Zentz v. Coca Cola Bottling Co. of Fresno

• Decision Date: 06 August 1952
• Citation: 39 Cal.2d 436,247 P.2d 344
• Parties: ZENTZ v. COCA COLA BOTTLING CO. OF FRESNO. S. F. 18456
• Court: California Supreme Court

Page 344

247 P.2d 344

39 Cal.2d 436

ZENTZ v. COCA COLA BOTTLING CO. OF FRESNO.

S. F. 18456.

Supreme Court of California

Aug. 6, 1952.

Ray W. Hays and James N. Hays, Fresno, for appellant.

L. Kenneth Say Fresno, for respondent.

GIBSON, Chief Justice.

Plaintiff was injured by the explosion of a bottle of Coca Cola which had been bottled and delivereed to her restaurant by defendant. She brought this action for damages, and defendant appeals from a judgment upon a jury verdict in her favor.

Soft drinks were kept in the restaurant in a cooler which stood about waist high and opened from the top. The cooler was empty on the day of the accident when the driver of defendant's truck delivered a number of cases of Coca Cola. He placed the bottles in the cooler four at a time until it was filled, and while he was doing this one bottle broke when he struck it against another. No one else handled the bottles fron the time they were loaded onto the truck until they were placed in the cooler.

About an hour after the delivery plaintiff reached into the cooler, and, before she touched any of the bottles, one exploded. Three customers testified that they heard a 'pop,' that plaintiff screamed, and that they saw her clutching her right arm, which had been severely cut.

Defendant's plant manager testified that, prior to the accident, the only tests defendant made to discover defective bottles were visual inspections which took place as the bottles were moved along a conveyor belt at a speed in excess of 150 a minute while they were being washed and filled. He also testified that bottles were sometimes mishandled by defendant's employees and that as a result bottles occasionally broke.

The principal question in this case is whether it was proper to give an instruction to the jury that from the happening of the accident, as established by the evidence, there arose an inference that the proximate cause of the occurrence was some negligent conduct on the part of defendant. This, of course, depends upon whether, under the facts of this case, plaintiff was entitled to the benefit of the doctrine of res ipsa loquitur.

An increasing number of the cases coming to this court involve res ipsa loquitur, and this may be due not only to the fact that the doctrine is often difficult to apply but also to confusion which has arisen because the opinions have not always used the same language in stating the rule. Res ipsa loquitur, when translated, 'means simply 'the thing, or affair, speaks for itself,' and, so speaking, authorizes the inference of negligence in the absence of a showing to the contrary.' O'Connor v. Mennie, 169 Cal. 217, 223, 146 P. 674, 676; see also Ales v. Ryan, 8 Cal.2d 82, 98, 64 P.2d 409; Michener v. Hutton, 203 Cal. 604, 607, 265 P. 238, 59 A.L.R. 480. There is, of course, no magic in the Latin phrase, and its use as a convenient label for the doctrine may have resulted in some of the confusion which is found in the statements of the principles upon which the rule is based.

The statement of the doctrine which, with some variation, was used in many of the earlier California decisions appears in Michener v. Hutton, 203 Cal. 604, 607, 265 P. 238, 239, where it was said: 'The courts of this state have long since adopted the rule as expressed in 1 Shearman and Redfield on Negligence, (6th Ed.) p. 132, viz.: 'Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of proper care.' (Citations.)' ¹ See also Dixon v. Pluns, 1893, 98 Cal. 384, 389, 33 P. 268, 20 L.R.A. 698; Judson v. Giant Powder Co., 107 Cal. 549, 556, 40 P. 1020, 29 L.R.A. 718; McCurrie v. Southern Pac. Co., 122 Cal. 558, 561-562, 55 P. 324; Chico Bridge Co. v. Sacramento Tr. Co., 123 Cal. 178, 55 P. 780; Harrison v. Sutter Street Ry. Co., 134 Cal. 549, 550, 66 P. 787, 55 L.R.A. 608; Rowe v. Such, 134 Cal. 573, 574-575, 66 P. 862, 67 P. 760; Kahn v. Triest-Rosenberg Cap Co., 139 Cal. 340, 344, 73 P. 164; Cody v. Market St. Railway Co., 148 Cal. 90, 94, 82 P. 666; Valente v. Sierra Railway Co., 151 Cal. 534, 538, 91 P. 481; Housel v. Pacific Electric Ry. Co., 167 Cal. 245, 247, 139 P. 73, 51 L.R.A.,N.S., 1105; O'Connor v. Mennie, 169 Cal. 217, 223, 146 P. 674; Hernandez v. Southern California Gas Co., 213 Cal. 384, 388, 2 P.2d 360; Godfrey v. Brown, 220 Cal. 57, 64, 29 P.2d 165, 93 A.L.R. 1092; Ales v. Ryan, 8 Cal.2d 82, 95, 64 P.2d 409. Other cases have used different language in setting forth the rule and have referred to 'control' rather than 'management' and to what "ordinarily would not have occurred" instead of to what 'in the ordinary course of things does not happen'. Olson v. Whitthorne & Swan, 203 Cal. 206, 208, 263 P. 518, 519, 58 A.L.R. 129; see also Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 457-458, 150 P.2d 436; cf. Hinds v. Wheadon, 19 Cal.2d 458-461, 121 P.2d 724.

It was stated in Judson v. Giant Powder Co., 107 Cal. 549, 556, 40 P. 1020, 1021, 29 L.R.A. 718, that the doctrine is based on 'the experience of the past' and the theory that what 'has happened in the past, under the same conditions, will probably happen in the future, and ordinary and probable results will be presumed to take place until the contrary is shown.' In another early case it was said: 'The bedrock of this principle * * * is that of probabilities * * *.' Harrison v. Sutter St. Ry. Co., 134 Cal. 549, 552, 66 P. 787, 788, 55 L.R.A. 608. Since the decision of the Judson case in 1895, the words 'probably,' 'probable,' 'probability' and 'probabilities' have been repeatedly used in this connection, both as part of the rule and as the basic reason, or one of the reasons, for it. Harrison v. Sutter Street Ry. Co., supra; Osgood v. Los Angeles, etc., Co., 137 Cal. 280, 282, 70 P. 169; Smith v. O'Donnell, 215 Cal. 714, 722, 12 P.2d 933; Godfrey v. Brown, 220 Cal. 57, 66, 29 P.2d 165, 93 A.L.R. 1092; Honea v. City Dairy, Inc., 22 Cal.2d 614, 617, 620, 621, 140 P.2d 369; Leet v. Union Pac. R. R. Co., 25 Cal.2d 605, 619-621, 155 P.2d 42, 158 A.L.R. 1008; La Porte v. Houston, 33 Cal.2d 167, 169, 199 P.2d 665; Gordon v. Aztec Brewing Co., 33 Cal.2d 514, 517, 203 P.2d 522; Gavero v. Franklin, etc., Benevoent Soc., 36 Cal.2d 301, 312-314, 223 P.2d 471; Raber v. Tumin, 36 Cal.2d 654, 659-661, 226 P.2d 574. In the La Porte case, 33 Cal.2d at page 169, 199 P.2d at page 666, we said, after assuming that defendants were in control at the time of the accident, that 'the applicability of the doctrine of res ipsa loquitur depends on whether it can be said, in the light of common experience, that the accident was more likely than not the result of their (defendants') negligence. (Citations.) 'Where no such balance of probabilities in favor of negligence can be found, res ipsa loquitur does not apply. " In determining whether such a probability exists with regard to a particular occurrence, the courts have relied both upon common knowledge and the testimony of expert witnesses. See, for example, Cavero v. Franklin, etc., Benevolent Soc., 36 Cal.2d 301, 309, 223 P.2d 471; Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 459, 460, 150 P.2d 436; Juchert v. California Water Service Co., 16 Cal.2d 500, 515, 106 P.2d 886; Judson v. Giant Powder Co., 107 Cal. 549, 561, 40 P. 1020, 29 L.R.A. 718.

All of the cases hold, in effect, that it must appear, either as a matter of common experience or from evidence in the case, that the accident is of a type which probably would not happen unless someone was negligent. In the absence of such a probability there would be no basis for an inference of negligence which would serve to take the place of evidence of some specific negligent act or omission. The defendant, of course, should not be liable unless it appears from all the facts and circumstances that there is a sufficient causal connection between his conduct and the plaintiff's injury, and it has been held that res ipsa loquitur will not apply if it is equally probable that the negligence was that of someone other than the defendant. La Porte v. Houston, 33 Cal.2d 167, 169-170, 199 P.2d 665; Hernandez v. Southern California Gas Co., 213 Cal. 384, 387-388, 2 P.2d 360; Olson v. Whitthorne & Swan, 203 Cal. 206, 208-209, 263 P. 518, 58 A.L.R. 129; Tower v. Humboldt Transit Co., 176 Cal., 602, 607, 169 P. 227. As said in the La Porte case, supra, 33 Cal.2d at page 170, 199 P.2d at page 666, the doctrine is not applicable where it is 'at least equally probable that the accident was caused by some fault * * * for which defendants were not liable' and where 'it cannot be said that it is more likely than not that the accident was caused by the negligence of defendants'. (Italices added.) In dealing with this problem the courts have usually said that the defendant must have 'management' or 'control' of the agency or instrumentality which caused the injury. See, for example, Raber v. Tumin, 36 Cal.2d 654, 659, 226 P.2d 574; Hinds v. Wheadon, 19 Cal.2d 458, 461, 121 P.2d 724; Michener v. Hutton, 203 Cal. 604, 607, 609, 265 P. 238, 59 A.L.R. 480; Olson v. Whitthorne & Swan, 203 Cal. 206, 208, 263 P. 518, 58 A.L.R. 129; Judson v. Giant Powder Co., 107 Cal. 549, 556, 40 P. 1020; 19 Cal.Jur. 708-709. It has been stated that the purpose of this requirement is to eliminate the possibility that the accident was caused by someone other than the defendant. See Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 458, 150 P.2d 436; Honea v. City Dairy, Inc., 22 Cal.2d 614, 618, 140 P.2d 369; 1 Shearman and Redfield on Negligence (rev. ed., 1941), pp. 153-154; Prosser on Torts (1941), p. 298. Accordingly, its use is merely to aid the courts in determining whether, under the general rule, it is more probable than not that the injury was the...