Reichert Milling Co. v. George

• Decision Date: 28 June 1934
• Docket Number: 6 Div. 572
• Citation: 230 Ala. 3,162 So. 393
• Parties: REICHERT MILLING CO. v. GEORGE.
• Court: Alabama Supreme Court

162 So. 393

230 Ala. 3

REICHERT MILLING CO. v. GEORGE.

6 Div. 572

Supreme Court of Alabama

June 28, 1934

Rehearing Denied Oct. 4, 1934

Certiorari to Court of Appeals.

Petition of Irene George for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in Reichert Milling Co. v. Irene George, 162 So. 383.

Writ granted.

See also, 162 So. 402.

BROWN J., and ANDERSON, C.J., dissenting

Fitts &amp Fitts and Harsh, Harsh & Hare, all of Birmingham, for the motion.

Murphy Hanna, Woodall & Lindbergh, of Birmingham, opposed.

KNIGHT Justice.

The petitioner feeling aggrieved at the conclusion of the Court of Appeals in holding that, under the facts in this case, as found by that court, the defendant, the Reichert Milling Company, was due the general affirmative charge in its behalf, has applied to this court, by proper petition, for a writ of certiorari to review and revise the opinion and judgment of the Court of Appeals.

The opinion of the Court of Appeals states:

"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, emptied up, etc., 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.''

With further reference to facts appearing in the evidence in the case, the opinion of the Court of Appeals proceeds:

"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, etc., during the approximately twenty-four hours, above mentioned, when the testimony conclusively showed that the cabinet, containing the bin, etc., stood in the kitchen of the home of appellee, where she and three others lived, etc., and spent the night that elapsed, etc., if not in bed asleep, at least not in the kitchen, etc., guarding, or in view of said cabinet, bin, etc. Such testimony, as to facts about which the witness obviously, and physically, could not know, has been denominated somewhere in the books a 'testimonial non-entity,' etc. 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, etc., and who spent the night there, was not examined as a witness upon the trial. What he did to the bin, etc., is left a matter of conjecture."

Upon the foregoing testimony, the Court of Appeals, in the opinion before us, concluded the defendant was entitled to the general affirmative charge, which it duly requested in writing.

We may here state that the action is in tort against the appellant--defendant in the court below. The complaint charges that the defendant was engaged in the business of manufacturing, preparing, or packing a certain brand of flour, and which, after being prepared and packed in sacks or bags, was sold through local stores at retail for the purpose of human consumption.

The complaint avers that the defendant negligently caused, permitted, or allowed said flour contained in the sack sold to the plaintiff to be unsuitable and unfit for human consumption, by reason of it having therein the body, or parts of the body of a decomposed rat or mouse, which caused said flour to be nauseating, sickening, and dangerous to any person who consumed the said flour as a food. The complaint then proceeds to aver that the plaintiff made bread from said flour and consumed a portion of it, and as a result she was made sick and nervous, and was caused to suffer great bodily and mental pain and anguish. Then follows a catalogue of her injuries and suffering.

The facts, as found by the Court of Appeals, support a fair and reasonable inference, to say the least of it, that the flour manufactured and sacked by the defendant, and sold to the plaintiff at a retail store, contained in the flour so sacked and sold, at the time it was placed on the market by the defendant, the body of a "rat or mouse." While there was in the case no direct evidence of the above facts, yet the circumstances detailed in evidence were such as to afford a reasonable inference that such was the case.

The general charge should never be given when the evidence is such as to reasonably support an inference adverse to the party requesting such charge. Alaga Coach Line, Inc., v. Foy, 227 Ala. 506, 150 So. 493; Alaga Coach Line, Inc., v. McCarroll, 227 Ala. 686, 151 So. 834; Byram v. Livingston, 225 Ala. 442, 143 So. 461; McMillan v. Aiken, 205 Ala. 35, 88 So. 135; Southern B. & L. Ass'n v. Bryant, 225 Ala. 527, 144 So. 367.

In the case of Rochester-Hall Drug Co. v. Bowden, 218 Ala. 242, 118 So. 674, it was observed:

"While the rule has frequently been referred to by this court that, upon certiorari to the Court of Appeals to review its rulings, it will not review the facts 'for the purpose of revising the application of same to the law by said Court of Appeals' (Postal Telegraph-Cable Co. v. Minderhout, 195 Ala. 420, 71 So. 91; Ex parte Steverson, 177 Ala. 384, 58 So. 992; Ex parte Savannah Williams, 182 Ala. 34, 62 So. 63), this court, however, will review the rulings of said court, to ascertain if it has correctly determined legal conclusions from facts found by it to exist in the record, or has misapplied the law to such facts (Lancaster v. State, 214 Ala. 2, 106 So. 617)."

The rule of review declared in the Rochester-Hall Drug Co. Case, supra, was reaffirmed in the cases of Craft v. Standard Accident Ins. Co., 220 Ala. 6, 123 So. 271; Fairbanks, Morse & Co. v. Dees et al., 220 Ala. 41, 126 So. 624; Home Ins. Co. v. Pettit, 225 Ala. 487, 143 So. 839.

The above being the established rule of this court in reviewing the opinions and judgments of the Court of Appeals, it follows that we are required in this case to determine whether or not that court has misapplied the law to the facts as found by it, or has reached an incorrect legal conclusion from the facts found by it to exist in the record.

We have said that the facts as found to exist by the Court of Appeals afford a reasonable inference that the body of the rat was in the sack of flour when the defendant, manufacturer, placed it with the retailer for sale to the consumer, and was bought by the plaintiff, then what presumption is indulged by the law as to negligence on the part of the manufacturer, there being no evidence, so far as we are advised, to show that the defendant was not guilty of any actual negligence in the manufacture, preparation, and sacking of the flour.

In 45 Corpus Juris, § 768, page 1193, the rule of res ipsa loquitur is thus broadly stated by the author: "Where the thing which caused the injury complained of is shown to be under the management of defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in the absence of explanation by defendant, that the accident arose from want of care. This statement of the rule of res ipsa loquitur, based on the expression in an early English case, which has been widely quoted with approval, has been in substance most frequently adopted and applied in subsequent decisions, so that the occurrence of an injury under the circumstances therein set forth raises a presumption or permits an inference that the party charged was guilty of negligence." (Italics supplied.)

At section 59 of 1 Shear. and Red. on Neg. (5th Ed.) it is said "In many cases the maxim 'res ipsa loquitur' applies. The affair speaks for itself. The accident, the injury and the circumstances under which they occurred are in some cases sufficient to raise a presumption of negligence, and thus cast upon the defendant the burden of establishing his freedom from fault. Proof of an injury occurring as the proximate result of an act of the defendant, which would not usually, if done with due care, have injured any one,...