Opinion
10-22-1957
Ruth TRUST, Plaintiff and Appellant, v. ARDEN FARMS COMPANY, a California corporation, Owens-Illinois Glass Company, a foreign corporation, et al., Defendants and Respondents.* Civ. 22235.
Jerrold A. Fadem, Los Angeles, for appellant. Belcher, Kearney & Fargo, Los Angeles, for respondent Arden Farms. Gibson, Dunn & Crutcher, by Ira C. Powers, Sherman Welpton, Jr., Los Angeles, for respondent Owens-Illinis Glass Co.
Ruth TRUST, Plaintiff and Appellant,
v.
ARDEN FARMS COMPANY, a California corporation, Owens-Illinois Glass Company, a foreign corporation, et al., Defendants and Respondents.*
Oct. 22, 1957.
Rehearing Denied Nov. 18, 1957.
Hearing Granted Dec. 17, 1957.
Jerrold A. Fadem, Los Angeles, for appellant.
Belcher, Kearney & Fargo, Los Angeles, for respondent Arden Farms.
Gibson, Dunn & Crutcher, by Ira C. Powers, Sherman Welpton, Jr., Los Angeles, for respondent Owens-Illinis Glass Co.
DRAPEAU, Justice pro tem.
Mrs. Ruth Trust, plaintiff in this case, was seriously injured by having a milk bottle break in her hand. She brought this action for negligence against Arden Farms Company, a corporation, who delivered the milk bottle to her, and Owens-Illinois Glass Company, another corporation, who made the bottle.
At the close of plaintiff's case the trial judge granted a motion for nonsuit as to both defendants.
Plaintiff appeals from the judgment.
The rule in cases in which nonsuits have been granted has been stated so many times that it is only necessary to repeat it here in the barest outline.
The right to trial by jury 'shall be secured to all, and remain inviolate * * *' Cal.Const. Art. I, § 7.
Whenever a judgment of nonsuit infringes in the slightest degree upon the constitutional power of a jury to determine a fact in issue, that judgment is void. Small v. Transcontinental & Western Air, 96 Cal.App.2d 408, 410, 216 P.2d 36.
A motion for nonsuit 'may be granted only when, disregarding conflicting evidence, giving to the plaintiff's evidence all the value to which it is legally entitled, and indulging in every legitimate inference which may be drawn from that evidence, the court properly determines that there is no substantial evidence to support a verdict in favor of the plaintiff.' Leonard v. Watsonville Community Hospital, 47 Cal.2d 508, 514-515, 305 P.2d 36, 39.
Looking only for substantial evidence that will support plaintiff's case, the record shows:
The bottle was manufactured by Owens-Illinois Glass Company. It was delivered to by Arden Farms Company a day or two before the accident, filled with skimmed milk.
Mrs. Trust testified:
That as she was preparing breakfast for her family on a Sunday morning, she took the bottle out of her refrigerator and poured some of the skimmed milk into a pitcher. When she was putting the bottle down on the drainboard of her sink she felt a sharp sting in her wrist.
That the bottle separated into two major portions, the neck which remained intact, and the bottom portion, which fragmented. The top part of the bottle was still in her hand when her husband came running into the kitchen in response to her cry for help.
Mr. Trust testified that he gave his wife first aid, and sent her to the hospital. Also that he put the fragments of the bottle back together, using scotch tape to hold them.
The evidence so far 'cannot give rise to an inference that defendant was negligent in failing to discover the defect' in the bottle. All it shows is that the bottle broke in Mrs. Trust's hand. And a dairy is not responsible for defects in milk bottles that cannot be found by a reasonable, practicable inspection. Honea v. City Dairy, Inc., 22 Cal.2d 614, 618, 140 P.2d 369.
But here there is more evidence than in the Honea case.
In this case an expert witness for plaintiff testified that he had examined the reconstructed bottle; that it was possible to tell from the fragments of a broken glass bottle why it broke; that in his opinion, this bottle broke as a result of an extriemely mild contact; and that, in his opinion, there was some defect in the bottle.
This evidence is sufficient to raise an inference of negligence of both defendants under the doctrine of res ipsa loquitur. And there is no conclusive rebuttal of that inference, as there was as to certain defendants in Leonard v. Watsonville Community Hospital, supra, 47 Cal.2d 509, 305 P.2d 36. And in Honea v. City Dairy, Inc., supra, 22 Cal.2d 614, 618, 140 P.2d 369, our Supreme Court stated that an examination of the pieces of the bottle might have revealed a flaw or served to eliminate possible causes of the accident.
Defendant Arden Farms suggests that in any event plaintiff's case is fatally defective because here children and her husband, who had access to the bottle in the refrigerator, had not negate any damage to it caused by them. Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 150 P.2d 436.
We are of the opinion, however, that the facts here come within the qualification stated in the Escola case (24 Cal.2d at page 458, 150 P.2d at page 439): 'It is not necessary, of course, that plaintiff eliminate every remote possibility of injury to the bottle after defendant lost control, and the requirement is satisfied if there is evidence permitting a reasonable inference that it was not accessible to extraneous harmful forces and that it was carefully handled by plaintiff or any third person who may have moved or touched it.'
The judgment is reversed.
WHITE, P. J., and FOURT, J., concur. --------------- * Opinion vacated 324 P.2d 583.