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Dunn v. Hoffman Beverage Co.

Decided: May 20, 1941.

EDWARD DUNN, BY HIS NEXT FRIEND, IRVING DUNN, AND IRVING DUNN, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
HOFFMAN BEVERAGE COMPANY, DEFENDANT-RESPONDENT



On appeal from the Supreme Court.

For the plaintiffs-appellants, Breslin & Breslin (James A. Major, of counsel).

For the defendant-respondent, Collins & Corbin (Edward A. Markley and Charles W. Broadhurst, of counsel).

Wells

The opinion of the court was delivered by

WELLS, J. This is an appeal from a judgment entered in the Supreme Court, Bergen Circuit, upon the verdict of a jury directed by the trial court in favor of the defendant. The sole ground of appeal is that the trial court erred in directing a verdict for the defendant.

Suit was brought to recover damages for personal injuries sustained by the infant plaintiff, Edward Dunn, a boy 15 years of age, caused by the bursting of a bottle of sarsaparilla in his hand. His father, Irving Dunn, joined in the suit to recover for medical services incurred by his son's injuries.

The defendant was the manufacturer and bottler of the sarsaparilla. The complaint charged negligence against the defendant, in that it failed to use reasonable care to see that a bottle of proper strength was provided to safely contain the contents thereof; in improperly bottling the contents of the said bottle, as a result of which too much pressure was exerted thereon, and in providing a bottle which was defective in manufacture.

The facts of the case are not substantially in dispute. On June 11th, 1938, one Grant Labery, an adult, accompanied by the infant plaintiff and three other boys, drove his automobile from Englewood, New Jersey, to a Boy Scouts' camp near Blairstown. At Sparta they stopped at a tavern known as "Poole's Tavern" and some of the boys bought things to eat. The infant plaintiff bought a quart bottle of sarsaparilla, another boy bought a quart bottle of orangeade. There was no label or sticker on the bottle of sarsaparilla but the cap thereon bore the name "Hoffman Company" and the word "sarsaparilla." These two bottles were placed in a paper bag by the man in charge of the tavern and were carried by one of the boys to the automobile where they were removed by Labery from the paper bag and packed in the trunk at the rear of the car. They were stood upright on blankets on the floor near the back of the trunk and close to the lid and placed "between duffel-bags and blankets, in such a way that they could not jar or bang in any way -- under any condition." The distance from the tavern to the camp was something over thirty miles, of which twenty miles was over a good macadam road, about ten miles over a good dirt road and about one and a half miles over a poor, rough, but passable one-way road. Upon arrival at the camp, Labery opened the lid of the trunk and gave the infant plaintiff his bottle of sarsaparilla and duffel-bag. The infant plaintiff hooked the duffel-bag to his belt and walked away toward the front

of the car, holding the bottle by its neck. After traveling about fifteen feet from the rear of the car the bottle exploded and injured his hand. Aside from the medical testimony, this constituted the plaintiff's case. There was no motion made for a nonsuit.

It must be remembered that the suit is not against the proprietor of Poole's Tavern, the retailer, but is against the manufacturer and bottler of the sarsaparilla.

The defendant offered evidence showing that the bottles used by it are manufactured by the Owen Illinois Glass Company, specifically for the purpose of being used for carbonated beverages, such as sarsaparilla. This glass company is a nationally recognized manufacturer of bottles and, according to the expert, is "the biggest and the finest glass-making concern, not only in the United States, but in the whole world." The defendant, by experts, explained in detail its bottling process, including the testing of the bottles, pressure, &c., showing that proper inspection was made of the bottles and proper care used in bottling their contents. Testimony was to the effect that the bottles after they passed through the defendant's processes would not burst unless there was a contributing factor. By this contributing factor was meant the careless handling of the bottle, and it was stated that if the tensile strength of the bottle was weakened by a fracture, it could cause the bottle ...


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