Burr v. Sherwin Williams Co.

Decision Date16 April 1954
Citation268 P.2d 1041,42 Cal.2d 682
CourtCalifornia Supreme Court
PartiesBURR et al. v. SHERWIN WILLIAMS CO. L. A. 22868

Ray W. Hays, James N. Hays, Fresno, for appellant.

W. R. Bailey, Visalia, Wingrove & Brown, Meredith Wingrove and Lee G. Brown, Hanford, for respondents.

GIBSON, Chief Justice.

In July 1949 plaintiffs, Robert Burr and his wife, owned approximately 135 acres which were planted in cotton. At Burr's request, defendant Patton, field man for defendant Central Valley Cooperative, hereinafter referred to as the cooperative, inspected the crop, found insects known as cotton daubers and advised plaintiffs to use a spray containing DDT, which is an insecticide. Burr agreed to have the cotton sprayed in accordance with Patton's recommendations and authorized him to make the necessary arrangements for obtaining the spray and hiring an aviation company to apply it. Patton, with the approval of Burr, engaged defendant Rankin Aviation Industries to do the spraying. The cooperative delivered to Rankin at the airport five new sealed, 30-gallon, nonreturnable steel drums of 'DDTOL, 25 per cent Emulsifiable,' which had been manufactured by defendant Sherwin Williams Company and delivered to the cooperative on consignment. An employee of the Rankin company opened the drums at the airport, mixed the insecticide with water and placed it in the airplane which was used to spray plaintiffs' cotton. Crop damage was noticed shortly thereafter, the plants grew abnormally, and production was adversely affected.

Three experts who examined the field testified that the cotton was damaged by a plant hormone known as 2,4-D which is used as a weed killer and has an adverse effect on cotton, even in extremely small quantities. An inspector for the Department of Agriculture of the State of California took samples from the five open drums used in the spraying operation and from two unopened drums of the same product at the warehouse of the cooperative. The samples were sent to Sacramento for testing, and officials for the department reported that several tests showed 'some evidence' of the presence of a small amount of 2,4-D or 2, 4,5-T, a similar substance, in the five open drums and in the two unopened ones. The entomologist of the Bureau of Chemistry of the department stated that the weed killer was present in an amount toxic to bean sprouts, and another expert testified that cotton is more sensitive to this substance than bean sprouts.

Sherwin Williams, the cooperative, the Rankin comany and various individuals employed by these companies were joined in a single action charging negligence in the manufacturing, selling and using of the Sherwin Williams' solution. The complaint also alleged breach of warranty by Sherwin Williams and the cooperative. The jury found against Sherwin Williams and in favor of the other defendants. Sherwin Williams alone appeals from the judgment and contends that no instructions should have been given on res ipsa loquitur and that those given on that doctrine and on implied warranties were erroneous.

I. Res Ipsa Loquitur Instructions

The evidence is clearly sufficient to satisfy the requirement of the doctrine of res ipsa loquitur that the accident must be of such a nature that it probably was the result of negligence by someone, since it may be assumed that an insecticide such as the product involved here, which is designed for use on plants, will not ordinarily damage cotton crops if it is properly manufactured and applied. The evidence also meets the requirement that it must appear that the defendant is probably the one who is responsible. The fact that an accident occurs after the defendant relinquishes control of the instrumentality which causes the accident does not preclude application of the doctrine provided there is evidence that the instrumentality had not been improperly handled or its condition otherwise changed after control was relinquished by the defendant. Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 444, 247 P.2d 344. In the present case the co-defendants are the only persons likely to have been responsible for any alteration of the insecticide after the sealed drums were delivered by Sherwin Williams to the cooperative, and these defendants gave explanations of their activities which would indicate that they had not mishandled or improperly changed the condition of the spray which damaged plaintiffs' crop. Moreover, as we have seen, there is evidence that unopened drums of the insecticide in the warehouse of the cooperative also contained sufficient 2,4-D to injure cotton plants. Under all the circumstances the evidence warrants the conclusion that the damage to the crop was probably due to some negligent conduct on the part of Sherwin Williams in allowing its product to become contaminated or in failing to discover the contamination before it relinquished control of the product. The trial court, therefore, was justified in giving instructions on the doctrine.

The procedural effect of res ipsa loquitur is presented by the contention that the court erred in telling the jurors that the inference of negligence based upon the doctrine is mandatory rather than permissive. They were instructed that from the occurrence of the damage involved in this case, as established by the evidence, 'there arises an inference' of negligence by the defendants and that it is 'incumbent upon the defendants to rebut the inference.' It is settled, of course, that res ipsa loquitur raises an inference, not a presumption, and the general rule is that whether a particular inference shall be drawn is a question of fact for the jury, even in the absence of evidence to the contray. See Code Civ.Proc., § 1958 1; Blank v. Coffin, 20 Cal.2d 457, 461, 126 P.2d 868; Hamilton v. Pacific Elec. R. Co., 12 Cal.2d 598, 602-603, 86 P.2d 829. This, however, does not preclude the conclusion that res ipsa loquitur may give rise to a special kind of inference which the defendant must rebut, although the effect of the inference is somewhat akin to that of a presumption. Hardin v. San Jose City Lines, 41 Cal.2d 432, 260 P.2d 63, and cases there cited; see Code Civ.Proc., § 1959. 2

The Hardin case held that an instruction similar to the one involved here was properly given in an action against a common carrier for injuries received by a passenger and that the carrier was obliged to meet the res ipsa loquitur inference by evidence sufficient to offset or balance it. 41 Cal.2d at page 432, 260 P.2d 63. A similar burden has been placed upon defendants in other cases where there were special relationships between the parties. Dierman v. Providence Hospital, 31 Cal.2d 290, 295-296, 188 P.2d 12 (medical patient); Ales v. Ryan, 8 Cal.2d 82, 106, 64 P.2d 409 (medical patient); see Ybarra v. Spangard, 25 Cal.2d 486, 490, 492, 494, 154 P.2d 687, 162 A.L.R. 1258 (medical patient); cf. George v. Bekins Van & Storage Co., 33 Cal.2d 834, 839-841, 205 P.2d 1037 (bailment). It has also been held that the defendant must show that he was not at fault where the plaintiff was injured as a result of a dangerous activity in which the defendant was engaged and as to which the defendant was required to exercise great care. See Chutuk v. Southern California Gas Co., 218 Cal. 395, 398-400, 23 P.2d 285 (furnishing gas); Damgaard v. Oakland High School Dist., 212 Cal. 316, 318-324, 298 P. 983 (dangeros chemical experiment); Bergen v. Tulare County Power Co., 173 Cal. 709, 719-721, 161 P. 269 (furnishing electricity); Diller v. Northern Cal. Power Co., 162 Cal. 531, 536-537, 123 P. 359 (furnishing electricity); Ficken v. Jones (1865), 28 Cal. 618, 625-628 (driving cattle through city); Junge v. Midland Counties, etc., Corp., 38 Cal.App.2d 154, 157, 159, 100 P.2d 1073 (furnishing electricity); Harmon v. San Joaquin Light & Power Corp., 37 Cal.App.2d 169, 185, 98 P.2d 1064 (furnishing electricity).

In some types of situations, because of the nature of the particular accident, an inference of negligence upon the part of the defendant may be so strong that no reasonable man could fail to accept it in the absence of explanatory evidence. See Alabama & V. R. Co. v. Groome, 97 Miss. 201, 52 So. 703, 704; Angerman Co. v. Edgemon, 76 Utah 394, 290 P. 169, 171, 79 A.L.R. 40; Pillars v. R. J. Reynolds Tobacco Co., 117 Miss. 490, 78 So. 365, 366; Prosser on Torts (1941), 304. Facts of this character appear to have been presented in Ales v. Ryan, 8 Cal.2d 82, 64 P.2d 409, where there was evidence that the defendant surgeon closed an incision without having removed a sponge. (See also cases collected in Prosser, Res Ipsa Loquitur in California (1949), 37 Cal.L.Rev. 183, 220-221.) Another basis for imposing the burden of explanation on the defendant in res ipsa loquitur cases has been that the facts are peculiarly within his knowledge. Dierman v. Providence Hospital, 31 Cal.2d 290, 295-296, 188 P.2d 12 (failure to produce in evidence a tank of anesthetizing gas where possible cause of injury to plaintiff was that the gas was contaminated); Druzanich v. Criley, 19 Cal.2d 439, 444-445, 122 P.2d 53 (failure of driver to explain what happened in automobile accident which occurred when automobile left road while plaintiff passenger was dozing).

In a number of cases, which are difficult to classify, the court, without discussion of the problem involved here, have either sustained instructions similar to the one given in the present case or have stated as a part of the rule that it is incumbent upon the defendant to show that he was not negligent. See Hinds v. Wheadon, 19 Cal.2d 458, 461, 121 P.2d 724 (explosion of tank); Hinds v. Wheadon, 67 Cal.App.2d 456, 460-464, 154 P.2d 720 (same case, subsequent opinion); Kenney v. Antonetti, 211 Cal. 336, 339-340, 295 P. 341 (straying horse); Michener v. Hutton, 203 Cal. 604, 606, 609-611, 265 P. 238, 59 A.L.R. 480 (falling object); Sherrillo v. Stone & Webster Eng. Corp., 110 Cal.App.2d 785,...

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