I concur in the affirmance of the judgment but I think that all doubt about the theory underlying such affirmance should be removed. The introduction of the concept of contractual privity to an action based on negligence, sounding in tort, has been shown to have been anomalous and unsound. See Bohlen, "Liability of Manufacturers to Persons other than their Immediate Vendees," 45 Law Quarterly Review, p. 343; Seavey, "Mr. Justice Cardozo and the Law of Torts," 52 Harvard Law Review, p. 372. Winterbottom v. Wright, 10 M. W. 109 (152 Eng. Rep. 402), the English case in which the privity doctrine arose, has been reduced to historical limbo in England itself.McAlister v. Stevenson, (1932) A. C. 562; Grant v. AustralianKnitting Mills, Limited, (1936) A. C. 85. See, also, Pollock, "The Snail *Page 578 in the Bottle, and Thereafter," 49 Law Quarterly Review, 22. Likewise, Judge Sanborn's attempt to engraft exceptions to the privity rule, which we followed in Pesavento v. E. I. DuPont DeNemours Co., 240 Mich. 434, has further been shown by modern scholarship to have been based on serious misconceptions. See Bohlen, supra; 4 University of Chicago Law Review, p. 461. It has been expressly rejected by the American Law Institute. 2 Restatement of Torts, p. 1074, § 395, comment "b." On the other hand, the modern theory, which finds its source in MacPherson v. Buick Motor Co., 217 N.Y. 382 (111 N.E. 1050, L.R.A. 1916F, 696, Ann. Cas. 1916C, 440, 13 N.C.C.A. 1029), has been accorded wide approval. See the cases collected in Harper, "Law of Tort," pp. 241, 243; Bohlen, "Fifty Years of Torts," 50 Harvard Law Review, pp. 725, 1233-1234; Jeanblanc, "Manufacturers' Liability to Persons other than their Immediate Vendees," 24 Virginia Law Review, p. 134.
Rather than attempt to perpetuate some of our past decisions which make the question doubtful, I think we should frankly declare that statements like those in O'Neill v. James,138 Mich. 567 (68 L.R.A. 342, 5 Ann. Cas. 177, 110 Am. St. Rep. 321, 17 Am. Neg. Rep. 561), and Pesavento v. E. I. DuPont DeNemours Co., supra, which are inconsistent with this theory, will not henceforth be followed in this State. We should not, as in the O'Neill Case, indulge in the circumlocution that a bottle of Coca-Cola is in a class of explosive substances akin to dynamite, nor inject the requirement of actual knowledge of a defect by a manufacturer in a negligence action based on his alleged failure to use due care. Instead, the present decision should be predicated on general principles of negligence now firmly established *Page 579 and well summarized in 2 Restatement of Torts, p. 1073, § 395, as follows:
"A manufacturer who fails to exercise reasonable care in the manufacture of a chattel which, unless carefully made, he should recognize as involving an unreasonable risk of causing substantial bodily harm to those who lawfully use it for a purpose for which it is manufactured and to those whom the supplier should expect to be in the vicinity of its probable use, is subject to liability for bodily harm caused to them by its lawful use in a manner and for a purpose for which it is manufactured."
Application of this rule to bottlers of beverages has been sustained in Georgia-Alabama Coca-Cola Bottling Co. v. White,55 Ga. App. 706 (191 S.E. 265); Stolle v. Anheuser-Busch, Inc.,307 Mo. 520 (271 S.W. 497, 39 A.L.R. 1001); Grant v. GrahamChero-Cola Bottling Co., 176 N.C. 256 (97 S.E. 27, 4 A.L.R. 1090, 18 N.C.C.A. 869). Cf. Smith v. Peerless Glass Co.,Inc., 259 N.Y. 292 (181 N.E. 576); Sweeney v. Blue AnchorBeverage Co., 325 Pa. 216 (189 A. 331).
As to the proof of defendant's negligence, the evidence was sufficient to go to a jury without any appeal to the doctrine of res ipsa loquitur. The record shows that the explosion occurred only a few hours after the Coca-Cola had been delivered to the restaurant by defendant, and that the particular bottle exploded before plaintiff had actually touched it with her hand. The explosion was accompanied with a "bang" or loud noise "like a firecracker." The bottle was broken horizontally across the neck about two inches below the cap, the lower portion remaining in the refrigerator and the upper portion striking plaintiff in the face. *Page 580
Plaintiff contends that the explosion was caused by a negligent overcharging of the bottle with carbonic gas. There is no claim that the bottle was defective; on the contrary, it was shown that Coca-Cola bottles are better constructed than those used for other beverages. There is no testimony whatever that after the bottle left defendant's physical control, it received any rough or unusual handling. Having excluded all other possible explanations of the accident, the circumstances irresistibly lead to the conclusion that the bottle was excessively charged. Cf. Oleksza v. Nolan, 258 Mich. 240. There was, in addition, positive evidence to support this conclusion. Plaintiff showed that bottles broken because of excessive gas content usually follow a certain general fracture pattern. The break in the bottle here involved corresponded to that pattern. The sound of the bursting bottle is further confirming evidence. Defendant's testimony was to the effect that overcharging could not normally occur if the bottling apparatus were working properly and if the pressures were being accurately verified. It was shown, however, that the pressure from the gas tanks below the bottling floor was distributed to five outlets in the same line of bottles without any governing apparatus; that this required constant regulation and supervision by an attendant with a pressure gauge and that the pressure apparatus sometimes failed to function properly. A jury question was properly presented.
Appellant calls attention to Smolenski v. Libby, McNeill Libby, 280 Mich. 329, a case involving an alleged explosion of a can of plum pudding. Recovery was there denied because examination of the container refuted the claim that an explosion had taken place, and also there was negligence in opening the can. Nor is appellant aided by Smith v. *Page 581 Peerless Glass Co., Inc., supra, where the negligence of a bottler was asserted because of failure to inspect bottles purchased from an independent bottle manufacturer. Applying the doctrine of the MacPherson Case, the court found that there was no proof that the bottler had neglected to use due care. It should also be noted that in that case the explosion was caused by defects in the bottle which was evidenced by striations in the glass. Here the evidence pointed only to one direction, that a standard bottle was overcharged.
The issue of breach of warranty need not be discussed because recovery on the negligence count has been sustained.
NORTH and McALLISTER, JJ., concurred with BUTZEL, C.J.