276 A.2d 81 (Md. 1971), 379, Leikach v. Royal Crown Bottling Co. of Baltimore
| Citation | 261 Md. 541,276 A.2d 81 |
| Docket Number | 379. |
| Date | 14 April 1971 |
| Parties | Martin LEIKACH and Ann Leikach v. ROYAL CROWN BOTTLING COMPANY OF BALTIMORE, INCORPORATED. |
| Court | Maryland Court of Appeals |
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[261 Md. 542] Samuel O. Jackson, Jr., Baltimore (Max R. Israelson and Israelson, Pines & Jackson, Baltimore, on the brief), for appellants.
Robert L. Karwacki, Baltimore (K. Donald Proctor, Baltimore, on the brief), for appellee.
Argued before HAMMOND, C. J., and FINAN, SINGLEY, SMITH and DIGGES, JJ.
HAMMOND, Chief Judge.
In Joffre v. Canada Dry, Inc., 222 Md. 1, 158 A.2d 631, we affirmed the action of the trial judge in directing a verdict for the bottler and the delicatessen store owner in a suit by a claimant who had suffered a severed Achilles tendon when a soda bottle exploded near her in the store. The claimant relied on res ipsa loquitur. In agreeing with the trial judge that the claimant had not shown a greater likelihood that her injury was caused by the negligence of the defendants than by some other cause, we said (at pp. 9-10, 158 A.2d at pp. 635-636):
'The cases from other jurisdictions which have permitted the inference of negligence of the bottler from the exploding of a bottle most often have been those where the probability of an intervening cause of the breaking has been excluded by the testimony for the plaintiff. Where that probability is not excluded, the [261 Md. 543] courts usually rule that no liability of the bottler has been shown. For example, where the exploding bottle had been kept in a room to which only the retailer had access and due care was shown after delivery to the retailer until the moment of bursting, res ipsa was held applicable to the bottler in MacPherson v. Canada Dry Ginger Ale, Inc., 129 N.J.L. 365, 29 A.2d 868. The Court distinguished Dunn v. Hoffman Beverage Co., 126 N.J.L. 556, 20 A.2d 352, where the doctrine was held inapplicable because the plaintiff did not exclude other probable causes or show due care in handling after delivery by the bottler. We have noted earlier that the Municipal Court of Appeals for the District of Columbia made the same distinction in the cases of Canada Dry Ginger Ale Co. v. Jochum, D.C.Mun.App., 43 A.2d 42, and Atwell v. Pepsi-Cola Bottling Co. of Washington, D.C.Mun.App., 152 A.2d 196. Compare Benkendorfer v. Garrett, Tex.Civ.App., 143 S.W.2d 1020, in which the exploding bottle had been at the retail store but two days and had not been moved or molested until grasped to be put in the refrigerator when it burst (recovery allowed), with Kees v. Canada Dry Ginger Ale, Inc., 239 Mo.App. 1080, 199 S.W.2d 76, 79, in which the bottle was in the store from January 28 to March 1 and the Court, in denying recovery against the bottler, noted the bottle could have been dropped, mishandled, tampered with and cracked by employees or customers, and the jury could do no more than guess that it had not been subjected to treatment tending to bring about the explosion resulting in injury, after it left the possession of the bottler. Other cases finding a lack of proof of unchanged conditions after the bottle had left the bottler are Hughs v. Miami Coca Cola Bottling Co., 155 Fla. 209, 19 So.2d 862; and Monroe v. H. G. Hill Stores, [261 Md. 544] Inc., La.App., 51 So.2d 645. The cases are collected in an annotation in 4 A.L.R.2d 466.
'In the case before us the testimony on behalf of the plaintiff permitted only speculation as to: (1) whether the bottle exploded and fell, or fell and shattered (the plaintiff's statement at the hospital would indicate the latter); (2) whether the plaintiff or some other customer knocked or brushed the carton to the floor, causing the breaking (the plaintiff's statement that she did not touch the bottle would seem to have meant an intentional touching since her denial of brushing the carton with her coat was that she did not 'recall' so brushing it); (3) whether in the months the Canada Dry display had been in the delicatessen the bottle that shattered had or had not been mishandled or cracked by an employee of the delicatessen in working on the display, or by a customer taking off a carton, or hitting the bottle with one of the shopping carts which the testimony showed were in the store, or otherwise. We find the testimony to permit too many inferences of causes for the occurrences for which
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neither the bottler nor the delicatessen would be responsible to allow the invoking of the doctrine of res ipsa loquitur against either.
'We are not unmindful that several courts recently have taken the view that the explosion in a store of a bottle of carbonated beverage, without more, requires both the bottler and the retailer to go forward and exonerate themselves from responsibility. These are Loch v. Confair, 372 Pa. 212, 93 A.2d 451, and Nichols v. Nold, 174 Kan. 613, 258 P.2d 317, 38 A.L.R.2d 887. See also Ferrell v. Royal Crown Bottling Co. of Charleston, 144 W.Va. 465, 109 S.E.2d 489.
'We do not say that under adequate evidence for the plaintiff res ipsa loquitur would not apply [261 Md. 545] in an exploding bottle case; we merely say that the evidence here was not adequate. We are not prepared to hold, as the three cases last cited in effect held, that the plaintiff's ignorance of, or inability to prove, facts giving rise to a reasonable inference of negligence, can compel the defendant to supply what is needed for recovery.'
In the case now before us the plaintiff below and the appellant here was the owner of a small store who was struck in the eye by part of an exploded soda bottle he had bought from the bottler, the Royal Crown Bottling Company, Inc. (Royal Crown), the defendant below and the appellee here. The trial judge thought that Joffre required the direction of a verdict for the bottler at the close of the claimant's case. In deciding whether the verdict properly was directed, we have considered the claimant's evidence and all inferences that permissibly can be drawn from that evidence in the light most favorable to the...
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