Gallagher v. Pequot Spring Water Co.

• Decision Date: 04 December 1963
• Docket Number: No. CV,CV
• Citation: Gallagher v. Pequot Spring Water Co., 199 A.2d 172, 2 Conn.Cir.Ct. 354 (Conn. Cir. App. Div. 1963)
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: Jean GALLAGHER v. The PEQUOT SPRING WATER COMPANY. 13-627-824.

Page 172

199 A.2d 172

2 Conn.Cir.Ct. 354

Jean GALLAGHER v. The PEQUOT SPRING WATER COMPANY.

No. CV 13-627-824.

Circuit Court of Connecticut, Appellate Division.

Argued Oct. 7, 1963.

Decided Dec. 4, 1963.

James M. Higgins, Manchester, for appellant (defendant).

Leroy E. Schober, Thompsonville, for appellee (plaintiff).

KOSICKI, Judge.

The plaintiff sued the defendant, a bottler and vendor of grape soda, for injuries sustained by her after consuming soda sold by the defendant, because of the presence in it of a foreign substance. The complaint was in two counts, one sounding in negligence and the other for breach of an implied warranty as to the merchantability of the soda and as to its fitness for the intended use. The jury returned a general plaintiff's verdict for $2500. On motion to set aside the verdict, the court ordered a remittitur of $1000, which was filed, and judgment was entered on the verdict as modified. No interrogatories having been submitted or special verdict requested, the verdict, as remitted, if sustainable on either count cannot be disturbed. McGuire v. Hartford Buick Co., 131 Conn. 417, 418, 40 A.2d 269; Ziman v. Whitley, 110 Conn. 108, 114, 115, 147 A. 370; Maltbie, Conn.App.Proc. § 55.

The following facts are not in dispute. The plaintiff was married on August 26, 1961, and a wedding reception was held at the Mount Carmel Hall. There were approximately 150 guests present, of whom about thirty were children. At the wedding dinner, the plaintiff's father poured for her some of the soda sold by the defendant. There were approximately fifteen people seated at the bride's table. The plaintiff consumed the soda as her father poured the remaining contents of the bottle for others at the table. While he was pouring, some of those at the table, other than the plaintiff and her mother, who were the only witnesses to testify for the plaintiff, exclaimed excitedly over a foreign substance which they variously described, within hearing of the plaintiff, as a 'bloodsucker' or 'cockroach.' Neither the plaintiff nor her mother saw what was in the bottle. On trial, there was no identification of the substance other than a characterization of it by a defendant's witness as a 'mold.' The plaintiff became ill and retired to the ladies' room, where she vomited. She was unable to eat her dinner and left before the grand march took place. According to custom, the guests are expected to make gifts of money to the bride and groom in the course of the grand march, but because of the early departure of the plaintiff many of the guests also left and consequently some of the expected gifts failed to materialize. Because of her illness, the plaintiff abstained from the joyous incidents of the nuptial night, abandoned the plans for her honeymoon, and a few days later returned to work.

Among the errors assigned by the defendant is error in the ruling of the court admitting in evidence, as exhibit 1, a soda bottle containing some unidentified substance. If the exhibit was admitted improperly, the error would be material because the jury then would have been permitted to accept as true the very fact which the plaintiff needed in order to establish the defendant's liability on either count. The exhibit was offered through Mrs. Alaimo, the plaintiff's mother, who, in the course of her direct examination, testified that the bottle was the one opened by her husband at the table where she sat about twelve feet from him. The defendant objected, stating as reasons that the substance in the bottle had not been identified, that there was no proof that the substance was in the bottle at the time of the alleged occurrence, that custody and care of the bottle until the date of trial had not been accounted for, and that a proper foundation had not been laid for admitting this item of evidence. The objection was overruled and the bottle admitted as a full exhibit. Upon further questioning, the witness testified as follows: 'Q.--Now, did anything unusual happen while he was pouring from the bottle? A.--Yes, everybody--well, as he was pouring, they noticed this object in the bottle was moving around and they got up and there was quite a commotion. They was wondering what was in the bottle. The court: And while he was pouring this, some people noticed something? A.--Well, yes--you know--they were facing her table and as he was pouring it, someone nearby said something about a cockroach being in the bottle, or something, and they named other bugs and then the people sitting in back walked up. They wanted to see what was in the bottle. Q.--Now, Mrs. Alaimo, can you tell me what actually this object in the bottle was? A. I don't know, I mean--Q.--Did you know at that time? A.--Everybody was saying different things--Mr. Higgins: Objection, Your Honor. She is just not answering the question. The court: She doesn't know. Q.--Do you know at this time? A. Well, I don't know--do you mean do I know what's in the bottle? Q.--Yes, A.--No, I don't know. I know something is in the bottle, but I don't know what it is. Q.--But this is the bottle as you saw it there? A.--Yes it is.' On cross-examination, the witness stated that after the wedding reception her husband took the bottle home and later turned it over to a lawyer. Her husband had died some time before the trial.

The plaintiff, during her testimony, identified the bottle as being the one from which she had consumed soda poured by her father. 'Q.--What did you do with the soda when you got it? A.--I drank it. Q.--Right away? A.--Yes. Q.--Now, did any incident occur while your father was pouring the soda in other people's cups? A.--Yes, it started an uproar. They saw something shaking around in the bottle, they said there was a bloodsucker, cockroaches, there was a lot of comments about what was in the bottom of the bottle. Q.--Now it's true that you don't know what is in that bottle now, isn't it? A.--No. Q.--Is that right? A.--Yes. Q.--And you didn't know what was in it--supposedly in it--at the reception, is that right? A.--No, that's right. Q.--And you consumed a cup of grape soda at the reception? A.--Yes. Q.--And thereafter, didn't you testify that some people around there saw something in the bottle? A.--Splashing around in the bottle. Q.--And they started making remarks? A.--Yes. Q.--And isn't that what upset you? A.--No, that wasn't what upset me, no.'

We have set down the testimony verbatim and at considerable length so that all of the evidence material to the issue raised by the defendant's objection may be examined in the light most favorable to the plaintiff. In laying a foundation for the receipt in evidence of the thing claimed to have caused the injury, it is ordinarily sufficient for the witness having knowledge of the object to identify it. See Lestico v. Kuehner, 204 Minn. 125, 283 N.W. 122, Exhibit 1 was admitted on identification of the bottle. It was not introduced to prove the identity of the bottle which had contained the beverage consumed but as real evidence of the purported substance which allegedly the beverage contained and which caused the plaintiff's illness and suffering. See 1 Wigmore, Evidence (3d Ed.) § 24. In order to justify its admission for that purpose, it was necessary first to show that it was the substance it purported to be, that is, that it was present in the bottle at the time of the occurrence, it a condition reasonably the same as that viewed at the trial, eighteen months later. The plaintiff had the burden of proving as a preliminary matter that the substance allegedly contained in the bottle at the time it was first opened was the same substance, without and material change, as that found in the bottle when it was offered as an exhibit. See Wieland v. C. A. Swanson & Sons, 223 F.2d 26 (2d Cir.). This is usually accomplished by showing original apperception of the object and then its care and custody under circumstances which would reasonably exclude any tampering with or material alteration in it so as to render the exhibit misleading--or, as in this case, the probability of chemical changes or organic growth resulting from environmental factors such as air, moisture and temperature. See Jasper Coca Cola Bottling Co. v. Breed, 40 Ala.App. 449, 452, 115 So.2d 126; 32 C.J.S. Evidence §§ 601, 602, 607. The rule, however, is not so rigid as to render things sometimes called unique inadmissible unless absolute continuity of possession and the absence of tampering are first established. Pasadena Research Laboratories, Inc. v. United States, 169 F.2d 375, 380 (9th Cir.), cert. denied, 335 U.S. 853, 69 S.Ct. 83, 93 L.Ed. 401; Anheuser-Busch, Inc. v. Southard, 191 Ark. 107, 84 S.W.2d 89; Coca-Cola Bottling Co. of Arkansas v. Adcox, 189 Ark. 610, 74 S.W.2d 771. It is enough if the object offered in evidence has been reasonably identified as that sought to be proved, by someone who can testify of his own knowledge that the object proffered is the one claimed to have caused the result.

The question exhibit consists of a dark green quart bottle with a roughened surface, some liquid therein, and a substance described by one witness as a 'mold.' To see this substance at all requires observation at very close range in good light. It is plain that neither witness who identified the bottle had any knowledge of what was in it, other than soda, at the time the plaintiff partook of the contents. Neither of them examined the bottle at that time; they relied on what they heard, not on what they saw; no testimony was offered as to care and custody of the bottle and its contents; and no evidence supports the conclusion, obviously reached by the...