197 A.D. 855 | N.Y. App. Div. | 1921
On January 30, 1919, John C. McClure, a druggist located at Coxsaekie, N. Y., purchased of the Gibson-Snow Company of Albany, N. Y., twelve cans of chlorinated lime. On July 8, 1919, he sold to a Mrs. Tompkins a can of this chlorinated lime for use in her house. At that time he had three or four cans of the dozen he had purchased of the Gibson-Snow Company left upon his shelves. This can was stamped the “ triangle ” brand, and at the time he purchased the shipment in January, 1919, the defendants were the sole packers and distributors of that particular brand. Previous to 1917, the druggist had purchased the same brand (triangle) of the Mendleson Company. On July 11, 1919, the plaintiff, who was a servant in the household of Mrs. Tompkins, attempted to open the can; it exploded and caused the injuries complained of here. Her husband’s action, tried herewith, was for expense and loss of service. The plaintiffs had a verdict in each case. The defendant did not offer any evidence, but depends on exceptions to reverse the verdicts. The theory upon which the action is maintained was announced in Thomas v. Winchester (6 N. Y. 397) and followed down through the book ages, until it was again expressly affirmed in MacPherson v. Buick Motor Co. (217 N. Y. 382). Appellant says, even if the rule stated in the above cases still obtains,
The judgments should be affirmed, with costs.
Judgments and orders unanimously affirmed, with costs.