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Ruping v. Great Atlantic & Pacific Tea Co.

Supreme Court of New York, Appellate Division

December 22, 1953

JOHN J. RUPING, Plaintiff,
v.
GREAT ATLANTIC AND PACIFIC TEA COMPANY, Appellant, and REED GLASS COMPANY, INC., Respondent, et al., Defendants. JOHN J. RUPING, as Executor of SARAH J. RUPING, Deceased, Plaintiff,
v.
GREAT ATLANTIC AND PACIFIC TEA COMPANY, Appellant, and REED GLASS COMPANY, INC., Respondent, et al., Defendants.

Page 205

APPEAL from an order of the Supreme Court at Special Term (HAMM, J.), entered October 13, 1953, in Albany County, which granted a motion by respondent for a dismissal of appellant's cross complaint in each of the above-said actions.

COUNSEL

Ernest P. Lyons, Jr., and Kenneth J. Dugan for appellant.

William J. Murphy for respondent.

HALPERN, J.

The defendant Great Atlantic and Pacific Tea Company appeals from an order dismissing its cross claim against the defendant Reed Glass Company, Inc., in each of two actions.

The complaint in one action, brought by the executor of the last will and testament of Sarah J. Ruping, alleges that while the testatrix was in an A. & P. store on August 27, 1948, a bottle of ginger ale exploded with great force while it was in the possession of another customer who had selected it for purchase and, as a result, pieces of glass struck the testatrix, causing her to be injured. Subsequently, the testatrix died of causes unrelated to the injury. The other action is a derivative one, for the husband's medical expenses and for loss of his wife's services.

The complaints allege that the bottle was manufactured by the defendant Reed Glass Company, Inc., which sold it to the defendant Clicquot Club Bottling Co., Inc., which then filled the bottle with carbonated ginger ale and sold it to the A. & P.

Two theories of negligence are alleged against the A. & P.: (1) negligence in the manner in which the bottle of ginger ale was stored and handled, it being alleged that the A. & P. had allowed the bottle to be exposed to the sun in hot weather in a display window without adequate precautions, inspection or tests as to the effect of the exposure and (2) negligence in failing to detect defects in the bottle which, in the exercise of reasonable care, the A. & P. could reasonably have discovered.

The A. & P. interposed an answer in each action, setting up cross claims against the defendant Clicquot Club Bottling Co., Inc., for breach of warranty and for negligence and against the defendant Reed Glass Company, Inc., for negligence. It was charged in the latter cross claim that the defendant Reed Glass Company, Inc., had negligently manufactured the bottle.

Page 206

The A. & P. sought a judgment over against its codefendants for any amount for which it might be held liable to the plaintiff.

The cross claim against the defendant Reed Glass Company, Inc., was dismissed on motion for insufficiency on its face. This, we believe, was error.

Under the complaint, the A. & P. might be held liable to the plaintiff either for its own affirmative negligence in the way in which it handled and exposed the bottle, in which case there could be no recovery over, or it might be held liable on the ground of secondary or passive negligence for failing to discover a defect in the bottle which had been caused by the Reed Glass Company's primary negligence in the process of manufacture. In the latter event, the A. & P. would be entitled to ...


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