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Bornstein v. Metropolitan Bottling Co.

Decided: June 17, 1957.

JEROLD BORNSTEIN, AN INFANT, BY HIS GUARDIAN AD LITEM, SIDNEY BORNSTEIN, AND SIDNEY BORNSTEIN, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS,
v.
METROPOLITAN BOTTLING COMPANY, INC., A CORPORATION, DEFENDANT-APPELLANT



Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.

Conford

[45 NJSuper Page 366] This is an action for damages for the loss of the sight of an eye of the infant plaintiff and

consequential damages of the other plaintiff, his father, resulting from the explosion of a Pepsi-Cola bottle allegedly caused by the negligence of the defendant in bottling the carbonated beverage. Plaintiffs had a verdict at the hands of a jury in the Law Division, and defendant assigns as error on this appeal the denial by the trial court of motions for involuntary dismissal at the end of plaintiff's case and at the end of the entire case and for a new trial.

On the night of November 14-15, 1953, Jerold Bornstein, then a boy of 16, was employed as a counterman (working week-ends only) in a luncheonette on Hawthorne Avenue in Newark. At about 12:30 or 12:45 A.M. on November 15, a Sunday morning, just prior to a 1:00 A.M. closing hour to conclude a Saturday work day and evening, he and a fellow employee, Jay Klugman, began to replenish a soda cooler in the front, or service room of the establishment, with varieties of bottled soft beverages, including Pepsi-Cola, for the next day's business. Pepsi-Cola was the best seller of these sodas, and the place had just concluded a busy Saturday's business. The uncooled cases of soda, the Pepsi-Cola in 24-bottle wooden cases with sides higher than the bottles, were stored in a foyer situated between the service room and the kitchen, which was the rear room of the luncheonette suite. On the occasion in question the procedure for stocking the cooler was this: Jerold would carry a case of soda, holding it with two hands, from the foyer to the service room, and then place it on top of a garbage receptacle alongside the cooler, and of even height with it, about waist-high from the floor. From that position he lifted individual bottles out of the case, one in each hand, and set them on a horizontal sliding door on the top of the cooler. From there Klugman placed them in the cooler, one at a time. The cases of Pepsi-Cola were the last sodas to be put in the cooler. During the transfer of the contents of a second case of Pepsi-Cola from case to cooler-top, one of the bottles, which had been placed and was standing on the cooler door, exploded with a "pop," expelling its contents and pieces of broken glass

in all directions. One piece struck the infant plaintiff's right eye, with the consequence noted.

Both Jerold and Klugman testified that neither of them struck any bottle against another while thus filling the cooler, nor did any bottle fall. The distance from foyer to cooler is short, and there is no intervening obstruction. The proofs were that on Thursday, November 12 (the place was closed the intervening Friday, November 13), the defendant's delivery man had carried 12 fresh cases of the beverage from the delivery vehicle and stacked the cases in the foyer, at the same time removing nine empty cases. The last previous delivery, also by defendant's delivery man, was of 11 cases on November 4, when 11 empty cases were removed. There were "two or so" full cases left when the November 12 delivery was made. There was no evidence whether the exploding bottle was from a left-over case or from one of those delivered November 12. There was proof that none of the full Pepsi-Cola (or other soda) cases were handled by any one after delivery to the foyer except that some of the cases may have been brought into the service room for stocking the cooler on occasion, when required, prior to the episode involving the accident. The foyer is unheated except for such incidental warmth as is projected from the grills in the service room and the oven in the kitchen. The service room was "kind of hot" and "kind of humid" on the occasion of the explosion.

Defendant submitted proof to the effect that all of its bottles are purchased from reputable glass manufacturers, under specifications which require that they withstand a pressure of 250 pounds per square inch -- a safety factor of four or five times the internal pressure of 46 to 66 pounds for normal operating conditions (from room temperature to 90 degrees Fahrenheit). The bottles, after purchase, are spot-checked for pressure-capacity by a hydrostatic test. New and used bottles are cleaned, filled and capped by separate machines. The cleaning includes a spray injection at 40 pounds per square inch. The bottles are also visually inspected for flaws. Prior to filling there is a "sudden shot

of forty pounds of air pressure thrown" into the bottle, which, according to the supervisor of production for the defendant, would "completely disintegrate" any bottle "defective for any reason." The system of bottling was described by the same witness as "used in 95% of the bottling industry." The witness did not, however, purport to be a glass expert. Moreover, there does not seem to have been any procedure for testing filled bottles.

The motions for involuntary dismissal raised the question as to whether the doctrine of res ipsa loquitur was applicable in the circumstances of this case, there having been no direct evidence of negligence on the part of defendant in producing the bottled product which exploded or burst. Most of the early cases held that the rule of res ipsa was not applicable on the basis of proof of a single explosion, the incident occurring after the bottle passed from the control of the defendant manufacturer or bottler. See Annotation , 4 A.L.R. 1094 (1919). One of the early decisions, however, Payne v. Rome Coca Cola Bottling Co. , 10 Ga. App. 762, 73 S.E. 1087 (Ct. App. 1912), held that where the plaintiff can "by direct or circumstantial evidence" (73 S.E. , at page 1088) negative any inferences that such an explosion was due to mishandling by any custodian of the bottle between the time of its passage from possession by the bottler and the mishap there will survive a permissible inference that the manufacturer is to blame. Probably the majority of cases decided since the Payne case follow its broad rationale. The cases are collected in Annotation , 4 A.L.R. 2 d 466 (1949); see Prosser, Law of Torts (2 d ed. 1955), § 42, pp. 203, 204; 2 Harper and James, Law of Torts (1956), § 19.5, p. 1077, n. 7 ("it is submitted that proof of the fact of the accident coupled with a showing that the bottle was subjected to neither extreme temperature nor negligent handling after it left the bottler's control will constitute a prima facie case of negligence against the bottler"). Some jurisdictions follow the so-called North Carolina rule under which res ipsa does not apply unless there is evidence of the bursting of other bottles produced by the same defendant in substantially

similar circumstances and reasonably proximate in time Ashkenazi v. Nehi Bottling Co. , 217 N.C. 552, 8 ...


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