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Migliozzi v. Safeway Stores Inc.

Decided: July 10, 1958.

BEVERLY MIGLIOZZI, ETC., ET AL., PLAINTIFFS-RESPONDENTS,
v.
SAFEWAY STORES, INC., ET AL., DEFENDANTS-APPELLANTS



Stanton, Hall and Gaulkin. The opinion of the court was delivered by Gaulkin, J.A.D.

Gaulkin

Plaintiff Beverly Migliozzi, an infant four years old at the time of the alleged happening, sued in the district court for injuries sustained as a result of drinking Coca-Cola containing a foreign substance.

The trial court, sitting without a jury, gave judgment to the infant for $300 against the Coca-Cola Bottling Co. The infant's father had sued also for medical expenses, and for the loss of the infant's services, but neither the father nor the doctor appeared in court, and his claim was dismissed. We observe that the judgment of the court below does not appear in the appendix, R.R. 1:7-2, 2:7-1.

Defendant appeals upon two grounds: that the lower court erred in denying defendant's motion to dismiss the infant's claim, and that the verdict was contrary to the weight of the evidence as to damages.

The only witness for the plaintiff was her mother. The infant plaintiff was not in court. The mother testified that she opened the bottle of Coca-Cola and gave it to her daughter to drink at about 6 p.m. of the day she bought it; that the child had not had anything to eat or drink since noon of that day; that after the child drank about half the contents she said "it tastes funny," and threw up. The mother then noticed foreign particles "on the top of the soda." The bottle and its remaining contents were received in evidence, and the record shows that counsel and the judge saw and commented upon the foreign matter. The defendant

had had the foreign matter analyzed before the trial, but produced no testimony of the result. Indeed, it appears from the colloquy of counsel at the trial that defendant had refused to disclose the report to the plaintiff before trial.

The foreign matter was not described by any one other than as "particles." The judge said "* * * it was dirty. It has particles in it." He called it "an ugly sight." Counsel for the plaintiff, during his closing argument, pointed out without contradiction "It's a messy substance * * * as we see it, it settles to the bottom."

Defendant does not challenge the finding that there was foreign matter in the bottle, and in its brief concedes "arguendo * * * that the presence of a foreign substance in the bottle created a prima facie case of negligence." See Annotation, "Presumption or prima facie case of negligence based on presence of foreign substance in bottled or canned beverage ," 52 A.L.R. 2 d 117 (1957).

What defendant does contend, under its first point, is that since "the plaintiff * * * did not have the contents of the bottle analyzed. There was no * * * odor coming from the bottle. There was no testimony from any doctor * * *," there was not sufficient proof that the foreign substance was harmful, or that it caused the infant any injury, or that the vomiting was due to it, and therefore judgment should have been entered for defendant.

It is doubtless true that the burden is upon the plaintiff to prove that the foreign substance caused the claimed injury, and it is not the burden of the defendant to prove that the illness was due to other causes. Piscatore v. V. La Rosa & Sons, Inc. , 123 N.J.L. 364 (E. & A. 1939). Cf. Jones v. Mount Holly Water Co. , 87 N.J.L. 106 (Sup. Ct. 1915). However, when the presence of a foreign substance is established, and there is testimony of gastric disturbance following immediately upon ingestion, the trier of the facts may infer therefrom that the gastric disturbance was caused by the foreign substance, without further proof of the identity of the foreign substance or its harmfulness. Wilson v. Coca-Cola Bottling Co. , 3 N.J. Super. 102

(App. Div. 1949); and see Annotation, "Infected or tainted condition of milk or other food, or contamination in water, and its causation of the sickness of the consumer, as inferable from such sickness ," 130 A.L.R. 616 (1941). It is not always essential that the substance be identified. Piscatore v. V. La Rosa & Sons, Inc. , 121 N.J.L. 288 (Sup. Ct. 1938), affirmed 123 N.J.L. 364 (E. & A. 1939); Griffin v. James Butler Co. , 108 N.J.L. 92 (E. & A. 1931); Amabile v. Kramps , 121 N.J.L. 219 (Sup. Ct. 1938). Cf. Cassini v. Curtis Candy Co. , 113 N.J.L. 91 (Sup. Ct. 1934). In the following cases the substance was identified, but in and of itself it was harmless, and there is no mention in the reports of the cases that there was expert testimony that it had turned harmful. Sheenan v. Coca-Cola Bottling Co. of New York , 41 N.J. Super. 213 (App. Div. 1956); certification denied, 22 N.J. 268 (1956); Wilson v. Coca-Cola Bottling Co., ...


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