dissenting: In the present case a deleterious or harmful substance was found in the bottle. There is no question made as to plaintiff’s injury.
In 26 O. J., p. 785, is this satisfactory statement of the present-day rule now generally applied: “Although differing in their reasoning, it is generally agreed by the authorities that a manufacturer, packer, or bottler of foods or beverages is directly liable to a consumer for an injury caused by the unwholesomeness or the unfitness of such articles, although purchased from a dealer or middleman and not from such manufacturer, bottler, or packer. And a manufacturer of food products has been held liable for injuries to one who did not buy the food from the manufacturer or from a dealer to whom the manufacturer has sold it, but who nevertheless had partaken of it and been injured thereby. In some of these decisions the doctrine of implied warranty has been assigned as a ground for such liability; but in others liability is based upon the ground of negligence, the applicability of the rule of implied warranty being denied.” To the same effect, see 11 E. C. L., p. 1122.
In Minutilla v. Providence Ice Cream Co., 144 Atl., 884 (E. I.), 63 A. L. R., 334, it is held (syllabus borne out by the authorities) : “A maker who furnishes unwholesome food or drink for public consumption, through a retailer, may be directly liable to an injured consumer, who purchases from the retailer. . . . An instruction that testimony that small pieces of glass were imbedded in ice cream, together with evidence that the ice cream was served in the original package to a customer in a restaurant, furnishes the basis for a reasonable inference of negligence on the part of the manufacturer, is not equivalent to an application of the inapplicable doctrine of res ipsa loquitur, in an action against the manufacturer for the injury sustained. . . . Negligence on the part of the *754manufacturer may be inferred from testimony that small pieces of glass were found imbedded in ice cream, together with evidence that ice cream was served in the original package to a customer in a restaurant.”
The courts of Rhode Island, South Carolina, Virginia, Pennsylvania, Ohio, Arkansas, Iowa, Tennessee, and others have held that the presence of a foreign substance in a beverage is in itself evidence of negligence. 47 A. L. R., 146; 63 A. L. R., 334, Norfolk Coca-Cola Bottling Co. v. Krausse, 173 S. E., 497 (Va.), the following is held (syllabus borne out by the authorities) : “Manufacturer putting food preparation on market for human consumption is liable directly to consumer for injury caused by unwholesomeness or unfitness, though consumer purchased product from middleman. . . . Negligence of bottling company held question for jury, notwithstanding its evidence of care in sterilizing and filling bottles, where consumer’s evidence showed that beverage bottle, which had not been tampered with, contained glass particles causing injury.” This opinion cites and discusses a large number of pertinent authorities and is a valuable digest on the subject and on “all fours” with the present action.
A large majority of the courts of the nation hold contrary to the main opinion — the heavy weight of authority is with plaintiff. Any other holding leaves the consumer at the mercy of the vendor and manufacturer. It gives no protection to the general public. I repeat what I said in my dissenting opinion in Thomason v. Ballard & Ballard Co., ante, 1 (7) : “It is of the greatest importance to the health of the general public that when they purchase food or drink it should be pure, wholesome, and fit for use.”
The bug in the bottle, from the reasoning in a wealth of authorities, should take the case to the jury for its consideration in determining whether or not it will infer negligence. If it was not the negligence of someone, how did the bug get in the bottle ?