Cloverland Farms Dairy, Inc. v. Ellin

Markell, J., delivered the following dissenting opinion, in which Henderson, J., concurs. Plaintiff bought three bottles of “Green Spot” at the filling station of the co-defendant, East, took them home, opened one, poured out and drank part of the contents and was thereby made ill. On examination of the bottle it was found that the contents were covered by an oily film which had a strong kerosene odor and on chemical analysis was found to be kerosene — or “a petroleum material in the kerosene range.” At East’s filling station kerosene was handled and sold in bulk. “Green Spot” was kept for sale, outside the building, “in a Coca Cola Cooler” that sat “right adjoining the building”. The cooler was about fifteen feet from the kerosene pump. “Green Spot” was delivered by defendant to its customers, including East, on its “regular milk trucks, along with the milk”.

East would order “Green Spot”, defendant’s driver would bring it, put it in East’s cooler and also put in the cooler ice he brought on the truck. If there was a surplus brought (beyond what the cooler would hold) the cases were put on the inside of East’s building. East was “serviced” by defendant every day, but did not necessarily buy “Green Spot” every day. When customers of East, including any of his employees, wanted to make purchases, they went over to the cooler and helped themselves at all times — and then paid East.

His employees never served customers. “Green Spot” bottles, like Coca Cola, milk and other beverage bottles, had metal caps. From the specimen ⁶⁷³ exhibited at the argument it appears that the caps may easily be removed and replaced. Unlike Coca Cola and other “soft drinks”, (e. g., “Whistle”, Goldman & Freiman Bottling Co. v. Sindell, 140 Md. 488, 495 , 117 A. 866 ), “Green Spot” is not carbonated. The caps, therefore are not airtight.

Defendant produced testimony, which was not contradicted, that through capillary action liquid from the outside may infiltrate into a filled and capped bottle. If a bottle is warm and is put in some cold liquid {e. g., if it is laid or falls sidewise or is upset in melted ice or other iced water) chilling of the interior and contraction of the contents will create a vacuum and draw some of the liquid under the cap into the bottle. If an employee of East or anyone else, with kerosene on his hands, handled the contents of the cooler, kerosene could thus be drawn into a bottle. There is no evidence that kerosene in fact got into the bottle in question in this way.

Defendant’s plant manager testified that kerosene is not kept at defendant’s dairy at all. The witness described in detail how “Green Spot” is prepared and bottled and specifically how the bottles are washed by machinery. He says it is impossible for any fluid to be In a bottle before it is filled. This court has repeatedly held that the presence of an injurious substance in the bottle or other container of an article of food or drink when it is sold by the manufacturer in a sealed container for public consumption is evidence from which negligence on the part of the manufacturer may be inferred, whether by an inference like any other rational inference from circumstantial evidence or by one labeled res ipsa loquitur.

Goldman & Freiman Bottling Co. v. Sindell, 140 Md. 488 , 117 A. 866 (broken glass in a bottle of “Whistle”); Salisbury Coca-Cola Bottling Co. v. Lowe, 176 Md. 230 , 4 A. 2d 440 (coal oil in a bottle of Coca Cola); Armour & Co. v. Leasure, 177 Md. 393 , 9 A. 2d 572 (disease organism in a can of corned beef); Coca Cola Bottling Works v. ⁶⁷⁴ Catron, 186 Md. 156 , 46 A. 2d 303 (dead mouse in a bottle of Coca Cola). Testimony of care exercised by the manufacturer generally in preparing and sealing the product is not enough to destroy the inference and require the withdrawal of the case from the jury. But in the Goldman case the court was careful to point out that the inference or presumption of negligence is predicated upon a finding that the extraneous matter was in the container when it left the hands of the manufacturer. In that case there was testimony by the dealer that the bottle was in the same condition when sold as when it came into his hands, although this was criticized as a mere conclusion by one of the dissenting judges.

In Armour & Co. v. Leasure, supra, there was medical testimony that the disease organism could not have developed after the can was opened, and no evidence that the can was defective, hence there was a strong inference that it was in the can when sealed by the manufacturer. In Salisbury Coca-Cola Bottling Co. v. Lowe, and Coca-Cola Bottling Works v. Catron, supra, prayers for a directed verdict on the question of liability were not pressed. In the instant case there was no evidence that the bottle was in the same condition when opened as when it was delivered to the dealer. It remained for an indeterminate time in an open cooler, accessible to anyone, in close proximity to a kerosene drum.

In some of the cases in other jurisdictions the point has been stressed that where bottle caps are of a type that may be readily removed and replaced, and opportunities for tampering are shown, the inference that the foreign substance was in the container when originally sealed becomes mere speculation. Coca Cola Bottling Works v. Sullivan, 1942, 178 Tenn. 405 , 158 S. W. 2d 721 , 171 A. L. R. 1200; cf.