Sears, Roebuck & Co. v. Marhenke

• Decision Date: 29 July 1941
• Docket Number: No. 9634.,9634.
• Citation: 121 F.2d 598
• Parties: SEARS, ROEBUCK & CO. v. MARHENKE.
• Court: U.S. Court of Appeals — Ninth Circuit

121 F.2d 598 (1941)

SEARS, ROEBUCK & CO. v. MARHENKE.

No. 9634.

Circuit Court of Appeals, Ninth Circuit.

June 24, 1941.

Rehearing Denied July 29, 1941.

Hoge, Pelton & Gunther and A. Dal Thomson, all of San Francisco, Cal., for appellant.

George K. Ford, Simpson Finnell, Jr., Russell T. Ainsworth, and Fletcher A. Cutler, all of San Francisco, Cal., for appellee.

Before WILBUR, MATHEWS, and HEALY, Circuit Judges.

WILBUR, Circuit Judge.

This is an action for damages for personal injuries, tried before the court without a jury. Findings and judgment were for the plaintiff in the sum of $5,000. Defendant appeals.

Plaintiff was scalded by hot water leaking from a rubber hot water bag purchased from the appellant by the parents of plaintiff, who was an infant fourteen days old at the time of the injury.

The judgment was based upon the finding that the appellant knew, or should have known, that the hot water bag was in a condition which made it unsafe for its intended use. The defect in the bag, as presented by an expert witness testifying for the plaintiff, was in the faulty method of construction of the stopper and the socket so that there was a slight leakage of water around the stopper. The witness testified that "the stopper and the thread in the bag and the seat are of hard rubber; that the thread on the stopper is of poor irregular construction; that the seat is small, and the mold edges of the stopper are prominent where the mold comes together and forms a stopper, the ridges down the side are unduly prominent. * * * The construction is such that there is no assurance of its holding hot water safely. * * * The imperfections of the stopper and the corresponding threads are such that if sometimes you would screw it very tight it would leak quite freely at that time, then you would give it a little turn and it would not leak, but if you turn it a little further it would begin to leak freely again. * * * The blue back is so irregular in construction and the washer at the bottom so small and the mold edges are so high that you have got irregular conditions in screwing it up and get corresponding leakages under these irregular conditions." He testified that he believed the only safe rubber bag was one using metal threads and metal stopper, "so the threads would fit closely and tightly".

There was no evidence that the appellant knew that the construction of the stopper was faulty. The question of whether or not the appellant should have known of such defects depends upon whether or not the vendor who sells goods manufactured by another is obligated to inspect the goods to determine whether or not they are defective. This question was lately considered by the District Court of Appeal of the State of California in Tourte v. Horton Mfg. Co., 108 Cal.App. 22, 290 P. 919. It was held that a dealer who purchases and sells an article in common and general use, in the usual course of trade, without knowledge of its dangerous qualities is not under duty to exercise ordinary care to discover whether it is dangerous or not. Citing, 24 R.C.L. 509; 45 C.J. 893. This decision is binding on this court because the transaction occurred in California. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487; Stoner v. New York Life Ins. Co., 311 U.S. 464, 61 S.Ct. 336, 85 L.Ed. 284.

Whether we assume that the defects could only be discovered by such investigations as were made by the experts, or could have been ascertained by the simple test of filling the bag with water and inverting it after the stopper had been screwed into its socket, the appellant, under the rule stated in Tourte v. Horton Mfg. Co., supra, was under no obligation to make such inspection or test. The evidence is thus insufficient to sustain the finding of negligence. This case was originally briefed by the appellee upon the theory that the only question involved was that of liability for negligence; but, in its brief and upon the oral agrument, the appellant discussed the question of implied warranty, contending that it was not involved in the case at bar. The appellee agreed that the real question was one of negligence and not warranty. Neither side cited or discussed the provisions of the California statute governing the subject of implied warranty on sales. Upon having their attention directed to such statutory provisions the parties filed additional briefs upon the subject of statutory implied warranty. In his brief so filed the appellee contends that the allegations of the complaint were sufficient to sustain the judgment upon the ground of a breach of the warranty implied by statute.

The law in relation to implied warranty in sales of personal property in California is found in § 1735¹ of the California Civil Code, which is a part of the uniform sales law adopted in many other states.

It needs no argument to show that a plaintiff relying upon this provision of the Civil Code must plead and prove two essential facts: (1) that the buyer informed the seller of the particular purpose for which the goods were intended to be used, and, (2) that the buyer relied upon the seller's skill or judgment. Cf. Pigott v. Clark, 133 Cal.App. 53, 23 P.2d 800. But the complaint failed to allege one of these essential facts and the trial court made no finding as to the other.

The allegation of the complaint upon which the appellee now relies to show an implied warranty is as follows: "* * * that when said defendants sold and delivered said infant's hot water bag to plaintiff's father, as hereinafter set forth, they represented to him that it was in a safe condition and fit to use for the purposes aforesaid, and he believed said representations and relied thereon in purchasing said hot water bag."

It is evident that the language quoted was not used with the intention of meeting the requirements of subd. 1 of Civ.Code Cal. § 1735. A liberal construction of the allegation that the plaintiff's father relied upon the representation of the defendant would perhaps warrant us in treating it as a substantial equivalent of an allegation that he relied upon the "judgment or skill" of the seller in accordance with the statutory requirement. But we cannot supply a missing allegation and the portion of the...