Reichert Milling Co. v. George

• Decision Date: 27 March 1934
• Docket Number: 6 Div. 534
• Citation: 162 So. 383,26 Ala.App. 417
• Parties: REICHERT MILLING CO. v. GEORGE.
• Court: Alabama Court of Appeals

162 So. 383

26 Ala.App. 417

REICHERT MILLING CO. v. GEORGE.

6 Div. 534

Court of Appeals of Alabama

March 27, 1934

Rehearing Denied April 17, 1934

Affirmed on Mandate Oct. 30, 1934

Rehearing Granted April 16, 1935

Rehearing Denied May 7, 1935

Appeal from Circuit Court, Jefferson County; W.A. Jenkins, Judge.

Action for damages by Irene George against the Reichert Milling Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Certiorari granted by Supreme Court in Reichert Milling Co. v George, 162 So. 393.

Certiorari denied by Supreme Court in Reichert Milling Co. v George, 162 So. 402.

RICE J., dissenting.

Other grounds of the motion are as follows:

"13. For that the court erred in overruling this defendant's objection to the following question propounded by the plaintiff to her witness, Dr. A.E. Wilkes: 'Now, I will ask you, doctor, whether or not you can state what effect upon flour the presence in the sack or bag of a dead rat or mouse would have?' to which action of the court this defendant then and there duly reserved an exception.

"14. For that the court erred in overruling this defendant's motion to exclude from the evidence the answer of the plaintiff's witness, Dr. A.E. Wilkes, to the question contained in the last above stated ground of this motion, which answer was as follows: 'Well, the flour would absorb the poison that was generated by this decaying rat, and when they would eat the flour, of course, they would eat the poison,' to which action of the court this defendant then and there duly reserved an exception."

Murphy, Hanna, Woodall & Lindbergh, of Birmingham, for appellant.

Fitts & Fitts and Harsh, Harsh & Hare, all of Birmingham, for appellee.

RICE, Justice.

Appellee's testimony tended to prove the following facts:

"That her brother purchased for her a sack of flour manufactured, sacked, and put upon the market by appellant; that said flour, in said sack, was in the same condition when procured for appellee as it was when so put upon the market by appellant; that appellee's said brother took the sack of flour immediately upon its purchase to the home of appellee; that he took down the tin flour bin--a part of appellee's 'kitchen cabinet'--from its place, thoroughly cleaned out said flour bin, including the sifter; that at the time this operation was performed there was no foreign substance of any kind in the bin; that said brother placed the bin back together and dumped the sack of flour into the bin; that he then fastened the top on the bin and the cap on the sifter; that the top was never removed from the bin, and that the cap was removed from the sifter only when appellee was sifting flour through the sifter at the bottom of the bin; that on the morning of the day after the purchase of the flour--approximately twenty four hours after it was dumped into said bin--the partially dried out body of a rat or mouse was discovered in the flour; that appellee's brother who bought and emptied up the said flour observed same when it was so emptied up--to so denominate dumping it into the flour bin--and that he saw no rat or other foreign substance in said flour at that time."

While the above statement, taken with enough literalness, we think, to justify the quotation marks, from the excellent brief filed here on behalf of appellee, is, we believe, fully borne out by the bill of exceptions, still we feel that it should be observed that a part of the testimony supporting same consisted of the bald statement--allowed without objection--of her witnesses that the "flour bin" was not opened during the approximately twenty-four hours, above mentioned, when the testimony conclusively showed that the cabinet, containing the bin, stood in the kitchen of the home of appellee, where she and three others lived and spent the night that elapsed, if not in bed asleep, at least not in the kitchen guarding, or in view of said cabinet and bin. Such testimony, as to facts about which the witness obviously, and physically, could not know, has been denominated somewhere in the books a "testimonial nonentity." But we will not bother about that phase of it here; we will treat the case as though this part of appellee's claim had been properly adduced in the testimony.

The pertinency of the remarks contained in the preceding paragraph is, we think, sufficiently shown by the further observation that at least one of the occupants of appellee's home, who ate dinner, supper, and breakfast there, after the morning upon which the flour was dumped into the bin, and before the alleged "rat" was discovered in the flour, and who spent the night there, was not examined as a witness upon the trial. What he did to the bin is left a matter of conjecture.

In all that has gone hereinbefore we have endeavored to give a full and fair picture of the case as shown by the testimony, in its most favorable aspects toward appellee's claim.

Upon this testimony we are of the opinion, and hold, that appellant should have had given to the jury, at its request, the general affirmative charge, duly requested, to find in its favor. We will state our reasons.

In the first place we would record that we are well aware that a "manufacturer is liable to third persons having no contractual relations with him for negligence in manufacture of articles of dangerous or obnoxious character." Collins Baking Co. v. Savage, 227 Ala. 408, 150 So. 336. And that the claim advanced by appellee, here, falls within the purview of this principle of the law--had her testimony supported her claim.

But it is just as firmly fixed in our law that "the liability of a manufacturer of soft drinks intended for human consumption to a purchaser from an intermediate dealer, who was made sick by consuming a drink unfit for such consumption, is founded on tort, and not on contract, so that the consumer cannot recover without showing the manufacturer's negligence." (Italics ours.) Birmingham Chero-Cola Bottling Co. v. Clark, 205 Ala. 678, 89 So. 64, 17 A.L.R. 667. This principle applies in its full force to the facts of this case; unless the testimony legitimately tends to show negligence on the part of appellant in manufacturing, sacking, and putting upon the market the flour in question, there can be no recovery. Collins Baking Co. v. Savage, supra.

Our Supreme Court has said: "The presence of foreign matter deleterious to health sealed up in a bottle of soft drink is evidence of negligence." (Italics ours.) Coca-Cola Bottling Co. v. Crook, 222 Ala. 369, 132 So. 898. Accordingly, there being no difference in principle, in this case, if the alleged "rat," etc., found by appellee on the day after the day on which the flour was "dumped into" her flour bin, was in the sack of flour purchased, etc., for her, shown to have been manufactured, etc., by appellant, there can be no question that this fact was evidence of negligence on the part of appellant. Not negligence as a matter of law; but evidence of negligence, from which the jury could have inferred negligence as a matter of law. Whistle Bottling Co. v. Searson, 207 Ala. 387, 92 So. 657.

Now was the "rat" in the sack of flour when it was purchased?

Obviously, from the statement hereinabove, the jury might well have so inferred. But as we read the testimony it could have so found only by inference.

Hereinabove we have stated the gist, favorable to appellee's contention, of the whole testimony. From it, without further discussion, we think it obvious that there was no "direct testimony" to the fact that the "rat" was in the sack of flour when it was purchased for appellee.

We are then confronted with the proposition of appellee's asking a recovery because of the negligence of appellant, which negligence is attempted to be established upon two inferences: First, the inference that the "rat" was in the sack of flour when it was purchased, for appellee; and, second, the inference from this fact that appellant was negligent in the manufacture, etc., of the said sack of flour. In other words, as we view it, an "inference upon an inference."

Our Supreme Court has distinctly stated that: "One fact cannot be inferred from another fact which itself is but an inference." Gadsden General Hospital v. Bishop, 209 Ala. 272, 96 So. 145, 148. Here, the fact, upon which appellee's right to recovery depends is the negligence of appellant; the fact from which, and from which, only, it can be inferred, is the presence in the sack of flour, at the time of its purchase of the "rat". Its said presence is not established, nor even indicated, by any direct, as contradistinguished from circumstantial, evidence.

As stated in 10 Ruling Case Law at page 870 (§ 13), and cited with approval by our Supreme Court (Atlantic Coast Line R. Co. v. R.L. Cooper Lumber Co., 219 Ala. 484, 122 So. 661): "It is a well-established rule that a presumption can be legally indulged only when the facts from which the presumption arises are proved by direct evidence, and that one presumption cannot be deduced from another. To hold that a fact inferred or presumed at once becomes an established fact, for the purpose of serving as a base for a further inference or presumption, would be to spin out the chain of presumptions into the regions of the barest conjecture."

What is meant by the next above quotation, and making it, we think, very clear, and supporting its assertion, is detailed in the opinion in the case of Globe Accident Insurance Company v. Gerisch, 163 Ill. 625, 45 N.E. 563, 54 Am.St.Rep. 486, which we will not prolong our opinion to discuss.

Since there is a well-defined difference between "direct" and "circumstantial" evidence (10 R.C.L. 860), it might seem that prior to the time of the writing of the...