Monroe v. H. G. Hill Stores

• Decision Date: 09 April 1951
• Docket Number: No. 19643,19643
• Parties: MONROE et al. v. H. G. HILL STORES, Inc., et al.
• Court: Court of Appeal of Louisiana — District of US

Page 645

51 So.2d 645

MONROE et al. v. H. G. HILL STORES, Inc., et al.

No. 19643.

Court of Appeal of Louisiana, Orleans.

April 9, 1951.

Montgomery, Barnett, Brown & Sessions the Wood Brown, all of New Orleans, for plaintiffs-appellees.

May & Carrere, New Orleans, for H. G. Hill Stores, Inc., defendant-appellee.

Frank T. Doyle and Robert G. Hughes, all of New Orleans, for Falstaff Brewing Corp., defendant-appellant.

JANVIER, Judge.

Plaintiffs, Mr. and Mrs. Paul Hoerske, seek to recover damages on account of physical injuries sustained by Mrs. Hoerske while she was a customer in a store of one of the defendants, H. G. Hill Stores, Inc., and which injuries resulted from the breaking of a bottle of beer bottled by the other defendant, Falstaff Brewing Corporation, and which bottle, among others, had been placed on a shelf of what is called a gondola or counter in the store. Mrs. Hoerske prays for solidary judgment against the two defendants in the sum of $2500.00 for her physical injuries, pain and suffering, and Mr. Hoerske prays for solidary judgment for $166.70 as the expense sustained by the community for medicines, drugs, hospital bills, time lost from his business by Mr. Hoerske, and cost of employing a maid as the result of the inability of Mrs. Hoerske to attend to her household affairs.

Plaintiffs allege that while Mrs. Hoerske was a customer in the store, she sustained her injuries under the following circumstances: 'She was standing before a shelf on which pots and pans were located when a bottle of Falstaff beer manufactured and distributed by defendant, Falstaff Brewing Corporation, which said bottle of beer with other bottles of beer were stored on a shelf underneath the shelf containing the pots and pans above referred to, exploded.'

They aver that, as a result of the explosion, flying glass from the beer bottle struck her right leg causing a severe cut and contusion 'on the mid third of the right leg,' and that there were also a number of other smaller cuts and contusions.

They charged that the explosion of the bottle was caused by the joint negligence of the two defendants. The charge against the defendant, H. G. Hill Stores, Inc., is that, 'its agents and employees, were negligent in storing said beer bottles loosely on a shelf without having them in a proper container or case, and more particularly in placing them in close proximity to the place where customers were standing, all on an extremely hot day in mid-summer.'

It is alleged that the other defendant, Falstaff Brewing Corporation, was negligent 'in the manufacture and preparation of said beer bottle in either bottling said beer under too great a pressure or using a defective bottle, or preparing said beer in such a fashion that it was likely or liable to explode during hot or warm weather.'

Petitioners further aver that the manufacture, preparation and bottling of the beer was solely within the knowledge and control of the Falstaff Brewing Corporation and that the care, stacking and handling of it was solely within the knowledge and control of the H. G. Hill Stores, Inc., and that therefore '* * * the doctrine of res ipsa loquitur applies.'

The H. G. Hill, Stores, Inc., filed exceptions of no right or cause of action which were overruled and both defendants then filed answers.

The Falstaff Brewing Corporation, for lack of information, denied all of the allegations concerning the occurrance of the accident, and especially denied that the bottle of beer referred to in the petition 'exploded', and averred that the said bottle either as the result of a fall to the floor due to the negligence and careless manner in which it was placed upon the shelf and in which it was handled by the employees of the store, or because 'someone or some force brushed against or came into contact with the shelf upon which said bottle of beer was stored causing it to fall and break.' That defendant particularly denied 'that there was any negligence what ever on its part' and '* * * that said bottle of beer exploded from internal pressure, * * *' and averred 'that the breaking of said bottle was due to some force applied thereto for which this defendant is not responsible.'

The other defendant, H. G. Hill Stores, Inc., answered, admitting the occurrence of an accident in which Mrs. Hoerske received cuts and contusions of the right leg from glass of a broken beer bottle, but denying that any bottle of beer ever exploded in defendant's store. This defendant then further averred 'that the bottle in question was, to the best of defendant's information and belief, knocked from the shelf upon which it rested to the floor and broken, presumably by the petitioner, Mrs. Hoerske.'

This defendant further denied that any one of its employees was in any way negligent, and in the alternative, alleged that if there was any negligence whatever on the part of it or its employees, the proximate cause of the accident was the contributory negligence of plaintiff, Mrs. Hoerske, 'in upsetting the bottle of beer.'

After a lengthy trial, there was judgment dismissing the suit as against H. G. Hill Stores, Inc., and there was further judgment in favor of Mrs. Hoerske and against Falstaff Brewing Corporation in the sum of $1500.00, and further judgment in favor of Mr. Hoerske and against Falstaff Brewing Corporation in the sum of $156.70.

Falstaff Brewing Corporation has appealed devolutively and suspensively. Both plaintiffs have also appealed. In their petition for appeal they aver that the judgment dismissing the suit as against H. G. Hill Stores, Inc., is erroneous and that the damages awarded against Falstaff Brewing Corporation 'are inadequate.'

There is practically no disagreement over the facts except on the one important question as to what was the cause of the breaking of the bottle. That it did break and that Mrs. Hoerske sustained physical injuries as a result are conceded.

Mrs. Hoerske was interested in certain kitchen pots which were on sale in the store. These pots were being displayed on the upper shelf of what is known as a gondola. A gondola is a heavy piece of store equipment on the two shelves of which groceries and other merchandise are stored and displayed in such a way as to be easily accessible to the customers. Though Mrs. Hoerske estimated the height of the lower shelf of the gondola as six or seven inches above the concrete floor, the record leaves no doubt that it is actually from twelve to fourteen inches above the floor. The upper shelf is 36 inches above the floor and the front edge of the upper shelf is about six inches further back from the aisle than is the front edge of the lower shelf.

The pots in which Mrs. Hoerske was interested were on the upper shelf, and on the lower shelf, under the pots, were stored a large number of bottles of Falstaff beer. These bottles were in an upright position, but there is no evidence which shows exactly how far back from the front edge of the shelf were the foremost of those bottles.

Mrs. Hoerske says that she had picked up one pot and had another in her hand when a bottle of beer on the lower shelf suddenly exploded and that particles of glass from the bottle cut her leg. At one point in her testimony, she says that there were two bottles which were broken or exploded, though the record overwhelmingly shows that only one broke and that that one was responsible for the accident.

There can be no doubt that the bottle which broke was one which contained Falstaff beer and that it had been bottled and supplied by the Falstaff Brewing Corporation. Though there is no disagreement on this point, in order to make certain of the proof that it was a bottle of Falstaff beer, both plaintiffs stated that after the accident parts of a label from the bottle remained sticking to the underdress or slip of Mrs. Hoerske.

Since plaintiffs concede that they are unable to assign reasons for the breaking of the bottle--in other words, since they were unable to produce any affirmative proof of actionable negligence chargeable against either defendant, they were necessarily forced to rely upon the doctrine of res ipsa loquitur. They contend that this doctrine is applicable and that, as a result, there is placed upon each defendant the obligation of showing that there was no fault on its part. Plaintiffs say that as a result of this doctrine the mere occurrence of the accident creates a presumption of negligence so strong that unless proof is offered to show that there was no fault, then that defendant which fails to exculpate itself must be held liable, and that possibly as a result of failure to explain the occurrence both may be liable.

Defendants, on the other hand, assert that the doctrine of res ipsa loquitur cannot be applied here, primarily...