jurisdiction of the Federal district court.

VII. Parties to action to enforce pay. ment.

After a consolidation of municipal corporations or the merger of one in another, an action by a creditor of one of the consolidating corporations, or of the merged corporation, should be brought ordinarily against the new corporation, or other corporation in which the former corporation has been merged, and not against the original debtor. Dousman v. Milwaukee (1839) 1 Pinney (Wis.) 81. See also Adams v. Minneapolis (1874) 20 Minn. 484, Gil. 438.

In Dousman v. Milwaukee (Wis.) supra, it appeared that before the town of Milwaukee was dissolved and its territory consolidated with another town, the plaintiff's scow boat was damaged by a collision in the Milwaukee river. After the dissolution of the town, the plaintiff brought an action against it for damages for negligence, in its name as it existed prior to the dissolution. Process was served on the persons who were trustees of the corporation at the time it was dissolved. It was held that the suit was not properly brought, since rights against the dissolved corporation were enforceable only by suit against the new corporation.

In Adams v. Minneapolis (Minn.) supra, it appeared that the city of St. Anthony and the former city of Minneapolis were united, and a new corporation created by the name of the city of Minneapolis. Subsequently an action was brought against the city of Minneapolis for personal injuries, alleged to have been caused by the negligence of the "said city," and to have occurred on a date which was prior to the consolidation and the creation of the new corporation. In reversing an order overruling a demurrer to the plaintiff's complaint, the court said: "The incorporation and organization of defendant having occurred in 1872, as is shown by its charter, the complaint fails to show that the negligence and injury complained of occurred after the defendant came into exist47 A.L.R.-10.

ence, for which purpose the allegation of time is material. Lockwood v. Bigelow (1866) 11 Minn. 117, Gil. 70. The fact is, as agreed by counsel, that the negligence (if any) was that of the old city of Minneapolis. For this negligence the plaintiff's right of action (if any he had) is undoubtedly preserved by §§ 4 and 5, supra. But as the defendant is not identical with the old city of Minneapolis, and upon the face the complaint does not (for the reason given above) appear to have been itself guilty of the negligence. complained of, the complaint should (if it is sought to charge the defendant) state facts showing liability on the part of the old city of Minneapolis, from which the liability of the defendant, if the view which we take hereafter is correct, is to be inferred as a conclusion of law. For its failure to state such facts, the complaint fails to state a cause of action against defendant, and the demurrer should therefore have been sustained."

In an action in equity to compel the assessment, levy, and collection of a tax to pay bonds of a municipal corporation which has been annexed to the defendant corporation, the owners of property on which the tax will be assessed are not necessary parties. Burlington Sav. Bank V. Clinton (1901; C. C.) 106 Fed. 269, wherein the court said: "If in the further progress of the case it should be determined that the bonds represent an enforceable indebtedness against Lyons City, and that by reason of the annexation to the city of Clinton the latter city is now charged with the duty of levying a tax, either general or special, upon the property within the limits of Lyons City, the court will enforce this obligation on the part of the city of Clinton; but the assessment and levy of the tax will be made by the city officials, and each property owner will have the usual opportunity afforded him for correcting any illegalities in the assessment, and therefore it is not requisite, in order to grant the relief sought by the bill in this case, that the property owners in Lyons City should be made parties defendant."

On the annexation of one municipal corporation to another, or the merger of one in another, when an action is pending on a demand against the annexed or merged corporation, it has been held to be proper to substitute the annexing corporation, or the corporation enlarged by the merger, as defendant in the place of the original defendant. Birmingham v. Darden (1911) 1 Ala. App. 479, 55 So. 1014; Tyler v. Lansingburgh (1902) 76 App. Div. 165, 78 N. Y. Supp. 433, affirming (1902) 37 Misc. 604, 76 N. Y. Supp. 139, appeal dismissed without opinion in (1903) 175 N. Y. 463, 67 N. E. 1090.

Thus, under a statute providing that when any municipal corporation has been absorbed or its government extinguished by the alteration of the boundary lines of another city or town, all suits pending in any court on behalf of the merged corporation may be prosecuted or defended in the name of the city or town the boundaries of which are altered, it is proper

in an action for damages against a municipal corporation, pending when it is merged in another city or town, to substitute the latter for the former as defendant. Birmingham v. Darden (1911) 1 Ala. App. 479, 55 So. 1014.

Moreover, under a statute requiring the outstanding indebtedness of an annexed municipal corporation to be paid by the city to which it is annexed, and providing for a levy and collection of taxes to pay the maturing indebtedness of the former, it is proper, in an action against the annexed corporation for an injury prior to the merger, due to an icy sidewalk, to allow the substitution of the annexing city as defendant. Tyler v. Lansingburgh (N. Y.) supra.

In O'Connor v. Memphis (1881) 6 Lea (Tenn.) 730, it was held that a suit pending against a city dissolved. by an act of the legislature could be revived by a writ of scire facias against a taxing district, as the successor of the city, or the same corporation under a new name.

W. S. R.

V.

its part. Consequently, this fact is no evidence of negligence on the part of the defendant.

Ash v. Childs Dining Hall Co. 231 Mass. 86, 4 A.L.R. 1556, 120 N. E. 396; Crocker v. Baltimore Dairy Lunch Co. 214 Mass. 177, 100 N. E. 1078, Ann. Cas. 1914B, 884; Leavitt v. Fiberloid Co. 196 Mass. 440, 15 L.R.A. (N.S.) 855, 82 N. E. 682.

Mr. Charles H. Cronin, for plaintiff : A manufacturer of food for human consumption is held to a high degree of care because of the serious conse

quences to human life likely to follow his negligence.

Sullivan v. Manhattan Market Co. 251 Mass. 395, 146 N. E. 673; Bishop v. Weber, 139 Mass. 411, 52 Am. Rep. 715, 1 N. E. 154; Newhall v. Ward Baking Co. 240 Mass. 434, 134 N. E. 625; Richenbacher v. California Packing Corp. 250 Mass. 198, 145 N. E. 281; Kenney v. Wong Len, 81 N. H. 427, 128 Atl. 343.

The defendant having given the shortcake to plaintiff for immediate consumption, with the representation that it was wholesome and fit to eat, is liable to plaintiff for her injuries because of the broken glass in it.

Roberts v. Anheuser Busch Brewing Asso. 211 Mass. 449, 98 N. E. 95; Norton v. Sewall, 106 Mass. 143, 8 Am. Rep. 298; Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455; Tomlinson v. Armour & Co. 75 N. J. L. 748, 19 L.R.A. (N.S.) 923, 70 Atl. 314.

The presence of the pieces of glass in the strawberries and cream offered to plaintiff for consumption, and her injuries from eating the same, raise the presumption of negligence on the part of defendant and make a prima facie case for plaintiff, and as no explanation was offered by defendant of the presence of the glass, the jury were justified in finding the verdict for plaintiff.

Richenbacher v. California Packing Corp. 250 Mass. 198, 145 N. E. 281; Tonsman v. Greenglass, 248 Mass. 275, 142 N. E. 756, 23 N. C. C. A. 864; Chaproniere v. Mason (1905) 21 Times L. R. 633-C. A.; Rosenwaike v. Interborough Rapid Transit Co. 175 N. Y. Supp. 828; Ternay v. Ward Baking Co. 167 N. Y. Supp. 562; McPherson V. Capuano & Co. 31 Ga. App. 82, 121 S. E. 580; Watson v. Augusta Brewing Co. 124 Ga. 121, 1 L.R.A. (N.S.) 1178, 110 Am. St. Rep. 157, 52 S. E. 152, 19

Am. Neg. Rep. 107; Goldman & F. Bottling Co. v. Sindell, 140 Md. 488, 117 Atl. 866; Davis v. Van Camp Packing Co. 189 Iowa, 775, 17 A.L.R. 649, 176 N. W. 382; Hertzler v. Manshum, 228 Mich. 416, 200 N. W. 155; Pillars v. R. J. Reynolds Tobacco Co. 117 Miss. 490, 78 So. 365.

Pierce, J., delivered the opinion of the court:

As brought, this was an action in tort or contract to recover damages alleged to have been sustaind by the plaintiff as a consequence of eating strawberry shortcake containing small particles of glass, served to her by the defendant or its agents or servants at one of its drug stores. The first count alleged in substance that the injury sustained by the plaintiff was suffered by reason of the "carelessness and negligence of the defendant, its agent or servants." The second count alleged an implied warranty that the cake served was wholesome and fit to eat and the breach of that warranty. The answer was a general denial and contributory negligence. At the conclusion of the evidence, the plaintiff waived the count in contract and elected to rely on the first count for negligence. The defendant thereupon moved for a directed verdict in its favor. This motion was denied. and the defendant duly excepted. The jury returned a verdict for the plaintiff, and the case is here on the defendant's exception to the denial of its motion, and upon its exceptions to the judge's giving and his refusal to give certain instructions.

The material facts offered and received in support of the case of the plaintiff in substance are as follows: On a Saturday the plaintiff and her husband entered the drug store of the defendant and purchased checks of the cashier, and at the counter the plaintiff ordered strawberry shortcake from the clerk. The strawberries and cream dishes in back of the clerk, who, were in when he received the order turned around and made the shortcake right there, putting a layer of cake on the plate then a layer of crushed

strawberries, and then a layer of cream. The strawberries were fresh strawberries that had been crushed and were contained in one bowl, and the whipped cream was in another bowl. After the strawberry shortcake was made up by the clerk, he passed one to the plaintiff and one to her husband. She took a spoonful of cream and strawberries from the top of the shortcake but no cake and put it in her mouth, and started to eat it. At the very first spoonful she felt some glass or some substance, she instantly felt something sharp, as she rolled it around in her mouth, like the point of a pin, and she swallowed it; she could not resist it going down. Her mouth and tongue were cut to such an extent they bled for two hours. When she felt the cuts she took a piece of glass out of her mouth and "hollered, "There is glass in it,' and spat it out. She then took pieces of glass from her mouth, "one pretty large piece," and a number of and a number of smaller pieces. She showed the "little square piece to the clerk and to her husband and put the other little piece on her plate." The piece of glass which she had swallowed, under treatment of her doctor, was evacuated five days later. This piece of glass was V-shaped, about a quarter of an inch long on its longest side and was very thin, and very much like an ordinary wineglass.

999

The defendant introduced no testimony. Through answers to interrogatories propounded to the defendant by the plaintiff it appeared that the cream, the strawberries and the cake were purchased by the defendant of dealers in such arti

cles, and if the evidence shown by the answers were believed it could have been found that the defendant exercised a high degree of care in the inspection of the ingredients and in the preparation of the shortcake sold to the plaintiff or to her husband. Crocker v. Baltimore Dairy Lunch Co. 214 Mass. 177, 100 N. E. 1078, Ann. Cas. 1914B, 884; Ash v. Childs Dining Hall Co. 231 Mass. 86, 4 A.L.R. 1556, 120 N. E. 396.

Putting to one side the evidence for the defendant deducible from its answers to the interrogatories, the question for decision is, Does the mere fact of the presence of small particles of glass in strawberries and cream offered for consumption by the defendant establish a prima facie case of negligence by the defendant in the examination of the strawberries and cream when they were received or while they were being prepared for food and offered to the plaintiff for her consumption? There is nothing in the record to warrant an inference Evidence-food that the harm to glass. the plaintiff result

containing

I. Introduction; scope, 149.

III.-continued.

As

1. Introduction; scope. The present annotation is supplemental to that in 4 A.L.R. 1559, where the earlier cases may be found. there stated, the annotation is not concerned with the substantive question of liability on account of the presence. of a foreign substance in food. Various aspects of the substantive question have been treated in other annotations, which may be found by consulting the A.L.R. Indexes under the topic "Food."

As stated in the earlier annotation, the diversity of conclusions with respect to the question under annotation is, in the main, the result of the application of the same principles.

The question under annotation is not to be confused with that of burden of proof in the sense of the risk of nonpersuasion; the cases cited in III. infra, do not derogate from the general rule that the burden of proof, in that sense, is upon the plaintiff. See 20 R. C. L. 195. Some of those cases expressly state that the burden of proof is upon the plaintiff (see, in particular, Rost v. Kee & C. Dairy Co. (1920) 216 Ill. App. 497, cited in III. f, under heading, "Glass in bottled milk," and Bradfield v. Atlanta Coca-Cola Bottling Co. (1920) 24 Ga. App. 657, 101 S. E. 776, cited in III. f, under heading, "Glass in bottled beverage"), and in Whistle Bottling Co. v. Searson (1922) 207 Ala. 387, 92 So. 657, an action against the manufacturer of a bottled drink for personal injuries caused by drinking "Whistle" containing a bug called "thousand legs," it was very properly held to be error to refuse to charge the jury that plaintiff could not recover on the fact alone that he may have taken a drink of "Whistle" from a bottle with a bug in it, since the onus was on him to show that the beverage containing the bug was bottled by defendant, that he

drank from the bottle and was made sick by it, and that his sickness was proximately caused by defendant in allowing the bug to be in the bottle. (The burden of showing that the particular article was manufactured by defendant is, of course, beyond the scope of the present annotation, it being assumed for the purposes of the annotation that it was in fact so manufactured.)

II. Cases to the effect that no presumption arises.

For earlier decisions to the effect that the presence of a foreign substance in food does not raise a presumption of negligence, under the circumstances enumerated therein, see the following cases as set out on pp. 1559, 1560, of the earlier annotation in 4 A.L.R.: Ash v. Childs Dining Hall Co. (1918) 231 Mass. 86, 4 A.L.R. 1556, 120 N. E. 396 (small tack in berry pie); Jacobs v. Childs Co. (1916) 166 N. Y. Supp. 798 (nail in cake); Liggett & M. Tobacco Co. v. Cannon (1915) 132 Tenn. 419, L.R.A.1916A, 940, 178 S. W. 1009, Ann. Cas. 1917A, 179 (bug in plug tobacco).

The mere fact of the presence of small particle of glass in strawberries and cream made into shortcake by drug store clerk and offered for consumption does not establish a prima facie case of negligence by drug store company in the examination of the strawberries and cream, which were purchased from dealers in those articles, when they were received, or while they were being prepared for food and offered to plaintiff for her consumption. O'BRIEN V. LOUIS K. LIGGETT Co. (reported herewith) ante, 146 (defendant's exceptions sustained).

The rule that a retailer, or one acting as the mere distributor to the retail trade, of a food product contained in unbroken packages as put up by and procured from a reputable