Opinion
8-28-1959
Ervin L. PETERSON, Plaintiff and Appellant, v. LAMB RUBBER COMPANY, a corporation, Defendant and Respondent. * Civ. 23666.
Robert C. Pannell, Torrence, LeRoy L. Center, Asher R. Sailors, Redondo Beach, for appellant. Moss, Lyon & Dunn, Sidney A. Moss, Henry F. Walker, Los Angeles, for respondent.
Ervin L. PETERSON, Plaintiff and Appellant,
v.
LAMB RUBBER COMPANY, a corporation, Defendant and Respondent. *
Aug. 28, 1959.
Rehearing Denied Sept. 11, 1959.
As modified Sept. 30, 1959.
Aearing Granted Oct. 20, 1959.
Robert C. Pannell, Torrence, LeRoy L. Center, Asher R. Sailors, Redondo Beach, for appellant.
Moss, Lyon & Dunn, Sidney A. Moss, Henry F. Walker, Los Angeles, for respondent.
WHITE, Presiding Justice.
Plaintiff's complaint contained two causes of action, the first of which was predicated upon the alleged negligence of the defendant, and the second grounded upon an alleged breach of implied warranty. Both alleged causes of action were based upon injuries to plaintiff's person caused when a two-inch rubber bonded abrasive wheel, being used by plaintiff on an air motor in connection with his employment at AiResearch on June 2, 1955, 'blew up' in his face.
As to the first cause of action, the jury returned a verdict in favor of defendant; and as to the second the court sustained a general demurrer. From the judgment plaintiff prosecutes this appeal, and urges as grounds for reversal three separate errors, to-wit: (1) the sustaining of the general demurrer to the second cause of action on the ground of implied warranty alleged in the complaint and the first amended complaint; (2) the giving of an instruction explaining and limiting the application of the doctrine of res ipsa loquitur; and (3) the exclusion of evidence of a conversation between plaintiff and the plant superintendent concerning plaintiff's glasses (procured by him some time before from a Navy doctor), to the effect that they believed them to be safety glasses.
As to the factual background surrounding this action, the record reveals that in December of 1954, the defendant Lamb Rubber Co. was a manufacturer of such wheels and sold one hundred to AiResearch for use in grinding and burring operations. The wheels so sold contained no markings to indicate the manufacturer or the maximum revolutions per minute at which the abrasive wheel could be safely operated. The wheel which blew up in plaintiff's face in June was similar to those sold by Lamb Rubber Co. to AiResearch in the preceding December.
Respondent states that it owes no duty to anyone as to a wheel which was not made and sold by it, and urges that appellant failed to prove that the wheel which 'blew up' was manufactured or sold by respondent and therefore it is useless to consider any point raised on the instant appeal because appellant could be entitled to recover on no theory whatever without such proof.
The pieces of the wheel which blinded plaintiff were not in evidence. The testimony was in conflict as to the condition and description of the wheel which disintegrated. There was evidence, however, from which it might have been found that the wheel which caused plaintiff's injury was made by defendant, purchased from defendant by plaintiff's employer, came to the burr bench in the usual course of business without any mistreatment, and went to pieces when first used. That evidence was conflicting, but, in order to determine whether it would be a useless act to reverse a judgment after demurrer sustained as to one of two causes of action, the evidence must be viewed in the light most favorable to the plaintiff.
The trial court in the instant action, when it submitted the case to the jury for decision, determined that there was evidence sufficient to sustain a verdict for either party. It is not the province of an appellate court to reweigh such evidence.
While several other grounds for sustaining the demurrer to the second cause of action alleging implied warranty were argued before the superior court, and in respondent's brief on the instant appeal, by letter and oral argument to this court, respondent's counsel agreed with appellant's that the only ground upon which said demurrer could have been sustained is lack of privity of contract.
As authority for its position, respondent relies upon Burr v. Sherwin Williams Co., 42 Cal.2d 682, 268 P.2d 1041, wherein the Supreme Court reversed a judgment for plaintiff based upon an alleged implied warranty of an insecticide manufactured by defendant and consigned to a co-operative from which plaintiff purchased it. Plaintiff sought to recover damages for the destruction of his cotton crop when said insecticide was sprayed thereon from an airplane. At pages 695 and 696 of 42 Cal.2d, at page 1048 of 268 P.2d, Mr. Chief Justice Gibson, speaking for the court, said: 'We shall now consider whether the court erred in instructing the jury that an implied warranty under subdivision (1) or (2) of section 1735 of the Civil Code 'runs with the goods to the ultimate consumer, there being no requirement of privity of contract between the ultimate consumer and the manufacturer.' The general rule is that privity of contract is required in an action for breach of either express or implied warranty and that there is no privity between the original seller and a subsequent purchaser who is in no way a party to the original sale. (Citations.) In this state an exception to the requirement of privity has been made in cases involving foodstuffs, where it is held that an implied warranty of fitness for human consumption runs from the manufacturer to the ultimate consumer regardless of privity of contract. (Citations.) Another possible exception to the general rule is found in a few cases where the purchaser of a product relied on representations made by the manufacturer in labels or advertising material, and recovery from the manufacturer was allowed on the theory of express warranty without a showing of privity. (Citations.) Neither exception is applicable here. The facts of the present case do not come within the exception relating to foodstuffs, and the other exception, where representations are made by means of labels or advertisements, is applicable only to express warranties. As we have seen, the instruction involved here dealt only with implied warranties. Accordingly, it was error for the trial court to instruct that privity was not required.'
However, at pages 693 and 694 of 42 Cal.2d, at page 1047 of 268 P.2d of the Burr case, supra, it was held that notice to a workman employed by an individual for the spraying of his cotton crop was notice to the employer and constituted a sufficient disclaimer of the implied warranty that the goods shall be reasonably fit for the purchaser's purpose. This holding is a tacit recognition of the present manner of doing business through specialized agents and employees.
In the instant action the purchaser of the wheels was a corporation which could use them only through its employees. No doubt many abrasive wheels are sold to corporations and used by their employees in the business of the corporations. We are convinced that the Legislature did not intend and the language of said section 1735 does not require that the implied warranties should have no application to sales of tools and appliances to corporations. Use of such wheels by the corporation-purchaser's employees is the use for which the wheels were intended by the manufacturer and seller and for which they are impliedly warranted to be reasonably fit.
Appellant calls to our attention the case of Di Vello v. Gardner Machine Co., decided in 1951 by the Court of Common Pleas of Ohio, Cuyahoga County, and reported in 102 N.E.2d 289, at page 291, where in considering the demurrer to the second cause of action based upon a breach of implied warranty of a 'grinding wheel' which caused the death of the purchaser's employee, who was the husband and father of the plaintiffs therein, the court said: 'This poses the direct questions: If the evidence discloses that defendant manufactured the wheel, does the warranty, if any, extend to the employee using it in the conduct of the purchaser's business? * * *.'
In the Di Vello case, supra, the demurrer was overruled and at page 293, of 102 N.E.2d, the court said: 'This Court is of the opinion that a grinding wheel designed to be revolved at high speed is a dangerous instrumentality if containing a latent defect which causes it to disintegrate upon ordinary usage and a workman injured in such use may recover against the person who sold the wheel to his employer on the basis that it is negligent to sell such an instrumentality and that contemplation must be had for the usage to which it will be put and the liability of injury to those using it.'
Lebourdais v. Vitrified Wheel Co., 1907, 194 Mass. 341, 80 N.E. 482, was a decision of the Supreme Judicial Court of Massachusetts, Middlesex, in an action for personal injuries sustained by plaintiff in consequence of the bursting of an emery wheel made by defendant and bought by plaintiff's employer in the open market. In the last cited decision, judgment after demurrer sustained was affirmed on appeal for the reason that 'If such an extended liability attached where no privity of contract exists it would include all persons however remote who had been damaged either in person or property by his carelessness, and manufacturers as a class would be exposed to such far-reaching consequences as to seriously embarrass the general prosecution of mercantile business. In the usual course of trade upon making a sale, as the article passes from the control or ownership of the maker it is held that when these cease his liability also should be considered as ended * * *. But where by reason of its nature the article sold is commonly recognized as intrinsically dangerous to life or property * * * if the seller without notice of their dangerous or noxious qualities delivers them to a customer or to a carrier who is ignorant of these properties he is liable not only to him, but to others to whom while in the exercise of reasonable care they are the proximate cause of injury * * *. A similar liability exists where * * * a manufacturer * * * knowingly sells for general use without disclosing the existence of the defect, a machine, mechanical instrumentality, or other article, which because of its defective construction or condition when put out causes injury.' The allegations of the cause of action there considered were held 'insufficient, for they simply set forth as the proximate cause of the injury the negligence of the defendant * * * in not exercising reasonable care to ascertain the condition of the wheel before putting it on the market.'
Another abrasive wheel case which has come to our attention is Zesch v. Abrasive Company of Philadelphia, 1944, 353 Mo. 558, 183 S.W.2d 140, 141, 156 A.L.R. 469. In that case, as in the instant action, an 'abrasive cutting-off wheel' exploded, a portion of the wheel shattered plaintiff's glasses, and a fragment of fragments of glass destroyed the vision of one of plaintiff's eyes. Plaintiff's employer purchased the wheel from one of the defendants and the other was its manufacturer. As to the seller the judgment after nonsuit was affirmed.
In the Zesch case, supra, the plaintiff appealed from the order granting a new trial after verdict and judgment for the plaintiff and against the defendant manufacturer because of erroneous instructions given as to the liability of the manufacturer. On that appeal the manufacturer urged that the judgment should have been reversed but no new trial was justified because no case 'of negligence in the manufacture of the wheel' had been made out and consequently there was no submissible case against it. Privity of contract was not mentioned but it was held that plaintiff had proved a submissible case against the manufacturer.
In the instant action, there is testimony that nothing in the appearance of the wheel, and no notice on its wrappings, indicated that the use of the wheel was to be limited to any given number of revolutions or periferal feet per second or minute; and that the use to which plaintiff attempted to put the wheel was the use for which it was intended.
When any manufactured object disintegrates while being put to the use for which it was intended, it may be inferred that such article had a latent defect which made it 'inherently dangerous' to the one who might attempt to use it.
While defendant in the instant action introduced evidence that said wheel could have been safely used on a tool driven at a slower speed by an electric motor, and that such slower speeds could not be attained by the air motor driven tool of AiResearch, one manufacturing such articles for use by present day workmen must expect them to be used in connection with the tools in general use today, and not limited to use with tools of a decade ago.
An implied warranty accompanies each manufactured article to the effect that it is of merchantable quality (Civil Code, § 1735(2)) and that it is fit for a particular purpose which may have been annexed thereto by the usage of trade (Civil Code, § 1735(5)). Generally speaking, if John Doe had bought the wheel and, because of a latent defect therein, had been injured while using it, the maker was liable. Here, however, the purchaser was AiResearch, a corporation, and the injured workman was one of its hundreds of employees. Defendant contends, and the trial court in sustaining defendant's demurrer to the second count of the complaint holds, that there can be no recovery for breach of such implied warranty of fitness for intended use because of lack of privity of contract between defendant and plaintiff.
There was at the trial also some evidence of disclaimer of warranty for use at high speeds, but such evidence could have no bearing upon the sustaining of the general demurrer which depends entirely upon the allegations of the complaint and the California law applicable thereto.
As in the Di Vello case, supra, the real question to be determined upon the instant appeal is whether an implied warranty by a manufacturer (who is also the seller) of an abrasive wheel is for the benefit of the employee using it in the purchaser's business. We have found no decision of the California appellate courts directly in point.
In Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 150 P.2d 436, 440, the Supreme Court affirmed a judgment for an employee whose hand was injured while placing a bottle of Coca Cola in the refrigerator of her employer who had purchased it from defendant. The decision of five of the justices founded defendant's liability on negligence under the doctrine of res ipsa loquitur. Mr. Justice Traynor, however, in his concurring opinion, had the following to say: 'I concur in the judgment, but I believe the manufacturer's negligence should no longer be singled out as the basis of a plaintiff's right to recover in cases like the present one. In my opinion it should now be recognized that a manufacturer incurs an absolute liability when an article that he has placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to human beings. MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, Ann.Cas.1916 C, 440, established the principle, recognized by this court, that irrespective of privity of contract, the manufacturer is responsible for an injury caused by such an article to any person who comes in lawful contact with it. Sheward v. Virtue, 20 Cal.2d 410, 126 P.2d 345; Kalash v. Los Angeles Ladder Co., 1 Cal.2d 229, 34 P.2d 481. In these cases the source of the manufacturer's liability was his negligence in the manufacturing process or in the inspection of component parts supplied by others. Even if there is no negligence, however, public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. It is evident that the manufacturer can anticipate some hazards and guard against the recurrence of others, as the public cannot. Those who suffer injury from defective products are unprepared to meet its consequences. * * * 'The injury from a defective product does not become a matter of indifference because the defect arises from causes other than the negligence of the manufacturer, such as negligence of a submanufacturer of a component part whose defects could not be revealed by inspection (see Sheward v. Virtue, 20 Cal.2d 410, 126 P.2d 345; O'Rourke v. Day & Night Water Heater Co., Ltd., 31 Cal.App.2d 364, 88 P.2d 191; Smith v. Peerless Glass Co., 259 N.Y. 292, 181 N.E. 576), or unknown causes that even by the device of res ipsa loquitur cannot be classified as negligence of the manufacturer. The inference of negligence may be dispelled by an affirmative showing of proper care. If the evidence against the fact inferred is 'clear, positive, uncontradicted, and of such a nature that it can not rationally be disbelieved, the court must instruct the jury that the nonexistence of the fact has been established as a matter of law.' Blank v. Coffin, 20 Cal.2d 457, 461, 126 P.2d 868, 870. * * *'
In the Escola case, supra, although plaintiff was a waitress in a restaurant and was engaged in moving the bottles of Coca Cola from the defendant's case beneath her employer's counter into her employer's refrigerator when the bottle 'blew up' in her hand, there is no mention, either in the decision of five of the supreme court justices or the concurring opinion of Mr. Justice Traynor, of the facts that large quantities of Coca Cola are sold to restaurant owners and few of the bottles are handled by the restaurant owners themselves; that the work done by plaintiff in that case, like the work done by plaintiff in the instant action, was the intended use of the manufacturer's product sold to the plaintiff's employers.
To hold that the sustaining of the general demurrer in the instant action was error, it is not necessary to follow the reasoning of Mr. Justice Traynor in his concurring opinion in the Escola case, supra. Under the facts of the case now engaging our attention, we are persuaded that the implied warranties as to fitness for use accompanying sales under the provisions of said section 1735 were not intended by the Legislature to apply to sales to individual who do their own work and to have no application to sales to corporations; and that such implied warranties apply equally to the corporate agents and employees who use the articles purchased by their corporate employer and to the workman who purchases his own abrasive wheels. Therefore, we have determined that the granting of the nonsuit as to the second alleged cause of action was error.
Referring to the instruction cited as prejudicial error, appellant calls attention to no erroneous statement of the law contained therein, and states generally that instructions must be comprehensible, should not give undue prominence to certain issues, must be clear and concise, unambiguous, not too broad, certain, and should be in plain and simple language which may be comprehended by the jury. That statement is true. However, the fact that an instruction could have been stated more clearly is not a ground for reversal on appeal.
The exclusion of evidence relied upon by appellant for reversal occurred in the examination of the witness Swerdfiger, who was an AiResearch superintendent, as follows: 'Q. Mr. Center (plaintiff's attorney): Isn't it a fact that Mr. Peterson when he came to work in your division did come in to you with the glasses that he was wearing, that you and he did look at them to determine whether you thought they were safety glasses? A. Not at the time of hire. Mr. Peterson was hired before I was superintendent of the company. 'Q. Maybe it was at the time you became superintendent, I am not sure. A. Sometime in that period of time prior to the accident, yes. 'Q. Didn't you agree with Mr. Peterson that they looked like safety glass to you?'
The witness was not permitted to answer the last question. The objections voiced included 'that the witness Swerdfiger was not qualified regarding glasses, no proper foundation laid, whether they looked like safety glasses to Swerdfiger or not would be highly immaterial to the issue of contributory negligence, and that his opinion would neither tend to prove or disprove such issue.'
Plaintiff was permitted, over defendant's objection, to testify that the glasses he was wearing (secured from the Navy) were safety glasses 'to the best of my knowledge', and to give his reasons for that belief.
Since the testimony of Swerdfiger concerning any conversation between him and the plaintiff regarding the appearance of plaintiff's glasses could have been only cumulative evidence, its rejection under the facts of this case was not prejudicial.
The judgment is reversed, and the cause remanded for a new trial.
FOURT and LILLIE, JJ., concur.
Hearing granted: White, J., not participating. --------------- * Opinion Vacated Scal.Rptr. 863, 353 P.2d 575.