SHEWARD ET AL v. BULLOCK INC ET AL (1941)

The plaintiff Mrs. Robert Sheward, while sitting in a metal chair in the beauty parlor of defendant Bullock's for the purpose of receiving a treatment, was precipitated to the floor when the front right leg of the chair was broken. She sustained serious personal injuries. In order to recover damages suffered on account of such injuries and for the medical and surgical expenses incurred by her husband, they instituted this action against Bullock's, Inc., and against Virtue Brothers Manufacturing Co., who manufactured and assembled the chair in which she sat, and against Myerson and Benjamin, who operated the Paris Beauty Parlor Supply Co., and who had sold the chair to Bullock's, Inc., with the knowledge that it was to be used by the general public in Bullock's beauty parlor and against Showalter, operator, who directed Mrs. Sheward to be seated in the chair. Virtue Brothers Manufacturing Company will be referred to as appellants.

Judgment having been rendered upon the jury's verdict against Bullock's, Inc., and against appellants in the sum of $4,750, the latter appeal from the judgment, from the verdict, from the order denying their motion for a new trial and from the order granting Bullock's, Inc., a new trial. At the same time plaintiffs appeal from the order granting Bullock's a new trial. It appearing from the verdict and the judgment that the only defendants mentioned therein are Bullock's, Inc., and appellants, we must assume that all other defendants were disposed of by proper orders prior to the submission. Seventeen days after the filing of the notice of appeal by appellants and nine days after the filing of the notice of appeal of the plaintiffs, the trial court ordered that the clerk's transcript on appeal be considered on the appeals for all parties.

Plaintiffs base their cause of action upon the alleged negligence of appellants in the manufacturing and assembling of the cast–iron chair which the latter had sold to Bullock's, Inc., some nine months before plaintiff wife received her injuries. On receipt of it, Bullock's carefully inspected the chair and during all of the time the chair was in the beauty parlor, it underwent tests for its strength and soundness. Bullock's had an employee weighing 250 pounds to test the chair twice weekly by riding it back and forth across the floor. He also washed, oiled and inspected it at the same times. Such care exemplified the duty imposed upon the vendee of a manufacturer. Restatement of the Law of Torts, sec. 396. Reasonable care could not have required more of Bullock's.

Whether appellants were negligent in the manufacture of the chair can be determined only (1) by a consideration of the care exercised in the selection of materials and in the choice of methods and processes used by them in the construction of the chair, (2) by the care exercised in inspecting the article during the course of its manufacture and at the conclusion thereof, and (3) by a consideration of the care they exercised in the light of knowledge of the care taken by other manufacturers of the same commodity. An intimate knowledge of the degree and amount of care practiced by appellants in their operations has enabled us more satisfactorily to appraise the nature and extent of their care in manufacturing such chairs.

Appellants purchase certain materials and parts from other manufacturers. The casting used in manufacturing the cast–iron chair is delivered to appellants by the Independent Iron Works as rough castings. The iron works have manufactured and furnished such castings to appellants and other manufacturers and assemblers for many years. The patterns for the molds used by the iron works for molding casting are furnished by appellants. After receipt of the castings by appellants, they are handled by about 75 employees in the manufacturing and assembling of the chairs. The method employed is the “batch system” that is, by running through one batch of parts before beginning with another. Each casting, though heavy, is handled, treated, polished and assembled separately. Each piece is scrubbed, rinsed and carefully inspected. When a casting is first received, it is in very rough form. It is polished with a coarse emery paper to a fine, smooth finish when a different employee takes it to a finer wheel. During the process of smoothing the surface of the casting, it is cautiously observed by the polisher to see that the casting is properly smoothed and polished. It is placed in an alkaline solution for the purpose of cleaning it. It is then dipped and rinsed in water until it is clean; then it is nickel–plated. This requires a half hour and the casting is then rinsed, dried and polished again on soft cloth wheels. Thereafter it is chromium plated, dipped in cold water, dried and polished again with rouge. After each step in the process an employee inspects each casting to see that it is free from grease and is fit for plating. At each step in the process the employee must hold the casting in such position that it is not less than 16 inches from his eyes. When it is ready for the plating, the plating foreman inspects it to see that all of the wheel marks are buffed, that there is no shading of the chromium; to see that it is covered and that there are no white spots left from chromium burns. The foreman then inspects the polishing operation and he inspects the casting again after the chromium plating has been applied. Each step in the process is handled by a skilled workman. Whenever a crack or hole is noticed in the course of the process, the casting is discarded. The finished castings are then sent to the assembly department where they are constructed into a complete chair. The assemblers are also skilled workmen. After the chairs are finally completed, the packers inspect them before they are shipped. Between five and ten persons handle each casting before the process is complete. The same type and style of casting are used by other manufacturers. Appellants have sold over 1,000 of such cast–iron chairs in Southern California; another company situated there also makes and sells substantially the same type of chair. They are designed for beauty shops.

It is conceded that appellants were not insurers of the soundness and safety of the cast–iron chair. Under ordinary circumstances neither the manufacturer nor the vendor is liable to third parties who have no contractual relations with him for negligence in the construction, manufacture or sale of such an article. Sherman & Redfield on Negligence, volume 4, page 1571. But a manufacturer who fails to exercise reasonable care in the manufacture of an article, which, unless carefully made, is reasonably certain to involve risk of causing death or bodily harm to those using it for its intended purpose, is liable for bodily injuries caused to those engaged in its lawful use. The manufacturer is obliged to exercise reasonable care in the manufacture of a chattel and the amount of his care is to be governed by the degree of peril to attend if the article be negligently made. The manufacturer of devices that are operated by the explosion of gasoline or dynamite, or of those instrumentalities used for the distribution and transmission of high voltage currents, is required to exercise “almost meticulous precautions” to see that the instrument approaches substantial perfection. But where one creates an article which, howsoever imperfect, can be calculated to do only some trivial harm, such amount or degree of care is not exacted. If the manufacturer employs a formula calculated to result in a finished product safe for its proposed uses, intelligently selects his material with sufficient technical knowledge, inspects them during the course of their fabrication and assembly and on completion, with a care in proportion to the extent of the risk to be involved in using the chattel, if made without such precautions, he has by such care, method and process fulfilled his obligation to the vendee and to all users of such chattel. Restatement of the Law of Torts, sec. 395. If the thing so created is such that, if fatally defective, it is reasonably certain to imperil the safety of its lawful users, it is a dangerous instrumentality, and should not be sold for use by the public without first being subjected to tests in keeping with its nature. MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, Ann.Cas.1916C, 440. In the event of bodily injuries declared to have been suffered by a person while lawfully using the chattel, because of defects alleged to have been caused by the negligence of the manufacturer, it is a proper question of fact for the jury as to whether the article of recent make, “when used as plaintiff was using it, became, because of defective construction or assembling, an instrument imminently dangerous to human life or limb”. Kalash v. Los Angeles Ladder Co., 1 Cal.2d 229, 34 P.2d 481, 482. But whether a cast–iron chair, whose seat is not more than 20 inches from the floor, would, if defective, be imminently dangerous to one sitting therein is not, in the abstract, to be determined on appeal. To do so would be to adjudicate by formula. That is a question for the triers of fact in the light of all the evidence properly admissible upon the subject including the customs and practice of other manufacturers of similar articles. While the expert witness introduced by plaintiff testified that by the use of certain acids and heat he could distinguish a fracture in the broken casting which inferentially was present at the time of its delivery to appellants, in the absence of evidence as to the standard of care used by manufacturers of such commodities, we are unable to determine that appellants were obliged to make use of a powerful magnifying glass, heat, and sulphuric acid in order to test the casting for the presence of defects.

Whether the standard of care that was actually exercised by appellants in the manufacture of the casting in question is higher or lower than that which generally obtains among manufacturers of such merchandise is a question that can be fairly determined only by the introduction of competent proof as to the customary methods used by such manufacturers to detect defects from which something more than a trivial danger could be foreseen. The burden was upon plaintiffs to establish the customary standard of care exercised by such manufacturers. Kalash v. Los Angeles Ladder Co., supra. It was incumbent upon appellants to make “such tests and inspections as one in its business should recognize as reasonably necessary to put out a safe article”. Smith v. Peerless Glass Co., 259 N.Y. 292, 181 N.E. 576, 578. In the absence of any proof as to the customary standard of care exercised by manufacturers of like cast–iron chairs, we are unable to say that appellants should have exercised any higher degree of caution or any more ordinary care than was exercised in the manufacture of the chair whose collapse caused the misfortune to Mrs. Sheward.

The purported appeals by appellants from the verdicts and from the order denying their motion for a new trial are dismissed. The order granting Bullock's, Inc., a new trial is affirmed. The judgment against appellants is reversed.

I dissent. In my opinion the burden was not upon plaintiffs to establish the customary standard of care exercised by manufacturers. In malpractice cases, the rule, stated briefly, requires that the plaintiff present expert testimony that the defendant failed to exercise that degree of care and skill which was ordinarily exercised by practitioners in the same community. Taylor v. Fishbaugh, 26 Cal.App.2d 300, 79 P.2d 174. This rule, however, should not be applied to manufacturers of articles which are reasonably certain to cause bodily injury if negligently made. The cases of Kalash v. Los Angeles Ladder Co., 1 Cal.2d 229, 34 P.2d 481, and Smith v. Peerless Glass Co., 259 N.Y. 292, 181 N.E. 576, relied upon by defendants, do not go so far as to hold that proof by the plaintiff of the custom among manufacturers is necessary.

In the case under review none of the parties offered evidence to prove custom among manufacturers. Unquestionably the burden of proof to establish negligence was upon the plaintiffs, and in my opinion the proof presented by them is sufficient to support the jury's implied finding of negligence on the part of the manufacturer. The judgment against Virtue Brothers Manufacturing Company should be affirmed.

MOORE, Presiding Justice.

McCOMB, J., concurred.