dealer, distributor, or manufacturer, is not prima facie liable in damages to a consumer for injuries occasioned by the deleterious condition of the product, since he could not, in the exercise of ordinary diligence, be expected to open for inspection the individual packages thus prepared by another, has been applied in the case of a package of butter containing a decomposed mouse head, manufactured or packed by another, and distributed by defendant (Swift & Company) to retail grocers, from one of whom plaintiff purchased it. Fleetwood v. Swift & Co. (1921) 27 Ga. App. 502, 108 S. W. 909. But in an action against either the retailer or the distributor, upon proof of such an injury and that the product was handled by the defendant, he is required to show his own diligence to the extent that he had in good faith purchased the merchandise from a reputable dealer, dis ibutor, or manufacturer, as an article reasonably sound and safe for the use intended; especially is this true where the package containing the product fails to disclose the identity of the manufacturer or packer ultimately responsible for the quality and condition of the product. Ibid. (Judgment for defendant reversed for this reason.) III. Cases to the effect that a presumption does arise, or at least that the jury may infer negligence on the part of defendant. a. Substances in unprepared foods, such as flour. Arsenate of lead. The presence of arsenate of lead in a sack of flour when sold by a dealer makes out a prima facie case of negligence against both the dealer and the miller, or manufacturer; though the burden rests upon plaintiff to show that the poison was in the flour when purchased from the dealer, having discharged this burden, he is not bound to show how or when it became mixed in the flour, or offer substantive evidence of want of care on the part of either or both the dealer and the manufacturer; if the dealer satisfies the jury that the flour was delivered by him to consumer in the same container, and exactly as furnished by the manufacturer,-in other words, that the poison did not get into the flour while in his possession,-then he is not liable, and excuse, if any, is to be made by the manufacturer, showing that he was guilty of no actionable negligence in the making, packing, and marketing of the flour. Hertzler v. Manshum (1924) 228 Mich. 416, 200 N. W. 155 (judgment for defendants reversed). Arsenic; "rough-on-rats." The presence of arsenic in flour sacked up and sold by defendant, a merchant, to the husband of plaintiff, has been held to sustain a verdict for plaintiff, it having been shown that defendant had directed "rough-onrats," a rat poison, to be placed in close proximity to the bin from which the flour was afterwards sacked up. Heinemann v. Barfield (1918) 136 Ark. 456, 207 S. W. 58. b. Substances embedded in bread or oth- The presence of the brass base of Glass in bread. See De Groat v. Ward Baking Co. (N. J.) as set out supra, under heading, "Electric light bulb base in bread." In Ternay v. Ward Baking Co. (1917) 167 N. Y. Supp. 562, cited on p. 1560 of the earlier annotation in 4 A.L.R., the presence of particles of glass embedded in the crust on the lower side of a loaf of bread, and having the appearance of having been baked into the crust, or, at all events, of having been impressed therein while the crust was still soft and warm from baking, was held to present a case for the jury as to the negligence of the baker, the testimony of the retailer from whom plaintiff purchased the bread being sufficient to permit a finding that no opportunity was ever presented, during his possession of the loaf, so to interfere with it that the glass should have become embedded therein (judgment for defendant reversed). Iron, piece of, in bread. From the presence of a discolored and offensive smelling piece of iron embedded in the center or soft part of a loaf of bread manufactured by defendants and purchased from the retailer by plaintiff, the jury could reasonably infer that it got into the bread during the process of manufacture. Tonsman v. Greenglass (1924) 248 Mass. 275, 142 N. E. 756, 23 N. C. C. A. 864 (judgment for plaintiff affirmed). It was said that not only the position of the piece of iron, but its discoloration and bad odor, indicated that it was there while the dough was soft and during a period of fermentation or other chemical change. Nail in bread. See Freeman v. Schultz Bread Co. (1917) 100 Misc. 528, 163 N. Y. Supp. 396, as set out on p. 1560 of the earlier annotation in 4 A.L.R. Nail or piece of wire in cake. The presence of a nail or piece of wire in a cake manufactured by defendant and purchased from a retail dealer by plaintiff, the nail or piece of wire being concealed in the interior of the cake and having gotten there in the process of manufacture, was apparently assumed to make a prima facie case of negligence against the manufacturer, in the case of Chysky v. Drake Bros. Co. (1920) 192 App. Div. 186, 182 N. Y. Supp. 459. Cockroaches in pie. That the plaintiff, while eating a piece of pie cut from a pie made by the defendant, discovered several large cockroaches embedded in the bottom crust of the pie, as a result of which she became ill, authorized submission of her case to the jury. Carroll v. New York Pie Baking Co. (1926) 215 App. Div. 240, 213 N. Y. Supp. 553 (judgment for plaintiff affirmed). Mouse in pie. From the presence of a mouse in the filling between the crusts of a raisin pie manufactured by defendant and served at a boarding house at which plaintiffs boarded, the jury could have found that the mouse was in the filling when the upper crust was placed on the pie, and that it could have been discovered either by a reasonable inspection of the filling before it was put into the pie, or by defendant's employees if exercising reasonable care when making the pie. Sullivan v. Manhattan Market Co. (1925) 251 Mass. 395, 146 N. E. 673 (holding it error to have directed verdict for defendant). in potatoes, dressing, gravy, and the like. c. Substances Glass in potatoes. See Rosenswaike v. Interborough Rapid Transit Co. (1919) 175 N. Y. Supp. 828, as set out on p. 1560 of the earlier annotation in 4 A.L.R. Mouse in chicken dressing. From the presence of a mouse embedded in roast chicken dressing served at defendant's restaurant, and prepared by his cook from crumbs broken with his hands and other ingredients, the jury may properly find negligence of the defendant in failing to anticipate the danger and to maintain a reasonable inspection of the ingredients going into the dressing. Kenney v. Wong Len (1925) 81 N. H. 427, 128 Atl. 343. The court arrives at this conclusion through a somewhat circuitous, though doubtless sound, process of reasoning. Said the court: "Whether there was evidence here of the duty to anticipate depends on how the mouse got into the food. This must be shown, since neither the existence of the duty nor the failure to perform it, as a cause of the injury, can be found from conjecture. It is not necessary to consider whether the unexplained presence of the mouse in the food would justify a finding that it was caused by the failure to anticipate it and guard against it. If the doctrine of res ipsa loquitur may be invoked in some cases, there is no occasion to rely on it here. Analysis of the evidence shows that a reasonable rather than a conjectural finding of what happened may be made. . With consideration given to the timidity of mice when persons are present and active, as a matter of common knowledge, in the process of cooking the dressing and in the subsequent service of it the evidence shows such exclusive control by the cook and waiter, and isolation from external contacts and invasions, as to justify an inference that during the process the mouse did not find its way into the dressing. This makes it a reasonable, rather than conjectural, deduction that it got into the dressing in its making. In this the process was such a continuous and exclusive activity of the cook as to eliminate conjecture from a finding that the mouse was inactive, if not inanimate, when made a part of the dressing, and from the further finding that, however it then got into the dressing, it had such corporeal attributes of form, size, and color that its entrance into or presence in the dressing would not have been elusive. Whether the mouse was embedded in the bread which passed through the cook's hands while broken into crumbs, or whether its entrance into the dressing came about in some other way during its preparation, need not be definitely determined, since the evidence tends to show due care would have disclosed it, however it gained entrance. The conclusion that keeping ordinary watch and giving ordinary attention while the dressing was made in its usual way would have disclosed the presence of the mouse may therefore reasonably be drawn. If the mouse got into the dressing during its preparation, it then remains to be con sidered if the defendants can be found in fault for not anticipating it. The test of liability is not whether the particular mouse which entered the dressing was to be looked out for, but whether there was such a chance of improper things entering it that ordinary men would be on the watch for them. It is common knowledge that foreign substances at times do get into food, and that it is important that food be fit to eat. It may be assumed that the usual way of making the dressing by breaking the bread into crumbs and preparing and adding the other ingredients was for culinary rather than inspective purposes. Yet at the same time they were largely acts of inspective force-simple, practical, and efficient. The situation presents a case where an ordinary method of doing the work furnished protection. While this is not alone enough to prove negligence (Zajac v. Amoskeag Mfg. Co. (1924) 81 N. H. 257, 124 Atl. 792), it is nevertheless evidence bearing on the question of anticipation in showing inspection to be feasible and practical. Evidence that available inspection is effective tends to show ordinary men would use it. It is also common knowledge that customers of a restaurant do not as a matter of practice inspect their food, nor are they expected to do so. From these matters of common knowledge, and from these inferences, if made, a jury might properly find the defendants should have anticipated the danger and thereupon maintained a reasonable inspection so the mouse would have been discovered." Centipede in gravy. See Franklin v. Argyro (1924) 211 Ala. 506, 100 So. 811 (centipede in gravy served with roast beef and potatoes in defendant's restaurant; judg ment for plaintiff affirmed, the question under consideration herein not being discussed). d. Substances in other foods, exclusive of canned or bottled foods and tobacco Poisonous substance in sausage. See Drury v. Armour & Co. (1919) 140 Ark. 371, 216 S. W. 40, later appeal in (1921) 146 Ark. 310, 226 S. W. 귀 133, which affirms the principle of these cases, holding that the presence of a "poisonous substance" in sausage prepared by defendant and purchased by plaintiff from the retailer made a prima facie case against defendant, shifting to it the burden of showing that it was not negligent in the preparation of the sausage. (It appears that the "poisonous substance" of which the court speaks was a piece of diseased meat which should not have gotten in, and which had fallen into a state of decomposition.) Attention is called to the following language of the court: "It is not a case where the thing speaks for itself so as to create a presumption of negligence, but there are circumstances which warrant such an inference and cast upon appellee the burden of clearing itself of the charge by showing that ordinary care was observed in the preparation and distribution of the food, the consumption of which caused the injury complained of." Glass in chocolate bar. See Buckley v. Mott (1919) N. S. -,50 D. L. R. 408 (powdered glass in chocolate bar manufactured by defendant and purchased by plaintiff from retailer; judgment for plaintiff affirmed. The particular question under annotation was not discussed, the court merely stating that defendant was guilty of negligence in putting the chocolate bar on sale). e. Substances in canned foods. Glass in canned spinach. The fact that pieces of glass got into a can at the canning factory during the preparation of spinach with which it was filled, and before the can was sealed, notwithstanding the great care customarily used in canning spinach, was a circumstance which warranted an inference that some person in the employ of the factory, whose duty it was to see that the system was observed, was negligent in the examination of the contents of the can before it was sealed, if not negligent in preventing the presence of glass at a place where it could be put, or might fall, into the can. Richenbacher v. California Packing Corp. (1924) 250 Mass. 198, 145 N. E. 281 (judgment for plaintiff affirmed). Pebbles in canned pork and beans, See Ward v. Great Atlantic & P. Tea Co. (1918) 231 Mass. 90, 5 A.L.R. 242, 120 N. E. 225, in which it was said, obiter, that it "is or may be found lack of due care for one to prepare beans for eating with pebbles still in them." 1. Substances in bottled milk or beverage. Glass in bottled milk. Evidence that a bottle of milk bottled and distributed by defendant dairy company contained bits of broken glass (there being no testimony that anyone put them in the bottle), and that up to the time it was delivered to plaintiff it was under the company's sole control (save for a time when it was in a sealed car), was sufficient to show that somewhereand it is not important just wherebetween the cleaning and the final delivery of the bottle to plaintiff, defendant dairy company was guilty of negligence. Rost v. Kee & C. Dairy Co. (1920) 216 Ill. App. 497 (judgment for plaintiff affirmed). (It is to be noted that this case, as well as others to the effect that a presumption of negligence is raised by the particular facts shown, in no way conflicts with the general rule that negligence must. be proved where alleged, that rule being affirmed, rather.) The court applied the principle of res ipsa loquitur, stating that it seems like playing with fanciful conjectures to say that the glass might be attributed to some other agency and that plaintiff had not made out a reasonable case, circumstantial evidence being sufficient for that purpose. Thomson, P. J., in a dissenting opinion, took the view that the doctrine of res ipsa loquitur did not apply to the situation disclosed by the evidence, in that the milk was not in the exclusive possession of defendant at the time of the injury, but that it was left by defendant's driver on plaintiff's back porch early in the morning; that the bottle was opened at breakfast, when only a part of its contents was emptied, and left open on the kitchen table until after breakfast was over and the dishes had been removed, which was at least three hours after the milk had been delivered, the greater part of which time the bottle had been left open, with opportunity for the glass to get in it, due to the carelessness of some person for whom the defendant was in no way responsible. Bug in bottled beverage. See Whistle Bottling Co. v. Searson (1922) 207 Ala. 387, 92 So. 657 (bug called "thousand legs" in bottle of "Whistle" bottled by defendant and purchased by plaintiff from retailer; judgment for plaintiff affirmed.) This case may be cited to the proposition that the burden is upon the plaintiff to satisfy the jury of defendant's negligence; but, as we have seen, this does not derogate from the principle of these cases that, it having been shown that the beverage was bottled by defendant, and that injury proximately resulted, the jury may infer negligence on the part of defendant. Cigar stub in bottled beverage. The presence of a cigar stub in a bottle of Coca-cola bottled by defendant and purchased by plaintiff from the retailer was apparently assumed to present a case for the jury as to defendant's negligence, in the case of Boyd v. Coca Cola Bottling Works (1915) 132 Tenn. 23, 177 S. W. 80 (reversal of judgment for defendant affirmed). Glass in bottled beverage. While it is incumbent upon plaintiff, in action against bottling company for damages for injuries sustained by swallowing small particles of glass contained in a bottle of Coca-cola purchased from retailer, to prove negligence of the company in the bottling of the Coca-cola, yet, on proof by him that the bottle did contain glass, it is for the jury to say whether the glass in the bottle was there because of negligence of the company in filling the bottle; proof that the bottle contained glass is a circumstance which the jury may consider in determining whether or not such glass was left in the bottle by the company, when it was filled, and this though proof be made by the company that the bottling was done with the latest and most improved machinery, and that careful inspection was made of every bottle sold by it. Bradfield v. Atlanta Coca-Cola Bottling Co. (1920) 24 Ga. App. 657, 101 S. E. 776 (judgment for defendant reversed). And the presence of broken glass in a bottle of "Whistle," a bottled beverage, when first opened after purchase from retailer, who testified that it had not previously been opened, but was in the same condition as when bought from the manufacturer, has been held to be evidence of negligence on the part of the bottling company sufficient to support a judgment against it for resulting injuries. Goldman & F. Bottling Co. v. Sindell (1922) 140 Md. 488, 117 Atl. 866 (judgment for plaintiff affirmed). In this case, the majority of the court took the view that, notwithstanding testimony offered in behalf of defendant to show that the beverage was bottled in such a way and with such care that no foreign particles could possibly have gotten into the bottle while in its possession, testimony offered in behalf of plaintiff that the bottle had not previously been opened, but was in the same condition as when delivered by defendant to the retailer, presented merely a conflict of evidence, as to which the jury's finding that the glass was in the bottle at the time it was sold by the manufacturer was conclusive. The decision proceeds, then, upon the assumption that the glass was in fact in the bottle at the time it was sold and delivered by the manufacturer to the retailer from whom plaintiff purchased it; and specifically the decision is that the presence of glass in the bottle at the time it was sold by the manufacturer was evidence of negligence on the part of the manufacturer. Adkins, J., in a strongly dissenting opinion, took the position that the testimony of the retailer that the bottle was in the same condition as when bought by him from the manufacturer was only a conclusion, and not meant by him to be taken literally, since that would mean that he knew it had glass in it when he bought it and with such knowledge |