Canada Dry Ginger Ale Co. Inc. v. Jochum.

• Decision Date: 09 July 1945
• Docket Number: No. 270.,270.
• Citation: 43 A.2d 42
• Parties: CANADA DRY GINGER ALE CO., Inc., v. JOCHUM.
• Court: D.C. Court of Appeals

43 A.2d 42

CANADA DRY GINGER ALE CO., Inc.,

v.JOCHUM.

No. 270.

Municipal Court of Appeals for the District of Columbia.

June 25, 1945.

Rehearing Denied July 9, 1945.

Appeal from the Municipal Court for the District of Columbia, Civil Division.

Action by Mildred G. Jochum against Canada Dry Ginger Ale Company, Inc., and another, for injuries sustained by plaintiff as result of the explosion of a bottle of carbonated water. From a judgment for plaintiff against the named defendant, the named defendant alone appeals.

Affirmed.

A. Leckie Cox, of Washington, D.C. (Louis M. Denit and Thomas S. Jackson, both of Washington, D.C., on the brief), for appellant.

Leonard S. Melrod, of Washington, D.C., (Alvin L. Newmyer, of Washington, D.C., on the brief), for appellee.

Before RICHARDSON, Chief Judge, and CAYTON and HOOD, Associate Judges.

CAYTON, Associate Judge.

Appellee, who was plaintiff in the trial court, was injured by the explosion of a bottle of carbonated water manufactured and bottled by appellant, Canada Dry Ginger Ale Company, Inc. She sued the manufacturer and also the retailer from whom she had made the purchase. At the trial the retailer was exonerated by a directed verdict, and from the resulting judgment in his favor no appeal was taken. The jury awarded damages against Canada Dry Ginger Ale Company, which now appeals.

This was the essence of the evidence for plaintiff: One morning she ordered by telephone from a delicatessen store two blocks away from her apartment house a bottle of Canada Dry ginger ale ¹ and two packages of cigarettes. Shortly, a delivery boy appeared with the articles in a paper bag. Plaintiff received the package, paid him, closed the door, and turned toward the kitchen. Within a few seconds the bottle, which she still held in the paper bag, exploded, sounding ‘like a firecracker’ breaking into many pieces, shattering the bag and injuring her face and one hand. She immediately opened the door, and finding the delivery boy still in the hallway summoned him to assist in gathering up the broken pieces of the bottle from the floor. She also testified that she had not jarred the bottle nor struck it against anything, nor had she done anything to cause it to explode.

The delivery boy testified that the bottle together with the cigarettes had been given him in a paper bag, in apparent good condition, for delivery to appellee; that he placed it in a canvas bag suspended by a strap over his shoulder and rode the two blocks to appellee's apartment on his bicycle; that this was the only package he carried at the time; that he handled it with care, did not jar the bottle in the bag and did not strike it against anything; that almost immediately after leaving appellee's apartment he heard a crash and that when she called him back he saw liquid and shattered glass on the floor of the apartment.

The owner of the delicatessen store was called as a witness for plaintiff. He testified that when deliveries were made to him by the Canada Dry company its employees took the bottles to the basement of the store in wooden containers built so high that no part of the bottles were exposed; that after each delivery the cases were left where appellant's employees had deposited them and were not touched; that each day approximately a day's supply was brought up from the basement in the wooden cases and the bottles were then removed from the cases and placed in the refrigerator; and that it was one of such bottles which had been delivered to plaintiff. It was upon this showing that the trial judge directed a verdict for the delicatessen operator and refused to direct a verdict for the Canada Dry company.

Appellant's only evidence was offered through the medium of a deposition of the manager of its plant at Philadelphia, from which shipments were made to Washington. He described the type of bottle used, as manufactured exclusively for the company, the care taken to inspect each empty bottle, whether new or previously used, under a strong light to discover and reject defective bottles. He also described in considerable detail the steps by which each bottle is cleansed and again tested for defects, and the mechanical as well as manual and visual means employed. He explained how the liquid is carbonated under heavy gas pressure with a regulator to control the mixture of gas and water. Also he detailed the various steps in the preparation and bottling of the beverage and the handling of the bottles before and after sealing, which he said should reveal defects in the bottles and cause, or probably cause, defective bottles to burst. He described a testing tank which puts the filled bottles under still higher pressure in order to reveal defects, and explained that this final test furnished an extra precaution against defective bottles leaving the plant. He said the company's machinery is the most up-to-date obtainable and their methods of carbonization and bottling considerably above the general standards used in the bottling trade. On cross-examination he said that bottles do not explode unless they have been improperly handled and that if and when any bottles had exploded in the plant after final inspection it was because they had been ‘misused in one way or another.’

The principal question on this appeal is whether the trial judge was correct in refusing to take the case from the jury; which means under the circumstances of this case whether res ipsa loquitur applies.

In her complaint plaintiff made a general allegation of negligence; and in her proof, as is usual in these cases, she made no attempt to establish any specific act of omission or of commission amounting to negligence.

Had the plaintiff been the first to handle the bottle after it left the hands of the bottling company (and assuming that she was herself free of negligence) it could hardly be questioned that she would be entitled to the protection of res ipsa loquitur. This for the reason that defendant, by methods known best to it, by men and machinery under its exclusive control and with ingredients and in bottles prepared or purchased by it, was in the best position to explain the reason for the explosion. For the test of liability is whether there was negligence by the bottler while the product was under his control. Benkendorfer v. Garrett, Tex.Civ.App., 143 S.W.2d 1020; Goldman, etc., v. Sindell, 140 Md. 488, ...