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LOCH v. CONFAIR (01/05/53)

January 5, 1953

LOCH
v.
CONFAIR, APPELLANT



Appeal, No. 175, Jan. T., 1952, from order of Court of Common Pleas of Luzerne County, March T., 1949, No. 403, in case of Frank J. Loch et ux. v. Charles F. Confair et ux., trading as Confair's Beverage Company and The Great Atlantic & Pacific Tea Company. Order affirmed.

COUNSEL

William S. McLean, with him James P. Harris, for individual defendants, appellants.

James Lenahan Brown, with him Daniel J. Flood, Thomas F. Farrell and Joseph V. Kasper, for plaintiffs, appellees.

J. Thirwall Griffith, for defendant, Great A. & P. Tea Company.

Before Stern, C.j., Stearne, Jones and Chidsey, JJ.

Author: Stern

[ 372 Pa. Page 214]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

The wife plaintiff having been injured by the bursting of a bottle of ginger ale, she and her husband brought suit in assumpsit to recover damages against Confair's Beverage Company, which had bottled the ale. In that action this court affirmed the judgment of the court below sustaining defendant's preliminary objections in the nature of a demurrer and dismissing the complaint: Loch v. Confair, 361 Pa. 158, 63 A.2d 24. Plaintiffs then brought the present action in trespass against the Beverage Company and The Great Atlantic and Pacific Tea Company in whose store the ale was purchased. The trial judge entered a non-suit as to the A. & P. Company and gave binding instructions to the jury to find a verdict for the Beverage Company. The court en banc took off the non-suit and awarded plaintiffs a new trial as to the Beverage Company, from which award the Beverage Company now appeals. The A. & P. Company has not appealed, presumably recognizing that an appeal does not lie from an order taking off a compulsory non-suit; (Dellacasse v. Floyd, Exrs., 332 Pa. 218, 2 A.2d 860; Hildock v. Grosso, 334 Pa. 222, 5 A.2d 565; Patanyi v. Davis, 336 Pa. 476, 9 A.2d 430).

Plaintiffs were shopping in the A. & P. Company's super-market in Wilkes-Barre. As the husband was picking up two bottles of ginger ale, one in each hand, from the bottom shelf of the soft drink display, the bottle in his right hand burst and a piece of the glass struck and cut the back of the wife's leg, resulting in a deep laceration and a long permanent scar.

Plaintiffs depended for establishment of their case on the doctrine either of res ipsa loquitur or "exclusive control"; they offered no actual evidence of negligence on the part of either defendant. The A. & P.

[ 372 Pa. Page 215]

Company, having obtained a compulsory non-suit, presented no evidence. The Beverage Company offered testimony explaining the tests, safety devices, controls and manner of carbonating and bottling ginger ale in their plant, and that the methods they employed were used generally by concerns bottling carbonated beverages.

On this appeal plaintiffs rely principally on Rozumailski v. Philadelphia Coca-Cola Bottling Co., 296 Pa. 114, 145 A. 700, and Dillon v. William S. Scull Co., 164 Pa. Superior Ct. 365, 64 A.2d 525, while defendants, on the other hand, claim that the present case is ruled by Sweeney v. Blue Anchor Beverage Co., 325 Pa. 216, 189 A. 331. In our opinion, however, those decisions do not justify the significance attributed to them by the respective parties. In the Rozumailski case the plaintiff was injured by swallowing pieces of ground glass which he testified were contained in a bottle of Coca-Cola; likewise in the Dillon case the court pointed out that there must have been some foreign substance packed in a glass jar of coffee which exploded in the plaintiff's hand; in both of those cases the court held, therefore, that the improper presence of such foreign matter in the bottle or jar must obviously have been the result of negligence that proof of the accident itself was sufficient to take the case to the jury, leaving the burden of explanation upon the defendant as to the methods employed by it to prevent such occurrences. In the Sweeney case, on the other hand, it appeared that the plaintiff upset a bottle of ginger ale on a ...


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