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15 B.U. L. Rev. 851 (1935)
Food - Liabilities for Injuries - Construction of Statute - Evidence of Negligence

handle is hein.journals/bulr15 and id is 853 raw text is: NOTES AND COMMENTS In the principal case there was no evidence tending to show that the presence of the third person was essential to the conduct of the con- versation or to any act which transpired during the consultation, exam- ination and treatment. The decision cannot be supported or explained away on that ground. The case, therefore, represents the addition of one more court to the increasing ranks of the majority. The writer submits that the reasoning employed in reaching the deci- sions handed down by the minority is more consonant with definition of terms, is more practical and is logically sounder, that it will work more substantial justice, and that it more closely follows the intention of the various legislatures in passing the statutes which impose a privilege on confidential communications between physician and patient. JOHN J. KERRIGAN, JR. FOOD-LIABILITIES FOR INJURIES-CONSTRUCTION OF STATUTE- EVIDENCE OF NEGLIGENCE. Bourcheix v. Willow Brook Dairy, Inc., 268 N. Y. 1, 196 N. E. 617. The plaintiff, a chauffeur, lived in the house of his employer, to whom a bottle of cream was delivered by the defendant. The cream was partly frozen and the plaintiff- removed it with a spoon instead of pouring it, and ate it with some oatmeal. He was injured by pieces of glass about the size of a bean. There was evidence that there had been no glass in the oatmeal before the cream was added, that there was glass in the bottle near the top of the cream after the plaintiff was injured, and that the bottle was not chipped. On the other hand, there was evidence of the many precautions taken by the defendant before sealing the bottles and that the bottle was sealed with two paper caps and a ring. The trial judge instructed the jury that there was an implied warranty that the cream contained no deleterious substance and that the plaintiff could not recover unless the glass was in the bottle when it was delivered. A verdict was rendered for the plaintiff. The Appellate Division ruled1 that it was error to instruct the jury that there was an implied warranty that the cream contained no dele- terious substance. But from the verdict, it could be assumed that the jury had found that there was glass in the bottle when it was opened, which the court held that a nurse present at a conversation between a physician and patient could not testify as to those conversations as she was aiding the doctor at the time of the conversations. 1Bourcheix v. Willowj Brook Dairy, Inc., 243 App. Div. 721, 277 N. Y. Supp. 292.

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