2 Conn. Cir. Ct. 354 | Conn. App. Ct. | 1963
The plaintiff sued the defendant, a bottler and vendor of grape soda, for injuries sustained by her after consuming soda sold by the defendant, because of the presence in it of a foreign substance. The complaint was in two counts, one sounding in negligence and the other for breach of an implied warranty as to the merchantability of the soda and as to its fitness for the intended use.
The following facts are not in dispute. The plaintiff was married on August 26, 1961, and a wedding reception was held at the Mount Carmel Hall. There were approximately 150 guests present, of whom about thirty were children. At the wedding dinner, the plaintiff’s father poured for her some of the soda sold by the defendant. There were approximately fifteen people seated at the bride’s table. The plaintiff consumed the soda as her father poured the remaining contents of the bottle for others at the table. While he was pouring, some of those at the table, other than the plaintiff and her mother, who were the only witnesses to testify for the plaintiff, exclaimed excitedly over a foreign substance which they variously described, within hearing of the plaintiff, as a “bloodsucker” or “cockroach.” Neither the plaintiff nor her mother saw what was in the bottle. On trial, there was no identification of the substance other than a characterization of it by a defendant’s witness as a “mold.” The plaintiff became ill and retired to the ladies’ room, where she vomited. She was unable to eat her dinner and left before the grand march took place. According to custom, the guests are expected to make gifts of money to the bride and groom in the course of the grand march, but because of the early departure of the plaintiff many of the guests also left and consequently some of the expected
Among the errors assigned by the defendant is error in the ruling of the court admitting in evidence, as exhibit 1, a soda bottle containing some unidentified substance. If the exhibit was admitted improperly, the error would be material because the jury then would have been permitted to accept as true the very fact which the plaintiff needed in order to establish the defendant’s liability on either count. The exhibit was offered through Mrs. Alaimo, the plaintiff’s mother, who, in the course of her direct examination, testified that the bottle was the one opened by her husband at the table where she sat about twelve feet from him. The defendant objected, stating as reasons that the substance in the bottle had not been identified, that there was no proof that the substance was in the bottle at the time of the alleged occurrence, that custody and care of the bottle until the date of trial had not been accounted for, and that a proper foundation had not been laid for admitting this item of evidence. The objection was overruled and the bottle admitted as a full exhibit. Upon further questioning, the witness testified as follows: “Q. — • Now, did anything unusual happen while he was pouring from the bottle? A. — Yes, everybody — well, as he was pouring, they noticed this object in the bottle was moving around and they got up and there was quite a commotion. They was wondering what was in the bottle. The court: And while he was pouring this, some people noticed something? A. — ■ Well, yes — you know — they were facing her table and as he was pouring it, someone nearby said something about a cockroach being in the bottle, or something, and they named other bugs and then
The plaintiff, during her testimony, identified the bottle as being the one from which she had consumed soda poured by her father. “Q. — What did you do with the soda when you got it? A. — I drank it. Q. — Eight away? A. — Yes. Q. — Now, did any incident occur while your father was pouring the soda in other people’s cups? A.- — Yes, it started an uproar. They saw something shaking around in the bottle, they said there was a bloodsucker, cockroaches, there was a lot of comments about what was in the bottom of the bottle. Q. — Now it’s true that you don’t know what is in that bottle now, isn’t it? A.- — No. Q. — Is that right? A.- — Yes. Q.— And you didn’t know what was in it — supposedly in it- — at the reception, is that right? A. — No, that’s right. Q. — And you consumed a cup of grape soda at the reception? A. — Yes. Q. — And thereafter, didn’t you testify that some people around there saw something in the bottle? A. — Splashing around in the bottle. Q. — And they started making remarks? A. — Yes. Q. — And isn’t that what
We have set down the testimony verbatim and at considerable length so that all of the evidence material to the issue raised by the defendant’s objection may be examined in the light most favorable to the plaintiff. In laying a foundation for the receipt in evidence of the thing claimed to have caused the injury, it is ordinarily sufficient for the witness having knowledge of the object to identify it. See Lestico v. Kuehner, 204 Minn. 125. Exhibit 1 was admitted on identification of the bottle. It was not introduced to prove the identity of the bottle which had contained the beverage consumed but as real evidence of the purported substance which allegedly the beverage contained and which caused the plaintiff’s illness and suffering. See 1 Wigmore, Evidence (3d Ed.) § 24. In order to justify its admission for that purpose, it was necessary first to show that it was the substance it purported to be, that is, that it was present in the bottle at the time of the occurrence, in a condition reasonably the same as that viewed at the trial, eighteen months later. The plaintiff had the burden of proving as a preliminary matter that the substance allegedly contained in the bottle at the time it was first opened was the same substance, without any material change, as that found in the bottle when it was offered as an exbibit. See Wieland v. C. A. Swanson & Sons, 223 F.2d 26 (2d Cir.). This is usually accomplished by showing original apperception of the object and then its care and custody under circumstances which would reasonably exclude any tampering with or material alteration in it so as to render the exhibit misleading — or, as in this case, the probability of chemical changes or organic growth resulting from environmental factors such as air, moisture and temperature. See Jasper Coca Cola Bottling Co. v. Breed,
The questioned exhibit consists of a dark green quart bottle with a roughened surface, some liquid therein, and a substance described by one witness as a “mold.” To see this substance at all requires observation at very close range in good light. It is plain that neither witness who identified the bottle had any knowledge of what was in it, other than soda, at the time the plaintiff partook of the contents. Neither of them examined the bottle at that time; they relied on what they heard, not on what they saw; no testimony was offered as to care and custody of the bottle and its contents; and no evidence supports the conclusion, obviously reached by the jury, that the substance they observed was the same as that which was allegedly present in the bottle when the soda was consumed by the plaintiff.
Although the exclamations of the guests, none of whom was called as a witness, might for some purposes be regarded as part of the res gestae, standing alone they cannot supply the required proof of a fact essential to the plaintiff’s case. “The failure of the defendant by proper objection made, to prevent the introduction of the . . . [exclama
The objection of the defendant was well taken; a sufficient foundation had not been laid for the admission of exhibit 1 and its examination by the jury; and the error was harmful and prejudicial to the defendant.
The defendant assigns error in the following portion of the court’s charge: “If you find that there was a foreign substance in the contents of this bottle, and that this was foreign to the soda, then you must find that this soda was not merchantable, not fit for human consumption and not suitable for the purpose for which it was intended. If you find this, then you must find that there was a breach of warranty that the law implies.” This was the only instruction given to the jury on the issue of breach of implied warranty. The defendant had requested instructions relating to breach of duty, liability and proximate cause. Nothing substantially covering these aspects of the case was included in the charge and exception was taken. We consider the charge erroneous and inadequate for the following reasons:
The doctrine of res ipsa loquitur is not available in the case of an alleged breach of warranty. The mere presence in a beverage of a substance foreign to it may make it unmerchantable but need not render it unfit for human consumption. The substance in this case was never identified, nor was it shown to be of the same general nature and description as the plaintiff visualized it to be on hearing the exclamations of others. There was no evidence that the substance itself caused any physical injury to the plaintiff. The claimed injury, so far as the record discloses, could have been caused only through a psychological influence exerted on the plaintiff’s alimentary system through a belief that the soda she had consumed came from a bottle containing a repulsive insect or leech. If her reaction had resulted from a sight of the foreign substance contemporaneously with the consumption, there is ample authority for a recovery for the breach. We have been directed to no case, and have been able to find none, where the alleged injury was caused, not by a perception of the foreign substance directly through the senses (as by sight, smell, taste, and touch), but through hearing a vivid description of it which may or may not have been true. We need not decide that absence of such sense-acquired knowledge would deprive an injured person of his remedy. But it would seem
The defendant requested that the verdict be set aside and judgment be directed in its favor. “Finding error in the denial of the motion to set the verdict aside . . . , we cannot direct ... a verdict for the defendant, but must order a new trial.” Edwards v. Grace Hospital Society, 130 Conn. 568, 575; see Robinson v. Southern New England Telephone Co., 140 Conn. 414, 421.
The disposition we make of this case permits us to comment on certain items of damage which apparently were accepted as being allowable. The plaintiff did not seek or receive professional medical care, and no expert medical testimony was produced. “The circumstances were not such as to make expert medical testimony essential, as claimed by the defendant. Sapienti v. Waltuch, 127 Conn. 224, 227 . . . .” Kilduff v. Kalinowski, supra, 409; Gannon v. S. S. Kresge Co., 114 Conn. 36, 39. There was no evidence of loss of earnings. The evidence of loss of reasonably expected wedding gifts, even
There is error, the judgment is set aside and a new trial is ordered.
In this opinion DEARinGTon and Kotmoistth, Js., concurred.