Kotiadis v. Gristede Bros., Inc.

• Decision Date: 13 February 1964
• Citation: 20 A.D.2d 689,246 N.Y.S.2d 662
• Parties: Mary KOTIADIS and George Kotiadis, Plaintiffs-Respondents, v. GRISTEDE BROS., INC., Defendant-Appellant-Respondent, and Minute Maid Corp., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 662

246 N.Y.S.2d 662

20 A.D.2d 689

Mary KOTIADIS and George Kotiadis, Plaintiffs-Respondents, v. GRISTEDE BROS., INC., Defendant-Appellant-Respondent, and Minute Maid Corp., Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Feb. 13, 1964.

Benjamin Frank, New York City, for plaintiff-respondents.

T. I. Brennan, New York City, for defendant-appellant-respondent.

W. F. McNulty, New York City, for defendant-appellant.

Before BOTEIN, P. J., and BREITEL, VALENTE, McNALLY and BASTOW, JJ.

PER CURIAM.

Resettled judgment, entered March 27, 1963, dismissing first cause of action by plaintiff Mary Kotiadis against defendants Gristede Bros., Inc. and Minute Maid Corp., dismissing second cause of action of Gristede Bros., Inc. against Minute Maid Corp., and adjudging after jury verdict that plaintiffs recover a total of $13,235 from Gristede Bros., Inc. and Gristede Bros., Inc. recover $13,235 from Minute Maid Corp., modified on the law to the extent of reversing the judgment of damages against Gristede Bros., Inc. and against Minute Maid Corp. vacating the jury verdict awarding damages against Gristede Bros., Inc. and against Minute Maid Corp. and granting a new trial of the implied warranty cause of action of plaintiffs-respondents against Gristede Bros., Inc. and of the implied warranty cause of action of Gristede Bros., Inc. against Minute Maid Corp., and otherwise the resettled judgment is affirmed, with costs to Gristede Bros., Inc. from plaintiffs-respondents and to Minute Maid Corp. from Gristede Bros., Inc. The appeal from the original judgment is dismissed, without costs. The judgment against Gristede must be reversed because the trial court struck the testimony of Minute Maid's expert witness over the attempted objection of Gristede. It was apparent during the trial that Gristede was relying on Minute Maid's expert and had a continuing exception to adverse rulings of the trial court concerning his testimony. The expert contradicted plaintiffs' expert who had opined (1) that the particular can of Minute Maid Fresh Frozen Grapefruit Sections involved had been filled too full and exploded when hydrogen gas developed from the interaction of citric acid on the metal of the can and (2) that the swelling of the can followed by the explosion could have occurred in the brief interval between the time of purchase in the Gristede supermarket and the time plaintiff wife was at her home taking the can from her shopping bag. Minute Maid's expert testified (1) that hydrogen gas was not formed by the interaction of the citric acid on the type of mild carbon steel used in the can and (2) that swelling of such a can along with resulting rupture would ordinarily occur at normal room temperature, from bacteriological action, in about five to seven days. If the jury believed this testimony, it might have concluded that the plaintiffs' claim that the can was not swollen when purchased and yet exploded in a very short time was false. The can bore the legend 'keep frozen--store in ice-cube compartment', and plaintiff wife could not read or speak English. Thus, she might have kept the can at normal room temperature for a long period of time during which the swelling would become apparent. Therefore, the stricken testimony was important because plaintiffs may not recover if the causes of the accident originated after the sale (see Natale v. Pepsi-Cola Co., 7 A.D.2d 282, 182 N.Y.S.2d 404). The trial court struck...