Walnut Creek Aggregates Co. v. Testing Engineers Inc.

• Decision Date: 21 February 1967
• Court: California Court of Appeals Court of Appeals
• Parties: WALNUT CREEK AGGREGATES COMPANY, a California corporation, Plaintiff and Appellant, v. TESTING ENGINEERS INCORPORATED, a corporation, Defendant and Respondent. Civ. 22919.

Page 700

56 Cal.Rptr. 700

248 Cal.App.2d 690

WALNUT CREEK AGGREGATES COMPANY, a California corporation, Plaintiff and Appellant, v. TESTING ENGINEERS INCORPORATED, a corporation, Defendant and Respondent.

Civ. 22919.

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

Feb. 21, 1967.

As Modified on Denial of Rehearing March 13, 1967.

Condon, Dolgin & Kully, Martinez, for appellant.

Hall, Henry, Oliver & McReavy, San Francisco, for respondent.

ELKINGTON, Associate Justice.

Appellant Walnut Creek Aggregates Company, plaintiff below, appeals from a judgment of dismissal entered upon the granting of a nonsuit on the motion of respondent Testing Engineers Incorporated, one of the defendants before the lower court, which will hereinafter be called defendant. The other defendant, Diamond Building Materials, Inc., a corporation, is not a party to this appeal.

We have concluded that the granting of such judgment of nonsuit was error.

We state the facts, as we must, in a light most favorable to the plaintiff. (Raber v. Tumin, 36 Cal.2d 654, 226 P.2d 574; Bristow v. Brinson, 212 Cal.App.2d 168, 27 Cal.Rptr. 796; Bunch v. Henderson, 167 Cal.App.2d 112, 333 P.2d 813.)

Samson Construction Company (Samson), a general contractor, was in 1962 engaged in making certain structural additions to a high school in Contra Costa County. Plaintiff Walnut Creek Aggregates Company had contracted with Samson to supply ready-mix concrete as it was needed for the job. Defendant was hired by the school district to prepare a concrete mix design in accordance with the architect's specifications and to perform continuous batch plant inspections at plaintiff's plant during mixing. The specified concrete mix design called for a liquid admixture called WRDA in an amount of 31.5 ounces for cash cubic yard of concrete. WRDA is a water reducing agent which is supplied in 55 gallon metal barrels or drums. It causes the concrete to flow better and to be more workable, while reducing the water content and building up the concrete's strength.

On April 13, 1962, plaintiff had used up its supply of WRDA. As some was needed for that day's mix of concrete for the high school, John Brohman, vice-president and general manager of plaintiff, called Pacific Coast Aggregates. That supplier said that it had WRDA in stock. Mr. Brohman then told his son, and plaintiff's employee, George Brohman (George), that some WRDA was needed in a hurry and directed him to pick it up.

George, who worked for plaintiff in a sales capacity, had little knowledge of concrete additives. He drove to Pacific Coast Aggregates only to find that in fact they had no WRDA. He then telephoned another supplier, defendant Diamond Building Materials (Diamond), and was told that it had the needed additive. George then drove to Diamond's warehouse. As a drum was there being loaded into plaintiff's station wagon, George noticed that the drum had some lettering on it which said something other than WRDA. He advised Diamond's employee that the drum did not 'say WRDA on it.' Diamond's employee said 'It's the same thing but a different label.' George accepted the barrel and drove to plaintiff's mixing plant where it was placed on the rack where WRDA was customarily kept. The contents of the drum were on April 13, 1962, used in mixing eight truckloads of concrete which were delivered and poured at the school job. George informed no one that he had been told by Diamond's warehouseman that the drum contained the same thing as WRDA, but that it was under a different label.

Some time later tests at the school site showed the April 13th pour of concrete not to meet specifications. An investigation disclosed that the substance obtained from Diamond and used on April 13, 1962, was not WRDA, but instead MBVR, a concrete additive used as an air-entraining agent. This agent causes millions of microscopic air bubbles which makes concrete less strong but more resistant to freeze-thaw cycles. However, MBVR, if used in proper proportions would 'probably have pretty near the same effect' as WRDA.

The defective concrete was removed. Samson sued plaintiff (in another action) and recovered judgment for $27,038.31 less plaintiff's counterclaim of $8,490.64.

Defendant's trained inspector at plaintiff's plant was familiar with the additives WRDA and MBVR, and knew the distinction between an air-entraining agent and a water-reducing agent. WRDA is (and at the time in question, was) furnished in drums with distinctive coloring. Strips around the side of the drum at the top and at the bottom are painted gray. Another strip of equal width, around the center is painted red. On the top gray strip is a label approximately 6 inches by 10 inches, with the lettering WRDA in red upon a white background. On the other hand, the MBVR drum in question was black with a white front on it. It was quite dirty but there was some printing on one end that had the initials MBVR. The initials were black over white and they were faded and illegible.

Plaintiff had a 'batch man' at the plant whose duty it was to weigh, measure and mix the various ingredients of the concrete. The only contractual duty of defendant's inspector at the plant was to see that the right admixture was put into the truck. However, the inspector customarily, before, on and after April 13, 1962, pointed out to plaintiff's drivers the drum from which they should draw WRDA. He would say, pointing to the drum 'Here's your WRDA.' He did this on April 13, 1962, when the drum actually contained MBVR. The inspector would frequently himself draw the additive from the drum, then hand it to the driver who would climb to the top of the truck and pour it in. A driver testified that during the period in question the inspector customarily took the additive from the barrel, and that he (the driver) did not even look for labels on the barrel because he figured the inspector knew what he was doing.

From the foregoing a jury might reasonably have found defendant to be negligent and that such negligence was a proximate cause of injury to plaintiff. ¹

At the trial below, plaintiff based its claim on defendants' negligence. At the close of plaintiff's case defendant Testing Engineers moved for the nonsuit on the ground that there had been no showing of a duty owed by defendant to the plaintiff. Considerable discussion followed, during the course of which the court stated that it thought the motion to be good on the ground stated, and also on the ground that there was contributory negligence as a matter of law. During the following discussion defendant Diamond, which had also moved for a nonsuit, added as an additional ground for its motion, contributory negligence as a matter of law. Plaintiff had adequate opportunity to ask leave to cure any evidentiary deficiency as to contributory negligence but did not do so. The court then granted defendant Testing Engineers' motion for nonsuit against plaintiff on the ground that defendant owed no duty to the plaintiff, and on the further ground that plaintiff was guilty of contributory negligence as a matter of law.

Plaintiff first contends that the evidence reasonably supports a finding that while defendant was under no contractual or other duty to participate in the mixing of the concrete in question it nevertheless did voluntarily and gratuitously so participate. Having done so, plaintiff insists defendant was under a duty to exercise ordinary care with regard to plaintiff, and to plaintiff's intangible property.

From the evidence it could reasonably be concluded by the jury that defendant, through its inspector, did gratuitously assume the task of actively participating in the mixing of the concrete batches in question.

It seems clear that a duty of ordinary care May arise out of a voluntarily assumed relationship. (Merrill v. Buck, 58 Cal.2d 552, 561--562, 25 Cal.Rptr. 456, 375 P.2d 304; Silva v. Providence Hospital of Oakland, 14 Cal.2d 762, 775, 97 P.2d 798; Johnston v. Orlando, 131 Cal.App.2d 705, 708--709, 281 P.2d 357; Valdez v. Taylor Automobile Co., 129 Cal.App.2d 810, 817, 278 P.2d 91; Prosser, Torts, § 54, pp. 339--343 (3d Ed. 1964); 2 Harper and James, Torts, § 18.6, pp. 1044--1053; 2 Witkin, Summary of Cal.Law, Torts, § 241, pp. 1436--1437; Cal.Jury Instns, Civ. (4th rev. ed. 1956) No. 101--G; Rest., 2d Torts, § 323.) But such a duty is not absolute. It will exist only where required by public policy.

In Merrill v. Buck, supra, 58 Cal.2d 552, 561, 25 Cal.Rptr. 456, 462, 375 P.2d 304, 310, the court stated: 'Privity of contract is not necessary to establish the existence of a duty to exercise ordinary care not to injure another, but such duty may arise out of a voluntarily assumed relationship if public policy dictates the existence of such a duty.' For the guidelines in determining the public policy as to a given case the court referred to Biakanja v. Irving, 49 Cal.2d 647, 320 P.2d 16, 65 A.L.R.2d 1358. In that case (p. 650, 320 P.2d p. 19) the court stated: 'The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, and the policy of preventing future harm.'

Additional criteria for determination of public policy in cases such as that before us, are discussed in Amaya v. Home Ice, Fuel & Supply Co., 59 Cal.2d 295, 309--315, 29 Cal.Rptr. 33, 379 P.2d 513, and Raymond v. Paradise Unified School Dist. of Butte County, 218 Cal.App.2d 1, 8, 31 Cal.Rptr. 847. (See also Stewart v. Cox, 55 Cal.2d 857, 863, 13 Cal.Rptr. 521, 362 P.2d 345; Stromer v. City of Yuba City, 225...