I regret that I cannot concur in the opinion filed by the majority of the Court.
The record does not seem to me to bear out the conclusion in the opinion that the defendant's evidence "showed that when the bottle of Whistle was sold by the appellant it contained broken glass." The testimony of John M. Griffith, the proprietor of the Park Confectionery, where plaintiff *Page 504 bought the "Whistle," that "after the witness purchased the bottle of Whistle he did not put anything in the bottle, nor did he take anything out of the bottle, before he sold it, and that it was sold in the same condition in which he had purchased it," can mean nothing more than that the witness put nothing in the bottle. It had been in his store several days, and it appears from his own testimony that he was not there all the time. His wife who sold this Whistle is dead. Of course his statement that the bottle was in the same condition when sold to plaintiff as it was when witness purchased it, can only be a conclusion of the witness. He certainly did not mean that statement to be taken literally, for that would mean that he knew it had glass in it when he bought it and with such knowledge permitted it to be sold. It must be presumed that he had no such knowledge.
There is testimony in the case that the cap could be taken off and put back without detection except by experts, and the contents would not lose its effervescence for a week; and there is no denial of this.
It cannot be assumed, therefore, that the glass was in the bottle at the time it was delivered by the agent of appellant; and yet the opinion of the Court is based entirely on this assumption.
The opinion assumes not only that glass was in the bottle at the time it was delivered by appellant, but that it was there through the negligence of appellant. And this, notwithstanding the strongest kind of testimony of disinterested witnesses, as well as of those connected with the bottling plant, that every known precaution was used to insure cleanliness and to exclude foreign substances from the bottles, and the absence of the slightest evidence in refutation. What more could appellant have done to negative any possible presumption of negligence?
Without the slightest evidence, the opinion assumes that proper inspection would have discovered the dangerous character of the contents of the bottle, notwithstanding it was a *Page 505 thick, cloudy liquid, according to the testimony; and further assumed the absence of proper inspection.
In spite of all these assumptions it is asserted that the conclusion reached by the Court does not necessarily involve the doctrine of res ipsa loquitur. This seems to me impossible. However, it is held that "there is nothing in the cases ofBenedick v. Potts, 88 Md. 55; or Streett v. Hodgson,115 A. 27, to prevent its application to the facts of this case." I most strongly dissent from that view.
I find nothing in this record to bring the present case within either of the two classifications to which the application of this doctrine is limited in Benedick v. Potts. To hold this appellant liable would be to make every manufacturer of articles of this character an insurer of everyone using his product against injury from the use thereof, due not only to the manufacturer's wrong doing, but to that of others for whom he is in no way responsible, and without regard to the number of hands through which it may have passed after leaving his custody; and this without the slightest evidence of negligence on the part of the manufacturer.
I do not understand that to be the law. In my opinion it was error to refuse defendant's first prayer, and the judgment should be reversed without a new trial.
STOCKBRIDGE, J., also dissents. *Page 506