Opinion
Hearing Granted Nov. 18, 1946.
Appeals from Superior Court, Los Angeles County; Caryl M. Sheldon, Judge.
Action by Val Tingey and Gloria Tingey, minors, by and through their guardian ad litems, Virginia D. Tingey, and Virginia D. Tingey, individually, against E. F. Houghton & Company for the wrongful death of Neville Tingey, consolidated for trial with action by Raymond Hulsizer against E. F. Houghton & Company for personal injuries. From judgments for plaintiffs, defendant appeals.
Judgments affirmed.
Chase, Barnes & Chase, Stanley N. Barnes, and Donn B. Downen, Jr., all of Los Angeles, for appellant.
Hildebrand, Bills & McLeod and Angus C. McBain, all of Los Angeles, Leonard J. Dieden, of Oakland, for responents.
OPINION
WHITE, Justice.
The two actions here involved were consolidated for trial and are presented on appeal upon a single set of briefs. One action is by the children and widow of Neville Tingey for his wrongful death; the other is by Raymond Hulsizer for personal injuries. Both actions are the outcome of an explosion which occurred in the plant of Fray Tool & Reamer Company, in which plant Tingey and Hulsizer were employed, the gravamen of the respective causes of action being the asserted negligence of defendant, E. F. Huoghton & Company, in furnishing to Fray Tool & Reamer Company a chemical product represented and warranted to be a ‘liquid heat quench salt,’ suitable for use in heat-treating steel, but which in fact, because of the alleged negligence of the defendant, ‘was a different chemical compound that constituted an inherently and abnormally dangerous, noxious and explosive product’ which exploded when heated to a temperature of 500 degrees. By its answers defendant admitted the sale of the product represented and warranted to be a heat-treating salt effective for use in quenching high-speed steel and that it could be safely used and heated to 1500 degrees, but denied that it was guilty of negligence. As affirmative defenses defendant asserted that the explosion was an unavoidable accident, and further, that it was caused by the contributory negligence of plaintiff Hulszier and the deceased Tingey. Trial before a jury resulted in verdicts in favor of the heirs of Neville Tingey for $35,000 and in favor of plaintiff Hulsizer for $7,500. From the judgments entered upon such verdicts these appeals are prosecuted.
The accident occurred April 9, 1943. For some time prior thereto decedent Tingey had been day foreman and respondent Hulsizer night foreman in the shop of Fray Tool and Reamer Company, located in Glendale, California. Both men were under the supervision of the witness James T. Partrick, the plant superintendent. The company was engaged in the manufacture of tools for the aircraft industry. Being unable to purchase cutters necessary for its operations, the company undertook to make its own, using an oil bath to quench the steel after it had been heated. The oil bath, however, was not satisfactory, and it was decided to use quench salts. About six weeks before the accident Mr. Partrick had a conversation with defendant’s salesman, Mr. McCabe, who stated, according to the testimony of Mr. Partrick, that a salt manufactured by defendant under the trade name of ‘Liquid Heat Quench’ was suitable for us ein heat-treating steel at a ‘draw’ of less than 1000 degrees and would transfer heat up to 1500 degrees. Mr. Partrick ordered from defendant, through Mr. McCabe, 100 pounds of ‘Liquid Heat Quench,’ 100 pounds of a salt which functioned at a lower temperature— approximately 400 degrees—, known as ‘Draw-Temp,’ and a 50-gallon drum of quench oil. These products were shipped from defendant’s San Francisco plant to Fray Tool & Reamer Company, arriving a few weeks prior to the accident.
The witness Mr. Partrick further testified that the salts upon arrival were contained in two drums, one 28 to 30 inches high and 12 to 14 inches in diameter, with a snaplid cover; the other about 15 inches in diameter and about 25 to 28 inches high, with a screw-on cover; that the larger drum had no label, but bore a stencil on the top reading, ‘Liquid-Heat-Quench’; while the smaller bore a label with the warning not to use its contents in a container which had previously held potassium cyanide. About a week or so before the accident Mr. Partrick and decedent, Tingey, opened the containers and observed the contents. The liquid heat quench was a yellowish granular substance, slightly coarser than table salt, while the ‘Draw-Temp’ was a solidified mass, a ‘hard chunk’ of crystals, slightly lighter in appearance than the liquid heat quench. During this inspection Mr. Partrick took up a few grains of the liquid heat quench in his fingers. The covers were then replaced and the drums set along the west wall of the plant until the day of the explosion.
For the purpose of heat-treating the steel, the company had installed some weeks prior to the explosion, a ‘draw-pot’ oven, consisting of a heavy cast-iron container, holding about 5 gallons, from one-half to one inch thick, supported in a gas-heated oven. Two other ovens, a pre-heating oven and a high-heat oven, were located near the draw-pot oven. The draw-pot oven had never been used prior to the explosion and the draw-pot itself was brand-new and perfectly clean.
On the afternoon of the explosion, Mr. Partrick testified, the drum of liquid heat quench was moved to within three or four feet of the draw-pot and the cover loosened. The draw-temp drum was ‘alongside’ the liquid heat quench drum, but the liquid heat quench drum was between the draw-temp drum and the draw-pot. The decedent Tingey, had lighted the gas burner, but it was not yet hot when Mr. Partrick left the plant. At that time no salt had been placed in the pot. The explosion occurred, according to Mr. Partrick, ‘probably less than ten minutes’ after he had left the plant. Upon examining the premises immediately after the explosion Mr. Partrick found part of the rim of the castiron pot on the draw-pot oven had been broken off— otherwise the pot was intact. The standard in which it rested had been forced down about an inch, the gas was shut off, the connections to the oven were broken and the electrical connections twisted. He found pieces of the drum of liquid heat quench scattered over a thirty-foot radius. The bottom of the drum was in its original position and was coated with a substance resembling molten salt. The draw-temp drum was intact except for some dents. It cover ‘was loosened, but it was not off.’ Several days later Mr. McCabe, appellant’s salesman, called and took the drum of draw-temp away with him.
The plaintiff Raymond Hulsizer, a machinist by rade, had worked as foreman in the plant for about three months before the date of the explosion. After describing the premises and the equipment therein, the witness testified that the pre-heat oven and the high-heat oven had been in use for about three weeks prior to the explosion, but that the draw-pot oven had never been used. Each of the three ovens had its individual theremometer on the wall behind the ovens. Mr. Hulsizer described the draw-pot itself as one-half inch thick, eight to ten inches across, twelve or fourteen inches deep, holding about 2 ½ galons. The standard into which it was set was of sheet iron, circular in form, containing a gas burner, and had a six-inch opening in front and two smaller holes beneath the burner.
Mr. Hulsizer arrived at the plant on the day of the explosion between 2:30 and 3 o’clock in the afternoon. The decedent Tingey was standing before the draw-pot looking into it. The witness stood alongside Tingey and observed salt in th drawpot. He also observed a drum of salt three or four feet from the draw-pot. The cover of this drum was off. The salt in the drum was at a level four or five inches from the top of the drum and had the same appearance as the salt in the drawpot. The draw-pot was about 2/3rds full of salt. Mr. Hulsizer turned the drug around and found an inscription or label to the effect that the melting point would begin at 300 to 350 degrees F. At that time the salt showed no appearance of melting. He described the salt in the pot as being grayish in color and slightly coarser than table salt. A minute or so after looking at the termometer, the witness half-turned his head in response to a call from a workman, and at that moment an explosion occurred, followed by a second and much stronger explosion. Mr. Hulsizer testified that the draw-pot was still within his range of vision at the time of the first explosion, and that the flash of the explosion came from the draw-pot or was ‘in’ the draw-pot.
The foregoing does not purport to bring out all the details developed by the direct and cross-examination of plaintiffs’ witnesses. Reference to such further matters will be made in our discussion of the points on appeal amde by appellant.
The plant manager of defendant company testified, substantially, that he had been with the company for five years and held a degree in chemistry; that Liquid Heat Quench was a ‘copyrighted’ name of the product in question; that in determining what went into their products the company used a system of ‘precision control’; that representative samples were taken of each raw material chemical shipped to the defendant’s plant, in accordance with a procedure set forth by the American Society of Chemists; that chemicals were identified by code numbers in order to prevent disclosure of trade-secret formulas. As an illustration, the witness stated that in a shipment of 100 barrels, 4-ounce samples would be removed from 25 barrels at random, consolidated, and tests run in the plant laboratory, operated by qualified chemists. For instance, ‘on potassium nitrate we run tests for impurities and for the percentage of nitrate in the compound, and tests for color and texture.’ A written report is thenf iled with a sample of the material, and if the material is up to standard it is placed in storage. Each preparation made up from the basic chemicals is given a number— whether the particular job is to fill one order or several, the entire batch made up at one time is given the same number. The formula, obtained from a formula book kept in a safe in the manager’s office, is written up for the particular batch to be prepared in terms of the amounts of each chemical, by number, to go into the batch— for instance, 100 pounds of number 27 and 500 pounds of number 5, making a total of 600 pounds of the finished product. Each order so written up contains its formula, by number, and the amount required of each chemical, by its number, together with the name of the product, the date of manufacture, and the tank or drum in which it is being prepared.
The written order, containing the batch number and the amount of each chemical required, is delivered to a compounder, who cuts a stencil of the batch number. Each compounding job is given to one man. When the job is completed, a four-ounce sample is tested in the laboratory according to control tests designated by the research department for the particular product. ‘Most control tests are based on ASTM, of the American Chemical Society and American Society of Metals, and various other societies interested in the testing of material.’
Defendant’s manager went on to testify that the material did not leave the compound room until the laboratory gave an ‘OK on the product’; that if OK, ‘it is stencilled with the name of the product, the formula number, and if the product is to have labels, labels are put on and it is put in stock.’ He further testified that when the material is shipped to a customer the man that handles the shipment takes a sample from every container in the shipment just before it is shipped. This sample is checked in the laboratory for contamination and against the standard sample in the laboratory. No material is allowed to leave the shipping room until an OK is received from the laboratory that the product is ‘up to standard in every respect.’ He further testified that the man who prepares the order also fastens the labels to the containers, which labels are affixed with and protected by a silica compound used by express and railroad companies.
With respect to the particular order here in question, the manager identified the ‘production record’ made in defendant’s laboratory, showing the formula number, the brand number, the chemist who compounded the ingredients, the date of manufacture (March 17, 1943), and the number of pounds of each ingredient. He explained erasures appearing on the document by stating that it was originally written up for an 800-pound batch, but in order to avoid disrupting other work in the compounding room the record was altered to call for the exact amount ordered, 100 pounds. He testified that the completed liquid heat quench was tested to see that it had the proper percentage of cyanide and was not contaminated by nitrates or nitrites; that in addition, the completed product is weighed to ascertain whether the yield, or total weight of the product, equals the sum of the weights called for by the formula. He identified a copy of a ‘shipping binder’, showing the net weight of the product upon shipment to be 100 pounds. He was unable to explain an erasure appearing on the copy. He also testified that a perpetual inventory was kept of the raw materials on hand, showing the amount used and the amount received, and that the records for the week in which the liquid heat quench was prepared ‘coincide with the use of this amount of material taken out in that particular order.’ The other products ordered by Fray Tool & Reamer Co., the draw-temp and quenching oil, were already on hand. The consignment, ‘one shipment of three pieces,’ left defendant’s plant March 17, 1943.
Mr. Horwitz also testified that the company did not manufacture any salt that melted between 300 and 350 degrees, and had no label describing such a salt. He identified the type of label that was put on all containers of draw-temp, and a second label for draw-temp warning customers to keep it in a dry place. He also identified three labels which were put on liquid heat quench, one containing the name of the product, another giving the melting point and working range and warning not to use in pots formerly containing nitrate, and a third poison label required on packages containing cyanide.
Mr. Horwitz testified that the liquid heat quench formula contained cyanide, carbonates, and a chloride; that it began to melt at 950 degrees and remained in a suitable fluid state for use within the range of 1050 to 1500 degrees; that no explosion would occur regardless of the amount of heat applied, either to liquid heat quench or to draw-temp; that if the two products were mixed in a cold state there would be no danger, but that if cyanide were added to the draw-temp (which contains nitrates), heating the mixture would cause an explosion; that the liquid heat quench is tested for contamination by nitrates or nitrites at the time of manufacture and just before shipment, and that the draw-temp is tested in a like manner for contamination by cyanide; that upon the filing of the instant actions the retained samples from the particular shipment were again tested and found to be up to standard; that liquid heat quench is not, as testified by Mr. Hulsizer, a grayish color, but white.
An expert called on behalf of the defendant testified, in response to a lengthy hypothetical question, that in his opinion the first explosion was caused by an accidental mixing of the liquid heat quench with the draw-temp, and the second explosion followed when some of the material was blown out of the pot and came in contact with the liquid heat quench in the open can. However, his further testimony corroborated that of defendant’s manager that no explosion could occur unless the two products were mixed to some extent or certain foreign materials introduced into the one or the other. The expert further testified that, assuming the explosion was caused by a contamination of the one product by the other, such accidental mixture did not take place in defendant’s plant, because ‘if it had been mixed up there, then the explosion would have taken place much more quickly than it did.’ Upon cross-examination, asked to assume that only one container was used; that salt was taken from it only, and that it was the only container in the immediate vicinity at the time, the expert testified that he would have no opinion as to the cause of the explosion. ‘It would be a mystery to me.’
It was stipulated that the Federal Bureau of Investigation investigated the explosion, and that upon orders of the Attorney General of the United States the results of its investigation could not be disclosed. As grounds for reversal appellant urges that plaintiffs failed to prove more than the fact of the happening of the accident, and that such proof is legally insufficient to support a finding of negligence; that the doctrine of res ipsa loquitur is not applicable because the instrumentality causing the injury was not at the time of the accident under the exclusive control of the defendant, and for the further reason that plaintiffs failed to explain the cause of the accident, which might have been due to any one of numerous causes not chargeable to defendant.
The basis of liability in the present case is negligence. As stated in Sheward v. Virtue, 20 Cal.2d 410, 412, 126 P.2d 345, ‘the courts of this state are committed to the doctrine that the duty of care exists in the absence of privity of contract not only where the article manufactured is inherently dangerous but also where it is reasonably certain if negligently manufactured or constructed, to place life and limb in peril. Kalash v. Los Angeles Ladder Co., 1 Cal.2d 229, 34 P.2d 481; O’Rourke v. Day & Night Water Heater Co., Ltd., 31 Cal.App.2d 364, 366, 88 P.2d 191.’ See also Restatement of the Law of Torts, Topic 3, § 395.
Appellant’s argument that the doctrine of res ipsa loquitur is not applicable because the instrumentality was not under defendant’s exclusive control at the time of the injury, is not supported by the later decisions in this state. Escola v. Coca-Cola Bottling Co., 24 Cal.2d 453, 150 P.2d 436; Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687, 162 A.L.R. 1258; Hinds v. Wheadon, 19 Cal.2d 458, 121 P.2d 724; Honea v. City Dairy, Inc., 22 Cal.2d 614, 618, 140 P.2d 369. In applying the rule to an exploding bottle of carbonated beverage, the court in the case of Escola v. Coca-Cola Bottling Co., supra, 24 Cal.2d at pages 457 and 458, 150 P.2d at page 438 said:
‘Res ipsa loquitur does not apply unless (1) defendant had exclusive control of the thing causing the injury and (2) the accident is of such a nature that it ordinarily would not occur in the absence of negligence by the defendant. * * *
‘Many authorities state that the happening of the accident does not speak for itself where it took place some time after defendant had relinquished control of the instrumentality causing the injury. Under the more logical view, however, the doctrine may be applied upon the theory that defendant had control at the time of the alleged negligent act, although not at the time of the accident, provided plaintiff first proves that the condition of the instrumentality had not been changed after it left the defendant’s possession.’
The evidence in the instant case is to the effect that liquid heat quench is a product that is perfectly safe for the purpose intended if those who manufacture it and those who use it exercise proper care. The expert testimony overwhelmingly supports the view that the product would not explode, regardless of the temperature to which it might be heated, unless some foreign substance, particularly a nitrate or nitrite, were introduced into it. Under the rules above stated, therefore, the jury would be warranted in drawing an inference of negligence, provided, the plaintiffs’ evidence satisfied the further requirement of showing ‘that the condition of the instrumentality had not been changed after it left the defendant’s possession.’ As to the evidence necessary to satisfy this last requirement, the court in the Escola case, supra (24 Cal.2d at page 458, 150 P.2d at page 439), said: ‘It is not necessary, of course, that plaintiff eliminate every remote possibility of injury to the bottle after defendant lost control, and the requirement is satisfied if there is evidence permitting a reasonable inference that it was not accessible to extraneous harmful forces and that it was carefully handled by plaintiff or any third person who may have moved or touched it.’ (Citing Prosser on Torts (1941), p. 300.) ‘If such evidence is presented, the question becomes one for the trier of fact (see e. g., MacPherson v. Canada Dry Ginger Ale, Inc., 129 N.J.L. 365, 29 A.2d 868, 869), and, accordingly, the issue should be submitted to the jury under proper instructions.’
In attacking the verdicts and judgments herein, appellant emphasizes a number of points in the evidence not heretofore referred to. For instance, that in connection with the installtion of the draw-pot oven, it appears that the gas and compressed-air plumbing attached to it were installed by an employee of Fray Tool & Reamer Company without any permit being obtained from the City of Glendale and without any inspection by the gas company. However, the evidence reflects that the gas feed line for the draw-pot was installed by a man formerly employed by the Southern California Gas Company, and who had much experience in the installation of gas appliances that after the installation of the draw-pot and the gas feed line leading to it was completed a series of tests of the line was made and the installation was found to be in order. In describing the tests made, Mr. Partrick, the plant superintendent of Fray Tool & Reamer Company, testified, ‘He first pumped a pressure on the line and fixed a gauge that would read if there had been any change on the internal pressure of the pipe; and it happened that we had other work for him at the time and the gauge was left on for several days, and during that time the gauge did not change, indicating that there were no changes or leaks in the line.’
Appellant then contends that neither the decedent, Tingey, nor plaintiff Hulsizer had any previous experience in the use of heat-treating salts; that Mr. Hulsizer, who testified upon direct examination that when he arrived at the plant and observed Tingey standing by the draw-pot it was two-thirds full of some salt, admitted upon cross-examination that in his deposition he had stated that the draw-pot was one-third full upon his arrival. The witness Mr. Partrick testified that the drums of salt were delivered ‘right in between the store room and the draw-pot, and that is where they stayed * * * right in here along the west wall,’ and remained there until the time of the explosion; that no one opened or tampered with them, to his knowledge; that when the plant was closed at night the doors and windows were locked. Mr. Hulsizer, however, testified that he had seen the drums ‘against the south wall between the rest rooms’ and ‘at one time they was setting by this door here and in the way, and I myself moved them * * * to the south wall between the * * * rest rooms.’ Appellant makes the point that for a few days the salts were kept outside of the plant, because of the testimony of Hulsizer that he ‘had observed it there in the back of the shop before we had the storeroom ready. It had set in the back by our air conditioner, and our steel rack was outside. It was moved inside after we built the storeroom.’ It appears from the entire testimony, however, that the drums were at all times within the shop; that it was the steel rack, not the drum, which was moved inside.
Appellant further points out that no one observed the decedent, Tingey, remove the salt from the drum or drums and place the same in the draw-pot; that for some part of the interval after his arrival Mr. Hulsizer was away from the draw-pot; that it would have been difficult for Mr. Hulsizer, even facing the draw-pot to see whether the explosion originated in the pot itself or in the oven; that a police officer testified that immediately after the explosion Hulsizer told the officer that the temperature at the draw-pot was 600 degrees and that he had walked away from the pot and was headed toward the back of the building when the explosion took place. Appellant also urges that there was no sufficient showing that the draw-pot itself was free from contamination.
Appellant also stresses the fact that ‘there is no explanation or reason given for the presence of both drums in the vicinity of the draw-pot,’ nor the evidence of the loosened lid on the drum of draw-temp.
From all of the foregoing, appellant argues that the true cause of the accident remains unexplained; that it reasonably appearing that it might have been due to one of several causes, for some of which defendant would not be responsible, the doctrine of res ipsa loquitur is inapplicable, or, stated another way, to quote from appellant’s reply brief, ‘if the evidence relating to the sameness of the condition of the * * * instrumentality * * * at the time it left the physical custody of the defendant is in such a state that it cannot be said that it could lead the minds of reasonable men to but one conclusion, then it follows that the evidence necessarily must be in a state where it could lead the minds of reasonable men to more than one conclusion. If that be the case, then the older limitation upon the application of the doctrine has come into being, namely, that the doctrine does not apply where the establishment of one requisite element to its application must itself rest on inferences which are so far from necessary ones that the contrary or other inferences are at least as tenable as the one sought to be adopted.’ Appellant, in other words, seeks to qualify the language of the Escola case, supra (24 Cal.2d at page 458, 150 P.2d at page 439), that ‘the requirement is satisfied if there is evidence permitting a reasonable inference that it was not accessible to extraneous harmful forces and that it was carefully handled’ (italics added), by adding a requirement that the evidence negative any other reasonable inference. To do so would not only infringe upon the province of the jury in the first instance as triers of fact, and the trial judge on hearing of the motion for a new trial, but would be contrary to the plain and unqualified language of the Escola case, supra, that ‘if such evidence is presented, the question becomes one for the trier of fact * * * and, accordingly, the issue should be submitted to the jury under proper instructions.’
Viewing the evidence in the light most favorable to respondents, it must be held that there is substantial evidence to warrant the jury in concluding that the drums of salt were undisturbed from the time they left the defendant’s control until they were inspected by the witness Partrick; that thereafter they were undisturbed until the time of the explosion; that the decedent Tingey exercised due care for his own safety and did not mix the two salts in the draw-pot; that the explosion was not due to a defective gas line or to excessive temperature, but was caused by a defect in the product itself. The doctrine of res ipsa loquitur is therefore applicable.
To rebut the inference of negligence which the jury was at liberty to draw, the defendant introduced evidence, as hereinbefore narrated, concerning the precautions taken in the process of manufacture. Whether such evidence dispels the inference of negligence is ordinarily a question of fact for the jury to determine. Escola v. Coca-Cola Bottling Co., supra, 24 Cal.2d at page 461, 150 P.2d 436; Druzanich v. Criley, 19 Cal.2d 439, 444, 122 P.2d 53; Michener v. Hutton, 203 Cal. 604, 610, 265 P. 238, 59 A.L.R. 480. Appellant contends that ‘the trial court must rule as a matter of law whether or not such inference has been dispelled’, basing its contention upon Blank v. Coffin, 20 Cal.2d 457, 461, 126 P.2d 868, 870. In that case, in discussing the permissible inference that an automobile driven by an employee of the owner was being operated with the owner’s permission, the court said: ‘Whether a particular inference can be drawn from certain evidence is a question of law, but whether the inference shall be drawn, in any given case, is a question of fact for the jury. See cases cited in 10 Cal.Jur. 738, 739, § 60.’
From what we have herein stated it is manifest that eliminating every remote possibility of mishandling or tampering with defendant’s products after it lost control, there is evidence permitting a reasonable inference that the explosions occurred during a time when defendant’s product was being used in the manner and under the conditions which defendant contemplated, and, at least impliedly, authorized. The case of Blank v. Coffin, supra, relied upon by appellant, is therefore not in point or controlling.
Furthermore, aside from and regardless of the application of the doctrine of res ipsa loquitur, from the evidence in this case it is clear that the jury was authorized to draw an inference that appellant was negligent in preparing its product, known as Liquid Heat Quench, which it sold to the Fray Tool & Reamer Company. It is noteworthy that at the time defendant received the order for the Liquid Heat Quench, the same was not in stock. It was defendant’s practice to make up this product in 800-pound batches, but being busy with other important war work and not desiring to disrupt the existing operations in its compounding room, defendant made up this particular order on a 100-pound basis. In other words, this order was not taken from stock on hand, but was specially made to fill a particular order.
There is positive evidence that upon receipt of the products and examination by plant superintendent Partrick in the presence of decedent Tingey, both drums were placed between the store room and the draw-pot, where they remained. On this phase of the case, superintendent Partrick testified:
‘Q. (By Mr. McBain, one of plaintiffs’ counsel.) Now, Mr. Patrick, did the drums of salt remain in the location you have just described up until the time of the explosion?
A. They did. * * *
‘Q. Did anyone open or tamper with the two drums of salt at any time after their delivery to the plant and until the time of the explosion, so far as you know?
A. No.’
It is not necessary to here restate the evidence already narrated as to the handling of the products which appellant sold and delivered to the Fray Tool & Reamer Company. Suffice it to say that evidence of the handling of each of such products reasonably warranted the inference by the jury that it was not ‘accessible to extraneous harmful forces and that it was carefully handled by plaintiff or any third person who may have moved or touched it.’ Escola v. Coca-Cola Bottling Co., supra, 24 Cal.2d at page 458, 150 P.2d at page 439.
In support of its claim that the cause of the accident remains unexplained and that it reasonably appears that the same might have been due to any one of several causes for which it would not be responsible, appellant advances various theories as to the cause of the explosions. In this regard appellant calls attention to the fact that after the drums of heat-treating salts were delivered to the Fray Tool & Reamer Company and inspected by Patrick and Tingey, the products were accessible to other employees who could have opened and mixed their contents. However, such a contention finds no support in the evidence, while there is positive testimony that the drums were not tampered with between the date of delivery and the date of the explosions. Next appellant suggests possible sabotage by reason of the fact that the Fray Tool & Reamer Company was engaged in the manufacture of high-priority war materials, but there is no evidence to support such a theory other than the fact that an investigation was made by the Federal Bureau of Investigation, which is totally insufficient to reasonably justify the suggested inference.
Appellant’s argument that plant superintendent Patrick, in making his original examination of the containers, may have mixed the salts so as to render them likely to explode, or that some other employee of the plant may have done so, is answered by the testimony of appellant’s own expert, who testified that had the salts been so mixed at appellant’s plant the explosion would have occurred almost immediately after the salts were deposited in the draw-pot and subjected to heat. It is only reasonable to assume that the same result would have ensued had the salts been mixed upon or after their arrival at the Fray Tool & Reamer Company some weeks before the explosion.
Appellant asserts that ‘the most peculiar and wholly unexplained fact proven by plaintiffs and respondents is that both containers, weighing in excess of 100 pounds each, were removed from their previous position a considerable distance away from the draw-pot over to a position within 3 or 4 feet of it * * *. It is possible but highly improbable that both of these heavy containers would be moved up to the draw-pot oven unless decedent had intended to use both products.’ Whether the two containers were moved to a position near the draw-pot oven prior to the explosions is in conflict. Plaintiff Hulsizer testified there was only one drum so moved. In any event, there is positive testimony in the record that only one container was opened and that following the explosions investigation revealed the fact that the drum containing draw-temp salt was intact and its cover was on.
Finally, appellant asserts that the only reasonable inference to be drawn from the evidence is that the two types of salt were mixed. Undoubtedly this argument is based upon the testimony of appellant’s expert, who was permitted to testify that in his opinion the first explosion was caused by an accidental mixing of the liquid heat quench with the draw-temp. At the trial and on this appeal, appellant earnestly asserts, in consonance with testimony introduced by it at the trial, that no explosion could occur unless the two products were mixed to some extent or certain foreign substances introduced into one or the other. Appellant insists that no such contamination could have taken place at its plant because, to use the language contained in Escola v. Coca-Cola Bottling Co., supra, 24 Cal.2d at page 460, 150 P.2d at page 440, the tests made at appellant’s plant are ‘pretty near’ infallible, and further, because, to quote from the testimony of appellant’s expert, ‘if it had been mixed up there, then the explosion would have taken place much more quickly than it did.’ The same expert witness, when asked to assume that only one container was used, and that salt was taken from it alone, testified that the cause of the explosion ‘would be a mystery to me’. If the explosion was caused by mixing the products after they left appellant’s plant, the latter was in possession of the means to prove that fact, because a few days after the accident appellant’s representative, Mr. McCabe, called at the Fray Tool & Reamer Company plant and took with him the drum of draw-temp salts, and the same remained in the possession of appellant at all times thereafter. Its failure to produce the drum at the trial or any testimony in explanation of the condition of its contents entitled the jury to infer that its production or testimony concerning the condition of its contents might have militated strongly against appellant’s claim that the salts had been mixed or contaminated after delivery by appellant to the Fray Tool & Reamer Company plant.
Assuming that the evidence at the trial presented several probable causes of the explosion involving the foregoing elements, it was, however, disclosed that explosions such as the ones here under consideration do not occur unless the products are mixed or certain foreign materials introduced into one or the other of them. The questions of where such contamination of the products occurred and through whose negligence it was brought about, were thus questions for the jury to unravel. We are persuaded that there is in the record evidence of sufficient substantiality to reasonably warrant the jury in finding that the condition of the products in question had not been changed, nor had they been mixed or contaminated, after they left appellant’s possession, and that appellants therefore had control of the products at the time of the alleged negligent act which gave rise to the injuries; that the evidence justified the inferences by the jury that the salts after they left defendant’s possession were ‘not accessible to extraneous harmful forces’ and that they were ‘carefully handled by plaintiff or any third person who may have moved or touched’ them. Escola v. Coca-Cola Bottling Co., supra, 24 Cal.2d at page 458, 150 P.2d at page 439. The doctrine of res ipsa loquitur was therefore applicable and the issue should have been submitted to the jury under proper instructions. However, the fact that the trial court did not instruct the jury upon this doctrine does not deprive respondents of its benefits, where, as here, the verdicts and judgments rendered thereon may legally be predicated upon the doctrine under the facts disclosed in this case. Furthermore, as heretofore indicated, without regard to the application of the doctrine of res ipsa loquitur, the facts herein presented warranted an inference by the jury that appellant was negligent in the preparation of its product, known as liquid heat quench which was delivered to Fray Tool & Reamer Company, and that such negligence was the proximate cause of the explosion and resultant damage to plaintiffs and respondents. O’Rourke v. Day & Night Water Heater Co., 31 Cal.App.2d 364, 366, 88 P.2d 191; Sheward v. Virtue, 20 Cal.2d 410, 414, 126 P.2d 345. We conclude, therefore, from a careful examination of the entire record, that there was sufficient evidence to furnish support for the verdict in each of these cases.
The judgment in each case is therefore affirmed.
YORK, P. J., and DORAN, J., concur.