Goldman & Freiman Bottling Co. v. Sindell

• Decision Date: 08 February 1922
• Docket Number: 121.
• Parties: GOLDMAN & FREIMAN BOTTLING CO. v. SINDELL.
• Court: Maryland Court of Appeals

117 A. 866

140 Md. 488

GOLDMAN & FREIMAN BOTTLING CO. v. SINDELL.

No. 121.

Court of Appeals of Maryland

February 8, 1922

Dissenting Opinion March 3, 1922.

Appeal from Baltimore City Court; Morris A. Soper, Judge.

"To be officially reported."

Action by Edwin Sindell against the Goldman & Freiman Bottling Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The defendant's prayers granted by the court to which reference is made in the opinion were as follows:

(4) The defendant prays the court to instruct the jury that, under the undisputed testimony in this case, the defendant was not an insurer of the plaintiff's health and safety while drinking the bottle of Whistle referred to in the testimony and for a mere accident mixed with negligence, no action will lie, even though an injury has been done; and, if the jury shall further find from the evidence that there was no negligence on the part of the defendant, its agents and employees, then their verdict should be for the defendant.

(5) The defendant prays the court to instruct the jury that, even if they find for the plaintiff, the jury are to allow him only such damages as in their opinion has been affirmatively proved with reasonable certainty to have resulted as the natural proximate and direct result of the injury received by him as mentioned in the evidence.

(6) The court instructs the jury that, if they believe from the evidence that the bottle from which the plaintiff testified that he swallowed parts of glass was broken by the retail dealer from whom the plaintiff bought it, or by the plaintiff, or by the retail dealer opening it, or in any other manner, excepting by the negligence of the defendant then their verdict must be for the defendant.

(7) The court instructs the jury that the burden of proof is upon the plaintiff to establish by the weight of the evidence that the defendant was negligent, and further that the accident complained of was directly due thereto; and, unless it has been shown by the weight of the evidence to the satisfaction of the jury that the defendant was negligent and the accident was directly due to its negligence, the verdict of the jury should be for the defendant in this case.

Adkins and Stockbridge, JJ., dissenting.

Jacob S. New and Sylvan Hayes Lauchheimer, both of Baltimore (Julius H. Wyman, of Baltimore, on the brief), for appellant.

Lawrence S. Kaufman, of Baltimore (Kaufman & Kaufman, of Baltimore, on the brief), for appellee.

OFFUTT J.

On September 21, 1919, Edwin Sindell purchased at the Park Confectionery, a store conducted by John Griffith and located at the corner of Park avenue and the Belair road, in Baltimore city, a bottle of a beverage called "Whistle." The bottle was opened in his presence and handed to him, and he drank from it nearly all of its contents. While he was in the act of drinking, he felt "some sharp portions" in his mouth and felt something "cut his throat as he was swallowing," and upon examination he found that the sharp particles were glass, and that some particles of glass remained in the bottle. As a consequence of swallowing the glass he claimed that he became ill, was nervous, suffered pain, spat blood fell off in weight, and was for several weeks unable to work.

To recover for these injuries he sued the "Whistle Bottling Company" in the Baltimore city court, and later by consent amended the declaration by joining the Goldman & Freiman Bottling Company, Inc., as a defendant.

The case was tried before a jury, and, the verdict and judgment being for the plaintiff, the Goldman & Freiman Bottling Company, Inc., took this appeal. The record contains four exceptions, the first three of which relate to the rulings of the trial court on questions of evidence, and the fourth to its rulings on the prayers, and this exception we will now consider. The plaintiff offered one prayer, which stated the measure of damages and was granted. The defendant offered eight prayers. The fourth, fifth, sixth, and seventh of these prayers (which the reporter is requested to set out in the report of this case) were granted, and the others refused. The four rejected prayers were based upon the theory that under the pleadings there was no evidence in the case legally sufficient to entitle the plaintiff to recover, and that therefore the jury should be directed to find for the defendant. If the plaintiff was entitled to recover at all, the plaintiff's prayer fairly stated the measure of damages, and the only question before us under this exception, therefore, is whether, conceding the truth of the evidence supporting the plaintiff's case and such inference as may naturally and reasonably be drawn therefrom, it is legally sufficient to entitle him to recover under the pleadings. The negligence complained of in the declaration was "bottling and selling to the public" a "drink which was dangerous," and the material evidence relating to that charge is in substance this:

Edwin Sindell, the plaintiff, testified that on the occasion referred to he "went into the Park Confectionery and purchased a bottle of Whistle, and that he "drank very nearly all of the Whistle that was in the bottle, when he felt some sharp portions in his mouth, and he looked at the bottle, and he saw glass, and he spit out what he had in his mouth, and he noticed just before he felt something cut his throat as he was swallowing, and in a store where a crowd is he did not pay any attention to that. So about three minutes after that he was taken sick, and he was vomiting, and vomited blood, which was caused by the glass, he supposed, in his stomach, and for six months after that he went to a physician, and he lost four weeks' work and dropped down from 136 pounds to 118 pounds from the nervous strain on him and from the nervousness and worry of it, being he knew positively he had glass in his stomach, and he was to see the physician quite a while." After giving a more detailed description of his injuries, he further testified:

"That when he bought the bottle it was not already open; that Mr. Griffith's wife opened it with a bottle opener in the presence of the witness and also in the presence of his brother-in-law; by a 'bottle opener' the witness means a hand bottle opener, the kind that you carry in your pocket; that she did not open it with one attached to the counter; that she opened it up by getting under the stopper and opening it up; that the bottle did not have a cork in it at the time; it had a cap on it; *** that he held the bottle up to his lips; 'you know how a man does when he is laughing and talking; he does not pay any attention to it;' that he was in there with three or four people, and just put the bottle up to his lips and drank it without paying any attention to the contents until he felt something cut his throat and a portion of the glass in his mouth; that he spit out what was in his mouth; that he did not save the particles of glass that were in his mouth; that he spit them out on the floor; that the sensation he felt while he was swallowing these particles of glass was like something cutting his throat, but he did not pay any attention to it just then, but, when he had drank the rest of the contents of the bottle and felt it in his mouth, he spit out what he had in his mouth."

He also identified a bottle shown him at the trial as the bottle containing the Whistle which he drank. John M. Griffith, the proprietor of the Park Confectionery, said that on the occasion referred to Sindell came into his store and called for a bottle of Whistle, and that Mrs. Griffith, wife of the witness-

"took the bottle of Whistle out of the ice box and opened it and handed it to the plaintiff, and the plaintiff turned it up and drank it, and then he spit out some of the contents and handed the witness' wife back the bottle; the plaintiff handed the bottle of Whistle back, handed it to the witness' wife, and the witness went over and examined it, examined the bottle. It had a lot of powdered glass in the bottom of it, and they examined the bottle close to see if the bottle was broken in any way, but the bottle was perfect."

He further testified quoting from the record:

"That at the time the plaintiff handed it to the witness' wife there was a little liquid in it, about that much (indicating); that the witness purchased Whistle from the Whistle Bottling Company, Goldman & Freiman, on south Eden street; that the bottles of Whistle had a crown on it, like most all soft drinks; that the witness' wife opened the bottle of Whistle which the plaintiff purchased; that she opened it with one of the regular cap openers; that after the witness purchased the bottle of Whistle he did not put anything in the bottle, nor did he take anything out of the bottle, before he sold it; and that it was sold in the same condition in which he had purchased it."

On cross-examination he testified that he had dealt in Whistle since he had opened the store in May, 1919; that he bought it from the driver of a wagon who took away the empty bottles and left as many full ones in their place as were needed, for which he paid cash. He also testified that he kept clean glasses and clean straws for persons who wanted them.

Joseph O. Freiman, vice president and secretary of the Whistle Bottling Company, called as a witness for the plaintiff identified the bottle produced at the trial as one of "their registered" bottles, and further testified "that his company put the liquid in the bottle; that his company was a bottler of Whistle on September 24, 1919, but did not have the exclusive right in Maryland to bottle Whistle." He also testified that he did not know whether Griffith was a customer of theirs; that, while that store was on route No. 6, he did not...