For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. For affirmance -- None. The opinion of the Court was delivered by Proctor, J.
This is a products liability case. While shopping at a retail grocery store plaintiff, William P. Corbin, was injured when a Coca-Cola bottle burst, resulting in substantial damage to his eye. He brought this action in negligence and breach of implied warranty against Camden Coca-Cola Bottling Co. (Coca-Cola), the bottler, and Robert D'Amico, the owner of the store.*fn1 Defendants denied liability and each defendant asserted claims for contribution or indemnification against the other. At the trial the negligence claim against Coca-Cola was dismissed with consent of counsel. In answer to interrogatories submitted by the court the jury found in favor of the plaintiff against Coca-Cola only. The jury absolved D'Amico of negligence and made no finding against him for breach of warranty. However, the trial court entered judgment against both defendants, in effect molding the verdict to hold D'Amico liable for breach of warranty. Coca-Cola later moved for a judgment n.o.v. or in the alternative for a new trial. The motions were denied. Coca-Cola appealed to the Appellate Division. There was no appeal by defendant D'Amico. In an unreported opinion the Appellate Division reversed and entered judgment for Coca-Cola. We certified the matter. 59 N.J. 361 (1971).
On July 9, 1963, the plaintiff was a customer in D'Amico's grocery store. After obtaining various items and placing them on the counter, he asked D'Amico where the no-deposit Coca-Cola was kept. He was directed to the rear of the store where he noticed one carton of four 16-ounce Coca-Cola bottles on the floor beside a rack containing soda pop. He testified that he picked up the carton and was in a crouched position when the following occurred:
[A]s I started to lift it, something didn't seem exactly right and I looked down toward it and about that time the bottle burst and I had Coca-Cola all over my face.
Plaintiff said that he still had two fingers in the apertures which were designed for holding the carton and noticed two bottle tops sticking up out of the top. D'Amico came over, took the carton, told plaintiff that he had cuts on his face and gave him some bandaids. After leaving the store plaintiff realized that his vision was impaired and went to a nearby hospital. After an examination he was told his eye was cut. He underwent an operation at the Philadelphia Naval Hospital and remained there for an extended period of time. His eye is now permanently damaged.
On cross-examination plaintiff said that he lifted the carton "straight up." He also expanded upon his unusual feeling when he lifted the carton:
[W]hen you have handled something a number of times, you pick up something supposedly the same and there is something wrong with it, you can sense a difference.
He testified that he noticed nothing unusual about the appearance of the carton before picking it up and that he had not examined it after the accident. He also said that he did not see a bottle fall from the carton.
Plaintiff called defendant D'Amico who testified that he saw the entire incident. His version differed from the plaintiff's. He said that Corbin dropped the carton to the floor, a bottle burst and glass struck plaintiff in the face. He said that after the accident he noticed three bottles intact and the top of the fourth still in the carton. He also said that he did not observe any rips or tears in the carton. However, after his pretrial deposition was brought to his attention he admitted he did not know whether the carton was ripped or torn. After the accident he threw the carton away and it was never recovered.
D'Amico testified that he sold three or four cases (containing six four-bottle cartons) of this type of Coca-Cola a week and that the carton in question was "brand new merchandise." He said that the Coca-Cola drivers would deliver the cartons and place them on a rack provided by Coca-Cola in the store and they would remain there until sold. He further said that every evening a teenage boy mopped the floor with an ammonia and cold water solution. He was sure that no mopping was done over bottles or under the cartons and that water was not spread over the floor.
Winfield Mace, sales manager for Coca-Cola at the time of the accident, was also called by the plaintiff. He testified that his duties included investigation of accidents such as the one here. He said that a few days after plaintiff was injured, D'Amico told him that as the plaintiff picked up a carton of Coca-Cola a bottle fell out of it and broke, and a piece of glass struck plaintiff above the eye. This of course was contrary to D'Amico's testimony and consistent with plaintiff's. Mace admitted that "there have been instances where bottles fall out of a carton, fall on the floor. There have been several instances like that." He said that these instances usually occurred in stores.
Roger Harvey, a consulting engineer who was affiliated with New York Testing Laboratories from 1952 to 1965, testified for the plaintiff. His duties at the Laboratories included testing paper, cardboard and other packaging materials. He had tested a Coca-Cola carton which was identical to the one involved here. In answer to a hypothetical question based upon the facts described by the plaintiff it was his opinion that the carton was defective in one of two respects: "[E]ither there was a tear on the bottom of the carton, such as to enable the bottle to slip from the carton, or else the bottom of the carton was wet . . . ." He said that his tests showed that the carton had a dry-tear strength of ...