Joffre v. Canada Dry Ginger Ale, Inc.

• Decision Date: 14 March 1960
• Docket Number: No. 116,116
• Citation: 158 A.2d 631,222 Md. 1
• Parties: Marie Jane JOFFRE v. CANADA DRY GINGER ALE, INC., et al.
• Court: Maryland Court of Appeals

Page 1

222 Md. 1

158 A.2d 631

Marie Jane JOFFRE v. CANADA DRY GINGER ALE, INC., et al.

No. 116.

Court of Appeals of Maryland.

March 14, 1960.

Warren E. Miller, Washington, D. C. (Gene R. Arnold, Bethesda, on the brief), for appellant.

Joseph B. Simpson, Jr., Rockville (Simpson & Simpson, Vivian V. Simpson and H. Algire McFaul, Rockville, Md., on the brief), for Canada Dry Ginger Ale, Inc.

Richard B. Latham, Bethesda (McInerney & Latham and John M. McInerney, Bethesda, on the brief), for Midtown Delicatessen and Restaurant.

Before BRUNE, Chief Judge, and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HAMMOND, Judge.

Appellant, Miss Marie Jane Joffre, then a lieutenant in the Nevy, had her Achilles tendon severed by a fragment of glass from a Canada Dry club soda bottle which shattered in a delicatessen store in the City of Washington. She sued the bottler of the Canada Dry sparkling water and the delicatessen in the Circuit Court for Montgomery County. At the conclusion of the plaintiff's case the trial judge directed a verdict for both defendants, and the appeal is from the judgments for costs that followed.

The negligence claimed of the bottler is the placing on the market of a product designed for purchase in the original package without making that package safe against reasonably-to-be-anticipated variations in temperature and hazards of handling, and that the bottle was defective or the pressure within it excessive. As to the delicatessen it is alleged it was negligent in failing to so locate and guard the bottle as to prevent injury to customers, knowing it might explode. At the trial and in this Court plaintiff relied on res ipsa loquitur as entitling her to have the jury pass on her claim. The delicatessen argues, inter alia, that having pleaded specific acts of negligence, plaintiff cannot rely on res ipsa.

In Maryland similar contentions have been rejected. State for Use of Parr v. Board of County Commissioners, 207 Md. 91, 103-104, 113 A.2d 397. In the District of Columbia, since the adoption of the federal Rules of Civil Procedure, rule 8(e)(2), 28 U.S.C.A., statements of claims may be made alternatively or hypothetically. McGhee v. United States, D.C.S.D.N.Y., 75 F.Supp. 76; Smith v. Pennsylvania Central Airlines Corp., D.C.D.C., 76 F.Supp. 940, 6 A.L.R.2d 521.

The proof was that in November 1955 the bottler delivered fifty cases of assorted carbonated deverages to the delicatessen. Employees of the bottler built up from the floor a display of six-bottle cartons five or six feet long and about five feet high. Sheets of cardboard were put between layers of the cartons. Customers helped themselves from the display and as a layer was sold, the delicatessen employees removed the cardboard, leaving the layer beneath available for sale. The accident occurred on January 22, 1956, and by then the display was down to a layer in front and two layers toward the back. No Canada Dry products had been delivered by the bottler between November and the day of the accident. On that day, Miss Joffre with a friend, Miss Stegun, went shopping in the delicatessen. They passed the bottle display twice, coming in and going out. The passageway was five or six feet wide; the floor, asphalt tile. After passing the bottles on the way out, Miss Joffre stopped to look at some sesame seeds at a point two or three feet past the bottles, and then, turned to follow her companion, took a few steps, heard a noise which she characterized as an 'explosion' and fell. She gave a history at the Naval Hospital and agrees that it said: 'The patient was in a grocery store when a carton of carbonated drinks fell and a bottle shattered.' In her testimony she did not know whether the bottle exploded and fell or fell and then shattered. She estimated the elapsed time from the beginning of the walk past the bottle display to the hearing of the noise as ten or twelve seconds. Miss Stegun did not say that she heard any noise. The delicatessen manager heard a commotion. He found one carton 'pulled off' the last layer. It was 'the last package standing on top of it. * * * That was pulled off from the corner.' Five unbroken bottles and one broken one were on the floor. Liquid from the broken bottle was about a foot from where Miss Joffre was. There were other customers in the general area of Miss Joffre and her friend as they walked by the bottle display.

Miss Joffre, on this testimony, urges that res ipsa loquitur enables her to go to the jury, under both the District of Columbia and the Maryland law. The trial judge, applying the District law, found no evidence or permissible inference of negligence sufficient to support a finding of negligence.

Neither the plaintiff nor either defendant gave notice of intent to rely on the District of Columbia law as the Uniform Judicial Notice of Foreign Law Act, Code (1957), Art. 35, Secs. 47-53, requires if the Court is to take judicial notice of foreign law. The parties agree, however, that there was at least a tacit assumption that the substantive law of the District would control and that the trial court acted on that assumption. As in Staley v. Safe Deposit & Trust Co., 189 Md. 447, 454, 56 A.2d 144, 147, in a similar situation, 'We shall act accordingly.'

Miss Joffre contends that the sufficiency of the evidence is to be tested by the District law and that there a plaintiff may raise an inference of negligence by showing the happening of an accident under circumstances like those of the case before us and that the old rule (that if the facts give equal support to two or more inconsistent inferences, one of which is consistent with the negligence of the defendant and the other or others are not, the proof tends to establish neither) has been supplanted in the Federal Courts by a rule that in event of conflicting inferences it is for the jury to determine which inference to deduce, and the jury has a right to draw either one.

In Preston v. Safeway Stores, Inc., D.C., 163 F.Supp. 749, Judge Holtzoff in the District Court for the District of Columbia said that Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916, had overruled, for the Federal Courts, the earlier doctrine that if evidence is capable of either of two inferences, it cannot be deemed to support either, and made the question in such cases one for the jury. However, in Lehman v. Great Atlantic & Pacific Tea Co., D.C.Mun.App., 136 A.2d 397, 400, where the injury occurred in Maryland, the Court applied the substantive law of Maryland and the law of the District as to whether the plaintiff's evidence permitted a finding in his favor, saying that the old rule does not apply if the evidence tends more strongly and logically to prove one of two possible inferences. In two exploding bottle cases, the Municipal Court of Appeals for the District turned the matter of the bottler's liability on whether the plaintiff could satisfy the doctrine of res ipsa loquitur by showing that the bottle had not been mishandled after it left the bottler's possession. In Canada Dry Ginger Ale Co. v. Jochum, D.C.Mun.App., 43 A.2d 42, it found satisfactory evidence of no subsequent mishandling. In Atwell v. Pepsi-Cola Bottling Co. of Washington, D.C., D.C.Mun.App., 152 A.2d 196, it said res ipsa loquitur was inapplicable, and the case should not go to the jury because, although the plaintiff showed she did not mishandle the bottle, it was not shown what happened to it after it left the bottler, and the necessity of showing exclusive control had not been met either as to the bottler or the retailer.

We are far from persuaded that the result of the case would be different under the District law from its result under Maryland law, and it seems obvious if, indeed, it is not conceded, that the standards of care required of both the bottler and the retailer are the same in both jurisdictions. We agree with the defendants that Maryland law controls as to the inferences to be drawn from the evidence and the sufficiency of the evidence and the inferences from it to go to the jury.

In Bohlen v. Glenn L. Martin Co., 193 Md. 454, 461, 67 A.2d 251, 254, we said: 'The doctrine res ipsa loquitur is not a rule of pleading. It relates to burden of proof and sufficiency of evidence.' Judge Markell said for the Court in Livingston v. Stewart & Co., 194 Md. 155, 160, 69 A.2d 900, 902: 'If the 'presumption' of negligence in res ipsa loquitur cases is ever more than an inference from circumstantial evidence (which Mr. Roszel C. Thomsen says is not a true presumption, Presumptions and Burden of Proof in Res Ipsa Loquitur Cases in Maryland, 3 Maryland Law Review 285, 288), the usual operation of the doctrine is to support an inference from circumstantial evidence, based on probability.'

In Lee v. Housing Authority of Baltimore City, 203 Md. 453, 461, 101 A.2d 832, 835, Judge Henderson pointed out for the Court, speaking of res ipsa, that 'Wigmore treats the concept as a 'presumption of culpability' arising from particular facts. 9 Wigmore, Evidence (3d Ed.), § 2509. Prosser deals with it under the head of circumstantial evidence giving rise to an inference of negligence. Prosser, Torts, § 43.'

The general rule is stated in Restatement, Conflicts, Sec. 595(2): 'The law of the forum governs presumptions and inferences to be drawn from evidence.' In instances of conclusive presumptions (which usually amount to legislative expressions of substantive law), or where the requirement of the place of injury is there interpreted as a condition of the cause of action itself, the forum will apply the foreign law on the theory that the remedial and substantive portions of that law are so intertwined that the application of the local rule would alter the effect of the operative facts under the foreign law. See Buhler v. Maddison, 109 Utah 267, 176 P.2d 118, 168 A.L.R. 177, and Annotation: 168 A.L.R. 191, 192, supplementing Annotation in 78 A.L.R. 883. On another aspect of the...