Maecherlein v. Sealy Mattress Co.

• Citation: 145 Cal.App.2d 275,302 P.2d 331
• Court: California Court of Appeals Court of Appeals
• Decision Date: 23 October 1956
• Parties: Virginia MAECHERLEIN, Plaintiff and Respondent, v. SEALY MATTRESS COMPANY, Defendant and Appellant. Civ. 21809.

Page 331

302 P.2d 331

145 Cal.App.2d 275

Virginia MAECHERLEIN, Plaintiff and Respondent, v. SEALY MATTRESS COMPANY, Defendant and Appellant.

Civ. 21809.

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

Oct. 23, 1956.

Rehearing Denied Nov. 13, 1956.

Moss, Lyon & Dunn, Arvin H. Brown, Jr., and Henry F. Walker, Los Angeles, for appellant.

Downey A. Grosenbaugh, Hollywood, Grayce M. Smith, Los Angeles, for respondent.

DORAN, Justice.

After a trial by jury, a judgment was entered in favor of plaintiff-respondent in the sum of $3,000 for personal injuries sustained when a spring came through a mattress manufactured by the appellant, and purchased from a Los Angeles retail dealer who was not an agent of the appellant.

In the language of appellant's brief, 'After plaintiff and her husband had used the same for a year or year and a half, they noticed it was getting soft in the center; there was a lumping or bunching. Several years later, i. e., in April of 1953 more than five years after their said purchase, plaintiff, according to her testimony, was awakened when a spring came through the mattress and, in the words of her pleading, 'penetrated into the said plaintiff's gluteal prominence'.'

Recovery was sought on two theories, namely, 'Manufacturer's Express Warranty', and 'Res Ipsa Loquitur'. There was testimony that the plaintiff placed reliance on billboard and radio advertising and upon a ten-year warranty evidenced by a label on the mattress, to which attention had been called by the seller. Shortly after the accident plaintiff's husband talked with the seller who picked up the mattress and took it to the defendant where it was repaired. Plaintiff was given an exchange mattress.

It is appellant's contention that there is lack of evidence of negligence and of express warranty; that the res ipsa loquitur doctrine is inapplicable, and that the trial court's instructions to the jury were erroneous. Appellant also complains that essential elements for recovery on an express warranty were not proven, particularly in reference to reliance on such warranty that 'The claimed guarantee was restricted to structural defects and did not encompass personal injury damage', and that there was 'Lack of timely notice of plaintiff's intention to claim damages by reason of the claimed breach'.

In respect to the alleged insufficiency of evidence, a survey of the record discloses substantial evidence in support of the verdict and judgment. Such being the case, the well established rule of appellate review prohibits any re-valuation of the weight and sufficiency of the evidence. This was a matter within the province of the jury which rendered a verdict in favor of the respondent.

The appellant complains of the instruction, (B.A.J.I. No. 206-B), given at plaintiff's request, on the res ipsa loquitur doctrine. This instruction told the jury that 'From the happening of the accident involved in this case, as established by the evidence, there arises, an inference that the proximate cause of the occurrence was some negligent conduct on the part of the defendant. That inference is a form of evidence, and if there is none other tending to overthrow...