Benkendorfer v. Garrett

• Decision Date: 09 October 1940
• Docket Number: No. 10735.,10735.
• Citation: 143 S.W.2d 1020
• Parties: BENKENDORFER et al. v. GARRETT et al.
• Court: Texas Court of Appeals

143 S.W.2d 1020

BENKENDORFER et al. v. GARRETT et al.

No. 10735.

Court of Civil Appeals of Texas. San Antonio.

October 9, 1940.

Rehearing Denied October 30, 1940.

Appeal from District Court, 117th District, Nueces County; Cullen W. Briggs, Judge.

Personal injury action by G. O. Garrett and others against J. M. Benkendorfer and others. From an adverse judgment, J. M. Benkendorfer and J. P. Benkendorfer appeal.

Affirmed.

Boone, Henderson, Boone & Davis and Allen V. Davis, all of Corpus Christi, for appellants.

Thomas J. Newton and J. Marvin Ericson, both of Corpus Christi, for appellees.

NORVELL, Justice.

This is an appeal from a judgment of the 117th District Court of Nueces County awarding plaintiff, G. O. Garrett, a judgment for $700 against defendants, J. M. Benkendorfer and J. P. Benkendorfer, who have appealed.

The parties will be designated as in the trial court.

Upon proper request, the trial judge filed his findings of fact and conclusions of law which sufficiently state the nature of plaintiff's claim. The trial court found that defendants were operating a partnership in Corpus Christi under the name and style of "Dr. Pepper Bottling Company," manufacturing and delivering to retail dealers a certain beverage under the trade name of "Dr. Pepper." That on October 8, 1938, the defendants, through a servant or agent, delivered to plaintiff, a retail dealer in the City of Corpus Christi, a number of bottles of Dr. Pepper. That two days later, on October 10th, one of said bottles exploded as plaintiff took hold of it for the purpose of removing it from its case and placing it in a beverage cooler, resulting in injuries to plaintiff's right hand. The trial court further found from "clear and convincing evidence," that the bottle which exploded remained with several other bottles of the beverage in the case in which it was delivered to plaintiff from the time of such delivery until the explosion occurred; that said bottle was not moved or molested by any one, save and except that the case in which the bottle was resting was shifted to the top of the box of another case of Dr. Pepper by a servant of the defendants on the day after delivery thereof, that is on the 9th day of October.

The court further found that the plaintiff had no knowledge of the reason which caused the bottle to explode; that all the facts and circumstances surrounding and concerning the manufacture, bottling, capping and handling of said bottle of Dr. Pepper were peculiarly within the knowledge of defendants, their servants and agents.

The court further found that the defendants were negligent in the manner in which they manufactured, bottled, capped and delivered the bottle of Dr. Pepper to plaintiff's store; that such negligence was the proximate cause of the explosion and the resulting injury and damage in the sum of $700.

The trial court concluded as a matter of law that the doctrine of res ipsa loquitur applied to the facts of this case. The defendants, as appellants before this Court, attack this conclusion as well as the fact findings upon which it is based. If defendants are correct in the contention that the doctrine of res ipsa loquitur has no application the case must be reversed. The plaintiff in this court urged no other theory to sustain the judgment.

In our opinion neither the plaintiff nor defendants have cited a Texas authority which is controlling in the particular fact situation presented by the record here, and we have been unable to find such a case. The nearest Texas case on the facts is that of Alagood v. Coca Cola Bottling Co., Tex.Civ.App., 135 S.W.2d 1056, 1061, by the Fort Worth Court of Civil Appeals, writ dismissed WOJ correct judgment.

In the Fort Worth case, it appeared that Mrs. Alagood, one of the appellants, was injured when a glass bottle filled with carbonated beverage by one of the appellees exploded. The jury verdict in the case was adverse to the appellants upon certain acts of negligence alleged. Appellants' petition did, however, contain an alternative count based upon the res ipsa loquitur theory, and the opinion of the Fort Worth Court of Civil Appeals discusses this doctrine as applied to the particular facts of that case. In that opinion it is said: "We have some doubt that the rule of res ipsa loquitur finds any application to this case. It requires a very liberal construction of the principle involved in that expression to bring this case within the rule. From the evidence it is indisputably true that defendant chose the bottles in which to place its manufactured beverage and to thus sell it to the plaintiffs, who were dealers and expected to resell to consuming customers. That after plaintiffs received the bottle of coca cola from defendant's deliveryman, it sat on the floor of the store for a period of time not shown, and when plaintiffs attempted to place it in the refrigerator, it exploded and injured Mrs. Alagood. From this it will be seen that the offending object, which inflicted the injury, was not in the possession or control of defendant at the time of the casualty. How long it had been in the complete custody and control of plaintiffs, and what, if anything, had happened to the bottle while in plaintiffs' possession, does not appear in the evidence."

The case at bar differs from the Alagood case in that here the trial court found that the particular bottle of Dr. Pepper which exploded was not moved or molested by any one from the time of its delivery until the explosion occurred, except in the particular instance mentioned in the court's findings when the case in which the bottle was situated was moved by one of defendants' servants.

This matter of defendants' liability presents two questions:

1. Does the finding of the trial court that the bottle which exploded was not tampered with or molested in any way from the time of its delivery to plaintiff's store until the explosion, render the doctrine of res ipsa loquitur applicable?

2. If the first question be answered in the affirmative, then is the trial court's finding supported by the evidence?

The statement contained in Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 418, 57 L.Ed. 815, Ann.Cas.1914D, 905, relating to the doctrine of res ipsa loquitur, has been approved by Texas Appellate Courts (Gulf, C. & S. F. Ry. Co. v. Dunman, Tex.Com.App., 27 S.W.2d 116, 72 A.L.R. 90; Alagood v. Coca Cola Bottling Company, supra), and is as follows: "In our opinion, res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant's general issue into an affirmative defense. When all the evidence is in, the question for the jury is whether the preponderance is with the plaintiff. Such, we think, is the view generally taken of the matter in well-considered judicial opinions."

There are certain fact situations which render the doctrine of res ipsa loquitur inapplicable. Some of these are set out in the Alagood case.

"* * * where the evidence shows that the accident may have happened as the result of one of two or more causes, and it is not more reasonably probable that...