Dunn v. Hoffman Beverage Co.

• Decision Date: 20 May 1941
• Docket Number: No. 27.,27.
• Citation: 20 A.2d 352,126 N.J.L. 556
• Parties: DUNN et al. v. HOFFMAN BEVERAGE CO.
• Court: New Jersey Supreme Court

20 A.2d 352

126 N.J.L. 556

DUNN et al.

v. HOFFMAN BEVERAGE CO.

No. 27.

Court of Errors and Appeals of New Jersey.

May 20, 1941.

Appeal from Supreme Court.

Action by Edward Dunn, by his next friend, Irving Dunn, and by Irving Dunn individually, against the Hoffman Beverage Company, for personal injuries sustained by infant plaintiff, Edward Dunn, caused by the bursting of a bottle of sarsaparilla in his hand. From a judgment for defendant, based upon a directed verdict, the plaintiffs appeal.

Affirmed.

Breslin & Breslin, of Hackensack (James A. Major, of Hackensack, of counsel), for plaintiffs-appellants.

Collins & Corbin, of Jersey City (Edward A. Markley and Charles W. Broadhurst, both of Jersey City, of counsel), for defendant-respondent.

WELLS, Judge.

This is an appeal from a judgment entered in the Supreme Court, Bergen Circuit, upon the verdict of a jury directed by the trial court in favor of the defendant. The sole ground of appeal is that the trial court erred in directing a verdict for the defendant.

Suit was brought to recover damages for personal injuries sustained by the infant plaintiff, Edward Dunn, a boy fifteen years of age, caused by the bursting of a bottle of sarsaparilla in his hand. His father, Irving Dunn, joined in the suit to recover for medical services incurred by his son's injuries.

The defendant was the manufacturer and bottler of the sarsaparilla. The complaint charged negligence against the defendant, in that it failed to use reasonable care to see that a bottle of proper strength was provided to safely contain the contents thereof; in improperly bottling the contents of the said bottle, as a result of which too much pressure was exerted thereon, and in providing a bottle which was defective in manufacture.

The facts of the case are not substantially in dispute. On June 11, 1938, one Grant Labery, an adult, accompanied by the infant plaintiff and three other boys, drove his automobile from Englewood, New Jersey, to a Boy Scouts' Camp near Blairstown. At Sparta they stopped at a tavern known as "Poole's Tavern" and some of the boys bought things to eat. The infant plaintiff bought a quart bottle of sarsaparilla, another boy bought a quart bottle of orangeade. There was no label or sticker on the bottle of sarsaparilla but the cap thereon bore the name "Hoffman Company" and the word "sarsaparilla." These two bottles were placed in a paper bag by the man in charge of the tavern and were carried by one of the boys to the automobile where they were removed by Labery from the paper bag and packed in the trunk at the rear of the car. They were stood upright on blankets on the floor near the back of the trunk and close to the lid and placed "between duffel-bags and blankets, in such a way that they could not jar or bang in any way—under any condition." The distance from the tavern to the camp was something over thirty miles, of which twenty miles was over a good macadam road, about ten miles over a good dirt road and about one and a half miles over a poor, rough, but passable one-way road. Upon arrival at the camp, Labery opened the lid of the trunk and gave the infant plaintiff his bottle of sarsaparilla and duffel-bag. The infant plaintiff hooked the duffel-bag to his belt and walked away toward the front of the car, holding the bottle by its neck. After traveling about fifteen feet from the rear of the car the bottle exploded and injured his hand. Aside from the medical testimony, this constituted the plaintiff's case. There was no motion made for a nonsuit.

It must be remembered that the suit is not against the proprietor of Poole's Tavern, the retailer, but is against the manufacturer and bottler of the sarsaparilla.

The defendant offered evidence showing that the bottles used by it are manufactured by the Owen Illinois Glass Company, specifically for the purpose of being used for carbonated beverages, such as sarsaparilla. This glass company is a nationally recognized manufacturer of bottles and, according to the expert, is "the biggest and the finest glass-making concern, not only in the United States, but in the whole world." The defendant, by experts, explained in detail its bottling process, including the testing of the bottles, pressure etc. showing that proper inspection was made of the bottles and proper care used in bottling their contents. Testimony was to the effect that the bottles after they passed through the defendant's processes would not burst unless there was a contributing factor. By this contributing factor was meant the careless handling of the bottle, and it was stated that if the tensile strength of the bottle was weakened by a fracture, it could cause the bottle to burst, that the banging or jolting of bottles together could cause a weakening of the tensile strength of the glass, that this could be done either in the handling of the bottles from the warehouse to the retailer, or in handling by the retailer.

It was manifest that the bottle of sarsaparilla in question had been in the custody of Poole's Tavern for some time prior to its sale to the infant plaintiff. How long or how short that period was, the plaintiff did not undertake to prove, nor was there any proof offered as to the condition or appearance of the bottle at the time of its purchase or just prior to the time of the accident, nor where or how the bottle was kept, nor with what care it was handled, or what, if anything, happened to it from the time it was delivered by the defendant to the tavern until it was sold to the infant plaintiff.

At the conclusion of the case, when the motion for a direction of a verdict for defendant was made, it was just as reasonable to infer that while in the custody of Poole's Tavern the tensile strength of the bottle had been weakened by careless handling there, as it was to infer that the defendant had been negligent in the bottling.

"Where, in an action to recover damages for injuries alleged to have been caused by defendant's negligence, it appears that the injuries were occasioned by one of two causes, for one of which the defendant is responsible, but not for the other, plaintiff must fail, if the evidence does not show that the injury was the result of the former cause. If, under the testimony, it is just as probable that it was caused by the one as the other, he cannot recover." Stumpf v. Delaware, L. & W R. Co., 76 N.J.L. 153, 158, 69 A. 207; Chester, Adm'x, v. Cape May Real Estate Co., 78 N.J.L. 131, 133, 134, 73 A. 836, 138 Am.St.Rep. 614; Cook v. American Smelting & Refining Co., 99 N.J.L. 81, 84, 85, 122 A. 743.

The trial court held, and we think properly, that the burden was on the plaintiff not to prove the mere possibility that the injuries complained of resulted from the negligence of the defendant, but he must exclude all other causes; that the defendant is not charged with the duty of showing affirmatively that something happened to the bottle after it left its control or management; that to get to the jury the plaintiff must show...