Smolen v. Grandview Dairy, Inc.

Lewis, J. The plaintiff, Sadie Smolen, with her husband as coplaintiff, instituted this action against the defendants Grand-view Dairy, Inc., and Owens Illinois Glass Company to recover for injuries sustained when a milk bottle, bearing the imprint of “ Grandview ”, broke in her hand while she was performing household duties. At the close of plaintiffs’ evidence the cause of action alleged against the defendant Owens Illinois Glass Company was dismissed. At Trial Term a jury awarded the plaintiffs a verdict. At the Appellate Division, where three Justices voted to reverse the judgment on the law and facts and to dismiss the amended complaint on the law, the Presiding Justice agreed with a majority of the court that the judgment should be reversed but favored a new trial, while one Justice voted for affirmance. Direction for our inquiry upon the present appeal by the plaintiffs is given by the following provision in the order of the Appellate Division: “* * * it is Further Ordered that the findings of fact implicit in the jury’s verdict, that the bottle was cracked while in the possession of the appellant dairy company, and that the dairy company, in its handling of the milk bottles, omitted to make any inspections or tests that were customarily made or used by bottlers of milk, are hereby reversed.” [268] For the purposes of this opinion it will simplify our statement to refer hereafter only to the cause of action pleaded in behalf of the plaintiff wife who comes before us as an appellant. The plaintiff’s injury occurred while she was in the act of pouring for her niece a glass of milk from one of the defendant’s partially filled bottles. We take from the plaintiff’s own testimony a description of that occurrence: 11 I got hold of my bottle with the neck. I was going to pour a glass of milk for the child, and as I was about to pour, the bottle fell apart in my hand, and the top of the bottle was left in my hand, holding it. I was left holding the top in my hand, and then I saw the blood started to spurt out from my hand, so I dropped the neck of the bottle on the table, and I ran to the sink. ’ ’ It is not disputed by the defendant that it owned and had filled with milk the bottle which broke in the plaintiff’s hand. Nor is it disputed that the bottle which then broke was one of twelve placed that morning in a wooden case which was delivered at the store door of a grocer who, when he opened his store, placed it in a refrigerator. Later in the morning that bottle of milk was sold by the grocer to the plaintiff who carried it to her apartment with other purchases and placed it on a table where she opened it and poured out at least one glass of milk before the accident occurred. The plaintiff’s case against the defendant has as its basis testimony by a witness called as an expert who, on direct examination, testified in part as follows: “ Q. And in your opinion, Professor O’Connell, what, caused this fracture? A. The hypothetical question of counsel stated that the bottle was delivered, sold and used by the plaintiff, that while using it it broke and the bottom part fell to the table. The upper part of the bottle, the head, was thrown down. An examination of the bottle shows that it was properly manufactured. There was no excessive internal strain in the bottle. An examination of the fracture shows that it is a typical thermal shock fracture. That is, the break was produced by a crack being induced in the bottle, that the crack in turn being caused by the bottle being subjected to excessive temperature differential; some place somewhere along the line this bottle had hot liquid hit it, causing a Grach to form on the top. Unfortunately the crack [269] wasn’t sufficient to break the top off completely. The crack was incomplete. However, those things happen quite often, and then subsequent normal handling becomes the straw that breaks the camel’s back, and the bottle then fractures completely. The original necessary and competent producing cause of the fracture is thermal shock.” (Emphasis added.) At a later point in his direct testimony the same witness stated that “ The thermal shock caused by somebody or something produced the fracture.” The record contains no testimony by that witness, nor by any other witness, as to who was the <£ somebody ” or what was the “ something ” which caused the incomplete crack; nor was there testimony as to when it occurred. When the same expert was asked by plaintiff’s counsel whether the crack could have been discovered by ££ reasonable inspection ” — his answer was ££ Prior to filling the bottle and the crack being in the bottle at the time — assuming that — reasonable inspection would most definitely reveal the presence of that crack in it.” (Emphasis added.) We find in this record no evidentiary basis upon which such an assumption can be made. Considering a milk bottle to be a simple article in common household use — neither inherently dangerous, nor involving the potency of danger — we conclude, as did the Appellate Division, that neither the plaintiff’s expert nor any other witness gave testimony — requisite to a cause of action (Bourcheix v. Willow Brook Dairy, 268 N. Y. 1, 7) —that while the bottle which broke in plaintiff’s hand was in the defendant’s possession, it was in any way defective or that the defendant had knowledge or notice of a defect therein. Nor do we find evidence that in preparing for market the bottle and its contents which were ultimately purchased by the plaintiff the defendant failed to make those inspections which customarily are made by milk bottlers generally. On the contrary the procedure for the inspection, washing and filling of milk bottles, which undisputed evidence shows is followed in milk bottling plants generally, was the procedure followed in the defendant’s plant which produced the bottle of milk that plaintiff purchased. (Garthe v. Ruppert, 264 N. Y. 290, 296; Levine v. Blaine Co., 273 N. Y. 386, 389; Smith v. Peerless [270] Glass Co., 259 N. Y. 292, 296.) That procedure is as follows: When empty milk bottles come into the plant they are. placed on a conveyor which is illuminated from below by a series of lights and moves the bottles past an inspector who examines-them for foreign substances, chips, “ strays ”, or broken bottles. The bottles then pass into a bottle washer which contains six compartments where different cleansing and rinsing solutions are successively applied to each bottle.-- The' cleansing and rinsing solutions in those six compartments- are maintained at the following temperatures: (1) 65 degrees Fahrenheit, (2) 105-110 degrees, (3) 135-140 degrees, (4) 105-110 degrees, (5) 85-90 degrees, (6) 60 degrees. At the discharge table, which receives the bottles from the washer, they are examined under a canopy light by a bottle inspector.- The bottles-^- then at a temperature of 60 degrees — are-passed'on. to the filling machine which by a vacuum process fills them with milk that has a temperature of 48-50 degrees. At this point we.-note an item of evidence of special importance which also stands uncontradicted— that, by the use of the vacuum .filling process employed by the defendant, if there existed a crack in the body or lip of any bottle the bottle would not fill. After each bottle is filled it is capped, hooded and inspected-by two -inspectors and placed in milk bottle cases.' Claiming that the breaking of the bottle in plaintiff’.s hand resulted from “ thermal shock caused by somebody or something ” (emphasis added), the plaintiff’s expert defined “ thermal shock ” as follows: “ * * * If I have a set of bottles and I -want to know whether they are all right as far as normal industrial use is concerned and I wish to subject them to a thermal shock test, I take those bottles, subject them tofrom a-sudden, hot to. a sudden cold or vice versa, with a temperature differential of seventy-five degrees. If they don’t break them, I am happy. “ Q. In other words, it is a differential of- seventy-five degrees in temperature? A. That’s what I wanted -to.tell you about before.” =- The testimony by that witness revealed) however-, .that-bn the one occasion when he had inspected a milk bottling plant and had observed there the various processes by which-milk bottles [271] are cleansed and filled, he did not see bottles subjected to a temperature differential of 75 degrees. Indeed it is clear from his testimony that in the plant he visited the cleansing' of milk bottles was accomplished by a process similar to that in use in the defendant’s plant and that the successive temperatures he there observed of cleansing solutions and rinsing waters applied to milk bottles showed differentials which compared closely to the differentials noted supra, maintained by the defendant’s cleansing and filling process. Likewise, although the same witness had testified that the use of a “ polariscope ’ ’ will expose to view a crack caused by thermal shock, he admitted that on the occasion when he inspected a milk bottling plant he did not see milk bottles subjected to examination by a polariscope. In support of the present appeal the plaintiff relies upon Saglimbeni v. West End Brewing Co. (274 App. Div. 201, affd. 298 N. Y. 875). Aside from procedural factors peculiar to that ease, there are other features which differentiate it from the case at bar. There, according to the record, the bottled product was beer — a liquid which after being bottled under pressure exerts upon the container, under certain conditions, an added internal pressure of 50 pounds per square inch. Moreover, in that case brushes which had an abrasive effect were employed in cleansing the bottles for use. From this evidence, the jury could find that the defendant negligently bottled its 'product. In the present case the liquid was milk, which is not bottled under pressure and which exerts no internal pressure after bottling. Furthermore, the cleansing process used by the defendant involved no abrasive action. In the Saglimbeni case (supra), there was evidence from which a jury could find lack of care by the defendant commensurate with the riskfin the case nowbefore us proof of defendant’s negligence is lacking. Concluding, as we do,"that the record contains no substantial evidence of a causal relation between some act or omission by the defendant in the preparation of the bottle of milk purchased by the plaintiff and the injury by its use which befell her, we affirm the judgment entered upon the order of the Appellate Division, "without costs. " The judgment should be affirmed, without costs.