(dissenting).
I definitely do not find that plaintiffs have established by circumstantial evidence that the most probable cause of their damages was the improper arsenic preparation of Cooper Cattle Dip by the manufacturer, as found by the majority opinion. I also find that the expert testimony discloses that the cattle died from arsenic absorption. I do not find that plaintiffs have borne their burden of proving that the Cooper Cattle Dip employed by Steve Weber to spray his cows was defective and that plaintiffs’ damages were caused by reason of the defect. I find that the instructions set forth on the bottled dip with respect to spraying were not observed by Steve Weber and that the cattle were not sprayed properly. For the reasons set forth infra, I believe that the judgment of the Court of Appeal should be affirmed.
The Court of Appeal 236 So.2d 616 correctly states the facts leading to the filing of the suit as follows:
“The record discloses that Steve Weber was approximately 17 years of age at the time of the incident in question. For some four or five years he had been engaged in raising cattle as part of a 4-H Club Project. His endeavors had produced a herd of approximately 12 cattle, some of which had won honors in stock shows. On the afternoon of August 31, 1963, he decided to spray his cattle to rid them of flies, known as cattle grubs, which lay eggs on cattle. The eggs apparently produce worms which enter the bodies of cattle causing large holes to appear in the animal’s back.
“To accommodate his son Steve, the senior Weber maintained a charge ac*613count with Kalmbach’-Burkett, á distributor of livestock feed and supplies. It appears that Steve had virtually unlimited authority to purchase from this source such feed and supplies as his cattle project required. Approximately four to five months prior to the incident in question, young Weber placed a telephone order with the distributor for a cattle spray in anticipation of spraying his herd on some future occasion. He did not, however, specify either the type of spray desired or the number of cattle to be sprayed. The employees of the distributor filled the order by depositing a five gallon can of Cooper’s Cattle Dip on its loading dock where it was picked up by young Weber after the distributor had closed for the day. The container of dip was brought to the plaintiffs’ ranch home and stored in a barn or similar facility somewhat removed from the family residence.
“The evidence discloses beyond doubt that the afternoon on which the spraying occurred was an extremely hot day. Steve Weber, assisted by his younger brother, Karl, on foot rounded up the cattle from a pasture measuring approximately 10 acres in area. The animals were thusly herded into a pen near a shed or barn. They were then led singly by a rope halter from the pen to a shed where they were tied to a post and sprayed one at a time. After spraying, they were let out to pasture. Each animal was sprayed over its entire body, including its head. After the seventh or eighth animal was treated, signs of distress began to appear in that the sprayed animals staggered, fell and went into convulsions. The spraying operation was ceased immediately. The Senior Weber was summoned and in turn he enlisted the aid of a veterinarian. When the boys complained of dizziness, nausea and feeling faint, Mr. Weber immediately took them to a physician. The veterinarian worked the remainder of the afternoon and through the night attempting, without success, to save the animals that had been sprayed.
“ * * *
“Mr. Weber’s testimony [this testimony is not contradicted] is substantially that when summoned to the scene, he found the cattle staggering or lying down in convulsions. He examined the can containing the concentrated dip and observed that so little was missing, it was difficult to tell whether any had been used. He also examined the garbage can in which the solution was mixed and found only two or three inches of mixture left in the bottom of the can. He summoned a veterinarian to attend the animals. When his sons complained of headaches and nausea, he immediately sought medical advice. [The boys’ discomfort was of short duration; they were taken to a physician but received no treatment.] Fearful of the arsenic in the compound, a day *615or two following the incident, he caused the remainder of the cattle dip, the garbage pail, the cup used for measuring, the stick with which the mixture was stirred and the carcasses of the animals to be buried. A freeway, having since been erected over the site, neither the dip nor the carcasses of the animals were available for further examination.”
On August 11, 1964, Emile M. Weber, individually and for and on behalf of his minor sons, Karl and Steve,1 filed suit against William Cooper & Nephews, Inc., manufacturers of Cooper Cattle Dip, and its insurer, Fidelity & Casualty Insurance Co. of N.Y., and Kalmbach-Burkett Company, Inc., distributor of Cooper Cattle Dip, and its insurer, Standard Accident Insurance Company. He alleged that the manufacturer was negligent in wantonly and negligently supplying material to the general public containing an extremely high arsenic content without cautioning its distributors against allowing minors and anyone other than veterinarians to use the solution; he further alleged that the distributor was negligent in selling Cooper Cattle Dip to his sons. He prayed for damages in the sum of $4,800.00.2
After trial on the merits, the trial court rendered judgment jointly and in solido against William Cooper & Nephews, Inc. and Fidelity & Casualty Insurance Co. of N.Y., and in favor of plaintiffs, Steve Weber in the amount of $2,750.00, Karl Weber in the amount of $100.00, and Emile Weber in the amount of $360.00, all amounts bearing legal interest from August 11, 1964, until paid. Judgment was rendered in favor of defendants Kalmbach-Burkett Company, Inc. and Standard Accident Insurance Company.3
*617As stated supra, the Court of Appeal reversed the judgment of the trial court, stating: “Since the record establishes that the animals died of arsenic poisoning and plaintiff has offered no proof whatsoever that defendant’s product was defective, only two conclusions appear plausible. Either Steve Weber mixed the concentrate stronger than he recalled or his carelessness in not following defendant’s express instructions resulted in the ‘serious loss’ of which defendant’s label expressly warned. Because the cattle became distressed within such a short time...foilowing their spiraying, we are inclined to the view that notwithstanding young Weber’s testimony to the contrary, he probably either put too much dip in the quantity of water used or did not properly mix and stir the solution. Whatever may have been the cause of the loss, plaintiff has failed to establish negligence on defendant’s part.”
In this Court, plaintiffs assign the following errors to the judgment of the Court of Appeal:
1. The Court erred in reversing the judgment of the trial court without finding manifest error when the judgment of the trial court was based on a preponderance of the evidence.
2. The Court erred in overturning the finding of fact of the trial court that the cattle died from arsenic poisoning and that the product was the cause of the animals’ death.
3.The Court substituted its own finding of fact for the finding of the trial court which was based upon the preponderance of the evidence.
Plaintiffs contend that this matter should be determined according to strict liability in product cases. They argue that there is no sound reason why the principle of manufacturer’s liability should not be extended to a case such as the instant one.
Defendants submit that no negligence was shown on the part of William Cooper & Nephews, Inc. They urge that no fault on their part can be inferred since there was no showing that the product was defective, unwholesome or dangerous when used for its intended purposes as directed. They further urge that no fault can be inferred when there is no showing that the manufacturer failed to warn the user of danger. They contend that liability should not attach simply because the product was dangerous without a showing of a failure to warn or instruct of hazards.
The container of Cooper Cattle Dip disployed a large yellow label, and the detailed instructions, printed thereon in black ink, recited:
*619
*621After reading the testimony of record, I find as a fact that plaintiffs’ cows died from arsenic poisoning. Since the carcasses of the animals were destroyed before examination, I cannot determine whether they died from inhalation or absorption. Dr. C. M. Heflin, veterinarian, a witness for defendants, testified that in order to kill a cow in an hour or less, ten times the ordinary recommended strength of the instant product would be required; that either oral or dermal application would be fatal if the product employed were to strong. He further stated that if a cow has an overdose of spraying, it becomes nervous and paralytic and then falls down; that it might have some rigors, and that when it lies down it cannot get up. He surmised that the absorption of arsenic paralyzes the heart action. With respect to taking the product orally, he said: “Of course, if it is taken orally it is stored in the liver and it can be detected by examining the liver because it is stored in the liver, the poisoning by the mouth. Of course, if you get an overdose dermally on the skin, why, it is absorbed so fast it just kills pretty quickly.” Dr. Heflin testified that he was familiar with Cooper Cattle Dip, and “I have had to do with it and used it for the last over forty years.” He had treated thousands of cows with the product, and none had died of arsenic poisoning as a result of his treatment. He further said, “All I could say. is that if the preparation known as Cooper’s Cattle Dip or any other arsenical dip is used in compliance or according to the directions it is not going to kill cattle or horses or mules either.”
Steve A. Weber, twenty-four years of age at the time of trial and a Deputy Sheriff for the Parish of East Baton Rouge, testified with respect to his mixing the solution on the day of this fatal incident. He said that he sprayed the cattle in the stable area — -about fifty yards from where the solution was mixed; that the mixture was applied with “a gasoline driven sprayer that has two hose attachments, one for suction and the other for spraying and you press the suction hose into the solution to be sprayed and it causes suction and shoots it out and you spray.” He could not remember the adjustment used on the spray. He said that he had never used the spray which was employed for a pesticide spraying of flowers; that the hose was five or six feet long, but that he did not know how far it went into the garbage can; that he did not clean the spray before he used it. Steve remembered that the weather was fair and hot on the afternoon of the spraying; this fact is confirmed in the testimony of Dr. Martin L. Levy who observed the Weber boys after the spraying. When asked what was done with the cows before spraying, Steve stated: “We had them in a large pen and we would single one out and rope it and bring it over to the stable area. The pen adjoining the stable *623area was where we kept them and we just tied them under — there is a — the stables have a shed that goes out and there is a walkway and we tied them there under the walkway and sprayed them.” The cows were tied to a post and sprayed one at a time; when the spraying of a cow was completed, it was turned out into pasture. When asked how the cows reacted to being sprayed, Steve said: “Well, they struggled a little bit specially when you would shoot it up around the head. They didn’t particularly care for that.” He said that the cows were sprayed all over — head and all. Seven or eight cows had been sprayed when Steve realized something was wrong and summoned his father. When asked how long it was from the time that the cattle were sprayed and the time they died, Steve responded, “I would say between twelve and — ten or twelve hours because when we went to bed that night there was one of them I believe were still alive and it must have either the next morning or — ”
Dr. M. C. Helouin, veterinarian who treated the Weber cows after they were sprayed, was called as a witness for plaintiffs. He testified that he had never used Cooper Cattle Dip because it is dangerous; that he does not like it on that account, and that in his opinion there are safer products on the market. He testified that from the symptoms- displayed by the cows, their deaths were caused 'by arsenic poisoning.
Dr. Paul Christofferson, Veterinary- Director at William Cooper & Nephews, Inc. at time of trial, being in charge of research and development and quality control, was called as a witness for defendants. He testified that since 1948 there had been no rejections of Cooper Cattle Dip. He' -was asked: “Were you able — this suit as you know arises from an incident which occurred back in 1963 when some of this dip was used and the cattle died. Were you able to ascertain from the records of the company the particular batch? Were you able to trace a batch to the plaintiff in this case?” He responded: “No. Our records, our samples are kept — were kept at that time for three years and the first notification I had was in I believe April of 1968, some five years apparently after the material was bought or used, and we went back as soon as I received notification, went back through the files to see if we had had any prior complaints and also went back into our quality control storage laboratory and we could find no such samples and we could find no such complaints either.” He said that the reason for resting and watering cattle before dipping or spraying was “because frequently experience has shown that thirsty cattle would tend to drink water containing arsenic or the dip or the -spray, wherever puddled in a foot print or wherever, and thus take it in, also, if the animals are overheated through exercise or through extremely hot weather or other*625wise they tend to have a higher rate of absorption because the vessels of the skin are dilated. This then would tend to allow more absorption and thus more chance for toxicity.” Dr. .Christofferson gave the following, explanation of the methods employed by his company to insure the uniformity and proper manufacture of Cooper Cattle Dip: "This particular product must conform to rather rigid quality specifications. First, because of the inherent toxicity of the product itself, that is, the arsenic it contains, second, because it is called a permitted dip, that is,; it is permitted by the United States Department of Agriculture to be used in disease eradication programs and as such must then meet their specifications which the Department sets. In addition, of course, we have our regular routine quality procedures for manufacture. 'These must show that we avoid contamination of this product with others and avoid •contamination of other products with this particular product. It is manufactured under set specifications in particular vessels and the procedure is, of course, written out for those to follow who formulate the material. The raw ingredients are tested as they enter the lab. Upon approval they •can then be used in the manufacturing area under proper precautions. Then when the product is finished in each batch samples are taken- to a laboratory for testing before ,it. can be packaged or before the containers can be filled for marketing.” He said that the dip is used on the border between Texas and Mexico for tick eradication. Eighty percent of the company’s production is purchased by the United States Government, and every batch the Government buys is subj ect to its analysis and to conformance to its specifications. The product is only manufactured when there are Government or State orders.
Restatement, Second, Torts, Sec. 402 A., p. 347, Special Liability of Seller of Product for Physical Harm to User or Consumer, recites:
“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
“(a) the seller is engaged in the business of selling such a product, and
“(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
“(2) The rule stated in Subsection (1) applies although
“(a) the seller has exercised all possible care in the preparation and ?ale of his product, and
“(b) the user or consumer, has. not bought the product from of entered into any contractual relation with th8 seller.”
*627Comments under Section 402 A!, supra, recite:
“(g) Defective condition. The rule stated in this Section applies only where the product is, at the time it leaves the seller’s hands) in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him. The seller is not liable when he delivers the product in a safe condition, and subsequent mishandling or other causes make it harmful by the lime it is consumed. The burden of proof that the product was in a defective condition at the time that it left the hands of the particular seller is upon the injured plaintiff; and unless evidence can be produced which will support the conclusion that it was then defective, the burden is not sustained.”
There are some unavoidably unsafe products. Comment (k.) states in part, “The seller of such products, again with the qualification that.they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and undesirable product, attended with a known but apparently reasonable risk.” See, 13 A.E.R.3d pp. 1049-1103; Greenman v. Yuba Power-Products, Inc., 59 Cal.2d 57, 27 Cal. Rptr. 697, 377 P.2d 897; Estabrook v. J. C. Penney Company, 105 Ariz. 302, 464 P. 2d 325; Larsen v. General Motors Corporation, 8 Cir., 391 F.2d 495; Schenfeld v. Norton Company, 10 Cir., 391 F.2d 420.
Plaintiffs contend that the Restatement of Torts, supra, is exactly in point with the instant case. They argue that the findings of the trial judge, supra, support their contention.
Louisiana has not as yet incorporated the Restatement of Torts, supra, as such into its jurisprudence. See, 26 La.L.Rev. p. 447. Cf. Evans v. Travelers Insurance Company, La.App., 212 So.2d 506; Arnold v. United States Rubber Company, La.App., 203 So.2d 764; Larance v. FMC Corporation, La. App., 192 So.2d 628.
“The doctrine of res ipsa loquitur is a rule of evidence, the applicability of .which is determined in each instance at the conclusion of the trial. When applicable, it makes out a prima facie .case of negligence on defendant’s part and shifts the onus on defendant to show an absence of negligence. The doctrine of res ipsa loquitur, being a qualification of the general rule that negligence is not presumed but must always be affirmatively established, should be sparingly applied only in exceptional cases where the demands of justice make its application essential. Day v. National United States Radiator Corporation, 241 La. 288, 128 So.2d 660.
*629“It is settled in our law that the doctrine of res ipsa loquitur applies only when the instrumentality alleged to have caused the damage is in the actual or constructive control of the defendant, or where plaintiff has proved freedom of fault on the part of all through whose hands the instrumentality passed after leaving defendant. Eversmeyer v. Chrysler Corp., La.App., 192 So.2d 845; Brechtel v. Gulf States Elevator Corp., La.App., 195 So.2d 403; West v. Hydro-Test, Inc., La.App., 196 So.2d 598.” Lutheran Church of Good Shepherd v. Canfield, 233 So.2d 331, 339, writ refused, 256 La. 360, 236 So.2d 497 (1970).
“Causation may, of course, be proved by circumstantial evidence. In many instances, it can be proved only by such evidence. Taken as a whole, circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes. Otherwise, the mere identification by the record of another possibility, although not shown to be causally active, would break the chain of causation.” Naquin v. Marquette Casualty Company, 244 La. 569, 153 So.2d 395. See, Lambert v. State Farm Mutual Automobile Ins. Co., La.App., 184 So.2d 107; Saucier v. Aetna Casualty & Surety Co., La.App., 217 So.2d 451.
From a study of the facts and evidence of record, I conclude that despite what doctrine might be herein invoked — negligence, res ipsa loquitur, or even Restatement of Torts — plaintiffs have not made out a case of negligence on the part of William Cooper & Nephews, Inc. They offered neither definite nor preponderating proof that the instant Cooper Cattle Dip was defective when it left the seller’s hands, when it was received, or when it was mixed with the twenty gallons of water used by Steve Weber. Their testimony with respect to the Cooper Cattle Dip does not exclude other hypotheses of causation of the death of the cattle.
By their testimony, supra, plaintiffs admit that the spray was administered on a hot day (the instructions, supra, warn against heat) by a gasoline driven sprayer; that after administration, the cattle were not kept in a cool place — they were turned out to pasture. The cattle were not meticulously watered before administration of the spray (the instructions, supra, provide for the watering of cattle before administration of Cooper Cattle Dip). Steve Weber’s testimony with respect to the actual spraying is that he covered the animals with the solution; that he took no precautions regarding inhalation or absorption. His testimony reflects that he was not familiar with the operation of the gasoline driven sprayer employed by him. I conclude that the testimony of Steve Weber *631and other witnesses' — particularly that of Karl Weber who assisted his brother with the cattle — does not preclude the hypothesis that the instant spray was or might have been improperly applied.
Defendants’ testimony, supra, preponderates to the effect that the instant dangerous Cooper Cattle Dip was not defective. The warning, supra, is strong and would alert any reasonable user to the dangerous propensities of Cooper Cattle Dip and the risks of application.
I conclude that although the death of the cattle was tragic, plaintiffs have not borne their burden of proof; they are not entitled to damages for the deaths. In an understandable moment of fear, the evidence was buried and, unfortunately, later destroyed. This case therefore rests ■ on probabilities and hypotheses which I find preponderate in favor of defendants.
I respectfully dissent.
McCALEB, J., dissents being in accord with the views expressed by HAMLIN, J*. At the time of trial, the two boys were majors and were made parties to the suit.
. The damages were itemized as follows:
1 Registered Hereford Cow .................... $ 300.00
1 Registered Hereford Cow .................... 1,000.00
1 Registered Hereford Bull .................... 1,000.00
2 Jersey Milk Cows........ 600.00
1 Holstein Milk Cow ...... 300.00
1 Brahma Cow............ 250.00
Veterinarian’s Bill ........ 350.00
Discomfort and anxiety suffered by boys ........ 1,000.00
.The trial court stated in its reasons for judgment: “In view of the fact that the ' cattle had previously been healthy prior to the administration of the spray, the Court cannot come to any other conclusion other than that the product used was the offending cause of the animals’ death. Furthermore, the Court is of the opinion that the label on the Cooper’s product sufficiently warns the public insofar as the dangerous properties of the compound. Since the evidence reflects a substantial adherence by Steve Weber to the directions shown on the label (KB-1) for the preparation of the solution, it appears a definite and strong probability that the compound was improperly jjrepared and produced by the manufacturers, William Cooper and Nephews, Incorporated. While other possibilities certainly exist and may not be excluded in any reasonable review of the situation, the circumstantial evidence in the case is sufficient to warrant a finding of liability on the part of the manufacturers.”