Peterson v. Lamb Rubber Co.

• Decision Date: 28 August 1959
• Citation: 343 P.2d 261
• Court: California Court of Appeals Court of Appeals
• Parties: Ervin L. PETERSON, Plaintiff and Appellant, v. LAMB RUBBER COMPANY, a corporation, Defendant and Respondent. * Civ. 23666.

Page 261

343 P.2d 261

Ervin L. PETERSON, Plaintiff and Appellant, v. LAMB RUBBER COMPANY, a corporation, Defendant and Respondent. ^*

Civ. 23666.

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

Aug. 28, 1959.

Rehearing Denied Sept. 11, 1959.

As modified Sept. 30, 1959.

Aearing Granted Oct. 20, 1959.

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

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

WHITE, Presiding Justice.

Plaintiff's complaint contained two causes of action, the first of which was predicated upon the alleged negligence of the defendant, and the second grounded upon an alleged breach of implied warranty. Both alleged causes of action were based upon injuries to plaintiff's person caused when a two-inch rubber bonded abrasive wheel, being used by plaintiff on an air motor in connection with his employment at AiResearch on June 2, 1955, 'blew up' in his face.

As to the first cause of action, the jury returned a verdict in favor of defendant; and as to the second the court sustained a general demurrer. From the judgment plaintiff prosecutes this appeal, and urges as grounds for reversal three separate errors, to-wit: (1) the sustaining of the general demurrer to the second cause of action on the ground of implied warranty alleged in the complaint and the first amended complaint; (2) the giving of an instruction explaining and limiting the application of the doctrine of res ipsa loquitur; and (3) the exclusion of evidence of a conversation between plaintiff and the plant superintendent concerning plaintiff's glasses (procured by him some time before from a Navy doctor), to the effect that they believed them to be safety glasses.

As to the factual background surrounding this action, the record reveals that in December of 1954, the defendant Lamb Rubber Co. was a manufacturer of such wheels and sold one hundred to AiResearch for use in grinding and burring operations. The wheels so sold contained no markings to indicate the manufacturer or the maximum revolutions per minute at which the abrasive wheel could be safely operated. The wheel which blew up in plaintiff's face in June was similar to those sold by Lamb Rubber Co. to AiResearch in the preceding December.

Respondent states that it owes no duty to anyone as to a wheel which was not made and sold by it, and urges that appellant failed to prove that the wheel which 'blew up' was manufactured or sold by respondent and therefore it is useless to consider any point raised on the instant appeal because appellant could be entitled to recover on no theory whatever without such proof.

The pieces of the wheel which blinded plaintiff were not in evidence. The testimony was in conflict as to the condition and description of the wheel which disintegrated. There was evidence, however, from which it might have been found that the wheel which caused plaintiff's injury was made by defendant, purchased from defendant by plaintiff's employer, came to the burr bench in the usual course of business without any mistreatment, and went to pieces when first used. That evidence was conflicting, but, in order to determine whether it would be a useless act to reverse a judgment after demurrer sustained as to one of two causes of action, the evidence must be viewed in the light most favorable to the plaintiff.

The trial court in the instant action, when it submitted the case to the jury for decision, determined that there was evidence sufficient to sustain a verdict for either party. It is not the province of an appellate court to reweigh such evidence.

While several other grounds for sustaining the demurrer to the second cause of action alleging implied warranty were argued before the superior court, and in respondent's brief on the instant appeal, by letter and oral argument to this court, respondent's counsel agreed with appellant's that the only ground upon which said demurrer could have been sustained is lack of privity of contract.

As authority for its position, respondent relies upon Burr v. Sherwin Williams Co., 42 Cal.2d 682, 268 P.2d 1041, wherein the Supreme Court reversed a judgment for plaintiff based upon an alleged implied warranty of an insecticide manufactured by defendant and consigned to a co-operative from which plaintiff purchased it. Plaintiff sought to recover damages for the destruction of his cotton crop when said insecticide was sprayed thereon from an airplane. At pages 695 and 696 of 42 Cal.2d, at page 1048 of 268 P.2d, Mr. Chief Justice Gibson, speaking for the court, said:

'We shall now consider whether the court erred in instructing the jury that an implied warranty under subdivision (1) or (2) of section 1735 of the Civil Code 'runs with the goods to the ultimate consumer, there being no requirement of privity of contract between the ultimate consumer and the manufacturer.' The general rule is that privity of contract is required in an action for breach of either express or implied warranty and that there is no privity between the original seller and a subsequent purchaser who is in no way a party to the original sale. (Citations.) In this state an exception to the requirement of privity has been made in cases involving foodstuffs, where it is held that an implied warranty of fitness for human consumption runs from the manufacturer to the ultimate consumer regardless of privity of contract. (Citations.) Another possible exception to the general rule is found in a few cases where the purchaser of a product relied on representations made by the manufacturer in labels or advertising material, and recovery from the manufacturer was allowed on the theory of express warranty without a showing of privity. (Citations.) Neither exception is applicable here. The facts of the present case do not come within the exception relating to foodstuffs, and the other exception, where representations are made by means of labels or advertisements, is applicable only to express warranties. As we have seen, the instruction involved here dealt only with implied warranties. Accordingly, it was error for the trial court to instruct that privity was not required.'

However, at pages 693 and 694 of 42 Cal.2d, at page 1047 of 268 P.2d of the Burr case, supra, it was held that notice to a workman employed by an individual for the spraying of his cotton crop was notice to the employer and constituted a sufficient disclaimer of the implied warranty that the goods shall be reasonably fit for the purchaser's purpose. This holding is a tacit recognition of the present manner of doing business through specialized agents and employees.

In the instant action the purchaser of the wheels was a corporation which could use them only through its employees. No doubt many abrasive wheels are sold to corporations and used by their employees in the business of the corporations. We are convinced that the Legislature did not intend and the language of said section 1735 does not require that the implied warranties should have no application to sales of tools and appliances to corporations. Use of such wheels by the corporation-purchaser's employees is the use for which the wheels were intended by the manufacturer and seller and for which they are impliedly warranted to be reasonably fit.

Appellant calls to our attention the case of Di Vello v. Gardner Machine Co., decided in 1951 by the Court of Common Pleas of Ohio, Cuyahoga County, and reported in 102 N.E.2d 289, at page 291, where in considering the demurrer to the second cause of action based upon a breach of implied warranty of a 'grinding wheel' which caused the death of the purchaser's employee, who was the husband and father of the plaintiffs therein, the court said: 'This poses the direct questions: If the evidence discloses that defendant manufactured the wheel, does the warranty, if any, extend to the employee using it in the conduct of the purchaser's business? * * *.'

In the Di Vello case, supra, the demurrer was overruled and at page 293, of 102 N.E.2d, the court said: 'This Court is of the opinion that a grinding wheel designed to be revolved at high speed is a dangerous instrumentality if containing a latent defect which causes it to disintegrate upon ordinary usage and a workman injured in such use may recover against the person who sold the wheel to his employer on the basis that it is negligent to sell such an instrumentality and that contemplation must be had for the usage to which it will be put and the liability of injury to those using it.'

Lebourdais v. Vitrified Wheel Co., 1907, 194 Mass. 341, 80 N.E. 482, was a decision of the Supreme Judicial Court of Massachusetts, Middlesex, in an action for personal injuries sustained by plaintiff in consequence of the bursting of an emery wheel made by defendant and bought by plaintiff's employer in the open market. In the last cited decision, judgment after demurrer sustained was affirmed on appeal for the reason that 'If such an extended liability attached where no privity of contract exists it would include all persons however remote who had been damaged either in person or property by his carelessness, and manufacturers as a class would be exposed to such far-reaching consequences as to seriously embarrass the general prosecution of mercantile business. In the usual course of trade upon making a sale, as the article passes from the control or ownership of the maker it is held that when these cease his liability also should be considered as ended * * *. But where by reason of its nature the article sold is commonly recognized as intrinsically dangerous to life or property * * * if the seller without notice of their dangerous or noxious qualities delivers them to a...