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SILVERMAN v. OIL CITY GLASS BOTTLE COMPANY ET AL. (04/14/64)

April 14, 1964

SILVERMAN
v.
OIL CITY GLASS BOTTLE COMPANY ET AL., APPELLANTS.



Appeals, Nos. 205 and 206, April T., 1963, from judgment of Court of Common Pleas of Allegheny County, April T., 1954, No. 2564, in case of Alvin Silverman, trading and doing business as Howard's Food Products, v. Oil City Glass Bottle Company et al. Judgment reversed.

COUNSEL

Drayton Heard, with him Heard & Heard, for appellants.

Raymond G. Hasley, with him Harold R. Schmidt, Alfred S. Pelaez, and Rose, Houston, Cooper and Schmidt, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Flood

[ 203 Pa. Super. Page 401]

OPINION BY FLOOD, J.

The plaintiff purchased 2700 dozen 16 oa. "Liberty Jars" from the Samuel Mallinger Co., an independent broker, who in turn acquired them through defendant Knox Associates, Inc., the sales agent for defendant Oil City Glass Bottle Co., by whom they were manufactured. They were shipped directly from Oil City to the plaintiff and used by him in processing pickle products. He claims severe damage to his product as the result of breakage and leakage during the process of packing, cooking and storing the pickles.

The plaintiff first sued in assumpsit, alleging the breach of an express warranty of fitness for his particular purposes and obtained a verdict against Knox and Oil City. However, on appeal the Supreme Court

[ 203 Pa. Super. Page 402]

    affirmed a judgment n.o.v. in favor of the defendants because there was no evidence of the alleged warranty. Silverman v. Samuel Mallinger Co., 375 Pa. 422, 100 A.2d 715 (1953). The plaintiff then brought this action in trespass alleging negligent manufacture of the jars and relying upon the doctrine of exclusive control to take his case to the jury.

The exclusive control doctrine applies when the circumstances of the accident are such as to give rise to the inference that the injury resulted from the negligence of the defendant-manufacturer (or of the dealer if he is also a defendant) who can "readily explain the equipment and method employed by it" in making the articles involved, while the plaintiff is not normally in a position to prove the cause of the accident. Loch v. Confair, 372 Pa. 212, 93 A.2d 451 (1953). See also Izzi v. P.T.C., 412 Pa. 559, 195 A.2d 784 (1963).

The doctrine of exclusive control is not applicable where the plaintiff's evidence does not exclude the inference that he himself, or a third party, may have caused the injury. Braccia v. Coca-Cola Bottling Co., 398 Pa. 386, 157 A.2d 747 (1960). Unfortunately for this plaintiff, he has not negated a casual connection between his processing operation and the damage.

In the processing operation, new jars were unpacked, spices were inserted and the jars were taken by conveyor belt to a section where they were packed with washed green pickles, filled with brine and capped. The jars were then placed in cooking retorts where they were subjected to temperatures up to 180 degrees for a period of twenty minutes in order to finish and pasteurize the pickles. They were subsequently allowed to cool to room temperature, placed in cardboard cartons and taken to a warehouse for ...


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