Cloverland Farms Dairy v. Ellin
| Decision Date | 19 July 1950 |
| Docket Number | 169. |
| Parties | CLOVERLAND FARMS DAIRY, Inc., v. ELLIN. |
| Court | Maryland Court of Appeals |
Nathan Patz, Baltimore, for appellant.
Joseph W Spector and Samuel B. Bechkes, both of Baltimore, for appellee.
Before MARBURY, C J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL JJ.
Appellee sued appellant and a filling station operator for personal injuries, resulting from drinking a bottle of an orange juice product known as 'Green Spot', bottled by appellant and bought by appellee at the filling station. There was a verdict in favor of the filling station operator, but the jury found for appellee against appellant. The case comes here on denial of motions for a directed verdict in favor of appellant, and on denial of a motion for judgment n. o. v.
The appellee opened the bottle of 'Green Spot' at his home, drank part of the contents and was made ill. The remainder of the contents when examined, showed the presence of an oily film, which upon chemical analysis, was found to be kerosene, or some petroleum material in the kerosene range.
Bottles of 'Green Spot' were kept at the filling station, in a Coca Cola cooler outside of the building and adjoining it, and about fifteen feet from a kerosene pump. Appellant delivered these bottles to the filling station, and appellant's employees would put the bottles in the cooler, together with ice which they brought on the delivery trucks. The cooler was serviced every day. When customers or employees wanted a bottle, they would go to the cooler and help themselves, paying the operator of the filling station. Neither the latter or his employees ever served customers with 'Green Spot'. In other words, purchases made of bottles from the cooler were what have become known as 'self-service' operations.
The appellant was allowed to produce evidence, which was not contradicted, showing that 'Green Spot' was not carbonated, and, therefore, the metal caps on the tops of the bottles were not airtight, and were more easily removable than such caps on Coca Cola bottles or containers of similar beverages. It also showed that, through capillary action, liquid from the outside could infiltrate into the 'Green Spot' bottles. This could happen if a warm bottle was placed in ice water in such a manner that the water covered the cap or part of it. Appellant suggested, based on these facts, that some employee of the filling station with kerosene on his hands, might have gotten a bottle from the cooler, in so doing might have left kerosene in among the other bottles lying on their sides in the melted ice, and, by this means, kerosene might have entered the bottle purchased by the appellee. There was no evidence that this happened. The appellant also offered evidence, likewise uncontradicted, that there was no kerosene or similar substance around its plant where the 'Green Spot' was bottled, and that in the process of such bottling, as it was conducted at its plant, it would have been impossible for kerosene to have entered the bottles.
On these facts, appellant contends that its case is essentially different from the cases involving completely sealed containers, that there is no evidence of its negligence and that the case against it should not have been submitted to the jury.
In the case of Armour & Co. v. Leasure, 177 Md. 393, 9 A.2d 572, 578, a housewife bought a can of corned beef, and prepared a meal from it. Those who ate the meal were made violently ill. There was no analysis of the remains of the corned beef, and one of the questions discussed was whether these facts, and the testimony of a physician that the plaintiff was suffering from botulism, a disease caused by an organism found in food, which organism, in his opinion, was in the corned beef, was sufficient to justify the submission of the case to the jury. The court held that the presence of the injurious substance in the sealed can when it was purchased was sufficient to create an inference that the manufacturer was negligent, but that the mere fact that people were made sick did not create an inference that the injurious substance was in the can. This had to be proved, but there was sufficient proof in the testimony of the physician that in his opinion the plaintiff was made ill by the organism in the corned beef, which was the only thing eaten which could have contained such an organism. There was no testimony, other than that of the physician, that such an organism was in any of the contents of the can. In reaching its conclusion, the court referred to two previous bottling cases in which it said '* * * the proof was that the injurious substance was actually in the container in which defendant had placed it before it was offered for sale, and that the container was unbroken and in the same condition when sold to the consumer as it was when delivered for resale by the manufacturer to the distributor.'
The court also said And 'So the fact that appellee became ill from eating bad food was not evidence that she became ill from eating bad meat prepared by the appellant, but if there was proof that she was made ill by appellant's bad, meat, then an inference might be drawn that the meat was bad because the appellant failed to exercise ordinary care to see that the product was wholesome before it offered it for sale and consumption by the public.' And speaking of the earlier bottling cases, 'Such cases are authority for the proposition that after the plaintiff proves that the injurious substance was found in the food in the container then and only then may negligence be inferred from the fact of its presence, but not for the proposition that its presence in the container may be inferred from the fact that the plaintiff became ill after eating the food packed in the container together with other and different foods.' The court then found that it could not be said that the whole evidence was not legally sufficient to support the inference that the organism was present in the cornel beef when the appellee purchased it, and said 'Assuming that it was present in the can at that time, it may also be inferred that its presence there was due to some negligent act or omission of the appellant.' And
In the earlier case of Goldman & Freiman Bottling Co. v. Sindell, 140 Md. 488, 117 A. 866, 869, a bottle of 'Whistle' was purchased at a store, opened in the presence of a purchaser and handed to him. While drinking its contents he felt something sharp and it eventually appeared that the bottle had broken glass in it. The evidence showed that the wife of the proprietor of the store took the bottle out of the ice box, opened it and handed it to the plaintiff. The proprietor testified that after the plaintiff bought the bottle, he did not put anything in it, nor did he take anything out of it, and that it was sold in the same condition as when he purchased it. There was evidence in the case, as is usual in such cases, that the beverage was bottled with such care that no foreign particles could possibly have gotten in the bottle while it was in the possession of the Bottling Company. The Bottling Company, therefore, urged that this showed the glass was not in the bottle when it sold it. The court said '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 negligence charged in the declaration.' And after stating that in consideration of the question the court must assume that there was broken glass in the bottle, the fact that there was evidence that the bottle was in its original condition when it was handed by the storekeeper to the plaintiff, was held to be proof that the glass was in the bottle when it was sold by the Bottling Company to the storekeeper, and from that fact an inference of negligence could be drawn. In the other two bottling cases decided, Salisbury Coca-Cola Bottling Co. v. Lowe, 176 Md. 230, 4 A.2d 440, and Coca-Cola Bottling Works v. Catron, 186 Md. 156, 46 A.2d 303, the question of the insufficiency of...
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