Cloverland Farms Dairy, Inc. v. Ellin

75 A.2d 116, 195 Md. 663, 1950 Md. LEXIS 308

• Court: Court of Appeals of Maryland
• Decided: July 19, 1950
• Docket: [No. 169, October Term, 1949.]
• Status: Published

Opinions

Marbury, C. J.,

delivered the opinion of the Court.

Appellee sued appellant and a filling station operator for personal injuries, resulting from drinking a bottle of an orange juice product known as “Green Spot”, bottled by appellant and bought by appellee at the filling station. There was a verdict in favor of the filling station operator, but the jury found for appellee against appellant. The case comes here on denial of motions for a directed verdict in favor of appellant, and on denial of motion for judgment n.o.v.

The appellee opened the bottle of “Green Spot” at his home, drank part of the contents and was made ill. The remainder of the contents, when examined, showed the presence of an oily film which, upon chemical analysis, was found to be kerosene, or some petroleum material in the kerosene range.

Bottles of “Green Spot” were kept at the filling station, in a Coca Cola cooler outside of the building and adjoining it, and about fifteen feet from a kerosene pump. Appellant delivered these bottles to the filling station, and appellant’s employees would put the bottles in the cooler, together with ice which they brought on the delivery trucks. The cooler was serviced every day. When customers or employees wanted a bottle, they would go to the cooler and help themselves, paying the operator of the filling station. Neither the latter or his employees ever served customers with “Green Spot”. In other words, purchases made of bottles from the cooler were what have become known as “self-service” operations.

The appellant was allowed to produce evidence, which was not contradicted, showing that “Green Spot” was not carbonated, and, therefore, the metal caps on the tops of the bottles were not airtight, and" were more easily removable than such caps on Coca Cola bottles or containers of similar beverages. It also showed that, through capillary action, liquid from the outside could infiltrate into the “Green Spot” bottles. This could happen if a warm bottle was placed in ice water in such a manner that the water covered the cap or part of it. Appellant suggested, based on these facts, that some employee of the filling station with kerosene on his hands, might have gotten a bottle from the cooler, in so doing might have left kerosene in among the other bottles lying on their sides in the melted ice, and, by this means, kerosene might have entered the bottle purchased by the appellee. There was no evidence that this happened. The appellant also offered evidence, likewise uncontradicted, that there was no kerosene or similar substance around its plant where the “Green Spot” was bottled, and that in the process of such bottling, as it was conducted at its plant, it would have been impossible for kerosene to have entered the bottles.

On these facts, appellant contends that its case is essentially different from the cases involving completely sealed containers, that there is no evidence of its negligence and that the case against it should not have been submitted to the jury.

In the case of Armour & Co. v. Leasure, 177 Md. 393, 9 A. 2d 572, 578, a housewife bought a can of corned beef, and prepared a meal from it. Those who ate the meal were made violently ill. There was no analysis of the remains of the corned beef, and one of the questions discussed was whether these facts, and the testimony of a physician that the plaintiff was suffering from botulism, a disease caused by an organism found in food, which organism, in his opinion, was in the corned beef, was sufficient to justify the submission of the case to the jury. The court held that the presence of the injurious substance in the sealed can when it was purchased was sufficient to create an inference that the manufacturer was negligent, but that the mere fact that people were made sick did not create an inference that the injurious substance was in the can. This had to be proved, but there was sufficient proof in the testimony of the physician that in his opinion the plaintiff was made ill by the organism in the corned beef, which was the only thing eaten which could have contained such an organism. There was no testimony, other than that of the physician, that such an organism was in any of the contents of the can. In reaching its conclusion, the court referred to two previous bottling cases in which it said “* * * the proof was that the injurious substance was actually in the container in which defendant had placed it before it was offered for sale, and that the container was unbroken and in the same condition when sold to the consumer as it was when delivered for resale by the manufacturer to the distributor.”

The court also said “It would be more nearly correct to say that upon the facts of the case the presence of the organism in the corned beef would permit an inference of negligence, because while, * * * the doctrine of res ipsa loquitur may not be invoked to prove the presence of the bacillus, there is evidence that the organism could not have existed in the can unless the can was defective, or unless the manufacturer in the process of its manufacture failed to use the proper means to destroy it. If, therefore, the organism did exist in the can its existence permitted an inference that the manufacturer had been negligent either in processing or in inspecting the product. That inference was in no sense conclusive, for it was possible that the can became defective after it had passed out of the appellant’s possession. And while ordinarily one who proves that it is possible that a given result was produced by either one of two causes, which are mutually exclusive, actually fails to prove that it was caused by either, * * that principle is not applicable to the facts of. this case, because the uncontradicted evidence is that the can, when opened, was sealed, unbroken and free from defects.” And “So the fact that appellee became ill from eating bad food was not evidence that she became ill from eating bad meat prepared by the appellant, but if there was proof that she was made ill by appellant’s bad meat, then an inference might be drawn that the meat was bad because the appellant failed to exercise ordinary care to see that the product was wholesome before it offered it for sale and consumption by the public.” And speaking of the earlier bottling cases, “Such cases are authority for the proposition that, after the plaintiff proves that the injurious substance was found in the food in the container, then and only then may negligence be inferred from the fact of its presence, but not for the proposition that its presence in the container may be inferred from the fact that the plaintiff became ill after eating the food packed in the container together with other and different foods.” The court then found that it could not be said that the whole evidence was not legally sufficient to support the inference that the organism was present in the corned beef when the appellee purchased it, and said “Assuming that it was present in the can at that time, it may also be inferred that its presence there was due to some negligent act or omission of the appellant.” And “The plaintiff having established prima facie that she was injured by defendant’s negligence, the burden of evidence or persuasion was upon the defendant to explain away or rebut the case so made. * * * Whether it met that burden was a question for the jury, * * * notwithstanding that there was no direct contradiction of defendant’s evidence concerning facts peculiarly within its knowledge and necessarily not within plaintiff’s knowledge.”

In the earlier case of Goldman & Freiman Bottling Co. v. Sindell, 140 Md. 488, 496, 117 A. 866, 869, a bottle of “Whistle” was purchased at a store, opened in the presence of a purchaser, and handed to him. While drinking its contents he felt something sharp and it eventually appeared that the bottle had broken glass in it. The evidence showed that the wife of the proprietor of the store took the bottle out of the ice box, opened it and handed it to the plaintiff. The proprietor testified that after the plaintiff bought the bottle, he did not put anything in it, nor did he take anything out of it, and that it was sold in the same condition as when he purchased it. There was evidence in the case, as is usual in such cases, that the beverage was bottled with such care that no foreign particles could possibly have gotten in the bottle while it was in the possession of the Bottling Company. The Bottling Company, therefore, urged that this showed the glass was not in the bottle when it sold it. The court said “The solution of that conflict is purely a jury question, with which we have nothing to do, the only question before us being whether the evidence in the case permits the conclusion that the defendant was guilty of negligence charged in the declaration.” And after stating that in consideration of the question the court must assume that there was broken glass in the bottle, the fact that there was evidence that the bottle was in its original condition when it was handed by the storekeeper to the plaintiff, was held to be proof that the glass was in the bottle when it was sold by the Bottling Company to the storekeeper, and from that fact an inference of negligence could be drawn. In the other two bottling cases decided, (Salisbury Coca-Cola Bottling Co. v. Lowe, 176 Md. 230, 4 A. 2d 440, and Coca-Cola Bottling Works v. Catron, 186 Md. 156, 46 A. 2d 303), the question of the insufficiency of evidence was not raised.

In the case before us there is no evidence whatever that the bottle was tampered with or even touched by anyone but the agent of the appellant who brought it to the cooler and the appellee who took it out. This is evidence that the kerosene was in the bottle at the time it was delivered by the appellant to the filling station. As we have stated, the only evidence to the contrary is that showing the method of bottling which, as in the Armour case, and in almost all similar cases, is uncontradicted, because it is something peculiarly within the knowledge of the manufacturer, about which the plaintiff has no information. That kind of uncontradicted testimony, however, the court, in the Armour case, said presents a question for the jury.

Appellant contends that the rule as to sealed containers should not apply where bottle caps are not airtight, and that in such cases no inference should be drawn that the manufacturer was negligent. The inference is not based on the type of sealing. It is based on the fact that the manufacturer has put out for human consumption food or drink which is sold by dealers in the original packages. When such an original package is first opened, and there is found in it a harmful substance, that is, in itself, evidence that such substance was in the package when delivered by the manufacturer, and raises the inference of negligence. This inference is, of course, rebuttable, but the offsetting evidence, whether of care used in the making of the original package, or of some tampering with it after it left the hands of the manufacturer or of some improper use of the contents, raises a question of fact for the jury. The inference is drawn in the first instance, if the package was purchased unopened by the consumer, and that inference does not depend on the nature of the package.

A manufacturer of an article for human consumption is not an insurer, but he is, nevertheless, bound to exercise care, commensurate with his undertaking, to see that no injurious substance gets into the containers in which he places his product. A member of the public who eats or drinks such a product from a sealed container could rarely, if ever, prove how an injurious substance got in it. The only person who has a chance of showing the facts about this is the manufacturer, and the burden is, therefore, placed upon him. When he seals his product and delivers it for resale, and the original package, when broken, discloses something that should not be there, that is evidence that it was there when the package was sealed. The consequent damage is not caused by the purchaser. It is not caused by the dealer who sells the product in its original package. Therefore, it must be caused by something which was inadvertently or negligently done at the time it was made up and sealed and sent out by the manufacturer for consumption, and the inference of negligence arises.

In the instant case, the appellant’s theory is that the bottle fell on its side in water formed by the melting of the ice, that by handling by other people, probably those employed by the filling station in the sale of kerosene, some of the latter substance got in the water and seeped into the top of the bottle. To support this theory there is not a shred of evidence. It is not shown that any employee or any other person who was engaged in selling kerosene, or who had kerosene on his hands, had gotten any bottle out of the cooler, or had opened the cooler or had handled any of the bottles in it. This is, therefore not a case where the proof shows the damage might have been produced by one of two mutually exclusive causes, because, as in the Armour case, there is no evidence that the bottle, when opened, was not in its original condition, and the cap was not shown in any way to be defective. There is no question before us as to the admissibility of the evidence offered to show a possible way in which the kerosene might have gotten into the bottle. That evidence was admitted, the jury had it before it, and evidently came to the conclusion that it did not happen that way. The appellant had at least as much as it was entitled to when the jury considered that theory without any evidence to support it.

The fact that the bottle, when purchased from the filling station in its original condition, contained kerosene, raises an inference of negligence on the part of the manufacturer. The question whether other evidence in the case rebuts this inference, is one for the jury, and the trial court was correct in permitting the jury to decide it.

Judgment affirmed with costs.