(dissenting).
This dissent is respectfully submitted, based on the persuasion that the judgment of the trial court, attaching liability to Coca Cola, should be affirmed.
The majority has concluded that the proof was sufficient to show that the bottle was defective when it was purchased by Mr. Hobart from Henke and that “the proof of a defect in the bottle * * * was clear enough.” However, the majority continues, “* * * there must be reasonable inferences in the testimony to show that Coca Cola sold Henke a defective product if the judgment against Coca Cola is to stand.” Not finding the “reasonable inferences” in the record, liability of Coca Cola is denied because the defect in the bottle was not sufficiently “traced” to Coca Cola.
Deliveries of the Coca Colas to the Henke store were made on Monday, Wednesday and Fridays. Hobart’s purchase was made on Saturday afternoon. Though there may have been cases left over from previous deliveries, there is a substantial probability that this particular carton had been in Henke’s possession for only a matter of hours during some part of two business days.
Substantial affirmative testimony appears in the record that negatives any mishandling by Henke during this period of time. Careful handling was shown in the general upkeep of both the store and the soft drink section, in the checkout lady’s handling of this specific carton, and in the grocery boy’s transportation of the groceries, including the carton containing this Coca Cola. In addition, Henke continually checked for defective or broken bottles by visual inspection. Even if this carton of Coca Cola was one of those placed in the back room and used to replenish the stock sold, as occurred with most frequency on Fridays and Saturdays, the testimony negatives mishandling by Henke.
There is only one intervening agency between Coca Cola’s loss of possession and Hobart’s acquisition that remains to be considered: the store customers that had access to the soft drink section. Having established a defect in the bottle, it is here, and only here, that an inference is necessary. An inference is essential at this juncture for any holding that would be dispositive of this case.
To infer that this bottle was tampered with by customers even at a self-service store appears, at best, highly speculative and conjectural. The better reasoned inference, indeed the only reasonable inference, would seem to be that Hobart acquired this particular defective bottle just as Coca Cola delivered it to Henke, and that the bottle was defective when Coca Cola placed it in the Henke store.
The appeal of this latter inference is enhanced when placed aside Dr. Tonn’s testimony that, first, the subject bottle gave no indication of being damaged by external force or violence and that he *127found no evidence of external force or damages being applied to this particular bottle. Dr. Tonn also testified that there were three reasons for breaks: namely, thermal cracks, gas pressure and external force. Under these circumstances, external force is the only type of damage that customers could occasion. This is the very kind excluded by Dr. Tonn’s testimony as the cause of the break.
The Texas cases that are cited undoubtedly cast the burden upon the complaining party to establish that' the container was not mishandled while in the intermediate possession of others. All of these, however, involve the attempt to apply the principles of res ipsa loquitur so as to sustain recovery. Since McKisson v. Sales Affiliates, Inc., Tex., 416 S.W.2d 787, the necessity of meeting the stringent requirements of “exclusive possession” within the res ipsa concept has been eliminated. The “strict liability” theory of McKisson looks only to a showing of the defect at the time of sale by the party sought to be charged and that no substantial change occurred thereafter.
In Renninger v. Foremost Dairies, Inc., 171 So.2d 602 (Fla.App.1965), the customer claimed to have been injured when the bottom dropped out of a milk bottle and fell on her foot after she had lifted it from a milk box. The Florida court stated:
“The defendant urges, however, that its responsibility for the bottle terminated with the delivery to the store of the milk bottle in a sound condition and that there is nothing in the record upon which the jury could find that the bottle was defective at the time it was delivered. The defendant contends that it was not permissible for the jury to infer that the bottle was delivered in a defective condition because there are other reasonable inferences to be drawn from the circumstances. For example, it is suggested that the bottle may have been cracked or otherwise damaged by an employee of the store in replenishing the customer’s milk box, or that the bottle may have been damaged by another customer in removing or examining one of the bottles of milk.
“The rule is that when circumstantial evidence is relied upon in a civil case as a method of proof, any reasonable inference deducible therefrom which would authorize recovery must outweigh each and every contrary reasonable inference if the plaintiff is to prevail. Furthermore, an inference may not be founded upon an inference except when the first inference may be elevated to the dignity of an established fact because of no contrary reasonable inferences. Voelker v. Combined Ins. Co. of America, Fla., 1954, 73 So.2d 403.
“The jury in returning a verdict for the plaintiff necessarily must have found that the bottle of milk was defective at the time it was delivered by the defendant to the store. We do not think that such a conclusion constituted the finding of an inference upon an inference because the first inference to-wit, that the bottle was defective when it parted and fell on the plaintiff’s foot, is the only reasonable inference that can be drawn from the circumstances. (Citing cases) * * * In addition, the possibility that the defect was caused by an unusual circumstance such as a third party striking the bottle with or upon a sharp or heavy object is so remote as to not constitute a reasonable explanation for the existence of the defect.”
The “competing inference” in the case at bar is strikingly similar to the one dealt with in the Renninger case; that from time to time customers removed cartons from the racks, replaced them, and mixed and intermingled the bottles. To infer that this may have occurred here necessitates a second inference: that such action occasioned the damage to this particular bottle. The second inference, coupled with its parent, have more of the char*128acteristics of remote speculation rather than a reasonable inference.
In Kroger Co. v. Bowman, 411 S.W. 2d 339, 341 (Ky.App.1967), as the customer pulled a carton of Dr. Pepper from the rack, one of the bottles fell therefrom due to an alleged splitting of the side of the carton. No witness testified as to how or when the tear in the carton occurred. The defendant bottling company sought to rely on the proof requirements of the res ipsa loquitur cases and the court stated:
“We turn them to examine the record with reference to evidence of the products having been furnished in a defective condition within the ‘strict liability’ definition. It would not be doubted, we suppose, that liability would have obtained had Mrs. Bowman picked up the carton at the Dr. Pepper plant, and sustained the injuries in the same manner. Instead, Dr. Pepper placed a carton in the Kroger stores; it was • not inspected by Kroger, nor is there any showing that it was tampered with by anyone from the time it was placed on the Kroger rack by Dr. Pepper. In our view the circumstances thus presented are ample to warrant the reasonable inference that the carton was in a defective condition when Dr. Pepper placed it in the Kroger store.”
Likewise, in the case at bar,' the circumstances seem ample to warrant the reasonable inference that the bottle was in a defective condition when Coca Cola placed it in the Henke store.
As heretofore stated, mishandling by Henke is negatived in the record. Therefore, to suggest that this bottle was damaged by some person not connected with the appellant can be no more than a speculative or conjectural possibility. Of the two inferences available, the most reasonable would appear to be that the defect pre-existed its placement in the Henke store by Coca Cola. The burden to establish non tampering — under the strict liability theory, if not the res ipsa theory as well — is sufficiently met with the introduction of competent evidence that the bottle was not substantially changed by intervening agencies. This was here accomplished. The burden does not require that it be established beyond per-adventure.
Here the jury not only found that the bottle in question was defective when sold by Coca Cola to Henke, but also awarded Henke full and complete indemnity against Coca Cola for any sums that they might be required to pay in satisfaction of the judgment in favor of the Hobarts. The trial court’s judgment, in accord with the jury’s findings, should be affirmed.