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District Court of Appeal, Second District, Division 4, California.

Chester M. VANDERMARK and Mary E. Tresham, Plaintiffs and Appellants, v. FORD MOTOR COMPANY, and Lorimer Diesel Engine Company, Defendants and Respondents.

Civ. 26544.

Decided: August 12, 1963

Edward L. Lascher and Donald C. Lozano, Van Nuys, for plaintiffs and appellants. Moss, Lyon & Dunn, Gerold C. Dunn and Henry F. Walker, Los Angeles, for defendant and respondent, Lorimer Diesel Engine Co. Dryden, Harrington, Horgan & Swartz, by Vernon G. Foster, Los Angeles, for defendant and respondent, Ford Motor Co.

Plaintiffs, Chester Vandermark and Mary Tresham, appeal from adverse judgments entered in the superior court by nonsuit, directed verdict and upon a jury verdict.

Plaintiff, Chester Vandermark, and his sister, plaintiff Mary Tresham, were involved in an automobile accident on December 5, 1948, at 6:30 p. m. on the San Bernardino Freeway. As a result of the accident, plaintiffs sustained extensive personal injuries, the nature and details of which are not in controversy on this appeal.

In October of 1958, Mr. Vandermark purchased a new Ford automobile from defendant Lorimer Diesel Engine Company, an authorized Ford dealer who was doing business as Maywood Bell Ford in the City of Bell, California (hereinafter referred to as ‘Maywood Bell’).

After purchasing the car, Mr. Vandermark used it for shopping, to go to church, to and from work, and, on two occasions prior to the ill-fated trip which gave rise to this action, drove it to Joshua Tree in San Bernardino County, where a relative lived. No one else drove the car.

On November 16, 1958, some three weeks after the purchase of the car, the only unusual event prior to the accident took place. On that occasion, the plaintiffs were driving back from Joshua Tree on the San Bernardino Freeway and when Mr. Vandermark observed that traffic was starting to slow down, he applied his brakes. Upon this application, his car started to make a dive to the right and continued on across the two lanes of traffic until the car hit the shoulder. However, Mr. Vandermark was able to get the car back on the road, but when he tried to apply the brakes again, virtually the same reaction occurred. The plaintiff then continued on home at a very slow rate.

The following morning, plaintiff Vandermark telephoned Maywood Bell, related the freeway incident, and made arrangements to take the car in to its service department that Wednesday. He did not drive the car until Wednesday, at which time he drove it to Maywood Bell in the morning. Upon arrival, he told the Maywood Bell mechanic about the freeway incident of the preceeding Sunday, indicating to the mechanic that in his opinion either the brakes or something else on the car made it go over to the right. Thereupon, the mechanic wrote something down on a form which plaintiff Vandermark signed. At this time, the car, having been driven 1200 miles, was given its 1000 mile checkup as well.

Some 300 miles and two and a half weeks later, which was less than six weeks after the purchase of the car, both plaintiffs, Vandermark and Tresham, again embarked on an auto trip to their relative's residence in Joshua Tree. Plaintiffs drove east on the San Bernardino Freeway. It was 6:30 in the evening, and the car was being driven between 45 and 50 miles per hour. Mr. Vandermark testified that, east of the Ganesha overpass, the car started to shimmy or weave and pulled to the right. He applied the brakes gently to straighten the car out, but was unable to pull the car back to the left. He then let off the brakes and the car continued to the right, and when he tried to apply the brakes again, the car still would not come back and ultimately the car smashed into a utility pole causing damage to it and personal injuries to plaintiffs.

Mrs. Tresham confirmed these events, emphasizing the sudden nature of the pulling to the right and Mr. Vandermark's efforts to straighten the wheel and turn the car to the left.

An eyewitness, Harry A. Brewster, a Los Angeles police officer off duty at the time, was following behind the Vandermark car about 200 feet and testified that, just prior to the accident, he noticed the taillights on the Vandermark vehicle come on, and then the car started to swerve. Then the left side of the car tried to swing out, at which time it went to the right off the shoulder of the road thus striking the light pole.

Plaintiffs' expert witness, Robert E. Snyder, described the braking system of a 1958 Ford automobile and then testified that it is possible for the brakes to apply without any application or act by the operator of the car if a thermal action or thermal pressure resulting in what is technically called a ‘closed system’ develops. This spontaneous application of the brakes would cause the brake lights of the automobile to become illuminated. He also testified that, in his opinion, something caused an inadvertent application of the brakes of the vehicle and the right-hand brakes were applied slightly harder than the left-hand ones, so that the car veered or pulled toward the right and went into a slow spin until contact with the light pole was had. Furthermore, on examining the braking system of the car, he found most of it in apparently good condition, except for the master cylinder which showed serious wear. The cup of the master cylinder was grooved excessively for a car driven 1500 miles, which was confirmative of his opinion as to the cause of the application of the brakes in the accident.

Defendant, Maywood Bell, produced its own expert witness, Dr. Dino Morelli, who had a different opinion as to the malfunction of the braking system, and a supposed eyewitness, Dave Russell, who described a different detailed course of movement of the Ford automobile.

Plaintiffs sued both Ford Motor Company (hereinafter referred to as ‘Ford’) and Maywood Bell, charging each with negligence and with breach of warranty.1 At the close of plaintiffs' case in chief, both defendants moved for a judgment by nonsuit, both as to the negligence and as to the warranty causes of action. The court granted a nonsuit on both causes as to Ford, and indicated that it would direct a verdict for defendant, Maywood Bell, on the warranty cause, leaving the trial to continue on the merits only as to the negligence cause against Maywood Bell. At close of trial the court directed a verdict for Maywood Bell on the warranty cause, and the jury then returned a verdict in Maywood Bell's favor on the negligence cause.

Plaintiffs have appealed, urging that the trial court was in error in granting the nonsuits and directed verdict in that these causes should have been submitted to the jury. Further, that the court erred in instructing the jury on the negligence action against Maywood Bell.



Plaintiffs' contention that the trial court erred in granting Ford its motion for nonsuit on the negligence cause is meritorious. A nonsuit may be granted only when there is no substantial conflict in the evidence. In ruling on the motion the court does not consider credibility of witnesses, but gives to the evidence of the party against whom the motion for nonsuit is directed all its legal value, indulges every legitimate inference from such evidence in favor of that party, and disregards conflicting evidence. (Meyer v. Blackman (1963) 59 A.C. 691, 694, 31 Cal.Rptr. 36, 381 P.2d 916; Estate of Lances (1932) 216 Cal. 397, 14 P.2d 768; Witkin, 2 California Pleading, § 125, pp. 1857–1858.)

Due to the strict rules that govern the granting of a nonsuit, the testimony of plaintiffs and their two witnesses as to the cause of the accident was sufficient evidence to insulate plaintiffs from the harshness of a nonsuit on the negligence count against Ford. It can not be said that, as a matter of law, there was no evidence of sufficient substantiality to support a verdict in favor of plaintiffs if such a verdict had been given. In the light of the cases cited later in this opinion, it is clear that the jury could have found that the braking system on the automobile involved had been negligently manufactured or installed and that this negligence was the proximate cause of the injuries to plaintiffs. That a cause of action for such negligence by a manufacturer of a motor vehicle exists has been settled since the landmark case of MacPherson v. Buick Motor Co. (1916) 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696—a rule adopted in California twenty years ago (Kalash v. Los Angeles Ladder Co. (1934) 1 Cal.2d 229, 34 P.2d 481.)


Defendant Ford argues that the trial court was justified in granting its motion for nonsuit on the warranty count because it had never given any warranties, either express or implied, to plaintiffs, and therefore, as a matter of law, no cause of action for breach of warranty existed in plaintiffs' favor against it. In the recent California Supreme Court decision of Greenman v. Yuba Power Products, Inc. (1963) 59 A.C. 67, 72–73, 27 Cal.Rptr. 697, 700, 377 P.2d 897, 900, the following rule was enunciated: ‘A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. Recognized first in the case of unwholesome food products, such liability has now been extended to a variety of other products that create as great or greater hazards if defective [citations].

‘Although in these cases strict liability has usually been based on the theory of an express or implied warranty running from the manufacturer to the plaintiff, the abandonment of the requirement of a contract between them, the recognition that the liability is not assumed by agreement but imposed by law [citations], and the refusal to permit the manufacturer to define the scope of its own responsibility for defective products [citations] make clear that the liability is not one governed by the law of contract warranties but by the law of strict liability in tort. Accordingly, rules defining and governing warranties that were developed to meet the needs of commercial transactions cannot properly be invoked to govern the manufacturer's liability to those injured by [its] defective products unless those rules also serve the purposes for which such liability is imposed.’ [Emphasis added.]

Thus, in California, a manufacturer will be held strictly liable, if the article he manufactures proves defective, causing injury to life or limb. Recovery of damages is in no way dependent upon proof of negligence or knowledge of the defect.

However, Ford argues that plaintiffs have presented absolutely no evidence which shows that the accident was a result of a manufacturer's defect in the car, and that the Greenman case in no way dispenses with this requirement. We believe Ford has correctly stated the rule of the Greenman case, but see no merit in its contention that plaintiffs have presented absolutely no evidence showing the accident was a result of a manufacturer's defect in view of plaintiffs' testimony and that of their two witnesses tending to show that the accident was a result of a defect in the car.

We recognize that the doctrine of res ipsa loquitur, in the strict and formal sense of that term, has no application to an alleged breach of warranty, (Trust v. Arden Farms Co. (1958) 50 Cal.2d 217, 223, 324 P.2d 583, 81 A.L.R.2d 332), and relates to cases involving negligence. However, we are mindful of the basic premise of the Supreme Court in the Greenman case, namely that a manufacturer's liability to the ultimate user is not governed by the law of contract warranties but by the law of strict liability in tort. This being so, we believe that the applicable rule is that set forth in State Farm Mutual Auto Ins. Co. v. Anderson-Weber, Inc. (1961) 252 Iowa 1289, 1294–1295, 110 N.W.2d 449, 452 where the court stated: ‘The doctrine of res ipsa loquitur, frequently resorted to in negligence cases, is not applicable as such in the field of warranty, although the usual resort to circumstantial evidence in attempting to establish a breach of warranty indicates some of the same thinking found in res ipsa loquitur cases.’

In an earlier case, the Minnesota court used language which we think is particularly pertinent to the cases before us. In Grant v. Malkerson Sales, Inc. (1961) 259 Minn. 419, 425–426, 108 N.W.2d 347, 351–352, the court said:

‘While it is true that plaintiff produced no testimony as to the possible defective condition of the automobile when it left defendant's factory, which was more than a month prior to the date he purchased it, it appears to us that we must consider plaintiff's position in that connection. From a practical standpoint he would be faced with a serious problem if he is required to show a defect * * * prior to the time the car left the factory. There is nothing in the record here which shows that plaintiff had any specific knowledge about the design or manufacture of the car he purchased. He had to rely to a great extent, as millions of car purchasers have to rely, upon the statements made to him by the manufacturer and the seller through their advertising and ‘sales talks' as to the construction and working parts of the car. It is common knowledge among purchasers of cars that the merits and functional operations of the automobiles are never underestimated by the salesmen or by the advertising programs regarding the particular cars which are offered for sale.

‘It appears to us that under the circumstances here the plaintiff is in the position of an innocent, helpless bystander, overwhelmed by the purported legal principle put forth by [the manufacturer] that if he was unable to produce proof of a defect in the car before it left the factory the loss must lie where it falls. We cannot agree with that theory * * *.’

In the case before us plaintiffs' evidence, viewed as it must be in a nonsuit situation, shows that the care and its braking system had been subjected only to the normal usage of driving and of inspection and servicing by authorized mechanics. The warranties herein relied on—merchantability and fitness for use—by their nature require that the vehicle be manufactured, assembled and delivered in a condition to withstand normal usage of this sort. It follows that the activities of others than Ford itself (even if we do not regard Maywood Bell as an agent of Ford) are not such as to prevent the creation of at least an inference of defective manufacture. This inference is especially logical, since the claimed defect was a latent one contained in the master brake cyclinder of the car; it is sufficient to carry plaintiff's case to the jury. The record is silent as to any evidence (if such evidence exists) showing that the master cylinder had been tampered with in any way after the car left the control of Ford; upon the retrial, Ford may, of course, in its defense, explore this or any other available explanation for the accident.

It must be remembered that, in actions for negligence, the doctrine of res ipsa loquitur is sufficient to supply at least a prima facie case as to three elements: defect, negligence and causation. A fortiori, in an action sounding in warranty, the logical inferences which support the res ipsa presumption are sufficient to make out a prima facie case of the remaining two elements. Plaintiffs' warranty cause as to Ford comes squarely within the rule enunciated by the Greenman decision, and the trial court was in error in nonsuiting plaintiffs.


The trial court also granted Maywood Bell a nonsuit on the warranty cause. The court based its ruling on the ground that a disclaimer clause in the dealer's warranty2 precluded any such suit. The Greenman case, relying heavily on Henningsen v. Bloomfield Motors, Inc. (1961) 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1, pointed out that a manufacturer of a defectively made article, which proves harmful to life or limb, cannot define the scope of its own responsibility for defective products by broad sweeping disclaimer clauses. The Henningsen case not only applied this rule to the manufacturer but also to the dealer. In this regard the Henningsen case, 32 N.J. at page 408, 161 A.2d at page 97, 75 A.L.R.2d 1, states: ‘For the reasons set forth in part I hereof, we conclude that the disclaimer of an implied warrantly of merchantability by the dealer, as well as the attempted elimination of all obligations other than replacement of defective parts, are violative of public policy and void.’ Since the California Supreme Court has relied heavily on Henningsen in restricting the manufacturer from limiting the ambit of his liability, we believe the same rule is applicable to the dealer.

In reality, the stock warranty agreement of the dealer herein involved is no more than a contract of adhesion. The bargaining position of the automobile dealer is overwhelming as compared to the purchaser, who must take or leave an automobile, accompanied and encumbered as it is by the warranty.

Although spoken in an action wherein an exculpatory clause was relied on as a defense to an action in negligence, we regard the latest expression of the Supreme Court on such clauses as being equally applicable here, in the light of the language above quoted from the Greenman case, characterizing warranty actions such as this as being governed by tort rules. In Tunkl v. Regents of the University of California (1963) 60 A.C. 38, 47, 32 Cal.Rptr. 33, 38, 383 P.2d 441, 446, the court said:

‘In this situation the releasing party does not really acquiesce voluntarily in the contractual shifting of the risk, nor can we be reasonably certain that he receives an adequate consideration for the transfer. Since the service is one which each member of the public, presently or potentially, may find essential to him, he faces, despite his economic inability to do so, the prospect of a compulsory assumption of the risk of an other's negligence. The public policy of this state has been, in substance, to posit the risk of negligence upon the actor; in instances in which this policy has been abandoned, it has generally been to allow or require that the risk shift to another party better or equally able to bear it, not to shift the risk to the weaker bargainer.’

In this connection, see, also, Rose v. Chrysler Motors Corporation (1963) 212 A.C.A. 774, 28 Cal.Rptr. 185.

Therefore, since the disclaimer clause in the warranty agreement is void, there are present still the implied warranties of merchantability and fitness for a particular purpose.

However, Maywood Bell argues that, even if there was any breach of warranty on their part, plaintiffs did not give notice of such breach within a reasonable time as required by Civil Code section 1769. Maywood Bell further points out that, regardless of whether or not a notice of asserted breach of warranty need be given to a manufacturer, Greenman v. Yuba Power Products, Inc. (1963), supra, 59 Cal.2d 67, 27 Cal.Rptr. 697, 377 P.2d 897, it can not be questioned that notice is required to be given to the seller as a condition precedent to suit, and the evidence without dispute shows that defendant Maywood Bell was the seller.

Greenman v. Yuba Power Products, Inc. (1963) supra, 59 Cal.2d 67, 27 Cal.Rptr. 697, 377 P.2d 897, unmistakably endorses the proposition that the ‘notice requirement of section 1769, [Civil Code] * * * is not an appropriate one for the court to adopt in actions by injured consumers against manufacturers with whom they have not dealt.’ The court, however, rationalizes that ‘[a]s between the immediate parties to the sale [the notice requirement] is a sound commercial rule, designed to protect the seller against unduly delayed claims for damages. As applied to personal injuries, and notice to a remote seller, it becomes a booby-trap for the unwary. The injured consumer is seldom ‘steeped in the business practice which justifies the rule,’ * * * and at least until he has had legal advice it will not occur to him to give notice to one with whom he has had no dealings.'

The evidence clearly shows that plaintiff Mary E. Tresham was not a party to the sale of the automobile in question. There was, therefore, no privity of contract between her and Maywood Bell. In light of this factor, we find the reasoning of the Greenman case, above referred to, equally applicable to a passenger who has sustained injuries and is bringing suit against the dealer of the automobile. Therefore, the notice requirement of Civil Code section 1769 was not applicable to plaintiff Mary E. Tresham.

However, the notice requirement as it concerns plaintiff Vandermark is embodied in section 1769 which provides: ‘In the absence of express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or the sale. But, if, after acceptance of the goods, the buyer fails to give notice to the seller of the breach of any promise or warranty within a reasonable time after buyer knows, or ought to know of such breach, the seller shall not be liable therefor.’ [Emphasis added.]

It is undisputed that Maywood Bell had notice of the breach. Its sole contention in regard to notice is that it was not timely given. However, the issue of whether notice was timely given is a question of fact to be determined by the jury. As the facts in this case are presented, we can not say that, as a matter of law, an unreasonable time had elapsed before notice was given to Maywood Bell.3 (See Whitfield v. Jessup (1948) 31 Cal.2d 826, 831, 193 P.2d 1.)

For the foregoing reasons, the trial court erred in directing a verdict for Maywood Bell on the warranty cause.


Plaintiffs, among other alleged errors, claim that it was error for the court to instruct the jury on the ‘mere happening’ of an accident, where the doctrine of res ipsa loquitur can or does have application.

The cases relating to this point hold that it is prejudicial error to instruct the jury that the mere fact that an accident happened, considered alone, does not support an inference that some party to this action was negligent where res ipsa loquitur is applicable as a matter of law. (Guerra v. Handlery Hotels, Inc. (1959) 53 Cal.2d 266, 1 Cal.Rptr. 330, 347 P.2d 674; Phillips v. Noble (1958) 50 Cal.2d 163, 323 P.2d 385; DeMartini v. Alexander Sanitarium, Inc. (1961) 192 Cal.App.2d 442, 13 Cal.Rptr. 564.) However, although it may not be wholly correct to give such an instruction where res ipsa loquitur may be applicable, but not as a matter of law, the giving of the instruction is not necessarily prejudicial error. (Guerra v. Handlery Hotels, Inc. (1959) supra, 53 Cal.2d 266, 1 Cal.Rptr. 330, 347 P.2d 674.)

In the present case, the following instruction was given: ‘The mere fact that an accident happened, considered alone, does not prove that it was caused by the negligence of anyone.’ It will be noted that this instruction is different from the one considered in the Guerra case.

However, so subtle a distinction in instruction on the mere happening of an accident does not change the rule enunciated by the above cited cases. To say that the happening of an accident does not prove negligence, is not drastically different from saying that it does not create an inference4 of negligence. This is not a distinction likely to be appreciated by a jury (or, without careful analysis, by lawyers or judges). Since the effect of the two instructions is so similar, we think the instruction on ‘mere happening’ should not have been given in this case. The following statement from Shaw v. Pacific Greyhound Lines (1958) 50 Cal.2d 153 at page 156, 323 P.2d 391 at page 392 is particularly applicable: ‘Although it is proper in many cases to give an instruction that the mere happening of an accident does not support an inference of negligence, a problem arises where, as here, there is evidence warranting the application of the doctrine of res ipsa loquitur. It is apparent that an instruction like the one quoted above5 contains an idea which might be understood by a layman to be inconsistent with the doctrine of res ipsa loquitur. [Citations.] The direction that the mere happening of an accident, considered alone, does not support an inference of negligence would appear to contradict the usual statement of the doctrine of res ipsa loquitur as found in the typical instructions given on the subject, * * *.’

Whether or not an erroneous instruction is prejudicial depends on all of the factors in a particular case. Here we think that, since the jury may well regard the conduct of Maywood Bell in a different light when all of the issues are before it, and since a reversal is compelled on the other points already discussed, it is in the interest of justice, as contemplated by California Constitution, Article VI, section 4 1/2, and Code of Civil Procedure section 475 to retry the entire case on proper instructions.

The other matters urged as error are not likely to arise on a retrial and need not here be considered.

The judgments are reversed and the case is remanded for a new trial on all issues.


1.  Defendant Maywood Bell points out that, although a breach of warranty count against it by Mrs. Tresham was contained in the original complaint, it did not appear in her amended complaint. However, the pretrial statement and order expressly listed breach of warranty as an issue between both plaintiffs and both defendants and the case was tried on that basis. The pretrial order, and the conduct of the trial, control.

2.  ‘Dealer warrants to Purchaser (except as hereinafter provided) each part of each Ford Motor Company product sold by Dealer to Purchaser to be free under normal use and service from defects in material and workmanship for a period of ninety (90) days from the date of delivery of such product to Purchaser, or until such product has been driven, used or operated for a distance of four thousand (4,000) miles, whichever event first shall occur. Dealer makes no warranty whatsoever with respect to tires or tubes. Dealer's obligation under this warranty is limited to replacement, without charge to Purchaser, of such parts as shall be returned to Dealer and as shall be acknowledged by Dealer to be defective. This warranty shall not apply to any Ford Motor Company product that has been subject to misuse, negligence, or accident or in which parts not made or supplied by Ford Motor Company shall have been used if, in the determination of Dealer, such use shall have affected its performance, stability, or reliability, or which shall have been altered or repaired outside of Dealer's place of business in a manner which, in the determination of Dealer, shall have affected its performance, stability, or reliability. This warranty is expressly in lieu of all other warranties, express or implied, and of all other obligations on the part of the Dealer.’

3.  The jury, had it been allowed to pass on the issue, might well have taken into account that, since timely notice was given to Ford, and the results of Ford's investigation were available to Maywood Bell, no prejudice resulted to the latter from the delay in notifying it.

4.  I. e., that it does not tend to prove negligence.

5.  ‘The mere fact that an accident happened, considered alone, does not support an inference that some person, or any party to this action, was negligent.’

KINGSLEY, Justice.

BURKE, P. J., and JEFFERSON, J., concur.

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