| N.Y. App. Div. | Jan 15, 1937
Action by plaintiff wife to recover damages for injuries sustained when, while unscrewing and removing the metal cap from a bottle in which rubbing alcohol had been sold to her by defendant, a retail druggist, she cut her finger on the broken thread of the bottle, which defect was not apparent until she had removed the cap. The complaint was based on negligence and breach of an implied warranty. Action by plaintiff husband for the expenses incurred and for loss of his wife’s services. Upon the trial plaintiffs relied solely upon the cause of action for breach of an implied warranty. Judgment of nonsuit in the wife’s action reversed on the law and a new trial granted, with costs to appellant to abide the event. We are of the opinion that the bottle is just as much a part of the sale as its contents and that the provisions of the statute (Pers. Prop. Law, § 96) are equally applicable to it, and where, as here, the defect was latent and inspection impossible unless the cap was removed, the law casts the burden on the seller, who may vouch in the manufacturer if the latter was to blame. (Morelli v. Fitch & Gibbons, L. R. [1928], 2 K. B. 636; Geddling v. Marsh, L. R. [1920], 1 id. 668.) Judgment of nonsuit in the husband’s action unanimously affirmed, without costs. There was no proof of negligence — in fact, the theory of negligence was abandoned at the trial —- and the husband may not maintain an action for a breach of an implied warranty to recover for the consequential damages sustained by him for medical expenses and the loss of his wife’s services. (Gimenez v. Great Atlantic & Pacific T. Co., 264 N.Y. 390" date_filed="1934-06-05" court="NY" case_name="Gimenez v. Great Atlantic & Pacific Tea Co.">264 N. Y. 390; McSpedon v. Kunz, 245 A.D. 824" date_filed="1935-07-15" court="N.Y. App. Div." case_name="O'Toole v. Crane & Clark">245 App. Div. 824; affd., 271 N.Y. 131" date_filed="1936-05-19" court="NY" case_name="McSpedon v. Kunz">271 N. Y. 131.) Lazansky, P. J., Carswell, Davis, Johnston and Taylor, JJ., concur.