Goldman & Freiman Bottling Co. v. Sindell ( 1922 )

On September 21st, 1919, Edwin Sindell purchased at the "Park Confectionery," a store conducted by John Griffith and located at the corner of Park Avenue and the Belair Road, in Baltimore City, a bottle of a beverage called "Whistle." The bottle was opened in his presence and handed to him, and he drank from it nearly all of its contents. While he was in the act of drinking he felt "some sharp portions" in his mouth and felt something "cut his throat as he was swallowing," and upon examination he found that the sharp particles were glass and that some particles of glass remained in the bottle. As a consequence of swallowing the glass he claimed that he became ill, was nervous, suffered pain, spat blood, fell off in weight, and was for several weeks unable to work.

To recover for these injuries he sued the "Whistle Bottling Company" in the Baltimore City Court, and later by consent amended the declaration by joining the "Goldman Freiman Bottling Company, Inc.," as a defendant.

The case was tried before a jury and the verdict and judgment being for the plaintiff, the Goldman Freiman Bottling Company, Inc., took this appeal. The record contains four exceptions, the first three of which relate to the rulings of the trial court on questions of evidence, and the fourth to its rulings on the prayers, and this exception we will now consider. The plaintiff offered one prayer, which stated the measure of damages and was granted. The defendant offered eight prayers. The fourth, fifth, sixth, and seventh of these prayers (which the Reporter is requested to set out in the report of this case) were granted, and the others refused. The four rejected prayers were based upon the theory that under the pleadings there was no evidence in the case legally sufficient to entitle the plaintiff to recover, and that therefore the jury should be directed to find for the defendant. If the plaintiff was entitled to recover at all, the plaintiff's prayer fairly stated the measure of damages, and the only question before us under this exception, therefore, is whether, conceding the truth of the evidence supporting the plaintiff's case and such inference as may naturally and reasonably be drawn therefrom, it is legally sufficient to entitle him to recover under the pleadings. The negligence complained of in the declaration was "bottling and selling to the public" a "drink which was dangerous," and the material evidence relating to that charge is, in substance, this: Edwin Sindell, the plaintiff, testified that on the occasion referred to he went into the Park Confectionery and purchased a bottle of "Whistle" and that he "drank very nearly all of the Whistle that was in the bottle, when he felt some sharp portions in his mouth, and he looked at the bottle and he saw glass, and he spit out what he had in his mouth, and he noticed just before he felt something cut his throat as he was swallowing, and in a store where a crowd is he did not pay any attention to that. So about three minutes after that he was taken sick and he was vomiting and vomited blood which was caused by the glass, he supposed, in his stomach, and for six months after that he went to a physician and he lost four weeks' work, and dropped down from 136 pounds to 118 pounds from the nervous strain on him and from the nervousness and worry of it, being he knew positively he had glass in his stomach, and he was to see the physician quite a while." After giving a more detailed description of his injuries, he further testified that "when he bought the bottle it was not already open; that Mr. Griffith's wife opened it with a bottle opener in the presence of the witness and also in the presence of his brother-in-law; by a ``bottle opener' the witness means a hand bottle opener, the kind that you carry in your pocket; that she did not open it with one attached to the counter; that she opened it up by getting under the stopper and opening it up. That the bottle did not have a cork in it at the time; it had a cap on it. * * * That he held the bottle up to his lips, ``you know how a man does when he is laughing and talking, he does not pay any attention to it.' That he was in there with three or four people, and just put the bottle up to his lips and drank it without paying any attention to the contents until he felt something cut his throat and a portion of the glass in his mouth; that he spit out what was in his mouth; that he did not save the particles of glass that were in his mouth, that he spit them out on the floor; that the sensation he felt while he was swallowing these particles of glass was like something cutting his throat, but he did not pay any attention to it just then, but when he had drank the rest of the contents of the bottle and felt it in his mouth, he spit out what he had in his mouth." He also identified a bottle shown him at the trial as the bottle containing the "Whistle" which he drank. John M. Griffith, the proprietor of the Park Confectionery, said that on the occasion referred to Sindell came into his store and called for a bottle of "Whistle," and that Mrs. Griffith, wife of the witness, "took the bottle of Whistle out of the ice box and opened it and handed it to the plaintiff, and the plaintiff turned it up and drank it, and then he spit out some of the contents and handed the witness' wife back the bottle; the plaintiff handed the bottle of Whistle back — handed it to the witness' wife — and the witness went over and examined it, examined the bottle. It had a lot of powdered glass in the bottom of it, and they examined the bottle close to see if the bottle was broken in any way, but the bottle was perfect." He further testified, quoting from the record, "that at the time the plaintiff handed it to the witness' wife there was a little liquid in it, about that much (indicating). That the witness purchased Whistle from the Whistle Bottling Company, Goldman Freiman, on South Eden Street. That the bottles of Whistle had a crown on it, like most all soft drinks; that the witness' wife opened the bottle of Whistle which the plaintiff purchased; that she opened it with one of the regular cap openers; that after the witness purchased the bottle of Whistle he did not put anything in the bottle, nor did he take anything out of the bottle, before he sold it, and that it was sold in the same condition in which he had purchased it." On cross-examination he testified that he had dealt in "Whistle" since he had opened the store in May, 1919; that he bought it from the driver of a wagon who took away the empty bottles and left as many full ones in their place as were needed, for which he paid cash. He also testified that he kept clean glasses and clean straws for persons who wanted them.

Joseph O. Freiman, vice-president and secretary of the Whistle Bottling Company, called as a witness for the plaintiff, identified the bottle produced at the trial as one of "their registered" bottles, and further testified "that his company put the liquid in the bottle; that his company was a bottler of Whistle on September 24, 1919, but did not have the exclusive right in Maryland to bottle Whistle." He also testified that he did not know whether Griffith was a customer of theirs; that, while that store was on route No. 6, he did not know who the driver on that route was at that time; that he could not tell whether his company put the liquid in the bottle produced in court, but that it did put "Whistle" in "Whistle" bottles; that there are about twenty "Whistle" bottling companies in the State, but only one in Baltimore, in which territory the appellant had the exclusive right of sale, and that no other company could "sell a customer in Baltimore City"; that they would not let them if they knew it, and that "they have two kinds of wagons — that the old wagons which they had repainted have on them ``Goldman Freiman Bottling Co., Inc.,' but on the new wagons they put ``Whistle Bottling Company,' but not incorporated. * * * That whether they had on them ``Whistle Bottling Company' or ``Goldman Freiman Bottling Company' at that time, that they were the wagons belonging to the witness' company." He further testified that the Goldman Freiman Bottling Company operates under the trade name of the "Whistle Bottling Company," which is not a corporation, but merely a name used for trade purposes, and that his company bought the syrup used in making "Whistle" from the Whistle Company of America. That it was sold through drivers, who were charged with the number of cases delivertd to them at the beginning of their trips and who accounted for them up their return.

On behalf of the defendant, Joseph Goldman and Joseph O. Freiman described in detail the manufacture and bottling of the beverage in question. In effect their testimony was that "Whistle" is composed of water, gas and syrup and that, in the process adopted by them of blending or mixing these ingredients, it would be impossible for any broken glass to be or remain in the finished product; that the water is conducted directly from the city mains through a set of filters to a carbonator and thence to the filling machine, where it is mixed with the syrup; the syrup itself is also filtered and strained and that it would be equally impossible for glass to get into or remain in the bottle through the process of bottling. The dirty bottles are placed in a machine which carries them through a sterilizing solution to the filling machine where they are filled and capped; that during the process they are inverted and thoroughly cleansed by revolving brushes and inspected under a strong electric light. The work is done by four men and a foreman who handle the bottles and operate the machines, and either Goldman, Freiman or the foreman is always present during the washing and filling of the bottles, and that the bottles were always washed before being refilled. Their testimony was corroborated by other witnesses familiar with the manufacture and bottling of carbonated beverages.

Reduced to its material and essential facts the plaintiff's testimony shows that he purchased at Griffith's store a bottle of "Whistle"; that "Whistle" is a drink held out to the public as a pleasant and wholesome beverage; that the bottle was sealed when it was sold to Sindell and was opened in his presence; that when sold to Sindell it was in the same condition in which it was when Griffith bought it from the appellant; that as it contained broken glass when he sold it to Sindell it also contained broken glass when he bought it from the appellant; and that because it contained broken glass Sindell was injured. On the other hand the defendant's testimony, if true, showed that the beverage was bottled in such a way and with such care that no foreign particles could have possibly gotten in the bottle while in their possession, and that therefore the glass was not in the bottle when it sold it. The solution of that conflict is purely a jury question, with which we have nothing to do, the only question before us being whether the evidence in the case permits the conclusion that the defendant was guilty of the negligence charged in the declaration. The one vital and essential fact involved in that inquiry is that, at the time the appellant sold the bottle of Whistle to Griffith, it contained broken glass. The plaintiff's testimony, if true, proves that, and the prayers under consideration concede that it is true. It is true that the defendant's testimony is that, because of the character of machinery and the care employed in manufacturing and bottling the "Whistle," it was impossible for the glass to have been in the bottle when it sold it, and therefore there was no glass in it then, but the plaintiff's evidence was that the glass was in the bottle when the defendant's driver and agent delivered it to Griffith and as the truth of that testimony, for the purpose of this question, is admitted, we must assume that there was broken glass in the bottle of "Whistle" when it was sold to Griffith. The question then is whether any inference of negligence can be drawn from that fact. It would not of course per se permit the inference that the presence of the glass in the bottle was due to the operation of any particular agency, such as a defect in the machinery or the methods adopted for manufacturing the product, or a want of skill or care on the part of the persons employed in the process of its manufacture, nor is that the negligence charged. The negligence charged is this, that the appellant bottled and sold to the public a drink which it represented as not injurious to health, and that it thereby assumed a duty to the public of exercising at least reasonable care to see that such of its product as was sold for public consumption was not injurious to health, and that in violation of that duty it sold the bottle of Whistle eventually purchased by the plaintiff which, at the time it sold it, contained broken glass, and was for that reason likely to cause serious bodily injury to any one drinking it. The inquiry therefore is whether the presence of broken glass in the bottle at the time it was sold by the appellant was evidence of that negligence. In our judgment it was, and the law applicable to the facts of the case was clearly, accurately and fully stated in the defendant's granted prayers, which devolved upon the jury the duty of determining from that and all the other evidence in the case whether the defendant had been guilty of the negligence charged in the narr.

While the general rule defining the duty imposed upon the manufacturer of a product such as the one under consideration has been variously phrased, the several definitions agree in substance. In 11 R.C.L., page 1123, in referring to goods sold in sealed packages, it is said: "When the manufacturer puts the goods upon the market in this form he, in effect, represents to each purchaser that the contents of the can or package are suited to the purpose for which it is sold. Under these circumstances, the fundamental condition upon which the common law doctrine of caveat emptor is based is conspicuously absent; for the buyer has no opportunity to look out for himself. And when he thus buys and eats the contents of the package, relying upon the assurance of the manufacturer that they are fit to be eaten, it seems to result from general and fundamental principles that he has a right to insist that the manufacturer shall at least exercise care that they are so fit, and are not unwholesome and poisonous." In 26 C.J., page 784, it is said: "A manufacturer, packer or bottler of foods or beverages is required to exercise the highest degree of care to see that such articles are fit and wholesome. * * * And for an injury resulting from the failure to exercise such care * * * he is liable to respond in damages."

The underlying principle running through these definitions was recognized and stated by JUDGE THOMAS, speaking for this Court, in Flaccomio v. Eysink, 129 Md. 381, where it is said: "It is the duty of every person to so conduct his business as not to knowingly or negligently expose others to imminent danger, and where an injury is sustained in consequence of the violation of that duty, without any negligence on the part of the party injured, justice demands that the guilty party should be held responsible." This brings us to the proposition that the presence of a noxious substance in the article sold is in itself evidence of negligence on the part of the manufacturer, when it is shown that the article contained such substance when it was sold by him. To quote again from the Flaccomio Case, supra, "There may be cases where the presence of a dangerous ingredient in the article sold may in itself justify an inference of negligence on the part of the defendant." And what was there said appears to be consonant with common sense and is abundantly supported by authority. In Jackson Coca Cola Company v. Chapman, 106 Miss. 864, it was held that the unexplained presence of a decomposed mouse in a bottle of coca-cola warranted an inference of negligence on the part of the manufacturer, and to the same effect are Boyd v. Coca Cola Bot. Works, 132 Tenn. 23, where a bottle of coca cola contained a cigar stump; Crigger v.Coca-Cola Bottling Co., 132 Tenn. 545, where a bottle of coca-cola contained a decomposed mouse; Bradfield v. AtlantaCoca-Cola Co., 24 Ga. App. 657, 101 S.E. 776, in which a bottle of coca-cola contained broken glass. In the case last cited, decided by the Court of Appeals of Georgia, in the court's syllabus it is said: "If the jury should determine that after the bottle of coca-cola had left the custody of the defendant there were particles of glass in the bottle, either by handling or by opening it, then the plaintiff could not recover against the defendant. These are questions which must necessarily be determined by a jury." The error involved in the appellant's contention that there was no evidence of negligence on the part of the manufacturer appears in this statement, in its reply brief, that "the plaintiff offered no evidence of negligence, and simply relied on the happening of the injury." The defendant did offer evidence of negligence when he showed that when the bottle of Whistle was sold by the appellant it contained broken glass, and that it was in consequence of that negligence that he was injured, for it certainly cannot be said that the presence of so dangerous a material as broken glass in a bottle of a beverage represented as wholesome and safe, shown to be in it when sold by the manufacturer, is no evidence of negligence on his part. Nor are the Maryland cases cited by the appellant in conflict with this conclusion, but it rests upon and is supported by them.

In Flaccomio v. Eysink, supra, the Court was not dealing with the question of the manufacturer's negligence in such a case as this, but with the responsibility of persons who had bought the article in question from the manufacturer for resale, without any knowledge of its dangerous character, and the Court carefully distinguished that case from cases in which the dangerous condition of the article existed when it was sold by the manufacturer and when, as a result of his negligence, it was offered for public sale in such condition.

While in this case the presence of broken or ground glass in the bottle at the time appellant sold it, and when it could by careful inspection have discovered its dangerous character, was direct proof of a breach of the duty it owed the public to see that its product was not dangerous or unwholesome, and does not necessarily involve the doctrine of res ipsa loquitur, still there is nothing in the cases of Benedick v. Potts,88 Md. 52; Strasburger v. Vogel, 103 Md. 85; or Streett v.Hodgson, 139 Md. 137, to prevent its application to the facts of this case. In the case last cited the Court through JUDGE ADKINS said: "In the absence of evidence from which, without speculating, the jury could draw a reasonable inference from the mere happening of such an accident, it should not be permitted to infer negligence from the occurrence alone," but while in that case the application of the doctrine depended upon the fact of the injury alone, here it depends upon the facts of the injuryplus other facts from which it could be inferred that the injury was caused by the negligence of the defendant. InStrasburger v. Vogel it was said, speaking of the doctrine ofres ipsa loquitur: "It is merely a short way of saying that the circumstances attendant upon an accident are themselves of such a character as to justify a jury in inferring negligence as the cause of that accident," and in Benedick v. Potts, 88 Md. 55, it is said: "Like any other fact, negligence may be established by the proof of circumstances from which its existence may be inferred. But this inference must, after all, be a legitimate inference and not a mere speculation or conjecture. There must be a logical relation and connection between the circumstances proved and the conclusion sought to be adduced from them. * * * There are instances in which the circumstances surrounding an occurrence and giving a character to it are held, if unexplained, to indicate the antecedent or coincident existence of negligence as the efficient cause of an injury complained of. These are the instances where the doctrine of res ipsa loquitur is applied, * * * the doctrine which it embodies, though correct in itself, may be said to be applicable to two classes of cases only, viz., first, ``when the relation of carrier and passenger exists and the accident arises from some abnormal condition in the department of actual transportation; second, where the injury arises from some condition or event that is in its very nature so obviously destructive of the safety of person or property and is so tortious in its quality as, in the first instance at least, to permit no inference save that of negligence on the part of the person in the control of the injurious agency.' Thomas on Neg. 574. * * * The injury, without more, does not necessarily speak or indicate the cause of that injury — it is colorless; but the act that produced the injury being made apparent may, in the instances indicated, furnish the ground for a presumption that negligence set that act in motion." The facts of this case may well fall within the principles thus stated, for it is certainly no extension of the rule to say that the sale of a beverage which may produce death or serious bodily injury to an unsuspecting customer, who buys it upon the representation that it is wholesome and safe, and with no warning of its real character, is a condition obviously destructive of the safety of the person drinking it, and so tortious in its nature as to permit no inference in the first instance save that of negligence. The appellant relies upon certain expressions in Benedick v.Potts in support of the proposition that as the Whistle was not in the control of the appellant when the injury was sustained the doctrine cannot be applied in this case. These expressions limit the application of the doctrine to cases of "negligence on the part of the person in control of the injurious agency," and to "negligence on the part of the person controlling the injurious agency." The "control" referred to in these expressions, is not necessarily control of the injurious agency at the time of the injury but its control at the time of the negligent act which caused the injury. The expressions referred to are usually found in definitions of the doctrine, as for instance in 29 Cyc. 591, where it is said: "Where the defendant owes to plaintiff a duty to use care, and the thing causing the accident is shown to be under the management of defendant or his servants, and the accident is such that in the ordinary course of things does not occur if those who have the management or control use proper care, the happening of the accident in the absence of evidence to the contrary is evidence that it arose from the lack of requisite care." The reason for the rule, it has been said, is that where the management and control of the injurious agency is exclusively vested in the defendant he is able to produce the actual cause of the injury which the plaintiff is unable to do. Griffen v.Manice, 166 N.Y. 188. The doctrine involved contains no arbitrary or complex formulae, but is a simple rule of evidence depending upon sound sense and reason, and amounts to no more than this, that where the physical facts involved in an accident are of such a character as to compel an inference that it resulted from negligence, such facts are themselves evidence of negligence. 29 Cyc. 591. There is nothing, however, in the reason for the rule or in the principles upon which it is founded to support the contention that its application is limited to cases where the injurious agency is in the control of the defendant at the time of the injury, but it is sufficient if it appears that such agency was in his control at the time of the negligent act which caused the injury. It would needlessly prolong this opinion to refer specifically to the cases from other courts cited by the appellant. They nearly all involve accidents occurring through bursting bottles, where the manufacturers of the beverage bought the bottles from others; foreign substance in food where the material was purchased from others by the person last selling it, and the like — clearly falling within the principles announced in Flaccomio v.Eysink, supra, but not applicable to a case such as this against a manufacturer, where the dangerous condition of the injurious agency was shown to exist when it left the manufacturer's possession. Many of them support the conclusion we have reached, while others are distinguishable upon the facts, but after a careful examination of them it is sufficient to say that we have discovered nothing which in our opinion is sufficient to overcome the good sense, sound reason, and the well considered decisions upon which our conclusion rests. It follows from what has been said that there was no error in the court's ruling on the prayers.

The first and second exceptions relate to the admission of certain testimony as to the appellee's health. The testimony appeared to be relevant and in our opinion was properly admitted. Thaddeus Parker, an expert witness for the defendant, having testified on cross-examination without objection that he had seen "foreign substances in coco-cola," was asked what these substances were, and over objection he was allowed to answer and said, "stray pieces of cork or dust that might work in with the crown." This is the subject of the third exception. Even if it is granted that the question was improper, the answer could not, in view of the previous testimony of the witness, have injured the appellant, and we find no reversible error in this ruling.

Finding no reversible error in the rulings involved in this appeal, the judgment will be affirmed.

Judgment affirmed, with costs.