Vallis v. Canada Dry Ginger Ale, Inc.

• Citation: 190 Cal.App.2d 35,11 Cal.Rptr. 823
• Parties: Andris VALLIS, Plaintiff and Appellant, v. CANADA DRY GINGER ALE, INC., a corporation, Defendant and Respondent. Civ. 24566.
• Decision Date: 13 March 1961
• Court: California Court of Appeals

Page 823

11 Cal.Rptr. 823

190 Cal.App.2d 35

Andris VALLIS, Plaintiff and Appellant, v. CANADA DRY GINGER ALE, INC., a corporation, Defendant and Respondent.

Civ. 24566.

District Court of Appeal, Second District, Division 3, California.

March 13, 1961.

Rehearing Denied March 27, 1961.

As Modified April 11, 1961.

Jerome W. Shepard, Los Angeles, for appellant.

Schell & Delamer, and Earle K. Stanton, Los Angeles, for respondent.

FORD, Justice.

This is an appeal from a judgment of nonsuit as to the plaintiff's second and third causes of action which were based on alleged implied warranties. ¹ The evidence which was before the trial court is embodied in a settled statement prepared pursuant to Rule 7 of the Rules on Appeal. That statement is 'limited to the oral testimony applicable to the correctness of the ruling of the trial judge in granting' the motion for nonsuit. Portions thereof are set forth in the margin. ²

Two problems are presented on this appeal. The first is whether there was an implied warranty with respect to the condition of the bottle as distinguished from its carbonated contents. The second problem is, if there was such a warranty, whether the plaintiff, an employe of the vendee, can claim any rights thereunder. It is alleged in the second cause of action that the defendant warranted that the 'glass bottle containing the beverage known as 'Club Soda,' was reasonably fit for the purpose for which it was intended, to wit, that the carbonated beverage would be safely contained within its glass container at all times prior to its opening and use, and would not explode or fragment.' (A similar allegation as to the contents of the bottle is found in the other cause of action.) Since no question is raised on this appeal as to the sufficiency of the pleading of an implied warranty (cf. Ice Bowl, Inc. v. Spalding Sales Corp., 56 Cal.App.2d 918, 922-923, 133 P.2d 846; Sears, Roebuck & Co. v. Marhenke, 9 Cir., 121 F.2d 598, 600-601), we conclude that the parties are satisfied that, taking the cause of action as a whole, sufficient facts are alleged so as to bring into being such implied warranty, if any, as is recognized by the law in a case of this nature. Cf. Carter v. St. Louis Dairy Co., Mo.App., 139 S.W.2d 1025, 1026. In any event, since the record does not disclose that any objection was made in the trial court based upon the manner in which an implied warranty was pleaded, we must conclude that, by trying the issue of liability without such question being raised, the defendant waived any curable defect that might be found in the pleading. See Hedlund v. Sutter Med. Serv. Co., 51 Cal.App.2d 327, 339, 124 P.2d 878.

While there is no ready precedent in this state as to whether there is an implied warranty of which the plaintiff may avail himself under the facts of this case, the course which this court must take in resolving the problems presented has been substantially charted in the recent cases of Trust v. Arden Farms Co., 50 Cal.2d 217, 324 P.2d 583, and Peterson v. Lamb Rubber Co., 54 Cal.2d 339, 5 Cal.Rptr. 863. It is true that the prevailing opinion in Trust v. Arden Farms Co. does not expressly hold that there may be an implied warranty as to the container of food or of a beverage (as distinguished from the food or beverage itself) but that assumption appears to be made in the opinion, at least for the purpose of the determination of the problem there presented. It was said (50 Cal.2d at page 223, 324 P.2d at page 586): 'There was no evidence that the [milk] bottle was defective when delivered by Arden to plaintiff, and therefore there is no basis for claiming any breach of warranty.' But, in any event, there is nothing necessarily inconsistent with that determination in the following statement found in the second of the three concurring and dissenting opinions in that case (50 Cal.2d at page 237, 324 P.2d at page 595): 'Whatever the arguments for limiting the manufacturer's strict liability to foodstuffs, there is no rational basis for differentiating between foodstuffs and their containers. Nichols v. Nold, 174 Kan. 613, 258 P.2d 317, 323, 38 A.L.R.2d 887; Cooper v. Newman, City Ct., 11 N.Y.S.2d 319, 320; Haller v. Rudmann, 249 App.div. 831, 292 N.Y.S. 586, 587; McIntyre v. Kansas City Coca Cola Bottling Co., D.C., 85 F.Supp 708, 711; Mahoney v. Shaker Square Beverages, Ohio Com. Pl., 102 N.E.2d 281, 289; Geddling v. Marsh, [1920] 1 K.B. 668, 672-673; Morelli v. Fitch and Gibbons, [1928] 2 K.B. 636, 642-644; see Prosser, Torts, [2nd ed.] § 84, p. 509'. In the third concurring and dissenting opinion it is said (50 Cal.2d at pages 238-239, 324 P.2d at page 596): 'If an inference to that effect were drawn by the jury, the defect in the bottle would constitute a breach of warranty by Arden under section 1735 of the Civil Code (Uniform Sales Act, § 15), which reads in part: 'Subject to the provisions of this act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows: (1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonable fit for such purpose. (2) Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality.' (Italics added.)

Section 1735 does not refer merely to goods sold but to all 'goods supplied under a contract to sell or a sale.' It has been held that when bottled beverages are sold, the bottles in which they necessarily must be delivered are supplied under the contract of sale within the meaning of the statute although the bottles are bailed rather than sold. Geddling v. Marsh (1920), 1 K.B. 668; see 1 Williston on Sales (rev.ed.1948), 582, n. 1. The Geddling case related to a sale of 'lime juice and soda' in bailed bottles and was decided under section 14 of the English Sale of Goods Act, 1893, which contains provisions nearly identical with those quoted above from section 1735. The findings in that case showed that the sale came within the first subdivision of the section, but the reasoning of the court is equally applicable to a sale coming within the second subdivision. Accordingly, even if we assume that the bottle involved here was bailed, it would he subject to any warranty which would be applicable under either of the quoted subdivisions if the bottle had been sold. ³

There is a conflict of authority in this country as to the existence of an implied warranty of the condition of a container of food. After noting such conflict, Dean William L. Prosser recently said: 'This metaphysical distinction between the container and the contents can only be regarded as amazing. The two are sold by each seller, and received by the ultimate purchaser, as an integrated whole; and where the action is against the immediate seller, it is well settled that the warranty covers both.' Prosser, the Assault upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099, 1138. ⁴

We have concluded that there was an implied warranty of the nature discussed above with respect to the bottle herein involved. But there still remains the question of whether such warranty extended to the plaintiff as an employe of the restaurant enterprise to which the bottle, together with its contents, was delivered. In Peterson v. Lamb Rubber Co., supra, 54 Cal.2d 339, 5 Cal.Rptr. 863, the plaintiff, an employe of the vendee, suffered personal injuries as the result of the disintegration of a grinding wheel purchased from the defendant. In that case, a count in the complaint alleged in implied warranty by the defendant of fitness for use and of merchantable quality under the provisions of subdivisions (1) and (2) of section 1735 of the Civil Code. A general demurrer thereto was sustained without leave to amend. The parties agreed on the appeal that the only ground upon which the demurrer could have been sustained was that of lack of privity of contract between the plaintiff and the defendant manufacturer. The Supreme Court, in rejecting the argument that lack of privity precluded recovery, said (54 Cal.2d 339, at pages 347-348, 5 Cal.Rptr. at page 869): 'Plaintiff emphasizes, however, that the grinding wheel here involved was manufactured, sold, and purchased, to be used on a power driven, high speed, rotating motor; that it was known by defendant manufacturer to be dangerous if defectively made or if operated at speeds beyond its maximum capabilities (which were not marked on it), and that its ingredients were secret and known only to defendant. Therefore, says plaintiff, it was a dangerous instrumentality if containing latent defects or if improperly used, and in view of modern industrial usage employes should be considered a member of the industrial 'family' of the employer--whether corporate or private--and to thus stand in such privity to the manufacturer as to permit the employes to be covered by warranties made to the purchaser-employer.

'We are persuaded that this position is meritorious. In the first place, it is a matter of common knowledge, and of course known to vendor-manufacturers, that most businesses are carried on by means of the assistance of employes and that equipment or supplies purchased by employers will in actual use be handled by the employes, who in this respect may be said to stand in the shoes of the employer. Moreover the term 'privity' itself appears to be of uncertain origin and meaning and to have been developed by the courts and applied in various contexts. (See Klein v. Duchess Sandwich Co., Ltd....