Hyams v. King Kullen Grocery Co.

CourtNew York City Municipal Court
Writing for the CourtABRAHAM R. MARGULIES
Citation223 N.Y.S.2d 263,32 Misc.2d 920
Decision Date22 November 1961
PartiesLorraine HYAMS and Richard Hyams, Plaintiffs, v. KING KULLEN GROCERY COMPANY, Inc., Pepsi Cola Metropolitan Bottling Company, Inc., United Beverage, Defendants.

Page 263

223 N.Y.S.2d 263
32 Misc.2d 920
Lorraine HYAMS and Richard Hyams, Plaintiffs,
v.
KING KULLEN GROCERY COMPANY, Inc., Pepsi Cola Metropolitan
Bottling Company, Inc., United Beverage, Defendants.
Municipal Court of City of New York, Borough of Queens,
Fourth District.
Nov. 22, 1961.

Page 265

[32 Misc.2d 921] Santangelo, Morrison & Martorano, New York City, for plaintiffs by Anthony R. Martorano, New York City.

John A. Anderson, Rockville Centre, for defendants.

ABRAHAM R. MARGULIES, Justice.

Plaintiff-wife, a customer in the King Kullen Grocery Company, Inc. store, was injured by the explosion of a beverage bottle containing Pepsi Cola. The bottle in question was on the shelves of the defendant, King Kullen, when it exploded. It appears that the beverage was bottled by the defendant, Pepsi Cola Metropolitan Bottling Company, Inc., and then delivered to the defendant, King Kullen, at its place of business. Plaintiff-wife sustained injury to face resulting in scar.

The basis for the general rule that a manufacturer of a bottle or the bottler that fills it with charged soda water may be held responsible to an ultimate consumer by reason of negligence has been established by two leading cases on the subject. [MacPherson v . Buick Motor Company, 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696; Smith v. Peerless Glass Company, 259 N.Y. 292, 181 N.E. 576, 577. Also see 'Manufacturers Liability to Persons other than the immediate Vendees', 24 Va.Law Review 134.] As stated in the Smith case wherein the plaintiff was injured by the explosion of a soda water bottle, 'There emerges, we think, a broad rule of liability applicable to the manufacturer of any chattel, whether it be a component part or an assembled entity. Stated with reference to the facts of this particular case, it is that, if either defendant was negligent in circumstances pointing to an unreasonable risk of serious [32 Misc.2d 922] bodily injury to one in plaintiff's position, liability may follow though privity is lacking.'.

Page 266

The plaintiff's theory is that either the defendant, King Kullen Grocery Company, Inc. or the defendant, Pepsi Cola Metropolitan Bottling Company, Inc. was negligent, or both. This negligence may be proved by circumstantial evidence which is described by the courts as res ipsa loquitur. In Foltis, Inc. v. City of New York, 287 N.Y. 108, on page 115, 38 N.E.2d 455, on page 459, 153 A.L.R. 1122, the Court defined the words res ipsa loquitur.

'The doctrine of res ipsa loquitur is not an arbitrary rule. It is rather a common-sense appraisal of the probative value of circumstantial evidence. It requires evidence which shows at least probability that a particular accident could not have occurred without legal wrong by the defendant. To negative every possibility that the accident occurred in some extraordinary manner which would exculpate the defendant is often impossible. In the administration of the law we must be satisfied with proof which leads to a conclusion with probable certainty where absolute logical certainty is impossible. We may be constrained to act upon indecisive evidence where complete proof is impossible. Then the logical probative force of the evidence produced is measured, in part, by the test of whether it is the best evidence available.'

This definition was also used in two earlier cases. [Slater v. Barnes, 241 N.Y. 284, 149 N.E. 859, and Galbraith v. Busch, 267 N.Y. 230, 196 N.E. 36.] Further, as the Court said in the Foltis case, 'We must determine whether the rule of res ipsa loquitur may be applied, in accordance with those principles, to the proof tendered in this case; whether, upon 'a common-sense appraisal of the probative value' of the circumstantial evidence, measured in part by the test of whether it is the best evidence available, inference of negligence is justified.'

There appears to be some confusion surrounding this subject, and it can be said that part of the difficulty is caused by the loose use of terms without adequate definition. The other major problem is the failure of the Courts to take into consideration changes in circumstances. The use of the phrase res ipsa loquitur has not met with universal approbation. [Plumb v. Richmond Light & R. R. Co., 233 N.Y. 285, 135 N.E. 504, 25 A.L.R. 685.] What may not have been a res ipsa loquitur case years ago may now by reason of present day experiences become one. The earlier cases dealing with aviation took the position that there was not yet such common knowledge and experience of its hazards as to permit such a conclusion from the unexplained crash of a plane. It is only the more recent decisions which have held that the safety [32 Misc.2d 923] records now established justifies the application of res ipsa loquitur. [See Prosser--Law of Torts, 1955, Page 203]

There are relatively few reported cases in New York which deal with the doctrine of res ipsa loquitur in the law of exploding beverage bottles,

Page 267

and none where the plaintiff was injured as a result of an exploding beverage bottle which was not handled or touched by the plaintiff. It seems to me that the facts herein fit the standard as set by the Court in the Foltis case, namely, a common-sense appraisal of the probative value of the evidence and the probability that a particular accident could not have occurred without the legal wrong by either of the two defendants. The only case suggested by the defendant in New York is Curley v. Ruppert, 272 App.Div. 441, 71 N.Y.S.2d 578, decided in 1947 by the Appellate Division, First Department, by a 3-2 decision, and is the only case submitted by the defendant, Pepsi Cola, as authority that res...

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4 practice notes
  • Uy v. Shapmor, Inc.
    • United States
    • New York Supreme Court — Appellate Term
    • January 28, 1965
    ...436, aff'd 304 N.Y. 821, 109 N.E.2d 609; Hyams v. King Kullen Grocery Company, Inc., et al., Sup., 230 N.Y.S.2d 962, rev'g in part 32 Misc.2d 920, 223 N.Y.S.2d 263, aff'd 20 App.Div.2d 657, 246 N.Y.S.2d 575.) However, the statement of the plaintiff, while being questioned by counsel for the......
  • Cole v. Great Atlantic & Pac. Tea Co.
    • United States
    • New York Supreme Court
    • December 19, 1964
    ...Day v. Grand Union Co., 280 App.Div. 253, 113 N.Y.S.2d 436, aff'd 304 N.Y. 821, 109 N.E.2d 609, and Hyams v. King Kullen Grocery Company, 32 Misc.2d 920, 223 N.Y.S.2d 263, aff'd 20 A.D.2d 657, 246 N.Y.S.2d While the rule of the Curley case may exonerate the bottler, it is unavailing to the ......
  • Lindenauer v. State, No. 52066
    • United States
    • New York Supreme Court Appellate Division
    • June 13, 1974
    ...under Res ipsa loquitur principles citing Curley v. Ruppert, 272 App.Div. 441, 71 N.Y.S.2d 578 and Hyams v. King Kullen Grocery Co., 32 Misc.2d 920, 223 N.Y.S.2d 263, revd. in part Sup., 230 N.Y.S.2d 962, affd. 20 A.D.2d 657, 246 N.Y.S.2d 575. Controlling case law establishes that such a pr......
  • People v. De Puy
    • United States
    • New York County Court
    • February 6, 1962
    ...time of trial on June 16, 1960 the defendant was represented by counsel and the issue of the jurisdiction of Judge Brodsky was raised. [32 Misc.2d 920] There is nothing in the return to indicate the authority for continuing the jurisdiction of the Acting Police Judge. A Justice of the Peace......
4 cases
  • Uy v. Shapmor, Inc.
    • United States
    • New York Supreme Court — Appellate Term
    • January 28, 1965
    ...436, aff'd 304 N.Y. 821, 109 N.E.2d 609; Hyams v. King Kullen Grocery Company, Inc., et al., Sup., 230 N.Y.S.2d 962, rev'g in part 32 Misc.2d 920, 223 N.Y.S.2d 263, aff'd 20 App.Div.2d 657, 246 N.Y.S.2d 575.) However, the statement of the plaintiff, while being questioned by counsel for the......
  • Cole v. Great Atlantic & Pac. Tea Co.
    • United States
    • New York Supreme Court
    • December 19, 1964
    ...Day v. Grand Union Co., 280 App.Div. 253, 113 N.Y.S.2d 436, aff'd 304 N.Y. 821, 109 N.E.2d 609, and Hyams v. King Kullen Grocery Company, 32 Misc.2d 920, 223 N.Y.S.2d 263, aff'd 20 A.D.2d 657, 246 N.Y.S.2d While the rule of the Curley case may exonerate the bottler, it is unavailing to the ......
  • Lindenauer v. State, No. 52066
    • United States
    • New York Supreme Court Appellate Division
    • June 13, 1974
    ...under Res ipsa loquitur principles citing Curley v. Ruppert, 272 App.Div. 441, 71 N.Y.S.2d 578 and Hyams v. King Kullen Grocery Co., 32 Misc.2d 920, 223 N.Y.S.2d 263, revd. in part Sup., 230 N.Y.S.2d 962, affd. 20 A.D.2d 657, 246 N.Y.S.2d 575. Controlling case law establishes that such a pr......
  • People v. De Puy
    • United States
    • New York County Court
    • February 6, 1962
    ...time of trial on June 16, 1960 the defendant was represented by counsel and the issue of the jurisdiction of Judge Brodsky was raised. [32 Misc.2d 920] There is nothing in the return to indicate the authority for continuing the jurisdiction of the Acting Police Judge. A Justice of the Peace......

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