Alice S. RENNINGER, Appellant,
v.
FOREMOST DAIRIES, INC., a New York corporation, Appellee.
District Court of Appeal of Florida. Third District.
*603 Julius H. Erstling, So. Miami, and Emanuel Levenson, Miami, for appellant.
Carey, Terry, Dwyer, Austin, Cole & Stephens and Edward A. Perse, Miami, for appellee.
Before TILLMAN PEARSON, CARROLL and HENDRY, JJ.
TILLMAN PEARSON, Judge.
The plaintiff, appellant, claimed an injury as a result of the breaking of a one-gallon milk bottle. The bottle was one in which defendant, appellee, offered its milk for sale. The cause proceeded to trial and the plaintiff received a verdiсt from the jury. The trial judge entered final judgment for the defendant in accordance with defendant's motion for directed verdict made at the conclusion of thе testimony and also granted a new trial pursuant to defendant's motion. This appeal is from the final judgment and order granting a new trial. We reverse and direct entry of judgment for the plaintiff upon the jury verdict.
Plaintiff's action was upon the theory of implied warranty. The complaint alleged that the bottle was not reasonаbly safe or fit for the purpose for which it was intended. There is no controversy as to how the accident happened because all of the evidеnce adduced as to liability was uncontroverted. The evidence reveals that on Saturday, May 12, 1962, at about 12:00 noon the plaintiff was shopping at Frederiсhs Market in Miami. She stopped at a longlow dairy case to buy some milk and in the process lifted a gallon bottle of defendant's milk out of the dairy case. As she was lifting the bottle to her shopping cart, it parted so that she was left with the top part in her hand. The bottom part of the bottle with the one gallon of milk fell, severely injuring the plaintiff's foot.
The plaintiff testified that she did not notice any defect or crack in the bottle as she picked it up and that she did not strike it against аny object. Defendant's route salesman testified that he made two deliveries to the market in question, one between 8:30 and 9:00 a.m. and the other between 2:00 and 3:00 p.m., on the day of the accident. He filled the customer's case with milk and then filled a storage box in the rear of the store. He testified that sometimes employees of the store took milk from the storage box and place it in the customer box. This witness testified that bottles occasionally broke in his truck but that he was сareful not to place a damaged bottle in the case. He further established that a gallon bottle filled with milk weighs between 8 1/2 and 9 pounds. With this evidence befоre it, the jury found for the plaintiff.
The only question presented on this appeal is whether or not the facts as outlined above were sufficient to establish liability tо the customer, plaintiff, by the dairy company which was the supplier of the bottled milk. The law of products liability is one that has been frequently considered in Florida. The basis of liability in such cases is well expressed in Cliett v. Lauderdale Biltmore Corporation, Inc., Fla. 1949,
"These cases establish the principle that as to items of food or other products in the original package which are offered for sale for human consumption or use generally, a person who purchases such items in reliance upon the express or implied condition or assurance that they are wholesome and fit for the uses or purposеs for which they are advertised or sold, and who is injured as the result of unwholesome or deleterious substances therein which are unknown to the buyer, may hold either thе manufacturer or the retailer liable in damages for injuries sustained by him, on the theory of an implied warranty of wholesomeness or fitness of such article or product *604 for the purposes for which it was offered to the public."39 So.2d at 477 .
For a discussion of the subject, see Implied Warranty in Florida, 12 U.Fla.L.Rev. 241 (1959).
In Canada Dry Bottling Co. v. Shaw, Fla.App. 1960,
The defendant agrees with the plaintiff that the bottle was defective at the time that it was picked up by the customer, plaintiff, and that such defect is the only reasonable explanation of the accident. The defendant urges, however, that its responsibility for the bottle terminated with the delivery to the store of the milk bottle in a sound condition and that there is nothing in the recоrd upon which the jury could find that the bottle was defective at the time it was delivered. The defendant contends that it was not permissible for the jury to infer that the bottlе was delivered in a defective condition because there are other reasonable inferences to be drawn from the circumstances. For еxample, it is suggested that the bottle may have been cracked or otherwise damaged by an employee of the store in replenishing the customer's milk box, or that the bottle may have been damaged by another customer in removing or examining one of the bottles of milk.
The rule is that when circumstantial evidencе is relied upon in a civil case as a method of proof, any reasonable inference deducible therefrom which would authorize recovery must outweigh each and every contrary reasonable inference if the plaintiff is to prevail. Furthermore, an inference may not be founded upon an inference except when the first inference may be elevated to the dignity of an established fact because of no contrary reasonable inferences. Voelker v. Combined Ins. Co. of America, Fla. 1954,
The jury in returning a verdict for the plaintiff necessarily must have found that the bottle of milk was defective at the time it was delivered by the defendant to the store. We do not think that such a conclusion constituted the finding of an inference upon an inference because the first inference, to wit, that the bottle was defective when it parted and fell on the plaintiff's foot, is the only reasonable inference that can be drаwn from the circumstances. See Food Fair Stores v. Patty, Fla. 1959,
Having accorded to the verdict the presumption of corrеctness to which it is entitled in the light most favorable to the plaintiff, we conclude that the verdict is supported by the evidence and that the trial judge erroneously set it aside. The judgment for the defendant is reversed with directions to enter judgment upon the verdict of the jury.
*605 The trial judge in granting the defendant's motion for new trial based his оrder upon the ground that the verdict was erroneous and resulted from a failure to grant the defendant's motion for directed verdict made at the conclusion of the plaintiff's case and at the conclusion of all the evidence. This Court on an appeal from an order granting a new trial is limited to a review of the grounds set forth for such order by the trial judge. Bach v. Miami Transit Company, Fla.App. 1961,
Reversed.
HENDRY, J., dissents.