Webb v. Brown & Williamson Tobacco Co.

2 S.E.2d 898, 121 W. Va. 115, 1939 W. Va. LEXIS 25

• Court: West Virginia Supreme Court
• Decided: March 14, 1939
• Docket: 8821
• Status: Published

Opinions

FOX, PRESIDENT;

The Brown & Williamson Tobacco Company, a nonresident corporation, proceeded against by suggestion and attachment of its assets in Wyoming County, complains of a judgment against it for the sum of $2,000.00, recovered by Nellie Webb, in an action at law, in the circuit court of said county, on the 26th day of April, 1938, based upon the verdict of a jury.

The Tobacco Company manufactures a flat plug tobacco under the trade name or brand of “Blood Hound”. Prior to the 30th of May, 1937, it made a sale of a quantity of this product to the Red Jacket Coal Corporation, which retailed the same to its customers. About the. date last mentioned, the coal corporation sold a plug of this tobacco to the son of Nellie Webb, the plaintiff below, and he permitted his mother to take a chew from the plug so purchased by him. It appears from the evidence that that part of the plug from which the chew was taken contained a dead worm or moth from which extended nu merous fine stickers or stingers, hard and penetrating in their nature, and each about one-eighth of an inch in length. When the plaintiff placed the chew in her mouth, these stingers, in large number, penetrated the lining and tissues of the mouth, causing great inconvenience and some pain, which continued for some time thereafter. The plaintiff made eight or nine trips to a local physician, within a few weeks following this occurrence, and an examination of her mouth by a physician for the defendant, on December 18, 1937, revealed a number of reddened areas in the roof of the mouth and left cheek which were elevated and indurated, but neither inflamed nor ulcerated. No permanent injury is alleged or proven.

The plaintiff below rests her case on evidence showing the manufacture of the tobacco in question by the defendant; the sale thereof by a retailer to her son; her attempted use of the same; her own testimony and that of her husband, son and a physician as to the inconvenience and suffering occasioned thereby; and upon the further contention that the rule of res ipsa loquitur applies, and that from these facts the jury had the right to infer negligence on the part of the manufacturer. The testimony offered by the defendant was that of the superintendent of its manufacturing plant, which is to the effect that reasonable precautions were taken to prevent any foreign substance from entering or remaining in all tobacco manufactured by it, but that it was possible that the worm or moth found in the tobacco could have entered the plug after its manufacture; and the testimony of two physicians, who examined the plaintiff shortly before and at the time of the trial, touching her condition at that time. From all the testimony offered in the case, four facts are clearly established: (1) The manufacture and sale of the tobacco by the defendant and its use by the plaintiff; (2) the existence of the foreign substance in the tobacco and the suffering of some pain and inconvenience resulting therefrom; (3) that in the manufacture of the tobacco of the character here involved, care was exercised to prevent foreign substances from enter ing or remaining in the manufactured plug; and (4) that it was possible that the worm or moth found in the tobacco could have entered the same after the manufacturing process had ended.

The proposition that the manufacturer, packer or bottler of food products is liable to a consumer thereof for injury caused by unwholesomeness or unfitness of such product, although purchased from a retailer, seems to be well established by the authorities. 26 C. J. 785, sec. 93; 11 R. C. L. 1122, sec. 28; Liggett & Myers Tobacco Company v. Rankin, 246 Ky. 65, 54 S. W. (2d) 612; Norfolk Coca-Cola Bottling Works v. Krausse, 162 Va. 107, 173 S. E. 497. In Liggett & Myers Tobacco Company v. Cannon, 132 Tenn. 419, 178 S. W. 1009, L. R. A. 1916A, 940, Ann. Cas. 1917A, 179, it was held that tobacco did not come within this rule, but more recent cases, containing, as we think, the better reasoning, hold that although chewing tobacco is not a food, it is a product especially prepared for human use or consumption, and that lack of care in manufacturing the same furnishes good cause for action on the part of a consumer who may purchase the same from a retailer. Pillars v. R. J. Reynolds Tobacco Company, 117 Miss. 490, 78 So. 365; Corum v. R. J. Reynolds Tobacco Company, 205 N. C. 213, 171 S. E. 78; Delk v. Liggett & Myers Tobacco Company, 180 S. C. 436, 186 S. E. 383; Liggett & Myers Tobacco Company v. Rankin, supra; Liggett & Myers Tobacco Company v. Wallace (Tex.), 69 S. W. (2d) 857.

The liability of a manufacturer rests upon the omission of some legal duty. “In every action for damages resulting from injuries to the plaintiff, alleged to have been inflicted by the negligence of the defendant, it is incumbent upon the plaintiff to establish, by a preponderance of the testimony, three propositions: (1) A duty which the defendant owes to him; (2) A negligent breach of that duty; (3) Injuries received thereby, resulting proximately from the breach of that duty.” 2 Jones on Evidence, p. 57, Sec. 184. See also Delk v. Liggett & Myers Tobacco Company, supra; Cashwell v. Fayetteville Pepsi-Cola Bottling Company, 174 N. C. 324, 93 S. E. 901. Whether or not the defendant has, in fact, been negligent is, where the evidence is in conflict either as regards direct statements or inferences which may be drawn from proven facts and circumstances, a jury question. Cashwell v. Fayetteville Pepsi-Cola Bottling Company, supra; Harper v. Bulluck, 198 N. C. 448, 152 S. E. 405; Broadway v. Grimes, 204 N. C. 623, 169 S. E. 194; Cordell v. Macon Coca-Cola Bottling Company, 56 Ga. App. 117, 192 S. E. 228.

The defendant in error relies strongly upon the doctrine of res ipsa loquitur. Referring again to Jones on Evidence and to the same section cited above, and referring to what should be shown to establish negligence, it is there stated:

“This may be done, either by direct testimony of witnesses who know the facts, or by direct proof of indirect, but correlated, facts from which the duty owing him, the injury done him, the negligence of defendant, and its proximate causal connection with the injury may be reasonably inferred. When such method of establishing liability is resorted to, negligence is never inferred from the mere fact of the injury; but the act which produced it, and defendant’s negligence, and the injury must all be shown, and the nexus between them must appear in the relationship of cause and effect. This indirect method of arriving at the negligence of defendant is generally expressed by the maxim, ‘res ipsa loquitur’. Literally translated, it 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 will not be presumed.”

Here we have a case where, without the evidence introduced in behalf of the defendant in the court below, the doctrine of res ipsa loquitur 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. In this case, testimony of the superintendent of the manufacturing plant tends to establish the fact that precautions were taken to prevent the presence of foreign substances in the manufactured product; and there was also testimony to show that the existence of foreign substances, such as were found in the tobacco used by the consumer, could have originated after the manufacturing process had ended, and, therefore, the jury would not have been warranted, by inference alone, in holding the manufacturer liable under the doctrine of res ipsa loquitur. But the fact remains that, notwithstanding the care exercised by the manufacturer, and the possibility that the injury complained of might have resulted from some development not traceable to its acts, a worm or a moth did get into th'e tobacco plug, and from this fact resulting injury was sustained by the consumer. We are not disposed to hold the manufacturer liable on the theory that it was a guarantor of the purity of its product; therefore, unless we can say, as a matter of law, that the testimony of the superintendent conclusively overcame the inferences of negligence arising from the fact that the manufacturer had complete control of the preparation of the article, then it follows that whether or not there was negligence on the part of the manufacturer is a question for the jury. 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. This ruling is, we think, sustained by the great weight of authority. The cases have been cited on other points of this opinion and their repetition is not considered necessary.

The plaintiff in error complains of the refusal of the trial court to give its Instructions Nos. 1 and 5. Instruction No. 1 was intended to advise the jury that sections 1 and 2 of Article 7, Chapter 16 of the Code, relating to food, drinks, confectioneries or condiments, did not apply to tobacco; and that if the plaintiff was entitled to recover it was upon some principle of the common law, as distinguished from the violation of a statutory duty. We think the same purpose was substantially served by Instruction No. 2, given on its behalf, and that being true, it was not error to refuse Instruction No. 1. Furthermore, whether tobacco is a food is not, under our holding, material.

Instruction No. 5, refused, referred in general terms to the rule of res ipsa loquitur, without defining the same, and then told the jury that if the defendant used and exercised due care and diligence in the manufacture of the tobacco in question, the plaintiff could not recover. Instruction No. 3, given at the instance of the Tobacco Company, in our opinion, not only told the jury that the exercise of reasonable care and diligence on the part of the manufacturer, “to provide against presence therein of any foreign article or substance”, would relieve it of liability, but also that the manufacturer was not a guarantor of the absolute purity of its product. Instruction No. 5 is open to the objection that it called upon the jury to appraise the rule of res ipsa loquitur, a rule which men trained in the law have some difficulty in defining, and its rejection on that ground can well be defended; and in view of the fact that other instructions given in the case present very clearly the unobjectionable part of the instruction, we uphold the action of the court below in refusing the same.

The plaintiff in error also complains of the amount of the verdict. Notwithstanding the finding of the jury that the manufacturer in this case was liable, there is neither allegation nor testimony on which the allowance of punitive damages can be justified. The undisputed evidence is that the defendant below attempted to exercise care in the manufacture of its product, and while the jury must, necessarily, have found that such care was not sufficient to reasonably guard against what happened in this case, that finding, under the circumstances, did not warrant the allowance of anything beyond compensatory damages. The court is unanimous in the view that the verdict is probably excessive; but a majority is of the opinion that, in view of the well known rule that the. verdict of a jury will not be disturbed except where it plainly appears to have resulted from mistake, partiality, passion, prejudice or lack of due consideration, the excess finding is not such as would warrant a reversal of the judgment and a setting aside of the verdict on that ground. Thomas v. Lupis, 87 W. Va. 772, 106 S. E. 78.

The judgment of the circuit court is therefore affirmed.

Affirmed.