In the case of Moon Distributors, Inc. v. White, 245 Ark. 627, 434 S.W. 2d 56, I dissented because of the fact that I considered the presentation of a case based on specific acts of negligence, and also negligence on the theory of res ipsa loquitur, to be inconsistent, and, to some extent, confusing to a jury. However, the court held to the contrary, and I am, of course, bound by that opinion. Here, a similar situation exists, i.e., specific evidence is offered relative to tlio cause of tlie explosion — but res ipsa loquitur is also relied upon.
L know of no type of case wherein the doctrine of res ipsa can more properly be applied than in an exploding bottle incident, and I consider it noteworthy that the requirement of exclusive control is rather flexible in this type of case, and has not been literally applied. This is obvious from reading our own cases, which are cited in the majority opinion, the majority itself conceding this particular fact. Time does not permit a detailed discussion of all of these cases, but I should like to point out some language, which, to me, is entirely applicable to the facts in the instant case. In Dr. Pepper Bottling Company of Newport v. Whidden, 227 Ark. 13, 296 S.W. 2d 4-32, in discussing res ipsa loquitur, this court stated:
“Appellant says: ‘The evidence is insufficient to establish an explosion for application of res ipsa loquitur doctrine.’ What we have said in disposing of appellant’s first point applies here also. It must be borne in mind that there was evidence (1) that there had been no moving or handling of the bottles or crates from the time and place where Dr. Pepper’s delivery man placed them a few days earlier; and (2) that the bottle was still in the same case when it exploded and injured the plaintiff. The evidence offered by the plaintiff placed the burden on the defendant of proving itself free from negligence under the. res ipsa loquitur doctrine1
In the case before us, there is not one iota of evidence that there had been any moving or handling, by any person, of the carton containing the bottle that caused the injury;2 in fact, the evidence is to the contrary. Some other cartons were filled with different drinks, but this particular carton consisted entirely of bottles of Royal Crown Cola, which certainly was a definite indication that this carton had not been handled by the public. I fail to attach any significance to the evidence cited by the majority in support of the finding that the evidence showed that bottles were abused by the customers. I have no doubt that that happens at times, but in my view, the dropping of bottles by an individual, or cartons falling from the bottom of the shopping carts, is not pertinent to the claim before us, there being no .evidence that this had happened to the bottle in question. If bottles exploded3 simply because they were dropped, this in itself, to me, is evidence of negligence, for a bottling company knows that this majr well happen, and it should take this probability into consideration when filling the bottles with the carbonated water.
Of course, it was not possible to round up every person who had been in the store shopping in order to ascertain whether they had mishandled the bottles. My feelings on this point are expressed in the Wisconsin case of Weggeman v. Seven-Up Bottling Company, 93 N.W. 2d 467. There, the Supreme Court said:
“* * * Defendant argues that plaintiffs failed to make a case for res ipsa loquitur and that a verdict should have been directed for defendant; but we are satisfied that a sufficient foundation for res ipsa was established. To be sure plaintiffs dicl not prove conclusively that the condition of the bottle had not changed after it left the defendant’s possession.4A or that Gregory handled it carefully or that the injury was not due to any voluntary act on plaintiffs’ part. Absolute or even clear proof of sibch matters is not necessary to warrant submission of res ipsa loquitur. It is not essential that the possibility, of other causes of the accident be
altogether eliminated4B only that their likelihood to be so reduced that the greatest probability lies at defendant’s door. The evidence must afford a rational basis for concluding that the cause of the accident was probably such that the defendant would be responsible for any negligence connected with it. [Citing authority.]
“In the instant case we think the evidence afforded sufficient basis for a reasonable inference that after its delivery by defendant the bottle encountered only such usage as is normal in the course of retail distribution and consumer handling, and that much the greater probability was that it was defective when it left defendant’s possession. The bottler may be held to knowledge that exposure to hazards of damage from jolting, jarring and rou,gh handling by retailers, customers and consumers is usual for his product and that nicks and abrasions thereby sustained may make it dangerou,s; and if he negligently fails to put out a product that will stand up under treatment which if not normal is not unusual, he must assume the risk of resulting injuries.4C
My principal complaint of the reversal in this case is that the court is holding that no jury question was made by appellee’s proof, and that the bottling company was entitled to a directed verdict. If appellant had offered evidence that the bottling process, including inspection of the bottles, had been carried out by the company without negligence; that the cartons had been delivered to the store by the company driver without any mishap or unusual circumstance, or offered other proof, pertinent to a defense of no negligence, I would certainly find nothing objectionable to affirming a jury verdict for the company. However, the company did not choose to offer one line of evidence, which seems a little odd to me.
I strongly feel that sufficient evidence was offered by appellee to require appellant to go forward with its own proof, and, of course, that is the holding where the doctrine of res ipsa loquitur is considered applicable. Dr. Pepper Bottling Company of Newport v. Whidden, supra; Coca-Cola Bottling Company of Southeast Arkansas v. Jones, 226 Ark. 953, 295 S.W. 2d 321; Coca-Cola Bottling Company of Helena, v. Mattice, 219 Ark. 428, 243 S.W. 2d 15. But, the majority says that res ipsa loquitur is not applicable, and this holding can only relate back to the fact that customers had had the opportunity to mishandle the drinks, and the further fact that appellee endeavored to show specifically the defect in the exploding bottle. I have already commented on the customer angle, and, despite the holding in Moon, it appears to me that appellee is being penalized for endeavoring to show that there was a definite defect in the bottle.
I would affirm the judgment.
Jones, J., joins in this dissent.Emphasis supplied.
Of course, the carton was kicked over by appellee, but the expert testified that this would not have caused the crack in the bottle.
There is a distinct difference between a bottle’s exploding, and breaking because of contact with a hard surface.
'Italicized language denotes my emphasis.
& 4C Italicized language denotes my emphasis.