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

Gipson E. SIMMONS, Plaintiff and Appellant, v. RHODES & JAMIESON, Limited, a corporation, and Harold Aydelotte, Defendants and Respondents.

Civ. 16388.

Decided: June 14, 1955

Russell F. King, Richmond, for appellant. Weinmann, Rode, Burnhill & Moffitt, John N. James, Alameda, Hoey, Hall & Conti, Martinez, for respondents.

Plaintiff, Gipson Simmons, purchased some ready-mixed cement from defendant Rhodes & Jamieson, Ltd., through its employee, defendant Harold Aydelotte. After using the mixture for the purpose for which it was intended plaintiff suffered severe burns. He brought this action against the two defendants, setting forth causes of action for a breach of warranty and for negligence. The trial court granted a nonsuit at the close of plaintiff's case, Plaintiff appeals.

The facts most favorable to the plaintiff are as follows:

Plaintiff, a welder by trade, during his spare time, was constructing his own home. Shortly after laying the foundations, he met defendant Aydelotte, an employee of defendant Rhodes & Jamieson. Plaintiff showed Aydelotte around the premises, and, in particular, showed him the area where it was proposed to lay the concrete basement floor, an area 13 1/2′ x 52′ x 4″. The state of construction existing when Aydelotte inspected the premises made it apparent that such slab could only be laid by working inside the basement area. Aydelotte solicited the sale of cement for his company, and plaintiff agreed to buy, leaving the type of mixture up to the seller. At 10:30 a. m. of November 10, 1952, the defendant company delivered its first load of mixed cement. In order to reach the basement area the cement was poured down a chute through a window opening and into the forms. Because the mixture was not wet enough, the plaintiff added ten gallons of water to it and requested that the succeeding loads be wetter. Three loads in all were delivered. Because plaintiff had difficulty in spreading the cement he secured the assistance of a neighbor. They leveled the cement by pushing it into position, using shovels and a long board for this purpose. During this maneuver plaintiff frequently got down on his hands and knees to shove the leveling board. At this time he was wearing goloshes, jeans, a khaki shirt and rubber gloves. Plaintiff testified that the goloshes and gloves were not worn to protect him from burns, but to protect his feet from getting wet and to enable him to handle the slick shovel. Plaintiff also testified that he had never seen anyone use rags and padding on their legs to protect them from the cement. He had observed that most cement workers worked while standing on boards, but believed they did this to keep from getting wet and dirty. No one had ever warned him of the danger of getting burned by cement, although he did know that exposure to wet cement caused a drying out of the skin.

Plaintiff, prior to the accident, had had some experience with cement. He had helped to build some cement water tanks, had helped two neighbors pour cement foundations and flooring, and had occasionally poured cement while working with construction crews. On none of these occasions, although he had handled the cement barehanded, had he ever been injured by the use of the cement other than a roughening of the skin of his hands.

Plaintiff worked leveling the cement floor from 10:30 a. m. to 3:15 p. m. During half of this period his knees and legs were in contact with the wet cement. His neighbor assistant did not come in direct contact with the wet cement to the same extent as did plaintiff. Shortly after 1 p. m. plaintiff began to notice a ‘tingle’ on his legs which became increasingly irritating. He continued to work, however, because of the necessity of leveling the floor before the cement set. Upon finishing the job he washed his legs with soap and water, observed that his legs ‘looked green,’ changed his clothes and got a neighbor to drive him to the hospital. There he was bathed again, medication placed on his legs, penicillin administered, and his attending doctor, because there were not beds available in the hospital, allowed him to go home. Plaintiff returned to the hospital the next day for further treatment, and the doctor visited him at home. Two days after the exposure to the cement plaintiff's temperature reached 103 degrees and the doctor had him hospitalized. It was then discovered that plaintiff was severely burned over 15 per cent of the area of his body, most of the burns being of the third degree type. This means that for the most part the burn extended through the entire thickness of the skin, that is, through both the epidermis and corium and down to the subcutaneous fatty tissue. This required two extensive skin grafting operations, the first, with three doctors, requiring 8 hours, and the second 5 1/2 hours. Plaintiff was hospitalized for nearly two months. The doctor testified that plaintiff was not allergic to cement, and that ‘in my opinion this was definitely a chemical burn, due to contact with cement.’ Although defendant claims that this answer was stricken, no order striking it was made. At any rate, the fact that the burns were caused by contact with the cement is at least a reasonable, if not inevitable, inference.

The Street Superintendent of Richmond, after qualifying as an expert in concrete construction, testified that during his twenty-five years of experience he had seen men many times work for three or four hour periods in cement doing hand troweling without the protection of boards or padding, and during that entire time he had never seen a man burned to the extent of requiring medical care, having observed, at most, a few pimples or chapping caused by the exposure to the cement. The attending physician testified that prior to treating plaintiff he had observed but one prior burn caused by exposure to concrete, and that was a small burn. He also testified that there was very little medical literature on the subject of cement burns, he having seen only one article on the subject. In that article no case was reported so severe as to require skin grafting.

A dermatologist, who had examined and treated plaintiff, testified that he had never seen or heard or read of a concrete burn as extensive or deep as that suffered by plaintiff, and that the burn suffered by plaintiff was a chemical burn which, in his opinion, based on the history of the case, was due to the cement or some substance in it. The burn was not caused by an allergy towards cement. This had been determined by certain allergy tests of various kinds of cement, including one test made from the very slab here involved.

Notice of breach of warranty was reasonably and properly given.

On this evidence, on both causes of action, at the close of plaintiff's case, a nonsuit was granted.

Propriety of Nonsuit on Warranty Cause of Action.

Section 1735 of the Civil Code provides:

‘* * * 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 reasonably 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.’

Clearly, it was proper to grant the nonsuit as to defendant Aydelotte as to this cause of action. Obviously, he was the agent of Rhodes & Jamieson, and was not himself the seller within the meaning of the section.

As to defendant Rhodes & Jamieson it appears that for the purposes of a nonsuit, all the elements required by the quoted section can be found in the evidence or in reasonable inferences therefrom. There can be no reasonable doubt that plaintiff made known to the agent of the seller the particular purpose for which the goods were required. It is also a reasonable inference that plaintiff relied on the seller's skill and judgment to pick the proper type and mixture of cement for the flooring. There is no dispute that the cement furnished made a good cement floor. If it be assumed that the warranty here involved includes a warranty that the cement was safe to handle, a point later discussed, then it seems clear that it is a reasonable inference from the evidence that plaintiff relied on the seller's skill and judgment as to the cement being safe to handle. Plaintiff, to the seller's knowledge, had no means of testing the cement, and could not be reasonably expected to do so. The evidence shows that the seller used the service of a testing laboratory. Thus, it can reasonably be inferred that plaintiff relied upon the seller's superior knowledge as to to safety in handling the cement.

The only debatable question is whether the implied warranty of fitness for a particular purpose includes not only the primary warranty that the cement was fit for the purpose of a cement floor, but also a secondary warranty that the cement was reasonably safe to handle in constructing the floor. On this subject there is a difference of opinion. There is at least one out-of-state authority directly in support of the seller's contention that the implied warranty here involved does not include a warranty of reasonable safety in handling. The case is Dalton v. Pioneer Sand & Gravel Co., 37 Wash.2d 946, 227 P.2d 173. There, as here, ready-mixed cement was purchased to construct a cement floor and the purchaser, while laying the floor, received severe burns from coming into contact with the cement. There, as here, the purchaser relied upon a breach of the implied warranty. A motion for dismissal was granted at the close of plaintiff's case. This was affirmed. The opinion on the point in question is quite short, contains no analysis of the nature of the warranty, and cites no cases in support of its conclusions. The court first pointed out, 227 P.2d at page 174, that: ‘No evidence was introduced to show that this cement contained any unusual substance, or differed from ordinary cement in any way.'1 The court then disposed of the point in the following cursory manner: “Merchantable quality’ means that the substance sold is reasonably suitable for the ordinary uses it was manufactured to meet. 27 Words and Phrases, Perm.Ed., Pocket Part. No contention is made by the appellant that the cement was not satisfactory for the purpose of laying a basement floor. This is the only purpose for which the test of merchantability could be applied under the act. We find the act to be inapplicable to the situation here presented.'

The other cases cited by respondent on this issue are not directly in point. They are primarily concerned with the question of whether, under the facts involved, there was a breach of warranty, and do not discuss the existence of the warranty with which we are here concerned.

As opposed to the Washington case, there are several out-of-state cases that do extend the warranty of fitness to include, logically, a warranty of safety in the article's use. Thus, in Dushane v. Benedict, 120 U.S. 630, 7 S.Ct. 696, 30 L.Ed. 810, the seller sold the buyer rags to be used in the manufacture of paper. The rags were infected with smallpox. Workmen in the factory became infected. The finished product—the paper—was apparently not dangerous because the manufacturing process killed the germs. But nevertheless the court held that there was a breach of the warranty of fitness for a particular purpose. After setting forth the facts, the court stated, 120 U.S. at page 646, 7 S.Ct. at page 702: ‘This was of itself [furnishing infected rags] sufficient evidence to be submitted to the jury of a warranty and a breach of it. A warranty, express or implied, that rags sold are fit to be manufactured into paper, is broken, not only if they will not make good paper, but equally if they cannot be made into paper at all without killing or sickening those employed in the manufacture.’

Plaintiff also cites a series of clothing and cosmetic cases that are not directly in point. In all of them clothing or cosmetics caused injury to the wearer or user. In all of them the court found a breach of the implied warranty. In such cases the purpose for which the clothing or cosmetics were sold was to wear or use them. Obviously, if they could not be worn or used safely they were not fit for the purpose for which they were sold. Thus, the cases are not directly in point. In one of them, however—the case of Flynn v. Bedell Co., 242 Mass. 450, 136 N.E. 252, at page 253, 27 A.L.R. 1504—there appears the following pertinent language:

‘It well may be that the scope of an implied warranty of fitness does not extend to fitness in respect of matters wholly unknown to the dealer and peculiar to the individual buyer. A seller of food presumably does not warrant that the particular kind of food which the buyer calls for will be suited to his peculiar idiosyncracies. * * * But it appears that the particular ‘defect’ which injured the plaintiff would have similarly injured any normal person. * * *

‘The scope of the statutory implied warranty cannot by limited so as to exclude a warranty against the latent presence of foreign substances which are injurious in the course of the normal use of the garment for the purpose intended.’

Although the exploding bottle case of Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, at page 464, 150 P.2d 436, at page 441, is not directly in point, in the concurring opinion of Mr. Justice Traynor, there appears some language that is helpful. It is as follows: ‘The retailer, even though not equipped to test a product, is under an absolute liability to his customer, for the implied warranties of fitness for proposed use and merchantable quality include a warranty of safety of the product.’

On principle it would be unreasonable and unjust to hold that the warranty is limited to the safety of the end product and does not include a warranty that the goods furnished can be safely used in the construction of the end product. For that reason we are impressed with the reasoning of the United States Supreme Court in the Dushane case and are not impressed with the reasoning of the Washington court in the Dalton case. We, therefore, hold that for purposes of nonsuit there was an implied warranty that the cement was reasonably safe for the purpose of laying a concrete floor.

The next question is whether there was any evidence of a breach of this warranty. In this connection, it must be kept in mind that as to this warranty the seller is not an insurer that the goods can be used with absolute safety or that they are perfectly adapted to the intended use. Section 1735 of the Civil Code merely requires that the goods be ‘reasonably fit’ for the intended use. See also Tremeroli v. Austin Trailer Equipment Co., 102 Cal.App.2d 464, 227 P.2d 923; Mix v. Ingersoll Candy Co., 6 Cal.2d 674, 59 P.2d 144.

On this question of breach, it is a matter of common knowledge, and was known to plaintiff, that cement contains lime. Plaintiff knew that lime is a caustic, and that exposure to it irritated the skin. Plaintiff also knew that cement workers customarily wore boots and worked from boards, although he testified that he thought that the purpose of this was to keep from getting dirty, not to keep from getting burned.

On the other hand, there is direct evidence that these burns were of unusual severity, and it can be inferred that such burns do not normally occur upon exposure to wet cement. The Street Superintendent testified that he had seen men working unprotected in wet cement for long periods and never had seen anyone burned, although he had observed some chapping and some pimples. Both doctors testified that they had never seen, heard or read of a case of cement burn severe enough to require skin grafting. Plaintiff was not peculiarly allergic to cement. The evidence shows that it was reasonably necessary, in laying the floor, at least by an amateur, for plaintiff to expose himself to the cement, and that defendant knew the conditions under which the cement was to be used.

For the purposes of a nonsuit, there can be no doubt that the evidence shows that the cement caused the burn. The two doctors so testified, and the hospital record indicated a cement burn. The irritation started two hours after exposure to the wet cement, and there is no evidence that plaintiff came into contact with any other substance that could have caused the burn.

Thus, for the purposes of defeating a nonsuit, there was ample evidence of a breach of the warranty of fitness.

It was, therefore, error to grant a nonsuit on the implied warranty cause of action.

We now turn to the negligence cause of action. There is no evidence that defendant Aydelotte was negligent or had any control over the cement mixture. The nonsuit was proper as to him on this cause of action.

As to defendant Rhodes & Jamieson, Ltd., whether the nonsuit was properly granted depends upon whether the dectrine of res ipsa loquitur is applicable to the facts. There has been a great deal written as to the scope of this doctrine in recent years, much of it by the California courts. It is not necessary to review those many cases in this opinion. It is now settled that the doctrine applies (1) if it can be reasonably concluded from a basis of experience, either common to the community, or brought out in the evidence, that the accident is of a kind that does not normally occur unless someone was negligent; (2) and, if it was caused by an instrumentality in the exclusive control of the defendant; (3) and, if it was not contributed to by a voluntary action on the part of the plaintiff. See generally Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687, 162 A.L.R. 1258; Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 150 P.2d 436; Zentz v. Coca Cola Bottling Co., 39 Cal.2d436, 247 P.2d 344; Prosser on Torts, p. 295.

The first condition is here present. The two doctors, and the Street Superintendent, testified that they had never seen, heard of or read about cement burns of the severity of those here involved. It was shown that plaintiff was not peculiarly susceptible or allergic to cement. This is all that was needed to comply with the first requirement. As was said in Stanford v. Richmond Chase Co., 43 Cal.2d 287, 292, 272 P.2d 764, 766, this requirement is met ‘where it appears that the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the person who is responsible.’ See, also, in addition to the authorities cited, supra, LaPorte v. Houston, 33 Cal.2d 167, 199 P.2d 665; Prosser, Res Ipsa Loquitur in California, 37 Cal.L.Rev. p. 183, at p. 195.

It is equally clear that, for the purpose of getting by a nonsuit, the third requirement—reasonableness of use by the plaintiff—was here shown. The plaintiff, of course, assumed the normal risks of the ordinary effects of exposure to wet cement—roughening of the skin and a rash—but there is no evidence or no inference from the evidence that as a reasonable man he knew, or should have known, that there was a risk of third degree burns. In fact, the inference is quite to the contrary. The defendant knew that the cement had to be spread from inside the basement, and knew, or should have known, that exposure to the wet cement was reasonably possible. The method used to spread the cement was reasonable under the circumstances.

On this appeal from a judgment of nonsuit we are, of course, not concerned with contributory negligence. That is an affirmative defense, and can only be involved if the evidence shows, as a matter of law, that plaintiff was contributively negligent. No such showing was here made.

The only debatable issue is whether the defendant had ‘exclusive control’ of the instrumentality causing the injury. In this connection the courts have held that the fact the accident occurred sometime after the defendant relinquished control of the instrumentality causing the injury does not, per se, preclude the application of the doctrine, nor does the fact that the defendant may not be in a better position than plaintiff to explain the accident preclude its application if it appears more probable than not that the injury resulted from the acts of defendant. In Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, at page 443, 247 P.2d 344, at page 347, these principles, supported by many authorities, were stated as follows:

‘The defendant, of course, should not be liable unless it appears from all the facts and circumstances that there is a sufficient causal connection between his conduct and the plaintiff's injury, and it has been held that res ipsa loquitur will not apply if it is equally probable that the negligence was that of someone other than the defendant. [Citing cases.] * * * In dealing with this problem the courts have usually said that the defendant must have ‘management’ or ‘control’ of the agency or instrumentality which caused the injury. [Citing cases.] It has been stated that the purpose of this requirement is to eliminate the posibility that the accident was caused by someone other than the defendant. [Citing authorities.] Accordingly, its use is merely to aid the courts in determining whether, under the general rule, it is more probable than not that the injury was the result of the defendant's negligence.

‘The requirement of control is not an absolute one. Although, as we have seen, the doctrine will not ordinarily apply if it is equally probable that the negligence was that of someone other than the defendant, the plaintiff need not exclude all other persons who might possibly have been responsible where the defendant's negligence appears to be the more probable explanation of the accident. [Citing authorities.] Further, it is settled that the fact that the accident occurs some time after the defendant relinquishes control of the instrumentality which causes the accident does not preclude application of the doctrine provided there is evidence that the instrumentality had not been improperly handled by the plaintiff or some third person, or its condition otherwise changed, after control was relinquished by the defendant. [Citing cases.] Of course, it must appear that the defendant had sufficient control or connection with the accident that it can be said that he was more probably than not the person responsible for plaintiff's injury.

‘* * * As recently held by the Supreme Court of Oregon in a well reasoned opinion, a plaintiff may properly rely upon res ipsa loquitur even though he has participated in the events leading to the accident if the evidence excludes his conduct as the responsible cause. Gow v. Multnomah Hotel, 191 Or. 45, 224 P.2d 552, 555–560, 228 P.2d 791.’

The court also discussed what place the question of the defendant's superior knowledge of the cause of the accident has in the application of the doctrine, in the following language, 39 Cal.2d at page 445, 247 P.2d at page 348:

‘Another factor which some of the cases have considered in applying the doctrine is that the defendant may have superior knowledge of what occurred and that the chief evidence of the cause of the accident may be accessible to the defendant but inaccessible to the plaintiff. [Citing authorities.] It seems clear, however, that the doctrine may be applied even though the defendant is not in a better position than plaintiff to explain what occurred if it appears more probable than not that the injury resulted from negligence on the part of defendant. [Citing authorities.]’

The court then went on to hold that there was a duty on the part of the bottling company to inspect and test the bottles for defects, and that the fact the bottles were furnished by another did not preclude application of the doctrine.

The problem involved in the instant case is that the cement used by defendant in its mixture was furnished by the Ideal Cement Company. Ideal is not a party to this action. We have no way of knowing, nor has the plaintiff, whether the overly dangerous qualities of the mixture were the result of the defendant's actions, or whether it was caused solely by the cement furnished by Ideal. Either possibility is reasonable. But even if it be assumed that it is more reasonable that the burns were caused by the cement and not by anything the defendant added, this would not preclude the application of the doctrine as to defendant. When the defendant uses a material in a mixture that it sells, such defendant is under a duty to inspect reasonably that material to determine whether the material incorporated in its product is defective. This is certainly so where, as here, the defendant knows, or should know, that the plaintiff has no means of testing the product. Although the doctrine is not applicable where it is at least equally probable that the accident was caused by another, LaPorte v. Houston, 33 Cal.2d 167, 199 P.2d 665, this rule is not applicable where the defendant is under a duty to inspect. This was the precise holding in the Escola and Zentz cases, cited supra. Although it appears that defendant used the services of a testing firm, the nature and scope of such service, or its reasonableness, do not appear in the evidence. The reasonableness of such inspection, if any, is, of course, a matter of defense, and here the nonsuit was granted at the close of plaintiff's case.

There was evidence that plaintiff added water to the cement after he received possession, but there was no evidence that this in any way was unreasonable or contributed to the injury. Whether plaintiff handled the product reasonably after receiving possession is a question of fact for the jury. Gordon v. Aztec Brewing Co., 33 Cal.2d 514, 203 P.2d 522. The mere fact that was added does not make the doctrine inapplicable as a matter of law. In the Zentz case the plaintiff put ice around the coke bottle. This was held not to preclude the application of the doctrine. The two situations are comparable.

For the foregoing reasons we conclude that on the negligence cause of action the plaintiff, with the aid of the doctrine of res ipsa loquitur, made out a case sufficient to put the burden on defendant to show that it acted as a reasonable and prudent person would act under the circumstances.

Thus, on both causes of action, it was error to grant the nonsuit.

The judgment is affirmed as to defendant Aydelotte; it is reversed as to defendant Rhodes & Jamieson, Ltd. Plaintiff to recover costs from defendant Rhodes & Jamieson, Ltd.


1.  In this respect the Washington case differs from our case. In our case there is evidence from which it can be inferred that exposure to cement normally does not cause severe burns to the user.

PETERS, Presiding Justice.

BRAY and FRED B. WOOD, JJ., concur.

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