
    LE BLANC v. LOUISIANA COCA COLA BOTTLING CO., Limited.
    No. 19625.
    Court of Appeal of Louisiana. Orleans.
    Nov. 12, 1951.
    Leo L. Dubourg, New Orleans, for plaintiff and appellee.
    Frank T. Doyle and Robert G. Hughes, New Orleans, for defendant and appellant.
   McBRIDE, Judge.

This appeal was taken by the defendant from a judgment in favor of plaintiff awarding her $300.00 damages on her suit for $750.00 against defendant, wherein she alleged that she had suffered damages as a result of having ingested, on the morning of September 21, 1948, a part of a Coca-Cola that contained a deleterious foreign substance, to-wit: a decomposed housefly.

According to the testimony of plaintiff and her friend, a Mrs. Creath, on the morning in question the latter purchased two bottles of Coca-Cola from the K. & S. Grocery, which is located across the street from plaintiff’s residence, and brought them to plaintiff’s home where they were opened in the kitchen. Plaintiff and Mrs. Creath then began drinking the beverage out of the bottles. The testimony of the two is to the effect that when plaintiff had consumed about half of her bottle she felt a slimy substance in her mouth, whereupon she spat it into her hand and then put the substance back into the bottle. After corking the bottle, she called the Coca-Cola company and made complaint. About half an hour later she experienced nausea. A later analysis of the contents of the bottle showed the presence therein of a deteriorated housefly.

After categorically denying the aver-ments of the first six paragraphs of the petition, the defendant admitted, in paragraph 7 of the answer, that it is engaged in the business of manufacturing, bottling, and distributing for sale to retail dealers in the City of New Orleans and elsewhere, the soft drink known as Coca-Cola. Defendant denied the balance of paragraph 7 of the petition, which alleged that it bottled the Coca-Cola sold by the K. & S. Grocery. The answer further sets forth that, due to the extreme careful method of manufacture and inspection of its product in its plant, it is highly improbable that any harmful 'foreign substance could be contained in its product.

In the. argument before us the defense rests on two points, viz., that plaintiff had failed to prove at the trial that defendant had bottled the beverage which caused the injury, and that plaintiff had also failed to prove that the bottle had not been tampered with after it left defendant’s possession.

The three Courts of Appeal have held that where the plaintiff claims damages as a result of consuming a bottled beverage containing a foreign or harmful substance, to be successful it must be shown by him (1) that the foreign substance was contained in the bottle, (2) that damage was suffered by the drinking of the beverage, and (3) that the bottle had not been tampered with or improperly handled after it left the bottler’s possession. Jenkins v. Bogalusa Coca-Cola Bottling Co., La.App., 1 So.2d 426; White v. Coca-Cola Bottling Co., La.App., 16 So.2d 579; Rowton v. Ruston Coca-Cola Bottling Co., La.App., 17 So.2d 851; Camp v. Homer Coca-Cola Bottling Co., La.App., 20 So.2d 186; Mayerhefer v. Louisiana Coca-Cola Bottling Co., Ltd., La.App., 45 So.2d 442; Nichols v. La. Coca-Cola Bottling Co., Ltd., La. App., 46 So.2d 695; Day v. Hammond Coca-Cola Bottling Co., La.App., 53 So.2d 447, 449.

And as was stated in Day v. Hammond Coca-Cola Bottling Co., supra, there is: “Another requirement that has not always been expressly stated in the decisions has nevertheless always existed; it should be the first requirement in point of time, and is: that plaintiff prove that the beverage causing the damage was bottled and distributed by the defendant. Proof on this point has, of course, always been required in every case.”

In passing on the first defense raised before us, we notice that the answer does, in paragraph 7, specifically deny that the defendant bottled the Coca-Colas sold by the K. & S. Grocery, but we believe, considering the answer as a whole, that the defendant makes the admission that the bottles sold by the said grocery came from its bottling plant. Witness the following language contained in paragraph 11 of the answer: “Further answering defendant avers that if the bottle of coca cola mentioned in plaintiff’s petition actually contained any foreign substance, which is denied, that said foreign substance was not in the bottle zvhen it zvas bottled by Louisiana Coca Cola Bottling Co. * *” (Italics ours.)

It seems to us that the above quoted language employed in the answer made it unnecessary for plaintiff to have produced evidence that the product was that of the defendant.

However, there is merit in defendant’s second contention. Nowhere in the testimony is there any evidence even remotely tending to show that the bottle had not been tampered with or handled improperly after it left the possession of the Louisiana Coca Cola Bottling Company, and in the absence of such proof it must be held that the plaintiff hás not established her case in accordance with the requirements prescribed by the well established jurisprudence above cited.

Our brothers of the First Circuit, in deciding the Day case, supra, stated that our opinion in the Mayerhefer case, supra, might have left some room for doubt as to whether we -felt that the plaintiff had to meet the third requirement, to-wit; proving that the bottle had not been tampered with after it left the possession of the bottler.

In the Mayerhefer case, we found as a fact that the bottle containing the beverage which caused injury to the plaintiff had not been tampered with in any way subsequent to delivery to the retailer from whom plaintiff purchased it. Proceeding from that point, we held that the plaintiff had established the other factual requisites, that is, that the beverage contained a harmful substance, that he partook of the contents of the bottle, and that injury resulted to him. It was our intention to, and we believe that we did, hold that it was encumbent upon the plaintiff to make adequate proof that the bottle had not been tampered with after the bottler of the beverage parted with it, and in the instant case we unqualifiedly hold that such proof is necessary in order to admit the doctrine of res ipsa loquitur into a case such as this.

But, be that as it may, whatever doubt which may have existed as a result of our opinion in the Mayerhefer case as to what proof was required of the plaintiff was dispelled by our mentor, the Supreme Court, which reviewed the matter and affirmed our judgment in favor of the plaintiff. See Mayerhefer v. Louisiana Coca-Cola Bottling Co., 219 La. 320, 52 So.2d 866, 868. The Court found that the plaintiff had proved (1) that the beverage contained a harmful foreign substance, (2) that he suffered injury by ingesting the contents of the bottle, and (3) that the bottle had not been tampered with in any way subsequent to delivery by the Coca-Cola bottling company truck to the establishment from which it was obtained by plaintiff. Favorable reference was made to White v. Coca-Cola Bottling Company, supra, in which the plaintiff proved that the bottle had not been tampered with after delivery by the defendant to its retailer. Said the Court: “* * * In White v. Coca-Cola Bottling Co., La.App., 16 So.2d 579, 581, the plaintiff proved (1) that the foreign substance in the bottle consisted of ‘ “yeast cells * * * due to the fermentation of the sugar which the Coca Cola contains * * * that an original properly sealed bottle of Coca-Cola would (not) have developed fermentation, before being opened” ’; (2) that she became violently ill, with ‘ “a severe acidosis as a result of her steady vomiting, running consistently a sub-normal temperature and a- rapid pulse” ’ and had to be treated with sedative and intravenous infusions; and (3) that the bottle was in the same physical condition when sold to plaintiff as when delivered to the retailer by the defendant’s agent. This case is exactly in point.1’ (Emphasis by the Supreme Court.)

In the concluding paragraph of the opinion is to be found the following language: “We are convinced, as was the appellate court, that the plaintiff has proven the factual requirements for the rule of evidence — res ipsa loquitur — to be applied. * * *»

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that the plaintiff’s suit be dismissed at her cost.

Reversed.

REGAN, Judge.

I respectfully concur. The facts adequately support the judgment rendered in this case. However, after reading the majority opinion I am persuaded to judicially observe the “third requirement” discussed therein.

Heine, once eloquently stated the position that the author finds himself in with respect to the concurring opinion — “we do not take possession of our ideas, but are possessed by them. They master us and force us into the arena, where, like gladiators, we must fight for them.”

The majority opinion states “whatever doubt * * * may have existed as a result of our opinion in the Mayerhefer case as to what proof was required of the plaintiff * * “In the instant case we un-qualifiedly hold that such proof (the third requirement) is necessary in order to admit the doctrine of res ipsa loquitur into a case such as this.” ■

In my humble opinion the “third requirement”, to-wit: that plaintiff must prove “the bottle was in the same physical condition when sold to plaintiff as when delivered to the retailer by defendant’s agent” is completely unrealistic, for the reason that it is in direct conflict with the natural law —self-preservation is the first law of nature. When a damage suit, based on negligence, is pending against the manufacturer of the bottled beverage, is it reasonable to believe that there is the remotest possibility that the retailer would seat himself in the witness chair and admit that he tampered with the' bottled beverage before it was sold to the consumer. I think not. Finding himself in the middle of a law suit, the retailer would say in the future what he has consistently said in the past— I never tampered with the bottled beverage before I sold it to the consumer.

Justice Oliver Wendell Holmes once observed that “the life of the law has not been logic; it has been experience” and Samuel Johnson said “Law is the last result of human wisdom acting upon human experience for the benefit of the public.”

If the mores of the people inhabiting this planet were such that we could always expect the “truth” from the person placed in the position that the retailer of bottled beverages is — -by virtue of the “third requirement” — then the creation of courts of justice in our civilization would, in the ultimate, be a vain and useless gesture.

Query — would the “third requirement” be an integral part of the plaintiff’s proof by inference if the beverage was canned rather than bottled ?

The reason, as I understand it, in support of the logic of the “third requirement” is that the possibility exists that the retailer may have uncapped and recapped the bottled beverage and that during the interval the beverage may have become contaminated; but would this reason support the “third requirement” in connection with a canned beverage.

The courts of this State have always held the manufacturer of beverages to a very high degree of care; yet, by the same token, the courts have borne in mind that the manufacturer of beverages do not have at their disposal adequate means of disproving by eye-witnesses that the alleged incident did not actually transpire and, thérefore, it is an immaculately conceived judicial obligation to protect both the manufacturer and the consumer — not by embedding in our jurisprudence unrealistic technical procedural requirements of proof by inference -or res ipsa loquitur, but by a diligent examination of the facts or merits of each case.

In meeting the judicial obligation of protecting both the manufacturer and consumer, I am not convinced that the scales of justice are balanced by encumbering technicalities and unrealistic procedural requirements that, in the final analysis, create popular disrespect and ridicule among the very people for whose welfare the courts were initially created.

In my opinion, courts of justice should never find themselves in a position in failing to see and know what every layman of average intelligence has seen and known for some time.

The majority opinion states that “The three Courts of Appeal have held that where the plaintiff claims damages as the result of consuming a bottled beverage containing a foreign or harmful substance, to be successful it must be shown by him (1) * * * (2) * * * (3) that the bottle had not been tampered with or improperly handled after it left the bottler’s possession.”

The only conclusion that can be drawn from this statement is that the “third requirement” is not now open to question. In other words, the opinion endeavors to rely almost completely for logical substantiation upon the “doctrine of stare decisis” which, as we all know, was or is the basis of the English or common-law system of jurisprudence — the case being the philosophical key to the solution of all common-law enigmas or problems — but the so-called doctrine of stare decisis in Louisiana is employed not in its historical function of preventing any re-examination of a question once decided but merely as an additional argument available equally to the majority of the court which feels that a former decision is correct, or to a dissenting or concurring judge protesting to the overruling of a decision which he believes to be sound.

In Louisiana the doctrine of stare decisis, conceived as such, is a myth. The case law in our jurisprudence has never been anything more than law de facto, and has never indicated the slightest trend to becoming law de jure. Our courts, to my knowledge, have never adopted stare decisis and whatever chance it had of infiltrating into our system has been obliterated by the sheer passage of time.

In my opinion, the Supreme Court and Courts of Appeal of this State show every disposition to follow the essential civilian judicial technique of never letting today become the slave of yesterday or the tyrant of tomorrow.

The Supreme Court of Louisiana overruled more cases during the past quarter century than it did during the first one hundred years of its existence. Thus, in Louisiana, the doctrine of stare decisis has been honored more in the breach than in the observance.

It is very interesting to observe that even the English have abandoned much of the common-law concepts that have, on occasion, infiltrated into our jurisprudence.

Lord Bowen, one of the ablest and most enlightened English judges, said in 1887— “It may be asserted, without fear of contradiction, that it is not possible in the year 1887 for an honest litigant in Her Majesty’s Supreme Court to be defeated by any mere technicality, any slip, any mistaken step in his litigation * * *. The law has ceased to be a scientific game which may be won or lost by playing some particular move.”

One of the strangest paradoxes in American judicial history is that while the present system of courts in the United States not including Louisiana is a copy of the English Courts of 1775, yet, after the English, by their Judicature Act of 1873, completely abolished it and inaugurated the modern system of jurisprudence, American judges and lawyers still hold on to the old worn out copy like grim death.

Dean Pound said — “Let us bestir ourselves to the end that taught law be that of living tissues and not that of dead fiber.” Another shortcoming, said he — “was undue servitude to the bondage of precedent, a fetish of immutability.”

As a parting injunction to the legal profession, Walter Clark, Chief Justice of the North Carolina Supreme Court in 1902, wrote — “The law should express the best sentiments of the age. It should move because all the World beside is moving. We should move up abreast of our age and not take our seats by the abandoned campfire of a generation gone before.”

I am of the opinion that our enlightened judiciary and legal profession heartily subscribe to this philosophy — to the end that our Courts of Justice may keep step with the civilization in which we live.

In the final analysis, our legal civilization is fundamentally a search for more complete efficiency, unencumbered by unrealistic proof by inference technicalities which, per se, ultimately facilitate the promotion of more adequate justice which, of course, is the real reason justifying the existence of courts of law.

It appears that the sum total of our jurisprudence applicable to the instant case has endeavored to say — -that the courts of this State will not permit either the manufacturer of bottled beverages or the consumer to take advantage of each other — and, in my opinion, this objective may continue to be accomplished without embedding in our jurisprudence unrealistic methods of proof by inference, but by a diligent examination of the merits or facts of each case. In this connection I have been particularly impressed with the technique used in Dye v. American Beverage Co., La.App., 194 So. 438 and which was followed in Mayerhefer v. Louisiana Coca-Cola Bottling Co., La.App., 45 So.2d 442, affirmed by the Supreme Court in 219 La. 320, 52 So.2d 866.  