Pilie v. National Food Stores of La., Inc.

Decision Date12 November 1963
Docket NumberNo. 46586,46586
Citation245 La. 276,158 So.2d 162
PartiesCharles S. PILIE et al. v. NATIONAL FOOD STORES OF LOUISIANA, INC., et al.
CourtLouisiana Supreme Court

Dodd, Hirsch, Barker, Avant & Wall, Baton Rouge, for plaintiffs-appellants-applicants.

Breazeale, Sachse & Wilson, by Harry R. Sachse, Baton Rouge, for defendants-appellants-respondents.

HAWTHORNE, Justice.

On application of plaintiffs we granted certiorari in this case so that we might review the judgment of the Court of Appeal, First Circuit, holding that the doctrine of res ipsa loquitur could not be applied to permit recovery from the defendants National Food Stores of Louisiana, Inc., and National's insurer American Surety Company of New York.

The facts are set forth fully in the opinion of the Court of Appeal, 148 So.2d 391. For the purposes of our decision we shall state them only briefly.

In the late afternoon of Friday, March 11, 1960, while plaintiff Mrs. Charles S. Pilie was passing a coca-cola display in the self-service store of the defendant National Food Stores of Louisiana, Inc., one or two six-bottle cartons of coca-cola fell from the display, one or more of the bottles broke, and Mrs. Pilie's right foot was lacerated by flying glass and a nerve of that foot injured. Mrs. Pilie, who was pushing a wheeled cart supplied by the store to its customers for convenience in carrying articles of merchandise, had gone to the store to purchase a few grocery items, none of which was coca-cola, and at the time of the accident was passing the coca-cola display en route to the bread counter. Her testimony is that she did not touch the display either with her body or with the cart, that she was some 18 inches from it when the cartons of bottles fell, and that she did not know what caused them to fall.

The display rack of coca-colas from which these cartons fell had been stacked or arranged by an employee of the coca-cola company in the National store in the early morning of Thursday, March 10, the day before the accident happened; and between Thursday when the coca-colas were stacked and the following Monday when the coca-cola company replenished the rack, many cartons had been removed by the customers of National but not enough to warrant any replenishment from its storeroom stock by National. Because of street repair work in front of the store at this time, business of National was less than normal. No employees of National were in the vicinity of the accident at the time it occurred.

Plaintiffs 1 sued National Food Stores of Louisiana, Inc., its insurer, and the Baton Rouge Coca-Cola Bottling Company. Defendant National by third party petition sought to recover from the coca-cola company for any judgment rendered against it resulting from the accident. After trial on the merits the district court rendered judgment in favor of plaintiffs and against National and its insurer, and rejected plaintiffs' demands and third-party plaintiff's demands against the coca-cola company.

On appeal the Court of Appeal affirmed the judgment dismissing the suit as to the coca-cola company, but reversed the district court's judgment against National and its insurer and dismissed plaintiffs' suit.

In the Court of Appeal the plaintiffs did not invoke the doctrine of res ipsa loquitur against the coca-cola company, but maintained that that company was negligent in erecting an unstable display. The Court of Appeal, after reviewing all the facts and circumstances connected with the stacking or arranging of the display of coca-colas by the employee of that company, concluded that plaintiffs had failed to prove that the injury sustained by Mrs. Pilie resulted from any negligence by Coca-Cola. In application for writs to this court plaintiffs stated that they 'do not complain of the affirmance of the judgment rejecting their demands against the Baton Rouge Coca Cola Bottling Company, Limited', but sought a reinstatement of the judgment of the trial court which had granted them recovery against National and its insurer and denied recovery against Coca-Cola.

The Court of Appeal in concluding that the doctrine of res ipsa loquitur was not applicable as to National said:

'* * * Here, this display shown to have been in a safe condition originally, not shown by Plaintiff to have been in disarray, not shown to have cartons placed thereon in a negligent manner within the Defendant's knowledge, Plaintiff was thereby in as good a position as Defendant to show the reason the carton fell and to recover she would have to affirmatively show acts of negligence on the part of Defendant.'

The Court of Appeal also cited authorities to the effect that 'The rule will not be applied where the evidence discloses that the injury might have occurred by reason of the concurrent negligence of two or more persons or causes, one of which was not under the management and control of the defendant'.

Plaintiffs did not offer any affirmative evidence of any fact or circumstance tending to establish fault or negligence by National, and there is no evidence to show that Mrs. Pilie was at fault. She stated that she did not know what caused the bottles to fall, and the proof does not even suggest any cause for their falling.

In their application for writs plaintiffs presented the question of law to this court thus:

'There is only one question of law involved and that is whether or not the unexplained fall of several 6-bottle cartons of Coca Cola from a display in a grocery store and supermarket, which fall results in injuries to a business guest of that establishment, is a proper case for the application of the doctrine of res ipsa loquitur as to the proprietor of such establishment.'

Dispensing with the Latin words, we can restate their argument thus:

'There is only one question of law involved and that is whether or not the unexplained fall of several 6-bottle cartons of Coca Cola from a display in a grocery store and supermarket, which fall results in injuries to a business guest of that establishment, logically gives rise to the inference that the negligence of the proprictor caused the accident which produced plaintiff's injuries.'

This court observed in Day v. National U.S. Radiator Corporation, 241 La. 288, 128 So.2d 660 (1961):

'* * * This doctrine (res ipsa loquitur) is a qualification of the general rule that negligence is not to be presumed but must always be affirmatively proved, and therefore should be sparingly applied, and only in exceptional cases where the demands of justice make that application essential. * * *'

In Larkin v. State Farm Mutual Automobile Ins. Co., 233 La. 544, 97 So.2d 389 (1957), a case involving a collision between two private automobiles, the plaintiff sought to invoke the doctrine of res ipsa loquitur. This court there reviewed and discussed the jurisprudence of this court and of the Courts of Appeal, that of other states, and the works of textwriters and scholars on the meaning of the maxim 'res ipsa loquitur', its application, and instances where though invoked the doctrine has no application. In that case, which is recognized as a landmark case in this state on the subject, we said:

'A determination of a proper instance for application of the principle of res ipsa loquitur has been the subject of volumes of discussion by learned jurists and legal scholars, who have been at pains to point out that the maxim means only that the facts of the occurrence warrant the Inference of negligence, not that they compel such an inference * * *. * * * It is generally conceded that res ipsa loquitur in no way modifies the rule that negligence will not be presumed. The application of the rule does not, therefore, dispense with the necessity that the plaintiff prove negligence, but is simply a step in the process of such proof, Permitting the plaintiff, in a proper case, to place in the scales, along with proof of the accident and enough of the attending circumstances to invoke the rule, an inference of negligence, thereby obtaining an advantage and placing on the defendant the burden of going forward with proof to offset that advantage. When all the evidence is in, the question is still whether the propenderance is with the plaintiff. All that is meant by res ipsa loquitur is 'that the circumstances involved in or connected with an accident are of such an unusual character as to justify, in the absence of other evidence bearing on the subject, the inference that the accident was due to the negligence of the one having control of the thing which caused the injury. This inference is not drawn merely because the thing speaks for itself, but because all of the circumstances surrounding the accident are of such a character that, unless an explanation can be given, the only fair and reasonable conclusion is that the accident was due to some omission of the defendant's duty.'

'* * * In the case of Morales v. Employers' Liability Assur. Corp., 202 La. 755, 12 So.2d 804, this Court aptly stated: 'It is the duty of the plaintiff to prove negligence affirmatively; and, while the inference allowed by the rule of res ipsa loquitur constitutes such proof, it is only where the circumstances leave no room for a different presumption that the rule applies. When it is shown that the accident might have happened as the result of one of two causes, the reason for the rule fails and it can not be invoked.' 202 La. at page 769, 12 So.2d at page 808.' (Italics ours.)

The Larkin case has been recognized as a 'clear and penetrating discussion of res ipsa loquitur by Chief Justice Fournet' and as a sensible appreciation of the real problem in applying it in each case: Do the facts of the controversy suggest negligence of the defendant, rather than some other factors, as the most plausible explanation of the accident? See Malone, Torts, Proof of Negligence, 19 La.L.Rev. 334 et seq. The case has also been recognized as in accord with the...

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