delivered the following dissenting opinion, in which Henderson, J., concurs.
Plaintiff bought three bottles of “Green Spot” at the filling station of the co-defendant, East, took them home, opened one, poured out and drank part of the contents and was thereby made ill. On examination of the bottle it was found that the contents were covered by an oily film which had a strong kerosene odor and on chemical analysis was found to be kerosene — or “a petroleum material in the kerosene range.”
At East’s filling station kerosene was handled and sold in bulk. “Green Spot” was kept for sale, outside the building, “in a Coca Cola Cooler” that sat “right adjoining the building”. The cooler was about fifteen feet from the kerosene pump. “Green Spot” was delivered by defendant to its customers, including East, on its “regular milk trucks, along with the milk”. East would order “Green Spot”, defendant’s driver would bring it, put it in East’s cooler and also put in the cooler ice he brought on the truck. If there was a surplus brought (beyond what the cooler would hold) the cases were put on the inside of East’s building. East was “serviced” by defendant every day, but did not necessarily buy “Green Spot” every day. When customers of East, including any of his employees, wanted to make purchases, they went over to the cooler and helped themselves at all times — and then paid East. His employees never served customers.
“Green Spot” bottles, like Coca Cola, milk and other beverage bottles, had metal caps. From the specimen *673exhibited at the argument it appears that the caps may easily be removed and replaced. Unlike Coca Cola and other “soft drinks”, (e. g., “Whistle”, Goldman & Freiman Bottling Co. v. Sindell, 140 Md. 488, 495, 117 A. 866), “Green Spot” is not carbonated. The caps, therefore are not airtight. Defendant produced testimony, which was not contradicted, that through capillary action liquid from the outside may infiltrate into a filled and capped bottle. If a bottle is warm and is put in some cold liquid {e. g., if it is laid or falls sidewise or is upset in melted ice or other iced water) chilling of the interior and contraction of the contents will create a vacuum and draw some of the liquid under the cap into the bottle. If an employee of East or anyone else, with kerosene on his hands, handled the contents of the cooler, kerosene could thus be drawn into a bottle. There is no evidence that kerosene in fact got into the bottle in question in this way.
Defendant’s plant manager testified that kerosene is not kept at defendant’s dairy at all. The witness described in detail how “Green Spot” is prepared and bottled and specifically how the bottles are washed by machinery. He says it is impossible for any fluid to be In a bottle before it is filled.
This court has repeatedly held that the presence of an injurious substance in the bottle or other container of an article of food or drink when it is sold by the manufacturer in a sealed container for public consumption is evidence from which negligence on the part of the manufacturer may be inferred, whether by an inference like any other rational inference from circumstantial evidence or by one labeled res ipsa loquitur. Goldman & Freiman Bottling Co. v. Sindell, 140 Md. 488, 117 A. 866 (broken glass in a bottle of “Whistle”); Salisbury Coca-Cola Bottling Co. v. Lowe, 176 Md. 230, 4 A. 2d 440 (coal oil in a bottle of Coca Cola); Armour & Co. v. Leasure, 177 Md. 393, 9 A. 2d 572 (disease organism in a can of corned beef); Coca Cola Bottling Works v. *674Catron, 186 Md. 156, 46 A. 2d 303 (dead mouse in a bottle of Coca Cola).
Testimony of care exercised by the manufacturer generally in preparing and sealing the product is not enough to destroy the inference and require the withdrawal of the case from the jury.
But in the Goldman case the court was careful to point out that the inference or presumption of negligence is predicated upon a finding that the extraneous matter was in the container when it left the hands of the manufacturer. In that case there was testimony by the dealer that the bottle was in the same condition when sold as when it came into his hands, although this was criticized as a mere conclusion by one of the dissenting judges. In Armour & Co. v. Leasure, supra, there was medical testimony that the disease organism could not have developed after the can was opened, and no evidence that the can was defective, hence there was a strong inference that it was in the can when sealed by the manufacturer. In Salisbury Coca-Cola Bottling Co. v. Lowe, and Coca-Cola Bottling Works v. Catron, supra, prayers for a directed verdict on the question of liability were not pressed.
In the instant case there was no evidence that the bottle was in the same condition when opened as when it was delivered to the dealer. It remained for an indeterminate time in an open cooler, accessible to anyone, in close proximity to a kerosene drum. In some of the cases in other jurisdictions the point has been stressed that where bottle caps are of a type that may be readily removed and replaced, and opportunities for tampering are shown, the inference that the foreign substance was in the container when originally sealed becomes mere speculation. Coca Cola Bottling Works v. Sullivan, 1942, 178 Tenn. 405, 158 S. W. 2d 721, 171 A. L. R. 1200; cf. Jones v. Mercer Pie Co., 1948, 187 Tenn. 322, 214 S. W. 2d 46. See also Bourcheix v. Willow Brook Dairy, 268 N. Y. 1, 196 N. E. 617, 98 A. L. R. 1492, and notes 47 A. L. R. 148, 105 A. L. R. 1039, 171 A. L. R. 1209. *675In the instant case there is testimony that the kerosene could have entered the bottle even without removal of the cap. This could not be true as to glass or a dead mouse. The most that the plaintiff has shown is that there are two equally possible hypotheses, upon one of which the appellant could be liable and on the other not liable. Cf. Perdue v. Brittingham, 186 Md. 393, 404, 47 A. 2d 491; Morris v. Twigg, 190 Md. 324, 58 A. 2d 719, 722; Krell v. Maryland Drydock Co., 184 Md. 428, 41 A. 2d 502; Charlton Bros. Transp. Co. v. Garrettson, 188 Md. 85, 94, 51 A. 2d 642; Armour & Co. v. Leasure, 177 Md. 393, 405, 9 A. 2d 572.
Plaintiff argues that defendant was negligent in not making “Green Spot” bottles impervious to any outside liquid. This contention has no support in principle or authority. A manufacturer is liable only for negligence in selling a bottle containing an injurious substance, not as an insurer against the consequences of every possible use or abuse of a bottle which contained no injurious substance when sold by him. A manufacturer would not be liable for the consequences of using penicillin or similar drugs after they have deteriorated by being kept too long or kept in an improper temperature by an intermediate or ultimate purchaser. Plaintiff also argues that “Green Spot” continued in defendant’s “control” after delivery by defendant to East, because defendant’s driver “serviced” it once a day and East’s employees did not service it at all. The fact that East’s employees did not exercise any active “control” over the bottles does not indicate that defendant had any control over them after delivery, but merely that no one at all exercised any control or care whatever over them to prevent any careless handling or mishandling of them by employees of East or other purchasers or by any trespassers, prowlers or miscreants.
It is said that there is no evidence that the bottle was tampered with or even touched by anyone but the agent of defendant who brought it to the cooler and plaintiff, who took it out, and that this is evidence that the kerosene *676was in the bottle at the time it was delivered to the filling station. This státement ignores the difference between facts and possibilities and inverts the only reasonable inference of fact or possibility that might be drawn from the evidence. In view of the undisputed fact that the bottle was kept out of doors at the filling station, where it could be handled or tampered with by anybody at all and was intended to be handled by any would-be purchaser, and of defendant’s uncontradicted and persuasive evidence that the kerosene could not have been in the bottle when it was delivered to the filling station, it would be more plausible to say that the fact that plaintiff found kerosene in the bottle is evidence that it was handled and tampered with after it was delivered to the filling station. It may be that in the face of evidence to the contrary, the jury might have disbelieved defendant’s evidence. But in the absence of any such evidence, the jury could not assume it, whether it believed defendant’s evidence or not. By such a process of inference mere absence of evidence of an alibi would be evidence of guilt. In the Armour case the evidence affirmatively showed that the diseased organism could not have entered the can after it was packed.
It is also suggested that an inference that the kerosene was in the bottle when it was delivered to the filling station need not be based on any rational ground for inference, but may be based on the mere fact that the manufacturer has made a drink for human consumption which is sold by dealers in the original packages. In the Armour case, the Goldman case and other cases this court has repeatedly held the contrary, viz., that the pressence of the deleterious substance in the food or drink, when delivered by the manufacturer, must be proved as a fact by direct evidence or by rational inference from circumstantial evidence, and only then can negligence of the manufacturer be inferred. The manufacturer owes no higher degree of care with respect to carbonated drinks than with respect to uncarbonated drinks, but he is not, with respect to either, an insurer against accidents *677or against negligence of others, after the drink has been delivered by him. In drawing inference from circumstantial evidence courts cannot ignore the difference between a champagne bottle and a sponge, or any other difference in facts which is relevant to the inference to be drawn. A manufacturer cannot control the handling or mishandling of bottles out of doors at a filling station, which is visited once a day by the manufacturer’s truck driver, but is conducted without any care or supervision at all on the part of the operator of the filling station. No one is compelled to conduct such a place in such a way, or to buy food or drink at such a place.
In the absence of evidence that the bottle in question contained kerosene when delivered by defendant to East, defendant’s motions for a directed verdict and for judgment n.o.v. should have been granted.
Judge Henderson authorizes me to say that he concurs in this dissent.