VANDERMARK v. FORD MOTOR COMPANY

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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: October 28, 1963

Edward L. Lascher, Van Nuys, and Donald C. Lozano, Encino, 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, and Vernon G. Foster, Los Angeles, for defendant and responent, Ford Motor Company.

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

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’). On December 5, 1958, at 6:30 p. m. on the San Bernardino Freeway, plaintiffs were involved in an automobile accident. As a result of the accident, they sustained extensive personal injuries, the nature and details of which are not in controversy on this appeal.

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 as to Ford on both causes of action, 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 the close of the 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. We have concluded that the trial court erred in granting the nonsuits and the directed verdict and that one instruction given the jury in the engligence action against Maywood Bell was erroneous and prejudicial.

THE NONSUITS AND DIRECTED VERDICT

A nonsuit may be granted only where 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 in every legitimate inference from such evidence in favor of that party, and disregards conflicting evidence. (Meyer v. Blackman (1963) 59 Cal.2d 668, 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.) A motion for a directed verdict follows the same rules.

Accordingly, we proceed to state the evidence adduced on behalf of plaintiffs at the time the several motions were made and ruled on. It is true that some of this testimony was shaken on cross-examination; but the jury would have been entitled to accept the version most favorable to plaintiffs and the court's ruling must be considered with that power in view. We include, also, in the statement of facts to follow, certain evidence offered by plaintiffs but, as we view it, erroneously excluded by the trial court. On appeal, the nonsuits must be considered in the light of the record as the trial court should have permitted it to be. (Cf. Lutton v. Rau (1918) 37 Cal.App. 429, 173 P. 1111.)

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 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 plaintiffs 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 preceding 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. The repair order form, introduced in evidence, does not refer to any defect in the brake system, nor call for any work to be done thereon. The parties are agreed that, in fact, nothing was done with respect to the brakes on this occasion.

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 had not applied the brakes at the time the pulling began, but he then applied the brakes gently to straighten the car out. However, he 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, testified that he was following behind the Vandermark car about 200 feet and 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.

Plaintiff produced an expert witness, Robert E. Snyder, whose qualifications as an engineering expert were not challenged. He described the hydraulic braking system of a 1958 Ford automobile. His description may, for the purposes of this opinion, be summarized as follows: Pressure on the brake pedal activates a push rod, which rod drives a piston forward into and along the inside of the master cylinder of the system. This cylinder is kept full of fluid from a reservoir situated immediately above it and feeding the fluid by gravity through a small ‘port’ or aperture. As the piston moves forward, a rubber cup which is attached to its forward end closes this port, creating what is known as a ‘closed system.’ The fluid in the cylinder is, thus, necessarily pushed through a valve at the forward end of the master cylinder into a system of pipes or tubes leading to the brakes themselves. The pressure of this fluid causes the brake shoes and brake linings to move into contact with the brake drums and the resulting friction slows and (hopefully) stops the vehicle. On release of the brake pedal, the piston retracts, the pressure of springs in the brakes pushes the brake shoes away from the drums, forcing the fluid back, through valves, into the master cylinder. If properly adjusted, the piston will retract far enough so that the rubber cup will clear the port into the fluid reservoir thus opening the closed system and bringing the device to rest. If, for any reason, the piston does not retract far enough to clear the port, pressure will remain in the system and the brakes will be at least partly pressed against the brake drums. The heat generated by this brake pressure will cause the fluid (not being able to escape through the port) to expand, thus increasing the braking action until the brakes ultimately grab and the car becomes uncontrollable. The closer the brake shoes with their brake lining have been adjusted to the brake drums, the more likely an inproper closing of the vent port will bring about this unfortunate result, since, the closer that adjustment, the less internal pressure required to bring about contact between lining and drum, with the resultant friction and heat.2

Snyder testified positively, that, assuming the truth of Vandermark's testimony that he had not been riding the brakes nor applying them immediately prior to the start of the veering of the car, the only way the accident could have happened as described by Vandermark and by Brewster was for the piston not to have retracted far enough for its rubber cup to have cleared the vent port, thus setting in motion the thermal pressure process just described.

Plaintiffs also offered to prove by Snyder that failure of the piston to retract its proper distance could only have been caused (a) by dirt between the face of the piston itself and the rubber cup; (b) by dirt between the rear end of the piston and the stop washer affixed there; (c) a push rod of improper size or length; (d) improper mounting of the master cylinder-piston assembly on the firewall of the car; (e) deformation of the firewall; (f) improper mounting or adjustment of the brake pedal itself or the bracket by which that pedal is attached to the firewall. The offer also included testimony that the first two—i. e., the presence of dirt—could not have occurred after the system was assembled and installed, since the areas involved were within the assembled system. The trial court excluded this evidence as being ‘speculative.’ In this, it was clearly in error. The expert witness was not speculating in listing all of the possible causes—one or more of which, in his opinion, caused the malfunction of the brakes. Plaintiffs were entitled to prove these engineering facts as a foundation for their contention (which, as we shall point out, was legally valid) that, since each and every one of these possible causes were defects in design or manufacture attributable only to defendants, and not to plaintiffs, defendants' responsibility for the accident had been shown.3

THE NEGLIGENCE ACTION AGAINST FORD

Tested by the rules above set forth, and in the light of the testimony above summarized, it is clear that the trial court erred in rejecting the offer of proof and in granting Ford a nonsuit on the negligence count.

The evidence is sufficient to show: (a) that the accident happened because of a failure of the piston in the brake system to retract properly; (b) that such failure to retract was due to some cause attributable to Ford—if dirt, it must have been introduced in the assembly of the master cylinder system at the Ford plant, since dirt could be introduced only when the system was unassembled and it had not been disassembled after leaving Ford; if any of the other causes, they were the result of improper assembly of the car or of improper parts, all causes attributable to Ford. Since it is a matter of common knowledge that new cars, properly driven, and subjected only to the ordinary stresses of usual driving and routine maintenance checking, do not suddenly leave the highway and end up against utility poles, an inference of negligence on the part of the assembler and manufacturer arises as a matter of fact.4 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.)

THE WARRANTY ACTION AGAINST FORD

Defendant Ford argued in the trial court that it was entitled to a 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. Subsequent to the trial, the California Supreme Court rendered its decision in Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, wherein 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 presented no substantial evidence to show 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 no substantial evidence showing that the accident was a result of a manufacturer's defect in view of the testimony above summarized, tending to show that the accident was the result of a defect in the car.

In fact, plaintiffs are in a more favorable position with reference to the warranty count than they are as to the negligence count. As we have pointed out, neither negligence nor knowledge of the defect is a part of their case on the warranty count. Nor are they necessarily required to negate the possibility of some intermediate force operating to activate the defect. One of the warranties involved is that of fitness for use. And the ‘use’ in this case is (a) the operation of the vehicle by an ordinary driver, in the ordinary fashion, under traffic conditions known to exist in the Los Angeles metropolitan area, and (b) the subjection of the vehicle to the routine predelivery servicing required by the manufacturer and to the routine one thousand mile ‘check-up’ recommended by the manufacturer. Since the evidence shows no use beyond these, the failure of the braking mechanism itself shows a breach of the warranty imposed by law on the manufacturer and relied on in this case.

In addition, we think that, once a purchaser or user shows that a motor vehicle has been subjected only to normal usage, an inference of actionable breach of warranty arises from the happening of such an accident as is herein involved. We recognize that, in Trust v. Arden Farms Co. (1958) 50 Cal.2d 217, 223, 324 P.2d 583, 81 A.L.R.2d 332, the Supreme Court said that the doctrine of res ipsa loquitur, in the strict and formal sense of that term, had no application to an alleged breach of warranty and related only 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, the language used in the Trust case, which was decided as a purely contractual action, must be regarded as superceded by the current view of actions on a manufacturer's warranty as now established by Greenman.

In Tremeroli v. Austin Trailer Equip. Co. (1951) 102 Cal.App.2d 464, 227 P.2d 923, plaintiff sued the vendor of a ‘fifth wheel’ for breach of the same implied warranty—fitness for use. In response to the contention that plaintiff had not proved the exact cause of the breaking of that device (which breaking had caused an accident), the court said (102 Cal.App.2d at page 475, 227 P.2d at page 930):

‘Whether the plaintiff proved that the fifth wheel was defectively manufactured or not is immaterial, if in fact he offered evidence that it was not reasonably fit for the purpose for which it was sold. * * * Although the evidence is conflicting, there is substantial evidence that the fifth wheel failed in normal use. There is substantial evidence that the fifth wheel was properly serviced and maintained by plaintiff. This evidence, without proof of the cause of the failure, sustains the finding of the jury that there was a breach of the warranty.’

We believe that the applicable rule in such actions in California today 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 case 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 * * *.’

Plaintiffs' warranty cause as against Ford comes squarely within the rule enunciated in the Greenman decision, and the trial court was in error in excluding the offer of proof and in nonsuiting the plaintiffs.

THE WARRANTY ACTION AGAINST MAYWOOD BELL

The trial court directed a verdict for Maywood Bell on the warranty count. The motion was based, and granted, on the grounds (a) that a disclaimer clause in the dealer's warranty5 precluded any such suit, and (b) on the ground that plaintiffs had failed to give requisite notice of breach.

It is clear that neither of these grounds apply to plaintiff Tresham. She was not a party to the contract of purchase. As between her and Maywood Bell, the rights, duties and liabilities are the same as between both plaintiffs and Ford. All of the reasoning of the Greenman decision applies to her suit against the dealer: the warranty is one imposed by law and no notice of breach is required as a condition precedent to suit.

As applied to plaintiff Vandermark, the problem is more difficult. 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, states: ‘For the reasons set forth in Part I hereof, we conclude that the disclaimer of an implied warranty 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 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441, 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 another'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 weak bargainer.’

In this connection, see, also, Rose v. Chrysler Motors Corporation (1963) 212 Cal.App.2d 755, 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.

Maywood Bell points out that, in addition to the stock warranty above quoted and discussed, the conditional sales contract between it and Vandermark contained an additional warranty clause, which warranted the parts of the vehicle for 4,000 miles or 90 days, whichever should first occur, limited the seller's obligation to replacement, and ended with the following language:

‘This warranty is expressly in lieu of all other warranties, express or implied, and of all other obligations or liabilities on the part of Seller, except such obligation or liability as Seller may assume by its Authorized Ford Dealer's Service Policy or by separate agreement.’ [Emphasis added.]

Maywood Bell argues that the italicized words imply that it stood ready to bargain with Vandermark for a broader warranty contract and, thus, that the conditional sales contract was not one of adhesion. We regard the argument as specious. Absent a showing that, in fact, the possibility of such broader warranty was actually discussed with Vandermark (a matter of defense, if true, and not available on a motion for nonsuit)6 the reasoning of Henningsen and of Tunkl applies to the conditional sales contract as well as to the stock warranty.

However, Maywood Bell argues that, even if there was any breach of warranty on their part, plaintiff Vandermark did not give notice of such breach witnin a reasonable time as required by Civil Code, section 1769. Maywood Bell further points out that the evidence without dispute shows that defendant Maywood Bell was the seller and 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 57, 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 that such notice must be pleaded in the complaint.

Greenman v. Yuba Power Products, Inc. (1963) supra, 59 Cal.2d 57, 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 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 the buyer knows, or ought to know of such breach, the seller shall not be liable therefor.’ [Emphasis added.]

It is not disputed that Maywood Bell had actual notice of the accident. However, it argues, correctly, that the notice required by the statute is one which includes notice that damages are claimed from a particular breach, and that the only formal notice meeting that requirement was a letter of July 27, 1959—some seven and one-half months after the accident. However, the original complaint in this action was served on Maywood Bell on June 3, 1959.7 Clearly it advised that defendant of all matters required to be included in the statutory notice. The requirement of pleading the notice was met by the amended complaint, filed on August 3, 1959, well within the period of the statute of limitations.8 In Whitfield v. Jessup (1948) 31 Cal.2d 826, 831, 193 P.2d 1, 4, the court quoted with approval from Columbia Axle Co. v. American Automobile Ins. Co., 6 Cir., 63 F.2d 206, as follows: “It may be taken as axiomatic that what constitutes a reasonable time must be determined from the particular circumstances in the individual case,” and held that, under the facts of the Jessup case, a delay of over seven months was not an unreasonable time as a matter of law. While a shorter time has, in some cases, been held, under the facts of those cases, to be unreasonable, we do not think that, as a matter of law, the six month delay herein involved necessarily barred plaintiff Vandermark's action, but that the question should have been left to the jury.

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

THE NEGLIGENCE ACTION AGAINST MAYWOOD BELL

As we have stated, the trial court allowed this count to go to the jury, which returned a verdict against the plaintiffs. Among other instructions, the court gave an instruction, requested by plaintiffs and objected to by defendant Maywood Bell, embodying the principle of res ipsa loquitur. It also gave, at the request of defendant and over the objection of plaintiffs an instruction on the ‘mere happening’ of an accident, couched in the following language:

‘The mere fact that an accident happened, considered alone, does not prove that it was caused by the negligence of anyone.’ [Emphasis added.]

Plaintiffs content that it was error to give the latter instruction.

The cases relating to this point hold that, where res ipsa loquitur is applicable as a matter of law, it is prejudicial error to give a ‘mere fact of happening’ instruction. (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 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.)

While the instruction given in the present case differs slightly from that considered and criticized in the Guerra case,9 the distinction is too subtle to change the rule as enunciated in 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 inference10 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 appearent that an instruction like the one quoted above11 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, * * *.’

As we have pointed out above, the plaintiffs had offered direct proof as to the cause of the accident and did not need to rely on the doctrine of res ipsa loquitur. As we read the record, the trial court should not have given an instruction on that subject. But, having done so, the giving of the ‘mere fact of happening’ instruction above quoted could only have further confused the jury as to its duty in evaluating the evidence. Coupled with the erroneous exclusion of the offer of proof above discussed, we think that prejudicial error resulted. We cannot say that, with all admissible evidence before it, and with instructions couched in the light of this opinion as to plaintiffs' rights and defendant's duty, a different result might not have been reached. Under these circumstances, the verdict is not saved by Article VI, Section 4 1/2 of the California Constitution.

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.

FOOTNOTES

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.  It is perfectly elear from a reading of the transcript that Snyder's statement that, in his opinion, the ‘brakes' were properly adjusted, referred to the adjustment of the brake shoes and linings with reference to the brake drums, and not (as counsel for defendants seek to imply) that the brake pedal-push rod-piston-master cylinder adjustment was proper. In fact, the burden of all of Snyder's testimony was that the latter adjustment must have been improper in some respect.

3.  A large portion of the transcript is devoted to an exploration of Snyder's remark that the rubber cup on the piston was, in his opinion, excessively worn (‘grooved’) for the distance the car had been driven. Except as he testified that this wear substantiated his opinion that the brake shoes were well-adjusted, we think this factor without importance on the motions now under discussion. Snyder testified that the worn cup would not affect the existence of the closed system and resultant thermal action to which he attributed the accident.

4.  In the opening statement by plaintiffs' counsel, there was a reference to a change of the steering mechanism from power to manual. But no evidence of such change had been offered at the time the motions for nonsuit were made and argued. In addition, since plaintiffs, by the pretrial statement and order, had limited their case to a defect in the braking system, this alteration was immaterial at that point in the case.

5.  ‘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.’

6.  Actually, plaintiffs offered to prove that this particular language was not called to Vandermark's attention, and was never discussed with him. The trial court excluded the offered evidence as immaterial, on objection of defendants. The error, if any, is not available to the objectors.

7.  The date of service is not shown in the Clerk's Transcript. However, defendant Maywood Bell gives this date in its brief; the date is not contradicted by plaintiffs; and we accept the statement as accurate for the present purpose.

8.  We are aware of the fact that the original complaint erroneously alleged a prior notice to Maywood Bell; but the later pleading is sufficient to remedy this defect.

9.  The instruction given in Guerra was as follows: ‘The mere fact that an accident happened, considered alone, does not support an inference that some party, or any party, to this action was negligent.’ [Emphasis added.]

10.  I. E., that is does not tend to prore negligence.

11.  ‘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.