of Coca-Cola. No one saw this, nor did anyone say that they actually saw a “coke” bottle fall to the floor before it exploded. However, it is interesting to note that at least one of the defendant’s employees was in an excellent position to have noticed what did occur to cause the explosion.
Thus, in order to permit the plaintiff to establish a case, it was essential that she invoke the evidentiary rule of res ipsa loqui-tur herein, since she was totally unaware of the manner in which her injury was inflicted.
The litigants, as we have said herein-above, concede that the plaintiff herein is without fault and possesses no knowledge relative to the cause of the explosion.
Further, the evidence adduced herein establishes that the bottle was neither tampered with nor improperly handled after it left the defendant’s plant.
When the accident occurred, the defendant owned and maintained a beverage rack in the Giordano Super Market. The bottler’s agents serviced this rack, and in so doing, were responsible for maintaining a full display. Although Mrs. Giordano testified that customers occasionally leave empty bottles in the aisle near the “coke” rack, she asserted that she had checked the aisle ten minutes before the explosion and none had been left on the floor thereof. She said that she frequently polices this aisle because of this practice. The record further reflects that neither Mrs. Braud nor the plaintiff had purchased any bottled beverages prior to the accident.
According to the plaintiff’s witnesses, whom the trial judge found more credible in his reasons for judgment, the driver had already prepared the rack to be replenished with Coca-Cola because the helper was wheeling in full cases of the beverage and was in fact in front of the Coca-Cola rack when the explosion actually occurred.
Predicated on the foregoing evidence, we are of the opinion that the plaintiff has affirmatively established both her freedom from fault and the fact that the bottle which exploded was not improperly handled by a third party. In fact, if there was improper handling thereof, the inference is inescapable that this was done by the defendant’s employee, because he was engaged in servicing the Coca-Cola display shelves when the explosion occurred.
Thus, having established a prima facie case of negligence, the doctrine of res ipsa loquitur must of legal necessity apply, and its effect is to shift the burden of proof to the defendant, who must then prove its freedom from fault in order to exculpate itself from liability.
In that case we held, with respect to the defendant, Falstaff Brewing Corp., that there was no affirmative proof of negligence on the part of this defendant, and since the plaintiffs have not eliminated the possibility of some other cause, the doctrine of res ipsa loquitur is not applicable; and with respect to the defendant, H. G. Hill Stores, Inc., we held that there was no room for the application of the doctrine of res ipsa loquitur since the plaintiff was standing directly in front of the beer shelf examining pots and pans which were on sale ánd therefore “ * * should be in a better position than any other person to know the cause of the fall of such a bottle.” We concluded in that case
The jurisprudence is replete with opinions which discuss the reason for thus shifting the burden of proof to the defendant in these cases; therefore, no useful purpose would be served by reiterating those reasons herein.
It has frequently been pointed out that in bottling a carbonated beverage which has explosive potential, the manufacturer must assume responsibility for the injury caused when the beverage explodes, or affirmatively prove that it was not negligent in bottling the beverage. In many cases, some of which have been written by the author hereof, expert testimony has been adduced to show that such an explosion was an impossibility, and yet it is not an infrequent occurrence. This is quite obvious from a simple count of the number of cases appearing in the jurisprudence emanating from this and other states where injury was caused by an exploding bottle containing a carbonated beverage.
Therefore, the next question posed for our consideration is whether the defendant has affirmatively shown that it was not negligent.
The testimony of the defendants’ witnesses in substance is to the effect that root beer bottles tumbled from the shelf and they surmise that these bottles knocked the “coke” bottle to the floor. However, they both admit that they did not see the Coca-Cola bottle fall to the floor and then explode. Defendants further argue that this version is buttressed by Mrs. Braud, who testified that the explosion occurred after she stepped back with her cart to avoid the “coke” helper who was backing into her. They simply imply and want this court to draw the inference that Mrs. Braud caused these bottles to fall. She very honestly stated that to the best of her knowledge she did not come into contact with the beverage rack, nor did she see a Coca-Cola bottle fall from its shelf to the floor.
It is very significant that the helper employed by the defendant bottler did not recall seeing any root beer bottles on the floor when he cleaned up the debris after the accident. If they had cascaded from their shelves to the floor, as these employees insist, they certainly would have been present after the accident occurred, and when the colored helper cleaned up the debris.
The trial judge, in written reasons for judgment, stated that the Coca-Cola employees were unworthy of belief, and we thoroughly agree with this conclusion in view of the fact that the “coke” helper who testified that root beer bottles had cascaded to the floor, but he could not remember seeing any on the floor when he cleaned the aisle. We further believe that the disputed positions of the driver and the helper when the accident occurred are pertinent only insofar as the simple credibility of defendants’ witnesses are concerned, and that the defendant’s driver was a more capable witness than defendant’s helper was. However, we have no doubt at all that the colored helper was moving his hand truck in the aisle next to the Coca-Cola shelves when the explosion occurred, and that the defendant’s driver was not present despite his laborious assertions to the contrary.
In view of the foregoing, the trial court properly rendered a judgment in favor of the plaintiffs and against the defendants.
Defendants next contend that an award of $8,000 to the plaintiff was excessive in that it was not justified by the medical evidence.
As a result of the explosion, plaintiff’s leg was cut severely, causing it to bleed profusely. Immediately following the accident, she was treated by a physician whose office was located in her neighborhood. He merely bandaged the leg and
Dr. Brent testified that he first examined the plaintiff on December 20, 1960, or about three weeks after the accident, and discovered that she had an injury to the Achilles tendon in the left leg, which evidenced severe swelling. He stated that he first tried conservative treatment which was not satisfactory, and he then recommended surgery. Because of family complications, plaintiff was unable to undergo surgery until June 23, 1961. At that time the orthopedist found the tendon had been lacerated and in surgery he was required to shorten it so that it would be reduced to a normal size. She was then placed in a cast which was removed six days later because an infection occurred. It was then necessary to immobilize her for quite some time. On July 25, 1961, a walking type cast was applied, which was kept on for approximately one month. When the trial hereof occurred, on October 30, 1961, the plaintiff’s incision was still draining and Dr. Brent thought that it would be necessary for her to undergo surgery again in ■order to have the sutures removed. She was walking at the time of the trial with the foot supported by an elastic bandage. Dr. Brent stated that she would have some permanent disability because of the shortening of the Achilles tendon, but he could •not rate the disability when the trial hereof ■occurred.
Plaintiff related that she walked and experienced pain when she did so. She said that she was unable to walk on the ball of her left foot and could only use her heel. She is 22 years old and the mother •of a young child. She explained that although her injury was painful, she was forced to remain on her feet for long peri■ods of time in order to properly care for her child and to perform various household ■duties, since her husband’s income did not permit the employment of a domestic servant. In fact, after surgery was performed on the plaintiff’s leg, she was fully immobilized and it was then necessary for her and her family to move to her mother’s home because she found it impossible to maintain her household.
The foregoing testimony and the medical evidence adduced herein is uncontradicted since the defendants failed on the trial hereof to offer the opinion of an expert in rebuttal thereof.
A careful review of this evidence leads us to the conclusion that an award of $8,000 was excessive, but in view of the fact that plaintiff has incurred a partial disability at a youthful age, which will be permanent, we are of the opinion that she is entitled to an award of $6,000 which we believe to be adequate insofar as money may make it so.
For the reasons assigned, the judgment appealed from is affirmed insofar as it fixes liability, and it is now ordered that the judgment be amended so as to reduce the award to plaintiffs from $8,973.22 to $6,-973.22. All costs are to be borne by the defendant.
Affirmed and amended.
. See Auzenne v. Gulf Public Service Co., La.App., 181 So. 54; Lanza v. De Ridder Coca Cola Bottling Co., La.App., 3 So.2d 217; Watkins v. Gulf Refining Co., 206 La. 942, 20 So.2d 273; Johnson v. Louisiana Coca-Cola Bottling Co., La.App., 63 So.2d 459; Beck v. United States Fidelity & Guaranty Co., La.App., 76 So. 2d 120; and Bonura v. Barq’s Beverages of Baton Rouge, La.App., 135 So.2d 338.
. Watkins v. Gulf Refining Company, 206 La. 942, 20 So.2d 273.
. La.App., 51 So.2d 645
Dissenting Opinion
(dissenting).
I must dissent from the majority opinion which, I respectfully consider, has improperly applied the res ipsa doctrine to the facts established in this case. Reference to “Defendant” herein will be to the Coca-Cola Bottling Company.
Even if this doctrine were applicable here, the only burden on Defendants was to exculpate Coca-Cola Company’s employees from any act of negligence resulting in the bottle breaking, not to prove how or who was responsible.
At the time of the injury to Plaintiff the offending bottle was not in the possession or control of Defendant’s employees. It had been on the shelf of the self-service grocery for one week or more before the
The issue, then, is the factual determination of whether Plaintiffs sustained the burden of proving by a preponderance of evidence that the crash of the bottle was caused by negligent acts of Defendant’s employees.
The self-service grocery was equipped with a beverage rack for the bottled soft drinks of various bottlers, each assigned a section which it kept supplied. Wire basket carts were furnished by the grocery for the customers to haul their purchases for checking by, and payment to, the cashier.
Defendant made periodic deliveries to the grocery by a salesman and his helper to replace empty bottles. Having served the grocery for a long time, the salesman knew approximately how many cases were usually required on each call. Upon arriving at the store on this date, the helper loaded from his delivery truck the customer’s number of cases. The salesman meanwhile went into the grocery to determine how many cases were actually needed.
The salesman had been at the rack checking less than a minute when he suddenly heard the noise of bottles tumbling. He looked and saw a Coca-Cola bottle break as it hit the concrete floor, three or four feet from where it fell. At that point a grocery cart was being pushed by a customer, Mrs. Braud. Neither the salesman nor helper had touched any of the bottles on the beverage rack before this accident; and there is no evidence that a bottle fell from the helper’s hand truck.
In addition to the salesman and his colored helper there were present in the grocery Mrs. Giordano (owner), Mrs. Hudnall (Plaintiff), both looking at the bread rack 12 feet away; and Mrs. Braud, the customer who was pushing the cart described above.
Plaintiffs sought to prove the colored helper was in front of the beverage rack at the time of the accident; but the salesman and helper satisfy me the helper was just leaving a storeroom in the rear of the store trucking the fresh supply for Defendant’s rack. Plaintiffs’ witnesses could not recall seeing either the salesman or the helper before the accident; though they did testify that, before the accident, neither the salesman nor helper had touched the bottles on the beverage rack; nor had either knocked the offending bottle over. Clearly, Defendant’s employees did nothing in the grocery that caused the bottle to fall and crash on the floor. ■
Mrs. Hudnall admitted she could not explain how the accident occurred; and Mrs. Giordano did not see the accident. Therefore, only one of Plaintiffs’ witnesses (Mrs. Braud) was in a position to describe what occurred. She was pushing a self-service cart at the scene when the-bottle fell. She rolled the cart in front of the beverage rack. When she saw one of Defendant’s employees blocking her path in the back aisle, she pulled the cart back with the intention of turning off to a different aisle. As she moved back, she heard the noise made by the breaking of the bottle on the concrete floor. She admitted Defendant’s employee did not bump into her, nor did she bump into him. In her maneuver to change direction to avoid collision with the on-coming cart, she could unknowingly have knocked the bottle over. This testimony aptly tells her version.
“Q. Tell the Court, in your own-words, exactly what you were doing at the time immediately before the injury to Mrs. Hud-nall?
*847 “A. Well, I remember I was on my way out to the cashier, and the Coca-Cola helper was coming in, just turning to where I would . have to pass if I had continued the way I was going. To avoid bumping into him, I pushed back a little, and when I went back, I heard the explosion — heard Mrs. Hudnall holler, and looked down and saw the bottle broken at my buggy wheel.
* * * * * *
“Q. Mrs. Braud, you didn’t bump into the Coca-Cola helper, did you?
“A. No.
“Q. And he didn’t bump into you?
“A. No, he did not.
“Q. Did you determine that a bottle had broken?
■“A. After I heard the noise and looked down at my buggy wheel —well—I saw that the bottle was broken.
■“Q. Where was the bottle, on the floor?
■“A. Why, it was on the floor when I saw it.
“Q. Where was the bottle? Was it right next to your cart?
“A. Sort of in the front and the side of my buggy wheel.
"Q. I can’t hear you.
“A. To the front and side of my buggy wheel.
“Q. Do you know whether that bottle was on the floor before it broke?
“A. I sure don’t.
"Q. Were you particularly watching the floor to look for bottles before the bottle broke?
“A. No. I wasn’t looking at the floor for bottles.
* * * * * H*
“Q. The helper didn’t knock the bottle over, did he ?
“A. I didn’t see that.
jfc * * * * *
“Q. In other words, you were going to turn to your left to go down this aisle?
“A. No, no. I was going to come to go down this — when he was turning in here, realizing that I couldn’t — I had to back to go down this aisle (indicating). That was the purpose of backing up going this way (indicating) and then get to the cashier. As I recall, I had gone down this aisle (indicating). As he was here I realized I couldn’t pass, because it was too narrow, and just when I took my step, I heard the noise and looked down and heard Mrs. Hudnall, and I saw the broken bottle. As I heard the noise, naturally, I looked down, because I could tell which way the noise was coming from. Then I heard Mrs. Hudnall holler, and I looked over to see.
“Q. Just as you took your step, you heard the bottle break?
“A. Just when I went to back up there was an explosion.
“Q. Just as you were taking one step back you heard the noise ?
“A. Just about the time that I was.”
When cross-examined, Mrs. Braud then gave this contradictory testimony:
“Q. And you did pull the grocery basket back?
“A. Yes, I did, because I was too far to turn. If I had turned from the position I was in, I would*848 have hit the counter — the bread rack. So, I backed a little to turn.
“Q. As you stepped back with the grocery cart, do you know whether it swung over and hit any bottle ?
“A. I don’t know.
“Q. It could have?
“A. I couldn’t see it.
“Q. You weren’t watching down on the floor where these bottles were?
“A. No, I wasn’t.”
The District Judge concluded:
“This leaves but one conclusion, that the negro helper, backing up, kicked the bottle with the heel of his foot and it exploded either because of the force or because it was weak or overcharged.”
The District Judge concluded the bottle was on the floor when kicked by somebody (in his opinion the Negro helper). Clearly, it was not put there by the helper, but by some customer, since neither the salesman nor helper had touched the rack and the truck had not yet arrived there. The grocery owner (Mrs. Giordano) admitted customers often left bottles on the floor which she had to remove.
The majority opinion first disagrees with the conclusion of the trial court that Defendant’s agent kicked the bottle and caused it to explode; that Plaintiffs failed to prove Defendant’s negligence in this respect by a “reasonable preponderance of the evidence;” and then proceeds to invoke the res ipsa doctrine, which the District Court would not apply.
I cannot agree with the finding of the District Judge, viz.:
“It is clear that the said agent had exclusive control of the Coca-Cola rack at the time of the accident, being in the process of replenishing same and actually servicing the said rack.”
The store owner (Mrs. Giordano) admitted that, at the time of the accident, neither of the Defendant’s employees had touched the beverage rack.
Mrs. Hudnall (Plaintiff) told her mother when being taken to the hospital, “It isn’t these people’s fault,” referring to Defendant’s employees (Tr. pp. 59, 60).
The jurisprudence applicable to the facts of this case was fully considered and reviewed in the case of Monroe v. H. G. Hill Stores, 51 So.2d 645, where this Court held, under very similar circumstances, that Plaintiff had failed to bear the burden of proving either the bottler or the store owner negligent. Plaintiff there relied on the res ipsa doctrine, but the Court refused to apply the doctrine as follows:
“If the record before us convinced us that the bottle of beer which was responsible for Mrs. Hoerske’s injuries exploded spontaneously and that Mrs. Hoerske herself was in no way at fault, and that there was no intervening fault on the part of the other defendant, the necessary result might well be that the Falstaff Brewing Corporation would find itself under the necessity of showing that it was in no way at fault. But this record falls considerably short of eliminating these other possible causes of the breaking of the bottle. In the first place, the record overwhelmingly shows that the breaking of the bottle did not occur on the shelf on which it had been stored, but took place on the concrete floor at the feet of Mrs. Hoerske.
* * * * * *
“It is true that most of the witnesses used the word 'explosion’ as descriptive of the sound heard by them, but we are convinced that they did not intend to convey the very fine distinction which counsel would have us attach to the word ‘explosion’. We feel that, if a*849 bottle of beer or other liquid having an internal pressure of 35 or 40 to 60 pounds to the square inch should break as the result of a fall on a concrete ■floor, the sound of breaking of the bottle and the resulting sudden escape of the high pressure liquid would be very similar to the sound made by the spontaneous explosion of a similar bottle.
* * * * * *
“Our conclusion is that the bottle fell from the shelf to the floor and broke as a result of the fall. * * * We conclude that, since there is no affirmative proof of negligence on the part of the Falstaff Brewing Corporation and since the plaintiffs have not eliminated the possibility of some other cause, the doctrine of res ipsa loquitur is not applicable. * * * ”
Like the Monroe case, there is a logical explanation how the accident occurred. A customer (possibly Mrs. Braud) inadvertently struck a bottle with her grocery cart when she stepped aside to avoid collision with Defendant’s employee pushing the loaded cart. Further, Mrs. Giordano (owner) admitted she knew that her customers moved bottles around on the beverage rack and at times left them on the floor. She did testify that shortly before the accident she had cleaned the floor.
Joynes v. Valloft & Dreaux, La.App., 1 So.2d 108, and Fitzgerald v. Big Chain Stores, La.App., 22 So.2d 133, both held that, when a beverage bottle fell from the shelf of a bottle rack in a store injuring a customer, res ipsa loquitur was inapplicable.
In Shields v. United Gas Pipe Line Company, La.App., 110 So.2d 881, recovery was denied to Plaintiff who, while working on defendant’s truck, was injured when an explosion occurred as he lifted a wire from the battery of the truck, the court clearly stating the res ipsa doctrine, viz.:
“The doctrine of res ipsa loquitur is a rule of evidence peculiar to the law of negligence and is an exception or qualification of the general rule that negligence is not to be presumed but must be affirmatively established.
“The doctrine of ‘res ipsa loquitur’ permits an inference that the known act which produced the injury was a negligent act but there is no inference as to what act produced the injury and no foundation is laid for application of the doctrine where the physical act or the thing which caused the injury is unknown or not disclosed or identified, nor is the doctrine applicable where the injury might have been brought about by one, two or more causes neither of which is included or excluded by any affirmative showing.
“Where from the nature of facts alleged it is reasonable to assume that an explosion injuring plaintiff may have been caused by the negligence of another or through the instrumentality or agency of another, the doctrine of res ipsa loquitur is without application nor can the doctrine be invoked when the accident might have happened as a result of two or more causes with some of which defendant had no causal connection.
* * * * * *
“In order for the doctrine of res ipsa loquitur to be applicable, the case presented must be one in which the plaintiff cannot be expected to have information as to the cause of the accident and the defendant on the contrary must from the circumstances be presumed to be fully informed on the sub j ect.”
Since the doctrine of res ipsa loquitur does not apply here, and the evidence absolves the Defendant’s employees from any contact with the bottle rack, Plaintiffs have failed to sustain the burden of proof by a preponderance of evidence that Defendant’s employees caused or contributed to the falling and destruction of the bottle.
Hence, the judgment for Plaintiffs should be reversed and judgment rendered in favor of Defendants, dismissing Plaintiffs’ suit, at their cost in both Courts.
is of the opinion that a rehearing should be granted.
