San Antonio v. Warwick Club Ginger Ale Co.

• Decision Date: 20 December 1968
• Docket Number: Nos. 344-A,s. 344-A
• Citation: 248 A.2d 778,104 R.I. 700
• Parties: , 6 UCC Rep.Serv. 138 Evelyn SAN ANTONIO v. WARWICK CLUB GINGER ALE CO., Inc. Evelyn SAN ANTONIO v. Casimo SARDIELLO d/b/a Boulevard Spa. ppeal, 345-Appeal.
• Court: Rhode Island Supreme Court

Page 778

248 A.2d 778

104 R.I. 700, 6 UCC Rep.Serv. 138

Evelyn SAN ANTONIO v. WARWICK CLUB GINGER ALE CO., Inc.

Evelyn SAN ANTONIO v. Casimo SARDIELLO d/b/a Boulevard Spa.

Nos. 344-Appeal, 345-Appeal.

Supreme Court of Rhode Island.

Dec. 20, 1968.

[104 R.I. 710] Edward Bromage, Jr., Henry M. Swan, Providence, for plaintiff.

Hinckley, Allen, Salisbury & Parsons, Providence, for Warwick Club Ginger Ale Co., Inc., Thomas D. Gidley, Providence, of counsel.

Jordan, Hanson & Curran, Providence, for Casimo Sardiello, d/b/a Boulevard Spa, A. Lauriston Parks, Providence, of counsel.

OPINION

POWERS, Justice.

These are two civil actions commenced by the plaintiff to recover damages for an injury to her hand, incurred while opening a bottle of soda water. The cases were consolidated for trial to a superior court justice, sitting with a jury, and are before this court on the plaintiff's appeals from judgments entered for the defendant in each case.

The facts are not in dispute. They establish that on January 14, 1962, plaintiff purchased a carton of six seven-ounce bottles of soda water from defendant Sardiello, d/b/a Boulevard Spa, hereinafter called 'Boulevard.' The soda water was bottled and distributed by defendant Warwick Club Ginger Ale Co., Inc., hereinafter called 'Warwick.'

The plaintiff selected the carton from Boulevard's shelves, carried it out to her car, and drove to her home. It is material to note that plaintiff had just moved and this was the first day in her new home. She carried the carton from the car into her kitchen where she placed it on a counter. Her mother and sister were there to help her get settled.

There was a bottle opener attached to the kitchen wall and shortly after arriving home with her purchase, plaintiff picked up one of the soda bottles and proceeded to open it, using the wall opener. She had never used this opener before, but the type was not unknown to her. Holding the bottle in her right hand, close to the bottom, she inserted the top in the opener and applied pressure. Thereupon the bottle broke in her hand, as she testified, 'on the diagonal.' She further testified that she could not recall how the bottle 'seated itself' in the opener. The broken bottle was thrown away by plaintiff's mother on the day of the accident; hence, not available as evidence.

In any event, plaintiff's hand was severely lacerated, requiring immediate attention at the Rhode Island Hospital emergency room where she was taken by the rescue squad. Four stitches were necessary to close the skin. There were three further visits to the physician who changed the dressings, removed stitches and discovered damage to the digital nerve of the thumb. This affected the use of her hand, and in May 1962, she consulted Dr. Richard P. Sexton, a qualified surgeon, who prescribed a course of treatment. Later, in February 1964, plaintiff's symptoms were such that Dr. Sexton concluded surgery was advisable, 'to explore the nerve and repair it.' The surgery was performed and plaintiff sustained some loss of earnings, medical expenses and pain and suffering.

Meanwhile, on September 17, 1962, plaintiff had commenced the instant action against Warwick by filing a writ of summons in an action of trespass on the case for negligence. It was not until February 4, 1964, that she commenced an action against Boulevard and then by filing a writ of summons in an action of assumpsit. We note, parenthetically, that both actions were brought conformable to the practice prevailing prior to January 10, 1966, on which date current practice became effective. Consistent with the practice then prevailing, plaintiff filed a declaration in each case.

In the assumpsit action against Boulevard the declaration, filed February 4, 1964, was in three counts alleging a breach of the implied warranty of fitness for particular purpose and/or merchantability as provided in G.L.1956, § 6A-2-315, § 6A-2-314, subsections (1) and (2)(c) and § 6A-2-314, subsection (3) respectively.

Boulevard pleaded specially that plaintiff could not recover on any of said counts, having failed to give reasonable notice of said breach, as required by § 6A-2-607.

In her action of case for negligence brought against Warwick, plaintiff on September 17, 1962, filed a single count declaration to which defendant seasonably demurred. There then followed successive amended declarations and demurrers thereto, but the substance of these pleadings is without materiality here by reason of the posture in which the case comes to us on appeal. Suffice it to note that December 17, 1965, Warwick's demurrer to plaintiff's third amended declaration was overruled and Warwick answered joining issue.

On January 5, 1967, at which time the now prevailing superior court rules of civil procedure were applicable, the cases were consolidated for trial, pursuant to rule 42(a) of the superior court rules of civil procedure. They were tried to a superior court justice sitting with a jury, starting May 11, 1967, at which time plaintiff moved to amend her complaint in each case. In her action against Boulevard she was permitted to add an alleged breach of the implied warranty contained in § 6A-2-314(2)(e). Again, in the view we take of plaintiff's appeal in her action against Boulevard, no worthwhile purpose would be served in setting forth the provisions of the several sections of chap. 2 of title 6A on which plaintiff relies. It is sufficient to note that Boulevard's special plea of lack of reasonable notice was made applicable to plaintiff's claim as amended.

With regard to her action against Warwick, plaintiff was permitted to add to her claim for negligence all the counts for alleged breach of implied warranty on which she relied in her action against Boulevard. The plaintiff's claim against Warwick having been thus amended, Warwick was also permitted to plead lack of reasonable notice.

After plaintiff had rested as to liability in both cases, each defendant moved for a directed verdict, pursuant to rule 50 of said superior court rules. Boulevard based its motion on the evidence adduced by plaintiff, that although written notice of the alleged breach of an implied warranty had been given to Warwick in May of 1962, some four months after the incident for which plaintiff sued, it, Boulevard, was not informed until some eight months thereafter, and then only informally by plaintiff's counsel. It was Boulevard's contention that, absent some explanation for the delay, failure to give notice for approximately a year constituted lack of notice within a reasonable time as a matter of law.

Warwick based its motion for a directed verdict as to the alleged breach of an implied warranty on the grounds that it too had not received notice within a reasonable time as a matter of law. With regard to plaintiff's claim of negligence, however, Warwick's motion was premised on the classic ground that, viewed in the light most favorable to plaintiff, there was no evidence or reasonable inference to be drawn therefrom, competent to support a jury's verdict in her favor.

The trial justice decided that the question of whether notice had been given to Warwick within a reasonable time was one of fact to be submitted to the jury. He did, however, grant Boulevard's motion, ruling that under the circumstances notice not given for a year was not notice given within a reasonable time as a matter of law. Further, he granted Warwick's motion as it related to the negligence counts. The arguments on defendants' motions and the trial justice's rulings thereon were of course made in the absence of the jury.

On their return, the trial justice advised the jury that the case against Boulevard was no longer before them and that the case against Warwick was now limited to plaintiff's action for an alleged breach of an implied warranty. The plaintiff registered no objection to this instruction but she did cause to be recorded her objections to the granting of each defendant's motion for a directed verdict.

The case against Warwick for alleged breach of an implied warranty then proceeded, defendant calling as witnesses Casimo Sardiello, who, d/b/a Boulevard Spa, was defendant in the other case; Warwick's vice-president, Frank B. Baker, and a police clerk named Earl C. Anderson. The first two had testified for plaintiff, who called them as adverse witnesses under the statute.

Only the testimony of witness Baker is relevant to the instant appeal and then only tangentially, as will hereinafter appear. He testified as to the degree and nature of care that Warwick exercised in preventing defective bottles from reaching the hands of the consuming public.

After the parties had rested, the trial justice instructed the jury and so doing granted all of plaintiff's requested instructions. However, he also charged, 'The mere fact that a glass bottle of club soda broke while the plaintiff was opening it is not, in and of itself, sufficient to establish any breach of warranty on the part of the Warwick Club Ginger Ale Company, Incorporated.'

The plaintiff objected to this latter instruction, her position being that it was contrary to an instruction previously given, as requested by her, thus...