Trust v. Arden Farms Co.

CourtUnited States State Supreme Court (California)
Citation81 A.L.R.2d 332,324 P.2d 583,50 Cal.2d 217
Decision Date24 April 1958
Parties, 81 A.L.R.2d 332 Ruth TRUST Plaintiff and Appellant, v. ARDEN FARMS COMPANY (a California corporation) and Owens-Illinois Glass Company(a corporation), Defendants and Respondents. L. A. 24850

Jerrold A. Fadem, Los Angeles, for appellant.

Belcher, Kearney & Fargo, Louis E. Kearney, Gibson, Dunn & Crutcher, Ira C. Powers, Sherman Welpton, Jr., Los Angeles, and Steinhart, Goldberg, Feigenbaum & Ladar, San Francisco, for respondents.

McCOMB, Justice.

This is an action for damages for personal injuries suffered by plaintiff when a milk bottle she was handling in her kitchen broke as she was in the process of setting it down on a tile drainboard.

Defendants are Arden Farms Company, hereinafter called 'Arden,' and Owens-Illinois Glass Company, hereinafter called 'Owens.'

Owens manufactured a milk bottle which Arden filled with skim milk and delivered to plaintiff by placing it on her porch on a Thursday morning. Plaintiff took the milk bottle into her home and stored it in a refrigerator.

On the Sunday following the Thursday delivery of the bottle of skim milk here involved, plaintiff was in the process of setting the bottle, half filled with milk, down on a tile drainboard when it broke, and she sustained cuts about the wrist.

The trial court granted defendants' motions for a nonsuit. Plaintiff appeals from this order, presenting these questions:

First: Was the doctrine of res ipsa loquitur applicable under the facts of this case as to (a) defendant Arden or (b) defendant Owens?

No. A plaintiff seeking to invoke the doctrine of res ipsa loquitur against a defendant who at a time prior to the accident has relinquished all control of the instrumentality causing the injury must affirmatively establish that the condition of the instrumentality has not changed since it left the possession of defendant. (Simmons v. Rhodes & Jamieson, Ltd. 46 Cal.2d 190, 195(7), 293 P.2d 26; Burr v. Sherwin Williams Co., 42 Cal.2d 682, 691(10), 268 P.2d 1041; Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 458(2), 150 P.2d 436.)

The rule is accurately stated by Mr. Chief Justice Gibson in Burr v. Sherwin Williams Co., supra, as follows: 'The instructions given, however, were erroneous in that, while they purported to state all the conditions under which res ipsa loquitur would be applicable, they did not inform the jury that plaintiffs must show that the instrumentality which caused the damage was not mishandled or its condition otherwise changed after control was relinquished by the person against whom the doctrine is to be applied.' (Italics added.)

In Honea v. City Dairy, Inc., 22 Cal.2d 614, 618(3), 140 P.2d 369, this court said: 'The mere breaking of the bottle alone cannot give rise to an inference that defendant was negligent in failing to discover the defect. While the dairy may have had a duty to make an examination of all bottles, whether newly purchased or returned by prior customers, it is not responsible for defects that cannot be found by a reasonable, practicable inspection. (Citations.) In the present case there is no evidence that a feasible means of discovering the defect or flaw was available to this defendant. The language of the court in Loebig's Guardian v. Coca-Cola Bottling Co., 259 Ky. 124 (81 S.W.2d 910), is particularly appropriate. In holding that res ipsa loquitur was not applicable to the explosion of a coca-cola bottle, the court said (81 S.W.2d at pages 911-912): 'The defendant was not, under the circumstances, an insurer, and it was not shown that there was any more reasonably practicable method of inspection used in the industry than the method of inspection admittedly adopted by the defendant. Suppose the bottle was defective. A conclusion of negligence could not arise without some showing that the defect could have been discovered by the exercise of ordinary care. * * * In the instant case we are still left to conjecture as to the cause of the defect in the bottle and its contents or whether it was such a defect as might have been discovered by a more thorough inspection. Unless we are prepared to hold defendant as an insurer, it is hard to see how else it could be held responsible without some showing that its opportunity to exercise care was in some measure proportionate to the duty imposed without some showing that a more thorough inspection would have been effective. Plaintiff's experts suggest various methods of testing bottles which might be applied, but it is not shown that these tests are commercially practicable or that they would have disclosed the complained-of defect. * * * We must measure the duty by ordinary standards and by consequences reasonably to be anticipated. Subject to these criteria, it is clear that the proof falls short of raising any inference of negligence.'

'In Licari v. Markotos, 110 Misc. 334 (180 N.Y.S. 278), the court held a bottler not liable for injuries caused by breaking of a bottle of a non-explosive cleaning and dyeing preparation, saying (180 N.Y.S. at page 280): 'Nor is there any force in respondent's contention, strenuously urged upon this appeal, that the defendant failed in his duty to inspect the bottles before filling them; this for the reason that there is no proof that any examination or inspection would have found the existence of any defect. If such had been the case, it was the plaintiff's duty to give evidence thereof. Bruckel v. J. Milhau's Son, 116 App.Div. 832, 836 (102 N.Y.S. 395). In the absence of such evidence, the learned trial justice had no foundation upon which to predicate any finding of negligence on defendant's part, and a judgment for plaintiff could be based on none other than speculation and pure guesswork.'""'

(a) With reference to Arden, the record discloses that on the day the bottle in question, filled with skim milk, had been delivered to plaintiff's porch, plaintiff had carried the container holding that bottle and other bottles of milk into the house, wiped the botles, and put them in the refrigerator. All bottles of milk were stored on one wire shelf in the refrigerator, which shelf held eight bottles. The average daily delivery of milk to plaintiff's home was four bottles. When plaintiff had placed the bottles of fresh milk on this shelf, she followed her custom of moving the bottles of older milk forward on the shelf and storing the bottles of fresh milk behind them. To this procedure there was one exception, the bottle of skim milk received in the delivery was always kept at the front of the shelf.

The accident occurred on Sunday, March 7, 1954, and involved the bottle of skim milk delivered the preceding Thursday. Between the time of the delivery of the particular bottle of skim milk and the time of the accident, the bottle had been removed at least once by plaintiff and some of the contents used. Plaintiff had three children, aged 10, 9 and 5 at the time of the accident, each of whom had access to the milk in the refrigerator. The skim milk bottle was identified for the children by a band placed around the neck of the bottle by plaintiff.

From the foregoing evidence, it is clear that any of plaintiff's three children, having as they did access to the refrigerator at all times, may have struck the bottle of skim milk with another bottle and damaged it prior to the time of the accident, or it may in some other manner or fashion have been damaged.

The children were not called as witnesses to negate maltreatment of and damage to the bottle by them prior to the time of the accident. Plaintiff's husband, who also had access to the refrigerator, was called as a witness, but he made no attempt to show that the bottle had not been damaged after it had been received and prior to the time of the accident.

From the foregoing evidence, it is clear that the above stated rule was not met in the present case and that there is a complete hiatus as to what, if anything, happened to the bottle between the time it was placed in the refrigerator by plaintiff and the time the injury occurred. Hence, the doctrine of res ipsa loquiture was inapplicable to the facts of this case.

(b) With reference to Owens, there is a total absence of any evidence that the bottle was not mishandled or its condition changed after it passed from Owens' control.

Since the doctrine of res ipsa loquitur was not applicable and there was a total absence of any evidence of negligence upon the part of either defendant, the nonsuit was properly granted.

Second: Was there a breach of warranty upon the part of Arden? 1

No. There was no evidence that the bottle was defective when delivered by Arden to plaintiff, and therefore there is no basis for claiming any breach of warranty. The doctrine of res ipsa loquitur relates to cases involving negligence and has not application to an alleged breach of warranty. (Oregon Auto-Dispatch v. Portland Cordage Co., 51 Or. 583, 94 P. 36, 95 P. 498, 499; Poovey v. International Sugar Feed No. 2 Co., 191 N.C. 722, 133 S.E. 12, 14(3, 4); Stonebrink v. Highland Motors, 171 Or. 415, 137 P.2d 986, 990; cf. Gerber v. Faber, 54 Cal.App.2d 674, 686(4) et seq., 129 P.2d 485.

Third: Was there any evidence that defendants, or either of them, breached any of the provisions of section 701 of the Agricultural Code? 2 no. There was no evidence that the bottle in question was not 'sound, smooth and free from rust' as required by section 701 of the Agricultural Code when delivered by Arden to plaintiff's porch. The only evidence on this subject came from plaintiff's expert, who testified that the bottle had a 'thin' area around the top but that it did not make such bottle unsafe for the use to which Arden applied it. 3

Fourth: Did the trial court err in excluding offered evidence?

No. Plaintiff contends that the trial court erred in not permitting her to introduce evidence:

(a) That there...

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