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Bornstein v. Metropolitan Bottling Co.

Decided: March 3, 1958.


On certified appeal from the Appellate Division of the Superior Court.

For affirmance -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs and Francis. For reversal -- None. The opinion of the court was delivered by Heher, J. Francis, J. (concurring). Francis, J., concurring in result.


[26 NJ Page 265] The Appellate Division of the Superior Court affirmed a judgment for plaintiffs entered on a jury verdict in the Law Division of the court in an action in tort against the defendant Metropolitan Bottling Company, Inc. for negligence

in "bottling and dispensing" beverages, one "under the trade name of 'Pepsi-Cola,'" whereby "one of the bottles under the control of the defendant exploded" and destroyed the infant plaintiff's right eye. The case is here by our certification on defendant's motion.

Error is assigned on the holding of the Appellate Division, 45 N.J. Super. 365 (1957), that defendant, to use counsel's terms, "was in control of the bottle causing injury at the time of its occurrence" and the "doctrine of res ipsa loquitur is applicable."

Dunn v. Hoffman Beverage Co., 126 N.J.L. 556 (E. & A. 1941), is invoked for the principle that the defendant "is not charged with the duty of showing affirmatively that something happened to the bottle after it left its control or management," but rather that "the plaintiff must show that there was due care during that period"; that "(i)t takes more than the mere happening of an accident to set the rule [of res ipsa loquitur ] in operation"; "(t)he thing causing the accident must have been under the control of the defendant or his servant at the time of the accident"; and the argument is that although it is conceded that "there was more extensive handling of the bottle after it had left defendant's possession in the Dunn case than in [the instant case], nevertheless there clearly was sufficient handling of the bottle by plaintiff and his fellow employees [here] to belie any contention that defendant still had control of the bottle," and so the trial judge erred in drawing upon the maxim to deny defendant's several motions for a dismissal at the conclusion of plaintiffs' proof and at the close of the case.

The infant plaintiff, then 16 years of age, was employed as a counterman at a luncheonette in Newark known as "Cohen's Knishes," working Saturdays and Sundays only. On November 15, 1953, between 12:30 A.M. and 12:45 A.M., while engaged with a fellow employee, Jay Klugman, in transferring bottles of "Pepsi-Cola" from their case to the store cooler, one of six bottles momentarily on the cooler in the removal operation "exploded" and the splintered glass

struck plaintiff's right eye; there was "a pop, a noise"; "[t]here was a bottle broken on the floor in several pieces," "two big pieces split down the center," and there were "many little small splinters and pieces of glass around and the soda that was in the bottle was on the case and on the floor splattered all around, some on the wall also"; the "larger pieces [of glass] were on the floor and the smaller pieces were scattered all around."

Defendant had delivered the particular case of "Pepsi-Cola" and 11 other cases of this and like beverages to the luncheonette on the prior November 12, or the jury could have so found, although the same consideration would apply were the case one of three remaining from a delivery made by defendant on the prior November 4; these cases were stacked by defendant's own employees in a rear room used for the storage of such supplies, awaiting transfer to the cooler when needed. The store was closed on November 13. The plaintiff's part at the time was to carry the individual case to a waist-level stand at the cooler; he would then remove the bottles, one in each hand, "place them on the cooler and Jay would take them from the cooler and place them into the box"; from the "back room" to the cooler was "a very short distance"; there was "nothing in the way, no obstruction"; he "just walked from the back room to the cooler"; he had "brought one full case [of Pepsi-Cola] in and emptied it and brought the empty case back"; the "accident happened part way through the second case."

Counsel contends that plaintiffs' case "is entirely devoid of any proof of any negligent act on the part of defendant." But defendant was aware of the danger; and by way of defense it offered proof of the use of an inspection and testing system deemed adequate to fulfill the duty of reasonable care laid upon it by the law. It purchased but one type of bottle for "Pepsi-Cola," under "specifications" providing that the "bottle shall be a fifteen-ounce glass, white," of "twelve fluid ounces capacity," capable of withstanding "an internal pressure of 250 pounds"; it did not require a test by the manufacturer; "[e]very bottle is tested in [its own] plant."

But it was a spot check: "[o]n the receipt of new bottles which are brought in many gross lots at various times throughout the year certain bottles are taken from every shipment that we receive and we put them through a hydrostatic pressure test -- not all, not every bottle, but we select a few from every shipment and submit them to a hydrostatic pressure test," to determine "to the best of our ability that these bottles have met our specifications as far as internal pressure is concerned"; the test "goes to the point of breaking of the bottle"; "[i]f a single bottle should break prior to the specification point additional bottles are taken and further tests are made to assure ourselves that the shipment meets our requirements"; the breaking point could be "as high as 400 pounds."

The bottling process itself includes inspection for "obvious defects" as the cases are set "on the belt conveyor" and "as they take them from the carrier, from the wood box, wooden case, and place them on the table"; "both new and used bottles, from the time of the receipt and storage * * *, are all handled in exactly the same manner"; in the "washing and sterilizing process," the "neck of each bottle is centered over a jet of water that is shot at high pressure into each bottle"; the "water pressure in that line is about 40 pounds"; the purpose is "to loosen any dirt or debris that may be in the bottle * * *." And there is visual inspection by means of a "milk glass light" later on; and as the bottle is "sealed against [the] rubber ring there is a sudden shot of forty pounds of air pressure thrown into [the] bottle, an instantaneous shot."

The "pressure inside of a sealed filled bottle of Pepsi-Cola at room temperature would be forty-six pounds"; at a temperature of 90 degrees, the inside pressure would be 66 pounds; defendant's standard ...

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