Crane v. Sears Roebuck & Co.

• Citation: 32 Cal.Rptr. 754,218 Cal.App.2d 855
• Court: California Court of Appeals
• Decision Date: 02 August 1963
• Parties: Lorna CRANE, Plaintiff and Respondent, v. SEARS ROEBUCK & CO., Inc., a corporation and Universal Paint Corporation, a corporation, Defendants and Appellants. Civ. 6960.

Page 754

32 Cal.Rptr. 754

218 Cal.App.2d 855

Lorna CRANE, Plaintiff and Respondent, v. SEARS ROEBUCK & CO., Inc., a corporation and Universal Paint Corporation, a corporation, Defendants and Appellants.

Civ. 6960.

District Court of Appeal, Fourth District, California.

Aug. 2, 1963.

Luce, Forward Hamilton & Scripps, Arvin H. Brown, Jr., San Diego, Henry F. Walker, Wheeler, McCue & Morris and John J. McCue, Los Angeles, for defendants and appellants.

Dattan, Sharkey & Peterson, John S. Rhoades, Thomas E. Sharkey and Howard S. Dattan, San Diego, for plaintiff and respondent.

GERALD BROWN, Justice.

Plaintiff Lorna Crane sued defendant Sears Roebuck & Co., Inc., (hereinafter called Sears) and defendant Universal Paint Corporation, (hereinafter called Universal) to recover damages for personal injuries sustained by her when she was burned by fire.

Plaintiff complained in two causes of action against each defendant, one based upon negligence and the other upon breach of warranty of suitability and fitness for purposes intended.

After the parties had rested and the defendants' motions for directed verdicts were denied a jury verdict favoring plaintiff against both defendants was returned, judgment was entered accordingly and defendants appeal from said judgment and an order denying their motions for judgment notwithstanding the verdict. In defendants' briefs only Universal and not Sears urges error of the trial court in denying its motion for judgment notwithstanding the verdict.

Plaintiff and her husband were starting a restaurant business. They desired to paint the interior of the premises and went to a Sears store in San Diego to obtain some paint. The Sears salesman prevailed upon plaintiff and her husband to buy a surface preparer. The surface preparer was made by Universal according to a formula furnished by Sears; Sears provided the label and its language for placement on the cans in which the product was placed. Among other things the label provided, 'CAUTION: INFLAMMABLE MIXTURE. Do not use near fire or flame. * * * Contains more than 15% Benzol--BEWARE OF POISONOUS FUMES'. The directions stated that the product should be applied to surfaces with a soft cloth, allowing it to set for 10 or 15 minutes before applying an undercoat of enamel. Evidence at the trial disclosed that the surface preparer had a low flash point and was highly volatile.

After purchasing the surface preparer plaintiff returned to the restaurant premises, read the instructions on the label, poured some surface preparer into a bowl and applied the material with a piece of cotton bath towel to a wall in the toilet room. Inasmuch as she was working with fumes she had the front and back doors open and the kitchen windows open. There were no windows or ventilation in either the toilet room or the adjoining wash basin compartment in which there was a hot water heater, other than a vent tube in the toilet room. Plaintiff was not certain whether the heater's pilot light was on.

Plaintiff first dipped the cotton towel in the bowl of surface preparer, wrung it out, walked through the washroom to the toilet room and applied the solution to a small portion of the wall. She then returned to the bowl for more surface preparer. After walking back to the toilet room where she resumed washing the wall, there was a 'whoosh', fire leaped into the room, plaintiff caught on fire, and came running out of the room into the cafe portion screaming for her husband who extinguished the flames. Thereafter, plaintiff's husband dumped the contents of the surface preparer in the bowl in the kitchen and used the bowl to put out the fire in the wash basin area. Plaintiff was not able to provide information at the trial as to the source of the flame, but defense witnesses believed it to be from the water heater, which was about 6 feet from where plaintiff was working with the surface preparer and which was necessary for her to pass enroute to the toilet room.

Universal contends the trial court erred in denying its motion for judgment notwithstanding the verdict. This, of course, must rest upon the same consideration of the evidence as in a nonsuit, that viewing the evidence most favorably in support of the plaintiff, the court as a matter of law can come only to the conclusion that the verdict is not supported by substantial evidence. Palmquist v. Mercer, 43 Cal.2d 92, 272 P.2d 26.

As to the negligence cause of action, Universal contends the surface preparer was not its product but the formula of Sears; that Sears gave Universal the formula to mix the ingredients and place in a can with a label on the outside conforming to one prepared by Sears. Inasmuch as Universal did nothing more than it was called upon to do by Sears it seeks exculpation from any liability for the product which is admittedly highly volatile and with a low flash point. The label cautioned that the surface preparer was an inflammable mixture, not to be used near fire or flame, and to beware of poisonous fumes. It did not say that the mixture was combustible or explosive. The label pointed out that the fumes were poisonous, but nothing was said about their combustibility. The product was not to be used near a flame or fire, but nearness is a matter of degree when one considers the volatility, explosiveness or combustibility of a mixture and its fumes. It is a question of fact whether the label gave appropriate warning. The fact that plaintiff knew ventilation was necessary and opened doors and windows of the restaurant cannot lead to the sole conclusion that she was aware of the dangerous combustible propensities of the product; the jury was entitled to...