Alvarez v. Felker Mfg. Co.

• Decision Date: 02 December 1964
• Citation: 41 Cal.Rptr. 514,230 Cal.App.2d 987
• Court: California Court of Appeals Court of Appeals
• Parties: Marcelliano ALVAREZ, Plaintiff and Appellant, v. FELKER MANUFACTURING COMPANY, Defendant and Respondent. Civ. 21040.

Page 514

41 Cal.Rptr. 514

230 Cal.App.2d 987

Marcelliano ALVAREZ, Plaintiff and Appellant, v. FELKER MANUFACTURING COMPANY, Defendant and Respondent.

Civ. 21040.

District Court of Appeal, First District, Division 1, California.

Dec. 2, 1964.

Thorne, Stanton, Clopton, Herz & Stanek, San Jose, for appellant.

Carroll, Davis, Burdick & McDonough, Gerald P. Martin, Jr., San Francisco, for respondent.

MOLINARI, Justice.

Plaintiff appeals from a judgment for defendant, Felker Manufacturing Company (hereinafter referred to as Felker) after a jury verdict in a personal injury action. ¹ The appeal is directed solely to the propriety of certain jury instructions. Specifically, the questions presented are whether the trial court erred in refusing to instruct the jury on the issue of agency and whether defendant's instructions Nos. 45 and 47 given by the court were erroneous, and, if so, whether they were prejudicially erroneous. We shall consider these questions, separately, after setting out the pertinent facts as disclosed by the record, and discussing the principles enunciated by the recent cases of Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 and Vandermark v. Ford Motor Co., 61 A.C. 245, 37 Cal.Rptr. 896, 391 P.2d 168.

The Record

Plaintiff was injured while he was operating the concrete cutting machine owned by his employer, the James Griffiths Company (hereinafter referred to as Griffiths). At the time of the accident, the machine was equipped with a 'Felker' blade, which had been supplied by Hickerson Supply Company (hereinafter referred to as Hickerson). Felker blades, including the particular blade in question, were obtained by Hickerson from Felker, for whom Hickerson was a distributor.

In manufacturing blades, Felker's standard size arbor hole was 1 inch. However, Hickerson, in order to provide blades for customers requiring varying arbor hole sizes, was in the habit of ordering blades with a 1 3/4 inch arbor hole and then reducing the size of the hole with 'inserts' or 'bushings' to fit the needs of any particular customer. Thus, Felker, in compliance with Hickerson's order, would bore out its standard 1 inch arbor blade to a 1 3/4 inch hole. Usually the bushings to be used in the blades were supplied by Felker upon the request of Hickerson. Sometimes they would be inserted in the blade at the Felker factory, in which case, Hickerson did not unwrap or inspect the package before sending it to the customer. At other times, the bushing would be sent by Felker along with the blade, so that Hickerson would have to insert the bushing into the blade. Still a third method of operation used by Felker, was to furnish the blade without a bushing, in which case Hickerson furnished and inserted a bushing from its own stock. Whenever Felker sent an unbushed blade--either accompanied or unaccompanied by a bushing--which required bushing, Hickerson made it a practice to lock the bushing in the arbor hole by means of a center punch, that is, by peening it at the point at which it slipped into the hole size of the blade. The record contains conflicting testimony as to whether the particular blade which plaintiff installed on the machine on the day of the accident had already been bushed at the factory or whether, on the other hand, the bushing had been inserted by Hickerson.

On the morning of July 23, 1956, the day on which the accident occurred, plaintiff inserted the Felker blade into the machine. He then proceeded to finish one job which required some use of the machine. Upon completion of this job, plaintiff transported the machine to the site of another job. He had just begun cutting when the accident occurred. Plaintiff testified that while he was using the saw, he heard an explosion, felt something hit him in the eye, and moved back from the machine. As a result of the accident, plaintiff lost his right eye.

Much of the testimony at the trial concerned itself with the way in which plaintiff installed the blade onto the machine, it being Felker's contention that the malfunctioning of the machine was due to the improper installation of the blade and bushing by plaintiff. At his deposition, which was taken in 1959, plaintiff testified unequivocally and repeatedly that he inserted the blade and then the bushing onto the arbor. At the trial, however, he asserted that when he opened the package containing the blade, he found the bushing already inserted into the blade and that he installed the two together onto the machine, this being the correct method of installation. Sometime previous to the accident plaintiff had been included in a group which received a 10 to 20 minute demonstration in the use of the concrete cutting machine. Plaintiff had used the machine on several occasions prior to the accident. However, the record contains conflicting testimony as to whether plaintiff was acquainted with the Felker type blade and whether he had been instructed on how to insert it. Jack T. Regan, an officer of Griffiths, testified that plaintiff had used the Felker blade prior to the accident and that he had been instructed as to its use. Plaintiff stated that the Felker blade he had inserted in the machine on the day of the accident was the first he had ever seen, and that no one had ever discussed this blade with him prior to the accident.

Various personnel of Griffiths, Hickerson, and Felker testified as to the appearance of the blade following the accident. It was also noted by those witnesses, who were at the site of the accident, that segments from the blade were found on the ground beside the machine immediately following the accident. At the trial the machine itself was operated both with a properly and improperly installed blade and moving pictures were shown of similar demonstrations.

Plaintiff sought recovery against Felker based upon a complaint alleging several counts couched upon the theories of breach of warranty and negligence. ²

The Greenment and Vandermark Cases

The instant case was tried before the decisions of our Supreme Court in Greenman and Vandermark. ³ In view of the principles announced in these cases relative to the liability of a manufacturer and the rule of strict liability therein declared we must consider whether these principles are applicable to the case at bench before proceeding to consider the propriety of the instructions which form the basis of this appeal.

In Greenman it was held that a manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect which causes injury to a human being. Accordingly, it was held that to establish a manufacturer's liability it is fufficient that a plaintiff prove he was injured as a result of a defect in the design and manufacture of the article while using it in a way it was intended to be used and that he was unaware that such defect made the article unsafe for its intended use. Greenman holds that this rule of strict liability is not based on the law of contract warranties, nor upon the theory of express warranties, nor upon the implied warranties of the sales act, nor upon negligence, but upon the law of strict liability in tort, the essence of which is that costs of injuries resulting from defective products are to be borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.

The rule of strict liability announced in Greenman was held by Vandermark to apply also to a retailer of a defective product. It was held, moreover, in Vandermark that a manufacturer of a completed product cannot escape liability on the ground that the defect in the product may have been caused by something one of its authorized dealers did or failed to do. On page 250 of 61 A.C., page 898 of 37 Cal.Rptr., page 170 of 391 P.2d, the Supreme Court said: 'Since the liability is strict is encompasses defects regardless of their source, and therefore a manufacturer of a completed product cannot escape liability by tracing the defect to a component part supplied by another.' In Vandermark, the plaintiffs were injured in an automobile accident allegedly caused by the sudden failure of an automobile's braking system. In a complaint pleading causes of action for breach of warranty and negligence, the plaintiffs sued the Ford Motor Company, the manufacturer of the automobile, and Maywood Bell, the authorized Ford dealer from whom one of the plaintiffs (Vandermark) had purchased the car. The evidence disclosed that Maywood Bell had removed the power steering unit before selling it to Vandermark, and, also, that the car had passed through two other authorized Ford dealers before it was sold to Maywood Bell. A judgment of nonsuit in favor of the Ford Motor Company and a judgment in favor of Maywood Bell upon a directed verdict were reversed upon the basis that the rule of strict liability was applicable. The Supreme Court held that since plaintiffs introduced or offered substantial evidence that they were injured as a result of a defect that was present in the car when Ford's authorized dealer delivered it to Vandermark, the trial court erred in granting a nonsuit on the causes of action by which plaintiffs sought to establish that Ford was strictly liable to them; and that since plaintiffs also introduced or offered substantial evidence that the defect was caused by some negligent conduct for which Ford was responsible, the trial court also erred in granting a nonsuit on the negligence causes of action. With respect to Maywood Bell the reviewing court noted that although plaintiffs sought to impose strict liability on the theory of sales-act warranties, they pleaded and introduced substantial evidence of all the facts necessary to establish strict liability in tort and that, accordingly, the trial court erred in directing a verdict for Maywood Bell on the...