Holley v. Purity Baking Co.

W. A. Holley, plaintiff, instituted in the Court of Common Pleas of Kanawha County this action of trespass on the case against Purity Baking Company, a corporation, to recover for personal injuries alleged to have been sustained by him as the result of eating a portion of a cake made by defendant, in which a small piece of wire was imbedded. The Common Pleas Court entered a judgment for plaintiff in the amount of thirty-five hundred dollars, based upon a jury verdict, to which judgment the Circuit Court of Kanawha County refused a writ of error. The instant writ of error is prosecuted to the judgment of the said circuit court.

On September 11, 1944, plaintiff and his wife bought certain groceries at a store in Charleston, at which they were accustomed to deal. Among the items purchased, there was a cake, bearing defendant's name and label, which, so the record substantially shows, had been made by defendant in its baking plant and sold to the grocery for retail trade. The record discloses that from the time the cake was taken to plaintiff's home until it was served on the evening of the alleged injury, it was kept in a utility cabinet in plaintiff's kitchen, during which time the cellophane wrapper, which entirely covered the cake, remained intact. On the day following its purchase, while eating a portion of the cake during the course of the evening meal at his home, plaintiff felt "something like a pin stick me and I coughed the cake up in my hand and when I did that I seen a little piece of wire." Plaintiff threw the wire and cake which he had removed from his mouth into the yard. The wire is variously described as being about the size of, or a little heavier than, that of an ordinary window screen wire, and when removed from plaintiff's mouth seems to have been bent.

On the day after the alleged injury, plaintiff's throat began to get sore. His condition became worse, and he consulted Dr. H. M. Mican of Charleston, who advised hospitalization. Plaintiff was then taken in an ambulance to the Charleston General Hospital, where he remained for fourteen days. For two or three days while there, he was unable to swallow, his neck was greatly swollen, and for a time it was necessary to feed him intravenously. Finally, his throat became abscessed near the left side of the jaw, and an operation was performed and the abscess drained.

Dr. Mican testified that, in his opinion, the infection was caused by the tissues of the throat having been punctured by a foreign object "which carried the germ into the deeper structures of the neck". Defendant's witness, Dr. O. H. Bobbitt, an eye, ear, nose and throat specialist, who made no examination of plaintiff during the course of his illness, testified on defendant's behalf that infections may be caused, without trauma, from bacteria in the throat.

As a result of the operation plaintiff has a scar on the left side of his throat. From Dr. Mican's testimony it appears that infection caused plaintiff to become "very sick". From his testimony and that of plaintiff, it clearly appears that during the course of the illness plaintiff suffered great pain. The record contains substantial evidence to the effect that since the injury plaintiff experienced hoarseness, which interferes with his talking and singing, and plaintiff testified, without contradiction, that he has "pains every now and then that shoots through" his throat. Hospital and medical expenses in the respective amounts of $95.26 and $94.00 were proved, and proof was made of loss of wages in the amount of $280.00 to $300.00, though this latter item is not declared upon in plaintiff's declaration.

Two assignments of error are asserted here: (1) The giving of plaintiff's instruction No. 1, and (2) the verdict was excessive.

Plaintiff's instruction No. 1 told the jury, among other things, that if it should believe from a preponderance of the evidence "that at the time said cake was taken from said cellophane wrapper, that said cake contained a small metallic substance, as testified to by said plaintiff, and that the plaintiff suffered injuries as testified to by him, as the proximate result of his attempting to eat a piece of said cake, which contained said small metallic substance, the prima facie presumption of law is that said defendant was guilty of negligence, and you should find for the plaintiff, unless you believe that the said defendant has overcome, by competent evidence, said presumption of negligence, or unless you find from the evidence that the plaintiff was guilty of negligence which proximately contributed to his own injury if any". Defendant objected to the giving of this instruction on the ground that the presence of a foreign object in the cake is sufficient to allow the jury to draw the inference that defendant was negligent, but is not "prima facie evidence of negligence on the defendant's part." Plaintiff cites Parr v.Coca Cola Bottling Works of Charleston, 121 W. Va. 314,3 S.E.2d 499; Blevins v. Raleigh Coca-Cola Bottling Works, 121 W. Va. 427,3 S.E.2d 627, in support of the trial court's action in giving plaintiff's instruction No. 1, and defendant, in support of its objection to the instruction, relies upon the holding of this Court in Webb v. Brown Williamson TobaccoCo., 121 W. Va. 115, 2 S.E.2d 898, and contends that the Parr and Blevins cases are inconsistent with the decision in theWebb case. In this regard it is to be noted that in point 1 of the syllabus in the Parr case, the Court held the proof that the bottling company caused a bottle of "Coca-Cola", containing harmful substance to be sold through a distributor, which was consumed by the purchaser resulting in his injury, "gives rise to a prima facie presumption of negligence on the part of the bottling company and it is for the jury to determine whether, under all the circumstances, proof of a careful bottling system followed by the defendant company, which does not single out the specific article distributed and consumed, meets the presumption so arising." While at page 119 of Volume 121, West Virginia Reports, in the Webb case, this Court said: "Here we have a case where, without the evidence introduced in behalf of the defendant in the court below, the doctrine of res ipsaloquitur would apply; but that doctrine does nothing more than warrant certain inferences from established facts, and testimony tending to show a different state of facts from those out of which the inference grew changes the situation". It is on the basis of these two quotations from the above cases that counsel for defendant contends here that the decisions are inconsistent and that the holdings of this Court in the Parr and Blevins cases are erroneous, and therefore plaintiff's instruction No. 1, based, as it is, upon such holdings, is erroneous.

Upon reexamination we find that the reasoning of this Court in the opinion in Parr v. Coca-Cola Bottling Works, supra, was based upon the holding in Webb v. Brown Williamson Tobacco Co., supra. Both cases involved the alleged liability of the manufacturer to an ultimate consumer. In the opinions in both cases the defendants were held liable upon the theory of the doctrine of res ipsa loquitur. In the Parr case the Court, in disposing of the second assignment of error therein that the doctrine of res ipsa loquitur was erroneously applied, said that this, as well as the first assignment of error, is "disposed of by this Court's holding in" the Webb case. The following statement appears in the Webb case: "The jury had the right to believe that the system used by the manufacturer was not sufficient to prevent the presence of a foreign substance in the manufactured product involved in this case. Realizing the difficulties surrounding our decision, we hold that the question of negligence was one for jury determination, and that on the question of liability of the manufacturer, its verdict cannot be disturbed." After using the foregoing quotation, the Parr opinion continues with the observation: "This, we think, disposes of the question of negligence and the question of applying the doctrine of resipsa loquitur." But in the Webb case this Court held that the doctrine of res ipsa loquitur "does nothing more than warrant certain inferences from established facts"; while in point 1 of the syllabus of the Parr case the Court held that the proof of the presence of a deleterious substance in a bottle of Coca-Cola gave rise to "a prima facie presumption of negligence on the part of the bottling company", and it was for the jury to determine whether proof of a careful bottling system which did not single out the specific article consumed "meets the presumption so arising." So it seems to us upon this reappraisement of the two cases that point 1 of the syllabus in the Parr case is inconsistent with the position which this Court took in the Webb case.

By our holdings in the Webb, Parr and Blevins cases, we are committed to the proposition that the doctrine of res ipsaloquitur should be applied to an action by the ultimate consumer against a manufacturer of products designed for human consumption, to recover for alleged injuries caused by the presence of deleterious or harmful matter in the product. The decision in the Webb case differs from the decisions in the Parr and Blevins cases only in that this Court gave a different effect to the application of "res ipsaloquitur". This diversity in our own decisions represents a diversity in the authorities in other jurisdictions. Many American courts have entertained the view that "res ipsaloquitur" is a presumption, and many others have held the contrary view, that is, that "res ipsa loquitur" is a mere permissive inference. For a collation of authorities, see note to Glowacki v. Northwestern Ohio Railway Power Co., 116 Ohio St. 451,157 N.E. 21, 53 A.L.R. 1486, Note 1494-1519, inclusive. It may be as stated in 38 Am. Jur., Negligence, Section 309: "In many instances the courts, in considering the application and effect of the doctrine of res ipsa loquitur, speak of a prima facie presumption of negligence arising from the occurrence and the circumstances surrounding it. And many of them say that when the doctrine of res ipsa loquitur applies, a presumption of negligence is raised, or that such a presumption is raised unless the occurrence is explained. But it is evident that these courts mean nothing more than that the circumstances furnish evidence from which the jury may find or infer negligence, which, if not explained, or not explained satisfactorily, will support a verdict for the plaintiff. * * *". Be that as it may, we are now of the opinion that the position which this Court took in the Webb case presents the better view. In Diotiollavi v. United Pocahontas Coal Co.,95 W. Va. 692, 699, 122 S.E. 161, this Court in holding that the doctrine of res ipsa loquitur, if applicable, would not relieve the plaintiff in that case from carrying the burden of proof as to the negligence of defendant, cited Sweeney v. Erving,228 U.S. 233, 33 S.Ct. 57 L.Ed. 815, in which the Supreme Court of the United States said: "In our opinion, res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant's general issue into an affirmative defense. When all the evidence is in, the question for the jury is whether the preponderance is with the plaintiff." In Jones on Evidence, 2d Ed. Vol. II, page 936, cited with approval in the Webb case, it is stated: "This indirect method of arriving at the negligence of defendant is generally expressed by the maxim, 'res ipsa loquitur', which, literally translated, means 'the thing speaks for itself', and is merely a short way of saying that the circumstances attendant upon the accident are themselves of such a character as to justify a jury in inferring negligence as the cause of the injury. It in no wise modifies the general doctrine that negligence is not presumed." See Stanolind Oil Gas Co. v.Bunce, 51 Wyo. 1, 62 P.2d 1297; Zahniser v. PennsylvaniaTorpedo Co., 190 Pa. 350, 42 A. 707; and Glowacki v.Northwestern Ohio Railway Power Co., supra.

For these reasons we think that point 1 of the syllabus in the Parr case, as well as the syllabus and opinion in theBlevins case, should be modified to conform with the holding of this Court in the Webb case.

Plaintiff's instruction No. 1, we think is erroneous for the foregoing reasons, and for the further reason that it tells the jury, in effect, that if it should believe from a preponderance of the evidence that at the time "said cake was taken from said cellophane wrapper, that said cake contained a small metallic substance, * * * and that the plaintiff sustained injuries * * * as a proximate result of his attempting to eat a piece of said cake", there is a "prima facie presumption of law" that said defendant was "guilty of negligence." (Italics supplied). A prima facie presumption, as suggested in the Parr case, does not, where the presumption is met and overcome by evidence, preclude jury determination; but a presumption of law is a rule of law that a particular inference shall be drawn by a court or jury from a particular circumstance. State v. Dodds, 54 W. Va. 289,46 S.E. 228. A presumption of law, unlike a presumption of fact, cannot be rebutted. Hamilton Co. v. Steele, 22 W. Va. 348,354. Such a presumption is beyond the province of the jury when the facts which give rise to it have been proved to the satisfaction of the trial court or the jury, depending upon whether the evidence tending to establish said facts is without conflict, or conflicts with that tending to disprove them.

As a new trial will be had, we do not reach defendant's second assignment of error, that the verdict is excessive.

For the foregoing reasons the judgments of the Common Pleas and Circuit Courts are reversed, the verdict set aside, and a new trial awarded.

Judgments reversed; verdict set aside; new trial awarded.