A. J. EISENBEISS, Appellant,
ALBERT PAYNE, Appellee
APPEAL from a judgment of the Superior Court of the County of Cochise. John Wilson Ross, Judge. Judgment affirmed.
Mr. W. G. Gilmore and Mr. L. F. Gilmore, for Appellant.
Mr. Frank E. Thomas, for Appellee.
[42 Ariz. 264] PHELPS, Superior Judge.
On the evening of February 6, 1931, the plaintiff, appelle herein, purchased from one Gunner Johnson in Bisbee, Arizona, a bottle of Coca-Cola alleged to have been bottled by defendant A. J. Eisenbeiss, doing business under the firm name and style of Cochise Coca-Cola Bottling Works, appellant, and after drinking from the bottle a portion of the contents thereof, and noticing that it did not taste right, discovered the skeleton of a mouse in the beverage yet remaining in the bottle. He thereafter instituted an action in the superior court of Cochise county seeking to recover damages for the injury which he claims to have sustained as a result of drinking a portion of the contents of said bottle, alleging:
"That as a result of drinking said beverage containing said decayed, putrefied mouse plaintiff became seriously ill, suffered severe shock to his nervous system, underwent the loss of employment, and at the time of drinking said beverage and for a considerable period of time thereafter suffered great mental pain and shock to his system in general."
Plaintiff claimed damages in the sum of $3,000. The cause was tried to a jury, and a verdict in the sum of $1,500 was returned and judgment entered thereon, from which said judgment and from the [42 Ariz. 265] order denying the motion for a new trial an appeal has been taken to this court.
The appellant presents for our consideration eleven assignments of error, the first of which being that the trial court erred in overruling his general demurrer to the original complaint. The complaint was amended, and defendant filed an amended answer thereto in which he failed to incorporate a demurrer. This without doubt, resulted in a waiver of his demurrer. The amended complaint, however, clearly states a cause of action against defendant.
Assignments 2, 3, 4 and 5 are directed to the sufficiency of the evidence to sustain the verdict and judgment as rendered. Stated specifically, it is claimed that there is no evidence of negligence on the part of defendant. Proof of negligence necessary to sustain a verdict and judgment depends upon the circumstances surrounding the case. It is unquestionably the law that where a person relies upon specific acts of negligence as a basis for recovery in damages, he must both allege and prove the specific act relied upon; but where the specific act of negligence causing the injury cannot be ascertained or shown by the plaintiff, where the agencies out of which the negligence arises were within the exclusive control of the defendant, the plaintiff is neither required to allege nor prove any specific act of negligence. In such cases, "Where the thing which caused the injury complained of is shown to be under the management of defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in the absence of explanation by defendant, that the accident arose from want of care." 45 Corpus Juris 1193, § 768. In other words, when such circumstances are shown to exist, the inference arises that defendant is guilty of negligence, and, in the absence of explanation [42 Ariz. 266] by defendant, justifies a recovery in damages for such wrong. This rule of evidence is known as the doctrine of res ipsa loquitur, and is only applicable in a limited class of negligence cases referring to proof of general negligence as distinct from proof of specific negligence. This rule is one of necessity and cannot be invoked except in cases as above stated and where plaintiff is not in a position to show the particular circumstances which cause the offending instrumentality to operate to his injury.
It is claimed by appellant that in order for plaintiff to avail himself of the doctrine of res ipsa loquitur it was necessary that he allege "That he (plaintiff) did not know the exact act or acts of negligence which produced the injury complained of and that he had no means of ascertaining them and that the agencies producing the injuries were in the exclusive possession and control of defendant." The plaintiff, failing to do this, is limited to proof of specific negligence.
Appellant failed to cite any authorities to sustain this contention, and the authorities, so far as our independent investigation discloses, are to the effect that it is sufficient to allege the facts from which the duty of defendant springs, the neglect of that duty, and the resulting injury, and that the allegation that the defendant in the discharge of such duty was careless, reckless, wanton and negligent is sufficient. Queirolo v. Pacific Gas & Electric Co.,114 Cal.App. 610, 300 P. 487. In short, an allegation of general negligence is all that is required. Proof of facts from which the duty springs, breach of that duty and resultant injury, necessarily determine the fact of who had the management and control of the agencies producing the injuries complained of as well as the lack of opportunity of the plaintiff to know what the specific act of negligence was which caused the wrong. Applying this to the instant case, proof by plaintiff [42 Ariz. 267] that defendant was engaged in the business of bottling Coco-Cola for sale and consumption by the public, and that he (plaintiff) ...