Peterson v. Lamb Rubber Co.

Decision Date23 June 1960
Citation5 Cal.Rptr. 863,353 P.2d 575,54 Cal.2d 339
CourtCalifornia Supreme Court
Parties, 353 P.2d 575 Ervin L. PETERSON, Appellant, v. LAMB RUBBER COMPANY (a Corporation), Respondent. L. A. 25635.

Robert C. Pannell, Torrance, LeRoy L. Center and Asher R. Sailors, Redondo Beach, for appellant.

Moss, Lyon & Dunn, Sidney A. Moss and Henry F. Walker, Los Angeles, for respondent.

Bronson, Bronson & McKinnon, San Francisco, as amici curiae on behalf of respondent.

SCHAUER, Justice.

In this action to recover for personal injuries suffered by plaintiff as the result of explosion of a grinding wheel purchased from defendant by plaintiff's employer, the trial court sustained without leave to amend a general demurrer to the count of the complaint based on breach of implied warranty. Trial was had on the other (first) count, based on negligence, and the jury found for defendant. Plaintiff appeals from the ensuing judgment for defendant. We have concluded that plaintiff's contentions of error in the trial on the negligence count are without merit but that the judgment should be reversed with respect to the warranty count.

In December, 1954, defendant, a manufacturer of rubber bonded abrasives, sold and delivered to plaintiff's employer, AiResearch Manufacturing Company, a corporation, one hundred rubber bonded abrasive wheels for use in grinding and burring operations. The wheels, two inches in diameter, contained no markings either to identify the manufacturer or to indicate the maximum revolutions per minute at which the abrasive wheels could be safely operated. In June, 1955, while plaintiff in connection with his employment was using a wheel which he alleges was one of those sold to his employer by defendant, the wheel 'blew up' or disintegrated in his face and a portion of the abrasive imbedded itself in his left eye, resulting in admittedly serious injury.

Warranty Count

Plaintiff's first contention on appeal is that the court erred in sustaining the demurrer to the second cause of action, which alleged an implied warranty by defendant of fitness for use and of merchantable quality under the provisions of subdivisions (1) and (2) of section 1735 of the Civil Code. 1 The parties agree in their briefs that the only ground upon which the demurrer could have been sustained is that of lack of privity of contract between plaintiff and defendant manufacturer.

Defendant, relying upon Burr v. Sherwin Williams Co. (1954), 42 Cal.2d 682, 695-697 (19-23), 268 P.2d 1041, and Lewis v. Terry (1896), 111 Cal. 39, 43 P. 398, 31 L.R.A. 220, urges that the general rule is that implied warranties, other than in the sale of food or durgs, extend only to the immediate buyer, and points out that in the case of many sales, it is contemplated that someone other than the buyer will use the goods, although that fact has not generally been considered to constitute a ground for imposing on the seller an implied warranty liability to a user who is not a purchaser. For example, it was held in Lewis v. Terry (1896), supra, that a tenant could not recover on implied warranty against a manufacturer-seller for injuries sustained through use of a defective bed, purchased by his landlord. (Cf. Dahms v. General Elevator Co. (1932), 214 Cal. 733, 738 (1), 7 P.2d 1013.) Plaintiff, on the other hand, contends that there are no California cases directly in point involving a fact situation in which a rubber bonded abrasive was 'purchased and sold to be used on high speed, revolving, power-driven equipment, a highly dangerous instrumentality,' and that the trend today is towards disappearance of the requirement of privity of contract in cases where it is foreseeable that someone other than the immediate vendee will be injured by a defective product. The more recent California cases on the subject, and those cited or discovered from out of state jurisdictions which seem in point here, are as follows:

Klein v. Duchess Sandwich Co., Ltd. (1939), 14 Cal.2d 272, 276-283 (2, 3), 93 P.2d 799: Plaintiff husband purchased from a retailer packaged sandwiches manufactured by defendant Duchess Sandwich Company. Plaintiff wife swallowed a bite from one, discovered worms in the remainder of the sandwich, and became ill. Defendant contended that no implied warranty existed as to plaintiffs, because of lack of privity. This court, in reliance upon various out of state cases, as well as upon other authorities, concluded (14 Cal.2d at page 282 (2), 93 P.2d at page 804) that 'the remedies of an injured consumer of unwholesome food ought not to be made to depend 'upon the intricacies of the law of sales', and the warranty of the manufacturer to such consumer should not be made to rest solely on 'privity' of contract,' and (14 Cal.2d at page 283 (3), 93 P.2d at page 804) that 'the rulings made in the authorities herein cited (recognizing an exception to privity requirements in the case of foodstuffs) are based on sound principles, affording as they do an adequate remedy for injuries which may result from the eating of unwholesome food by an ultimate consumer who, under modern economic conditions, almost of necessity, must purchase many items of food prepared in original packages by the manufacturer and intended for the consuming public, although marketed through an intermediate dealer.'

Vaccarezza v. Sanguinetti (1945), 71 Cal.App.2d 687, 689, 163 P.2d 470: Plaintiffs husband and wife purchased salami from a retailer, which had been manufactured by defendants Parducci, et al. The wife and two children ate some of it and developed trichinosis. Plaintiffs sued both retailer and manufacturer, on an implied warranty of fitness. The court declares (1) the rule of absolute liability regardless of negligence, in implied warranty cases under section 1735 of the Civil Code and (2) that privity is not required between consumer and manufacturer where foodstuffs are involved.

Tremeroli v. Austin Trailer Equip. Co. (1951), 102 Cal.App.2d 464, 477, 227 P.2d 923: Plaintiff sued both retailer and manufacturer when a so-called fifth wheel (a device which connects and holds together a tractor and semitrailer) which he had purchased from the retailer, broke and caused plaintiff property demage. Although defendant cites this case in support of the view that privity is required between consumer and manufacturer to support recovery upon an implied warranty, and although the case did proceed upon that view, the point does not appear to have been disputed or argued. Thus, it is related in the opinion (102 Cal.App.2d at page 467, 227 P.2d at page 925) that the case was 'submitted to the jury, on proper instructions which are not challenged,' which withdrew from the jury the cause of action against the manufacturer based on warranty, because the evidence showed no privity, and submitted only that based on negligence. The statement on page 477(9) of the opinion in 102 Cal.App.2d, on page 931 of 277 P.2d, that the manufacturer's 'liability, if any, is dependent on negligence,' apparently merely accepts the 'unchallenged' theory of the trial court. Since 'Cases are not authority for propositions not considered' (People v. Banks (1959), 53 Cal.2d 370, 1 Cal.Rptr. 669, this case would not appear especially helpful to defendant.

Burr v. Sherwin Williams Co. (1954), supra, 42 Cal,2d 682, 695-697 (19-23), 268 P.2d 1041: Plaintiff authorized one Patton, field man for Cooperative, to arrange, as per Patton's recommendations, to obtain an insect spray and hire an aviation company to apply it to plaintiff's cotton crop. Patton, with plaintiff's approval, engaged defendant Pankin Aviation to do the spraying. Cooperative delivered to Rankin in sealed drums spray material, which defendant Sherwin Williams had manufactured and delivered to Cooperative on consignment. Rankin applied the spray, which damaged plaintiff's crop. Plaintiff sued Sherwin Williams, Cooperative and Rankin, charging all three with negligence and the first two with breach of warranty as well. The jury verdict was against Sherwin Williams, but in favor of the other defendants. On appeal Sherwin Williams urged, among other things, error in the instructions on implied warranties.

The trial court had instructed (42 Cal.2d at pages 692, 695, 268 P.2d at pages 1046-1048) that if there was an implied warranty under subdivisions (1) and (2) of section 1735 of the Civil Code, 1 there was no requirement of privity of contract between the manufacturer and the ultimate consumer and the manufacturer would be liable, regardless of negligence, for the damage caused by any breach of this warranty. In discussing the privity point this court observed (42 Cal.2d at page 693 (12), 268 P.2d at page 1047) that 'the persons to whom the insecticide was delivered were obviously their (plaintiffs') agents for purposes of the spraying operation.' (Italics added.) And although holding (42 Cal.2d at page 697 (24), 268 P.2d at page 1049), after discussing the exceptions with respect to (1) foodstuffs and (2) express warranties by means of labels or advertising material (42 Cal.2d at pages 695-697 (19-22), 268 P.2d at pages 1048-1049), that the trial court had erred in instructing that privity was not required to hold Sherwin Williams on statutory implied warranties, this court, in reversing the judgment, further declared (42 Cal.2d at page 697 (23), 268 P.2d at page 1049) that 'We need not consider at this time whether plaintiffs * * * can establish that there was privity between themselves and Sherwin Williams or that they come within some exception to the rule.' (Italics added.) With respect to establishing privity, this comment seemingly refers to the earlier remark that the persons to whom the insecticide was delivered were obviously plaintiffs' agents. And since the exceptions to the privity rule had earlier been stated to be (1) the foodstuff exception which plainly was not involved in the case, and (2) the express warranty exception, the...

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