Vassallo v. Sabatte Land Co.

• Decision Date: 17 January 1963
• Citation: 212 Cal.App.2d 11,27 Cal.Rptr. 814
• Court: California Court of Appeals Court of Appeals
• Parties: Florence E. VASSALLO, Plaintiff and Respondent, v. SABATTE LAND COMPANY, Inc., a corporation, Frank E. Sabatte, George Sabatte, Remond Sabatte, Albert Sabatte and John Sabatte, Individually and as copartners doing business under the firm name of Berkeley Farms, Defendants and Appellants. Civ. 20647.

Page 814

27 Cal.Rptr. 814

212 Cal.App.2d 11

Florence E. VASSALLO, Plaintiff and Respondent, v. SABATTE LAND COMPANY, Inc., a corporation, Frank E. Sabatte, George Sabatte, Remond Sabatte, Albert Sabatte and John Sabatte, Individually and as copartners doing business under the firm name of Berkeley Farms, Defendants and Appellants.

Civ. 20647.

District Court of Appeal, First District, Division 2, California.

Jan. 17, 1963.

Eugene Lawlor, Oakland, for appellants.

Nichols, Williams, Morgan & Digardi, Oakland, for respondent.

KAUFMAN, Presiding Justice.

This is an appeal from a judgment in favor of the respondent, Florence E. Vassallo, for personal injuries sustained when a bottle of milk delivered by the appellants broke in her hands. The complaint alleged two causes of action: the first based on the negligence of the appellants; the second cause on breach of implied warranty. The trial court, sitting without a jury, found that the appellants were not negligent, and found in favor of the respondent on the second cause of action.

Appellants here contend that: (1) there was no implied warranty by appellants to the respondent; (2) there was no reliance on any implied warranty; (3) even if there was an implied warranty, there was no breach of it; and (4) the trial court erred in holding that the respondent was not contributorily negligent. There is no merit in any of these contentions.

The facts are not in dispute. Appellants Sabatte Land Company, Inc., a corporation, Frank E. Sabatte, George Sabatte, Remond Sabatte, Albert Sabatte and John Sabatte, were individuals and copartners engaged in the business of bottling selling and delivering dairy products under the firm name of Berkeley Farms. About 10 o'clock on the morning of May 19, 1960, appellants' deliveryman stopped his truck across the street from the respondent's home at 1655 View Drive, San Leandro, California. He carried two glass milk bottles in his left hand and a half gallon of ice cream in a cardboard container. The respondent was standing on the porch of her parents' home dressed in a coat and gloves and carrying a purse. She received the items from the deliveryman. She put the ice cream container under her right arm and with a milk bottle in each hand entered the house. She noticed that, as usual, the bottles were wet and had specks of ice on them. As she stepped into the kitchen, the bottle in her right hand felt as if it were going to slip and as it did so, she attempted to pull the bottle toward her. Then, without touching the other bottle or any other object, the bottle in her right hand shattered. She dropped the milk bottle in her left hand at the same time. Subsequently, both bottles were swept up and thrown away. The accident occurred about thirty seconds after the respondent had received the milk and ice cream from the deliveryman. The deliveryman heard her screams and immediately re-entered the house. Respondent's right hand was injured permanently.

The trial court found the facts substantially as stated above and further found that: the appellants did not manufacture the glass bottles but purchased them from a manufacturer; at all times appellants exercised reasonable and practicable care for the safety of the bottles, including inspection of the milk bottles prior to bottling and delivery; that the respondent observed the bottle when delivered to her and no defects were discovered by appellants or the respondent.

The court also found that the appellants did not expressly warrant the condition and quality or fitness of said milk or bottle; that the milk was of good quality and condition and contained no gases which would create any internal pressure upon said milk bottle; that appellants impliedly held out and impliedly warranted said milk and the glass container to be of good quality, good materials, and safe for the use for which it was manufactured and bottled, as well as safe for the normal uses to which it would be put and safe to the person using or handling said bottle in the normal manner, and that respondent, relying upon said implied warranty and depending upon the appellants' skill and judgment as to the safety and quality herein warranted, carried the milk bottle in the regular and usual manner.

The first contention on appeal is that the trial court erred as a matter of law in finding in favor of the respondent on the theory of implied warranty. Appellants' argument is based primarily on Trust v. Arden Farms Co., 50 Cal.2d 217, 324 P.2d 583, 81 A.L.R.2d 332. In that case, the plaintiff sought damages, inter alia, from the dairy, for personal injuries sustained when a milk bottle she was handling in her kitchen broke. The main contention on appeal was whether the doctrine of res ipas loquitur applied. The court also held that there was no breach of warranty on the part of the dairy as there was no evidence that the bottle was defective when delivered.

First, appellants' argument overlooks the fact that in the Arden case, there was simply a failure of proof as to an implied warranty. The plaintiff in that case could not show that the condition of the bottle had not been changed since it had left the possession of the dairy, as three days expired between the time of delivery of the bottle and the time of the accident, during which time, the bottle had been removed from the refrigerator at least once, some of the contents used, and plaintiff's three children had access to the bottle.

Second, and more important, the arden case and the other authorities cited by the appellants predate Vallis v. Canada Dry Ginger Ale, Inc., 190 Cal.App.2d 35, 11 Cal.Rptr. 823 [petition for rehearing denied March 27, 1961], which established that in this state, there is an implied warranty with respect to the condition of a container as distinguished from its contents. In upholding a cause of action in implied warranty against the seller, in favor of a restaurant employee injured by a broken beverage container, the court said at page 39, 11 Cal.Rptr. at page 826: 'While there is no ready precedent in this state as to whether there is an implied warranty ranty 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. * * *''

The court based its opinion on section 1735 of the Civil Code ¹ and pointed out that the section does not merely refer to goods sold but to all goods supplied under a contract to sell or a sale. The rule of Vallis has been followed in Lai Wum Chin Mock v. Belfast Beverages, 193 Cal.App.2d 770, 14 Cal.Rptr. 602 and Jones v. Burgermeister Brewing Corp., 198 Cal.App.2d 198, 18 Cal.Rptr. 311, and is in line with the modern view (see Prosser, Torts, [2d ed.] § 84, pp. 507-510; ...