Hanberry v. Hearst Corp.

• Decision Date: 08 October 1969
• Citation: 81 Cal.Rptr. 519,276 Cal.App.2d 680,39 A.L.R.3d 173
• Court: California Court of Appeals Court of Appeals
• Parties: , 39 A.L.R.3d 173 Zayda HANBERRY, Plaintiff and Appellant, v. HEARST CORPORATION, aka the Hearst Corporation, Defendant and Respondent. Civ. 9332.

Page 519

81 Cal.Rptr. 519

276 Cal.App.2d 680, 39 A.L.R.3d 173

Zayda HANBERRY, Plaintiff and Appellant, v. HEARST CORPORATION, aka the Hearst Corporation, Defendant and Respondent.

Civ. 9332.

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

Oct. 8, 1969.

[276 Cal.App.2d 682] Roy B. Woolsey, Newport Beach, for plaintiff and appellant.

Henry F. Walker, Los Angeles, for defendant and respondent.

OPINION

AULT, ^* Associate Justice, Pro Tem.

Appellant's third amended complaint is in eight causes of action, only four of which involve respondent Hearst Corporation, (second, third, seventh and eighth). The trial court sustained Hearst's general demurrer to each of these causes of action without leave to amend and entered its judgment of dismissal. The appeal is from that judgment. The two other named defendants, Akron and Victor B. Handal & Bros., Inc., have answered the complaint and are not parties to the appeal.

The basic facts upon which appellant relies are repleaded in each of the causes of action under consideration. She alleges she purchased a pair of shoes on March 30, 1966 at a retail store owned and operated by the defendant Akron; the shoes had been imported and distributed to Akron by the defendant Victor B. Handal & Bros., Inc.; the shoes were defective in manufacture and design and had a low co-efficient of friction on vinyl and certain other floor coverings commonly used in this area and were slippery and unsafe when worn on such floor coverings; she was unaware of the defect and in wearing the shoes on the same day she purchased them, she stepped on the vinyl floor of her kitchen, slipped, fell and sustained severe personal injuries.

Appellant further alleges respondent Hearst publishes a monthly magazine known as Good Housekeeping in which products, including the shoes she purchased, were advertised as meeting the 'Good Housekeeping's Consumers' Guaranty Seal' With respect to this seal the magazine stated: 'This is Good Housekeeping's Consumers' Guaranty' and 'We satisfy ourselves that products advertised in Good Housekeeping are good ones and that the advertising claims made for them in our magazine are truthful.' The seal itself contained the promise, 'If the product or performance is defective, Good Housekeeping guarantees replacement or refund to consumer.'

Appellant alleges further she had frequently read Good Housekeeping Magazine 'and believed the products bearing the seal had been examined, tested and inspected by defendant and were good and safe for the use intended'; prior to purchasing the shoes she had seen an advertisement of them, either in Good Housekeeping Magazine or in a newspaper and placed by defendant Handal which incorporated the contents of the Good Housekeeping endorsement; Good Housekeeping seal was affixed to the shoes and the container for the shoes with Hearst's consent; Hearst was paid for the advertising of the shoes which appeared it its magazine and for the use of its seal; appellant relied upon respondent's representation and seal and purchased the shoes because of them. Appellant further alleges Hearst made no examination, test or investigation of the shoes, or a sample thereof, or if such tests were made they were done in a careless and negligent manner and that Hearst's issuance of its seal and certification as to the shoes was not warranted by the information it possessed.

In the second and eighth causes of action, appellant seeks to recover on the theory of negligent misrepresentation. In the third cause of action she attempts to allege a conspiracy between respondent and the other named defendants to sell the shoes through false representations. The seventh cause of action seeks recovery on the basis of express or implied warranty.

The basic question presented on this appeal is whether one who endorses a product for his own economic gain, and for the purpose of encouraging and inducing the public to buy it, may be liable to a purchaser who, relying on the endorsement, buys the product and is injured because it is defective and not as represented in the endorsement. We conclude such liability may exist and a cause of action has been pleaded in the instant case. In arriving at this conclusion, we are influenced more by public policy than by whether such cause of action can be comfortably fitted into one of the law's traditional categories of liability. (See Vandermark v. Ford Motor Co., 61 Cal.2d 256, 262--263, 37 Cal.Rptr. 896, 391 P.2d 168; Connor v. Great Western Sav. & Loan Assn., 69 Cal.2d 850, 864--867, 73 Cal.Rptr. 369, 447 P.2d 609.)

Appellant's third amended complaint alleges facts which support her argument respondent Hearst is not just a publisher of a magazine which accepts and publishes advertisements from manufacturers and retailers of consumer products. To enhance the value of its magazine as an advertising medium, to compete more favorably in the advertising market, it offers to those whose products meet such standards as it may impose and who choose to purchase its services, the 'Good Housekeeping Consumers' Guaranty Seal' and its certification, 'We have satisfied ourselves the products and services advertised in Good Housekeeping are good ones and the advertising claims made for them in our magazine are truthful.'

Respondent's endorsement and approval of a product is not confined to the pages of its own magazine. It permits the manufacturer or retailer of a product which has been approved by Good Housekeeping Magazine to advertise that fact in other advertising media and permits its seal to appear in such ads and to be attached to the product itself. While the device used by respondent enhances the value of Good Housekeeping Magazine for advertising purposes, it does so because its seal and certification tend to induce and encourage consumers to purchase products advertised in the magazine and which bear that seal and certification. Implicit in the seal and certification is the representation respondent has taken reasonable steps to make an independent examination of the product endorsed, with some degree of expertise, and found it satisfactory. Since the very purpose of respondent's seal and certification is to induce consumers to purchase products so endorsed, it is foreseeable certain consumers will do so, relying upon respondent's representations concerning them, in some instances, even more than upon statements made by the retailer, manufacturer or distributor.

Having voluntarily involved itself into the marketing process, having in effect loaned its reputation to promote and induce the sale of a given product, the question arises whether respondent can escape liability for injury which results when the product is defective and not as represented by its endorsement. In voluntarily assuming this business relationship, we think respondent Hearst has placed itself in the position where public policy imposes upon it the duty to use ordinary care in the issuance of its seal and certification of quality so that members of the consuming public who rely on its endorsement are not unreasonably exposed to the risk of harm. (Connor v. Great Western Sav. & Loan Assn., supra, 69 Cal.2d 850, 865, 73 Cal.Rptr. 369, 447 P.2d 609.)

The fact Hearst is not in privity of contract with those who, relying on its endorsement, purchase the products it endorses, does not mean it is relieved from the responsibility to exercise ordinary care toward them.

'Privity of contract is not necessary to establish the existence of a duty to exercise ordinary care not to injure another, but such duty may arise out of a voluntarily assumed relationship if public policy dictates the existence of such a duty. 'Merrill v. Buck, 58 Cal.2d 552, 561--562, 25 Cal.Rptr. 456, 375 P.2d 304. " (Connor v. Great Western Sav. & Loan Assn., Supra, 69 Cal.2d 865, 73 Cal.Rptr. 454, 447 P.2d 616.)

In Biakanja v. Irving, 49 Cal.2d 647, 320 P.2d 16, 65 A.L.R.2d 1358, the question presented was whether a notary public who had prepared a will, invalid because it was not properly attested, could be held liable to the beneficiary for the resulting damage although there was no privity of contract between them. At p. 650, 320 P.2d at p. 19 the court stated:

'The...