Reichert Milling Co. v. George, 6 Div. 772

• Decision Date: 20 June 1935
• Docket Number: 6 Div. 772
• Parties: REICHERT MILLING CO. v. GEORGE.
• Court: Alabama Supreme Court

162 So. 402

230 Ala. 589

REICHERT MILLING CO. v. GEORGE.

6 Div. 772

Supreme Court of Alabama

June 20, 1935

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 (after remandant) in the case of Reichert Milling Co. v Irene George, 162 So. 383.

Writ denied.

See also (Ala.Sup.) 162 So. 393.

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

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

FOSTER Justice.

On former certiorari in this case, 162 So. 393, it was stated in the majority opinion: "It is essentially a case where an injury has occurred under such circumstances that the law raises a presumption of negligence, which will supply proof of actual negligence until this presumption is overcome by proof on the part of the party to whom the presumption of negligence is thus imputed. So far as the opinion of the Court of Appeals discloses to the contrary, there was no such exculpatory evidence."

After the case was remanded to that court, 162 So. 383, the opinion of the majority on rehearing undertakes to set out the existence and substance of such exculpatory evidence. It then states: "The foregoing evidence, and the deductions to be drawn therefrom, in our opinion clearly sustains grounds 2, 3, 4, 5, 6, and 7 of defendant's motion for a new trial. Said evidence, without dispute or conflict, tended to show that the defendant manufacturer in the process of manufacturing, packing, storing, and distributing this flour used that highest degree of care exercised by the best millers, both as to machinery, equipment, and labor; and this we think was ample to overcome the rebuttable presumption of negligence on the part of the manufacturer, raised by the circumstantial inference produced by the vague and unsatisfactory testimony of the plaintiff and her witness."

One theory of petitioner, in which one of the judges of the Court of Appeals concurs, is that this is contrary to a holding by this court in Try-Me Beverage Co. v. Harris, 217 Ala. 302, 116 So. 147, in substance that the use of modern equipment and methods serve rather to emphasize than to disprove the negligence of a bottler when some foreign substance was found sealed in the bottle.

But we understand the conclusion of the majority rather to be that such machinery and methods of this defendant reflect upon the trustworthy character of plaintiff's evidence which tends to show that the foreign substance was in the sack of flour when defendant packed it and sent it out, rather than its negligence in so doing upon the assumption that such...