Opinion
Hearing Granted Jan. 25, 1943.
Appeal from Superior Court, Los Angeles County; Peirson M. Hall, Judge.
Action by Eldora Honea, a minor, etc., and others against City Dairy, Inc., for injuries sustained when a milk bottle broke in plaintiff’s hand. From judgment for plaintiffs, defendant appeals.
Reversed.
COUNSEL
Harry E. Sackett, of Los Angeles, for appellant.
C. V. Caldwell, of Los Angeles, for respondents.
OPINION
W. J. WOOD, Acting Presiding Justice.
Defendant has appealed from a judgment which plaintiff recovered for injuries which she suffered when a milk bottle broke in her hand. At the time of the accident plaintiff was fourteen years of age and was a pupil in Fremont Junior High School in Pomona. She was sent by her teacher to the establishment of defendant City Dairy, which was located about a block from the school, to procure three quarts of chocolate milk. The attendant at the dairy took three dry bottles of milk from the icebox, carried them to the office, and set them on the desk before plaintiffs who carried them to the school building. One of the bottles broke as she walked up the steps to enter the building, resulting in the injuries for which she recovered judgment. Plaintiff testified that she carried one bottle in each hand and one in her arm, that the bottles were not touching each other and that one of them "just broke." Louis Carls, called as a witness for plaintiff, testified that he was the janitor at the school on the date of the accident; that he was coming down the hall as plaintiff was coming in the door, that he spoke to her about having to drink chocolate milk at noon; that he noticed that she "clinked" the bottles to her breast; that when he spoke to plaintiff she "pulled her arms in and the bottle broke."
The trial court apparently based its judgment upon the doctrine of res ipsa loquitur, for at the conclusion of the argument the court said: "It seems to me that res ipsa loquitur is the only way you can recover." In this the court erred. In order to make applicable the doctrine of res ipsa loquitur plaintiff must establish that the instrumentality which caused the injury was under the control of defendant at the time of the injury. The evidence clearly establishes that at the time the bottle broke it was not under the control of defendant but was under the control of plaintiff. In Gerber v. Faber, 54 Cal.App.2d 674, 129 P.2d 485, decided on October 2, 1942, by another division of this court, it was held that the doctrine of res ipsa loquitur was not applicable in a case where a bottle of root beer broke in the hands of a customer who was in the act of removing it from a beverage container in the establishment of a retailer.
The trial court found that one of the bottles delivered to plaintiff "was defective and as a direct cause of such defectiveness said bottle broke and thereby was the proximate cause of the injury." The record contains no evidence whatever to support this finding. Defendant presented uncontradicted proof that the bottles were properly inspected and the milk properly placed therein. Plaintiff relied upon the doctrine of res ipsa loquitur, but, as we have shown, this doctrine is inapplicable. Plaintiff did not sustain the burden of proving that the bottle was defective.
The trial court also found that defendant was negligent and did not use due and proper care "in delivering three quart glass bottles of milk to plaintiff, Eldora Honea, for transportation by said plaintiff in an unwrapped or unpackaged condition." This finding also is not supported by the evidence. There is no law prescribing that bottles of milk be wrapped or packaged before delivery to customers. It may as well be contended that a purchaser of bottles of milk should provide a receptacle within which to carry them from the place of purchase as that the seller should safeguard the bottles by placing them in a receptacle or otherwise protect them from breakage. It is a matter of common knowledge that glass bottles are apt to break if struck together, even though gently; and that one who attempts to carry three quart bottles of milk should exercise care to prevent an accident. Although plaintiff was a minor she was not of such tender years as to require the application of rules other than those applicable to other customers.
The judgment is reversed.
McCOMB, J., and GOULD, J. pro tem., concurred.