In this action to recover for personal injuries suffered by plaintiff as the result of explosion of a grinding wheel purchased from defendant by plaintiff's employer, the trial court sustained without leave to amend a general demurrer to the count of the complaint based on breach of implied warranty. Trial was had on the other (first) count, based on negligence, and the jury found for defendant. Plaintiff appeals from the ensuing judgment for defendant. We have concluded that plaintiff's contentions of error in the trial on the negligence count are without merit
In December, 1954, defendant, a manufacturer of rubber bonded abrasives, sold and delivered to plaintiff's employer, AiResearch Manufacturing Company, a corporation, one hundred rubber bonded abrasive wheels for use in grinding and burring operations. The wheels, two inches in diameter, contained no markings either to identify the manufacturer or to indicate the maximum revolutions per minute at which the abrasive wheels could be safely operated. In June, 1955, while plaintiff in connection with his employment was using a wheel which he alleges was one of those sold to his employer by defendant, the wheel "blew up" or disintegrated in his face and a portion of the abrasive imbedded itself in his left eye, resulting in admittedly serious injury.
Plaintiff's first contention on appeal is that the court erred in sustaining the demurrer to the second cause of action, which alleged an implied warranty by defendant of fitness for use and of merchantable quality under the provisions of subdivisions (1) and (2) of section 1735 of the Civil Code.
Defendant, relying upon Burr v. Sherwin Williams Co. (1954), 42 Cal.2d 682, 695-697 [19-23] [268 P.2d 1041], and Lewis v. Terry (1896), 111 Cal. 39 [43 P. 398, 52 Am.St.Rep. 146, 31 L.R.A. 220], urges that the general rule is that implied warranties, other than in the sale of food or drugs, extend only to the immediate buyer, and points out that in the case of many sales, it is contemplated that someone other than the buyer will use the goods, although that fact has not generally been considered to constitute a ground for imposing on the seller an implied warranty liability to a user who is not a
Klein v. Duchess Sandwich Co., Ltd. (1939), 14 Cal.2d 272, 276-283 [2, 3] [93 P.2d 799]: Plaintiff husband purchased from a retailer packaged sandwiches manufactured by defendant Duchess Sandwich Company. Plaintiff wife swallowed a bite from one, discovered worms in the remainder of the sandwich, and became ill. Defendant contended that no implied warranty existed as to plaintiffs, because of lack of privity. This court, in reliance upon various out of state cases, as well as upon other authorities, concluded (p. 282 ) that "the remedies of an injured consumer of unwholesome food ought not to be made to depend `upon the intricacies of the law of sales,' and the warranty of the manufacturer to such consumer should not be made to rest solely on `privity' of contract," and (p. 283 ) that "the rulings made in the authorities herein cited [recognizing an exception to privity requirements in the case of foodstuffs] are based on sound principles, — affording as they do an adequate remedy for injuries which may result from the eating of unwholesome food by an ultimate consumer who, under modern economic conditions, almost of necessity, must purchase many items of food prepared in original packages by the manufacturer and intended for the consuming public, although marketed through an intermediate dealer."
Vaccarezza v. Sanguinetti (1945), 71 Cal.App.2d 687, 689 [163 P.2d 470]: Plaintiffs husband and wife purchased salami from a retailer, which had been manufactured by defendants Parducci, et al. The wife and two children ate some of it and developed trichinosis. Plaintiffs sued both retailer and manufacturer,
Tremeroli v. Austin Trailer Equip. Co. (1951), 102 Cal.App.2d 464, 477 [227 P.2d 923]: Plaintiff sued both retailer and manufacturer when a so-called fifth wheel (a device which connects and holds together a tractor and semitrailer) which he had purchased from the retailer, broke and caused plaintiff property damage. Although defendant cites this case in support of the view that privity is required between consumer and manufacturer to support recovery upon an implied warranty, and although the case did proceed upon that view, the point does not appear to have been disputed or argued. Thus, it is related in the opinion (p. 467) that the case was "submitted to the jury, on proper instructions which are not challenged," which withdrew from the jury the cause of action against the manufacturer based on warranty, because the evidence showed no privity, and submitted only that based on negligence. The statement on page 477  of the opinion that the manufacturer's "liability, if any, is dependent on negligence," apparently merely accepts the "unchallenged" theory of the trial court. Since "Cases are not authority for propositions not considered" (People v. Banks (1959), 53 Cal.2d 370, 389 [1 Cal.Rptr. 669, 348 P.2d 102]), this case would not appear especially helpful to defendant.
Burr v. Sherwin Williams Co. (1954), supra, 42 Cal.2d 682, 695-697 [19-23]: Plaintiffs authorized one Patton, field man for Cooperative, to arrange, as per Patton's recommendations, to obtain an insect spray and hire an aviation company to apply it to plaintiffs' cotton crop. Patton, with plaintiffs' approval, engaged defendant Rankin Aviation to do the spraying. Cooperative delivered to Rankin in sealed drums spray material, which defendant Sherwin Williams had manufactured and delivered to Cooperative on consignment. Rankin applied the spray, which damaged plaintiffs' crop. Plaintiffs sued Sherwin Williams, Cooperative and Rankin, charging all three with negligence and the first two with breach of warranty as well. The jury verdict was against Sherwin Williams, but in favor of the other defendants. On appeal Sherwin Williams urged, among other things, error in the instructions on implied warranties.
Collum v. Pope & Talbot, Inc. (1955), 135 Cal.App.2d 653 [288 P.2d 75]: Plaintiff carpenters were injured when a ceiling joist broke under their weight. They sued the dealer who had sold it to their general contractor employer, and also sued Pope & Talbot, the lumber mill operator which had processed and sold the joist to the dealer. The trial court ordered a nonsuit on the counts predicated on an alleged warranty of fitness for use. On appeal it was held (p. 656) that the lack of privity was fatal to plaintiffs' claims, although in discussing (p. 657) plaintiffs' "claim that the trend of decision in the last 25 years had been to extend the foodstuffs exception
In 77 Corpus Juris Secundum 1124, it is declared that "Although there is some authority to the contrary, it has been held that privity is not a prerequisite to recovery for breach of warranty where the subject of the sale which caused the injury was inherently dangerous." In support, five cases are cited: (1) Mazetti v. Armour & Co. (1913), 75 Wn. 622 [135 P. 633, 48 L.R.A.N.S. 213, Ann. Cas. 1915C 140], which involved food: the court did, however, declare in its general discussion, but without citation of authority, that to the general rule requiring privity "certain exceptions have been recognized: (1) Where the thing causing the injury is of a noxious or dangerous kind...." (P. 634  of 135 P.)
(2) Fleenor v. Erickson (1950), 35 Wn.2d 891 [215 P.2d 885], in which plaintiffs sought to recover damages suffered when their refrigerator locker plant in the basement of their store building froze the ground beneath, causing the building to buckle and necessitating the closing of the plant. After citing and quoting from the Mazetti case certain exceptions to the privity rule, including that "Where the thing causing the injury is of a noxious or dangerous kind" (p. 889  [215 P.2d]), the court held that because of lack of privity plaintiffs could not recover on warranty from the manufacturer of the insulating material used in installing the locker plant.
(3) Williams v. S.H. Kress & Company (1955), 48 Wn.2d 88 [291 P.2d 662], in which plaintiff consumer sued a manufacturer for damage allegedly resulting from the use of antiseptic as a mouthwash. After again citing and quoting (p. 664 [1, 2] [291 P.2d]) the exceptions mentioned in the Mazetti case, the court in this third case from Washington held (p. 665  [291 P.2d]) that because the purchaser had not made known to the retailer that she wished a mouthwash,
(4) Worley v. Procter & Gamble Mfg. Co. (1952), 241 Mo. App. 1114 [253 S.W.2d 532], in which the ultimate consumer of a detergent which allegedly resulted in skin injuries had relied on advertising labels, which, as already seen, is an exception to the privity rule.
(5) Mahoney v. Shaker Square Beverages (1951, Ohio), 102 N.E.2d 281, is a trial court decision. Plaintiff, a household employe, was injured when a bottle of ale she was removing from a carton, exploded. The court reviewed various theories of recovery and concluded, among other things, that (p. 289 ), a bottle of ale containing pressure which causes it to explode upon ordinary handling is a dangerous instrumentality and not of merchantable quality, its sale is a breach of warranty and also negligence under Ohio law for which action lies in either warranty or negligence, and liability in either event extends to a member of the purchaser's household, including servants.
Thus, none of these five cases provides clear support for the general proposition for which they were cited: that privity is not required where the item sold is inherently dangerous. Nor do other appellate court cases relied upon by plaintiff seem to do so: United States Pipe & Foundry Co. v. City of Waco (1937), 130 Tex. 126 [108 S.W.2d 432], and Mannsz v. Macwhyte Co. (1946), 155 F.2d 445, 449, both involved express warranties direct to the consumer, and Coca-Cola Bottling Works v. Lyons (1927), 145 Miss. 876 [111 So. 305], was a situation of glass in a bottle of beverage and so comes within the food cases. DiVello v. Gardner Machine Co. (1951, Ohio), 102 N.E.2d 289, 293 , is another Ohio trial court opinion; it does, however, hold specifically that the sale of a "grinding wheel carried with it an implied warranty of merchantability and fit for the usages designed and that such warranty extended to the workmen of the vendee who was injured in its ordinary use because of a latent defect ..." But as suggested by Professor Prosser (Torts, 2d ed., p. 510, n. 49) the DiVello case was perhaps overruled by Wood v. General Electric Co. (1953), 190 Ohio St. 273 [112 N.E.2d 8, 11-12 [3, 4]], in which the Ohio supreme court held that because of lack of privity the consumer could not recover against the manufacturer on an implied warranty of fitness where an allegedly defective electric blanket resulted in plaintiff's residence catching fire. (Cf. however, Rogers v.
We are persuaded that this position is meritorious.
Amici curiae supporting defendant urge, however, that section 1735 of the Civil Code,
Plaintiff further urges that the trial court erred in giving a certain instruction proposed by defendant on the negligence count on which trial was had. This instruction followed plaintiff's instruction on the doctrine of res ipsa loquitur. Although plaintiff does not point out any erroneous statement of law contained in the instruction of which he complains, he asserts generally that it was confusing, wordy, misleading, too broad, and incomprehensible to an inexpert group of jurors, gave undue prominence to the issue of overcoming the inference of neglect described in the standard res ipsa loquitur instructions, and nullified the effect of such prior instructions. Inasmuch as the lengthy instruction involved is the only instruction included in the record, no useful purpose would be served by setting it forth.
"Q. BY 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 ... 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 glasses to you?"
The witness was not permitted to answer the last question, on objections that he was not qualified regarding glasses, no proper foundation had been laid, whether they looked like safety glasses to the witness or not would be immaterial to the issue of contributory negligence, and that his opinion would tend neither to prove nor to disprove such issue.
Plaintiff had previously been permitted, over defendant's objection, to testify that the glasses he was wearing at the time of the accident and which he had secured from the Navy were safety glasses "to the best of my knowledge," and to give the reasons for that belief. Since any testimony of Swerdfiger concerning a conversation between plaintiff and himself regarding the appearance of plaintiff's glasses would have been only cumulative evidence, its rejection under the circumstances does not appear to be prejudicial.
Sufficiency of Evidence
In conclusion it may be mentioned that defendant argues that at the trial on the negligence count plaintiff failed to establish that the wheel which broke was one of those sold to his employer by this defendant, and that therefore plaintiff is not in a position to urge a reversal on any of the three contentions which he advances on appeal. Plaintiff, without supporting references to the record, asserts there was evidence tracing the course of the wheel from the time of its purchase
The judgment is: (1) affirmed with respect to the first count, based on negligence; (2) reversed with respect to the second, or warranty, count; and (3) the cause is remanded to the superior court with directions to permit defendant (within such reasonable time as that court may fix) to file an answer or such other pleading or pleadings as defendant may elect.
Gibson, C.J., McComb, J., Peters, J., Dooling, J., and Duniway, J. pro tem.,
I concur in the judgment for the reasons set forth in my concurring opinions in Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 461-468 [150 P.2d 436] and Gordon v. Aztec Brewing Co., 33 Cal.2d 514, 523-533 [203 P.2d 522].
Subd. (2): "Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality."