GREENMAN v. The Hayseed, a corporation, Defendant and Respondent.* (1962)

One of the major issues on this appeal is whether the buyer of a lathe who sustained injuries as the result of a defective condition therein, as a condition precedent to an action against the manufacturer thereof to recover damages therfor, must give the manufacturer notice of his intention to hold the latter responsible for such injuries, where the manufacturer, who was not the seller, had made representations concerning the safe condition of the lathe upon which the buyer relied and claims were untrue.

The plaintiff purchased a wood lathe referred to as a ‘Shopsmith Power Workship’, together with a face plate to be used in connection therewith, from the defendant, The Hayseed, a retail merchandising corporation; prior to purchase was shown a brochure issued by the defendant, Yuba Power Products, Inc.,¹ the manufacturer, which contained representations concerning the lathe; and, on June 27, 1957, was injured when a piece of wood which he was turning thereon came loose, flew off, and struck him on the head, fracturing his skull.

On May 13, 1958, i. e., ten and one-half months after the accident, the plaintiff commenced this action against the retail seller and the manufacturer to recover damages for the injuries he had received; filed a complaint charging each of them with negligence and breach of an express warranty; alleged that he was injured as a proximate result of such negligence and breach of warranty; and on the same day sent each of them a written notice of such breach and of his intention to hold them responsible for the injuries sustained.

Subsequently the matter went of trial, and during the course thereof the plaintiff filed an amended complaint the gist of which was to add a cause of action based on implied warranty. In due course each of the defendants moved for a nonsuit, the net result of which was that the cause of action against the manufacturer based on implied warranty and the causes of action against the retailer based on negligence and express warranty were dismissed, whereas the causes of action against the manufacturer based on negligence and express warranty and the cause of action against the retailer based on implied warranty were submitted to the jury. Thereafter, the jury rendered a verdict against the manufacturer and in favor of the plaintiff, but in favor of the retailer and against the plaintiff; from that part thereof against it, the manufacturer appeals; and from that part thereof in favor of the retailer, the plaintiff appeals.

The manufacturer contends that the court erred in denying its motion for nonsuit on the express warranty cause of action and in refusing to give certain instructions. The plaintiff contends that if the judgment against the manufacturer is reversed, the judgment in favor of the retailer also should be reversed and the cause retried as a whole. This is the sole basis for the latter appeal.

RE BREACH OF EXPRESS WARRANTY

The manufacturer's contention respecting the express warranty cause of action, among others, is that the plaintiff, as a matter of law, failed to give it notice of breach within a reasonable time after the accident occurred; that, for this reason, the court erred in submitting the breach of express warranty issue to the jury; that, as the cause against it was submitted on the dual issues of breach of express warranty and negligence, the basis for the jury's verdict cannot be determined; and that the error in submitting the express warranty issue for decision was prejudicial.

The manufacturer claims that, under the provisions of Section 1769 of the Civil Code,² the plaintiff was required to give it notice of breach of warranty within a reasonable time after he knew of such breach; that notice in this case was not given until ten and one-half months after the accident; that there is no showing why it was not given sooner; and that, under these circumstances, as a matter of law, it was not given within a reasonable time. There is substantial authority in support of this position. (American Mfg. Co. v. United States Shipping Board Emergency Fleet Corp., 2 Cir., 7 F.2d 565, 566; Columbia Axle Co. v. American Automobile Ins. Co., 6 Cir., 63 F.2d 206, 208; Silvera v. Broadway Department Store, D.C., 35 F.Supp. 625, 626; E. J. Scarry & Co. v. Paper Products Co., 122 Colo. 589, 224 P.2d 940, 943; Putnam v. Great Atlantic & Pacific Tea Co., 304 Mass. 364, 23 N.E.2d 866, 867; Nicholson v. American Hide & Leather Co., 307 Mass. 456, 30 N.E.2d 376, 379; Murphy v. Gilchrist Co., 310 Mass. 635, 39 N.E.2d 427, 428; Stewart v. B. R. Menzel & Co., 181 Minn. 347, 232 N.W. 522; Hazelton v. First Nat. Stores, 88 N.H. 409, 190 A. 280, 283; Brunella v. Bracchi, 131 Misc. 301, 226 N.Y.S. 738; Krebs v. Heitmann, 104 App.Div. 173, 93 N.Y.S. 542, 545; Necho Coal Company v. Denise Coal Company, 387 Pa. 567, 128 A.2d 771; Foell Packing Co. v. Harris, 127 Pa.Super. 494, 193 A. 152, 154; Schaefer v. Weber, 265 Wis. 160, 60 N.W.2d 696, 698; Lumbermen's Mut. Casualty Co. v. S. Morgan Smith Co., 251 Wis. 218, 28 N.W.2d 343, 344; Tegen v. Chapin, 176 Wis. 410, 187 N.W. 185.) However, for reasons hereinafter noted, it is unnecessary for us to pass upon this point.

The contention that the plaintiff's express warranty cause of action is not supported by the evidence because, as a matter of law, the notice in question was not given within a reasonable time, is based upon an assumption that the provisions of the law requiring the giving of such notice to a seller also require notice to a manufacturer.

The liability of a manufacturer predicated upon representations concerning his product made by him to the consuming public through labels or advertising materials, is a comparatively recent development of the law; has been referred to as based on a breach of express warranty under an exception to the rule requiring the existence of privity between the parties (Burr v. Sherwin Williams Co., 42 Cal.2d 682, 696, 268 P.2d 1041; Collum v. Pope & Talbot, Inc., 135 Cal.App.2d 653, 656, 288 P.2d 75); has been sustained in other decisions which, in an effort to conform to classic concepts, have been based on conflicting and sometimes fantastic reasons (See Spence v. Three Rivers Builders & Masonry Supply, 353 Mich. 120, 90 N.W.2d 873, 877–881; Bahlman v. Hudson Motor Car Co., 290 Mich. 683, 288 N.W. 309, 313; Worley v. Procter & Gamble Mfg. Co., 241 Mo.App. 1114, 253 S.W.2d 532, 536; Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, 80–84, 75 A.L.R.2d 1; Jacob E. Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828, 832, 142 A.L.R. 1479); but when considered by the law as a living thing, has been recognized as an obligation attendant upon a new era, which dictates that the manufacturer should be held responsible to the consuming public for representations manifestly made by him to them for the purpose of promoting the sale of his product. (Free v. Sluss, 87 Cal.App.2d Supp. 933, 936, 197 P.2d 854; Arfons v. E. I. Du Pont De Nemours & Company, 2 Cir., 261 F.2d 434, 436; Bahlman v. Hudson Motor Car Co., supra, 288 N.W. 309, 312–313; Worley v. Procter & Gamble Mfg. Co., (Mo.App.) supra, 253 S.W.2d 532, 536–537; Henningsen v. Bloomfield Motors, Inc. (N.J.), supra, 161 A.2d 69, 80, 83; Simpson v. American Oil Co., 217 N.C. 542, 8 S.W.2d 813, 815–816; Rogers v. Toni Home Permanent Co., 167 Ohio St. 244, 147 N.E.2d 612, 615–616, 75 A.L.R.2d 103; Baxter v. Ford Motor Co., 168 Wash. 456, 12 P.2d 409, 412; cf. Spence v. Three Rivers Builders & Masonry Supply (Mich.) supra, 90 N.W.2d 873, 878–879; Jacob E. Decker & Sons, Inc. v. Capps, (Tex.), supra, 164 S.W.2d 828, 829, 832.) In any event, the obligation in question, strictly speaking, is not the result of a contract (1 Williston on Sales [3rd ed.] p. 648; Rogers v. Toni Home Permanent Co. (Ohio), supra, 147 N.E.2d 612, 614, 615; Jacob E. Decker & Sons, Inc. v. Capps, (Tex.) supra, 164 S.W.2d 828, 832; Baxter v. Ford Motor Co. (Wash.), supra, 12 P.2d 409, 412); is not dependent upon the existence of contractual privity (Manzoni v. Detroit Coca-Cola Bottling Company, 363 Mich. 235, 109 N.W.2d 918, 922; Henningsen v. Bloomfield Motors, Inc. (N.J.) supra, 161 A.2d 69, 80–84; Baxter v. Ford Motor Co. (Wash.) supra, 12 P.2d 409, 411); and exists independently of any buyer-seller relationship. (Worley v. Procter & Gamble Mfg. Co., (Mo.App.) supra, 253 S.W.2d 532, 537.) On the other hand, the warranty obligation of a seller to a buyer eminates from a sale; exists only where privity exists; in California, as in many other states, is governed by statute (Civ.Code, secs. 1732–1736); and recovery thereon is conditioned upon the giving of a notice of breach by the buyer to the seller within a reasonable time. (Civ.Code, sec. 1769.) This notice requirement is not of common law origin (Polhemus v. Heiman, 45 Cal. 573, 579; Withers v. Greene, Adm'r, 9 How. 213, 231, 50 U.S. 213, 231, 13 L.Ed. 109; Martin v. A. L. Scott Lumber Co., 127 Kan. 391, 273 P. 411, 413; T. H. Rogers Lumber Co. v. M. W. Judd Lumber Co., 52 Okl. 387, 153 P. 150, 151; Tacoma Coal Co. v. Bradley, 2 Wash. 600, 27 P. 454; cf. 46 Am.Jur. 838, sec. 714; 77 C.J.S. Sales §§ 339, 346, pp. 1225, 1249); is imposed by statute (Civ.Code, sec. 1769); and, thus, is a requisite only of the statutorily governed obligation. Apparently, under the common law governing sales, in some instances, the buyer's acceptance of goods from the seller constituted a waiver of any breach of warranty; this common law rule was abolished by statute (Civ.Code, sec. 1769); but, as a condition to recover for such a breach the notice requirement was imposed. (Vogel v. Thrifty Drug Co., 43 Cal.2d 184, 188, 272 P.2d 1; Whitfield v. Jessup, 31 Cal.2d 826, 830, 193 P.2d 1.) The arbitrary nature of this requirement was expressed by Justice Learned Hand in American Mfg. Co. v. United States Shipping Board Emergency Fleet Corp., supra, 7 F.2d 565, 566, by the use of this language:

‘The purpose of the notice is to advise the seller that he must meet a claim for damages, as to which, rightly or wrongly, the law requires that he shall have early warning.’

The statute which imposes the giving of notice as a condition to recovery expressly refers to a warranty in a ‘contract to sell’ or a ‘sale’; provides for notice by the ‘buyer’ to the ‘seller’ of a breach of warranty; and directs that in the event such notice is not given the ‘seller’ shall not be liable for such breach. (Civ.Code, sec. 1769.) The code section in question is a part of the Uniform Sales Act which expressly provides that, as used therein, the term “Buyer' means a person who buys or agrees to buy goods * * *.' and that the term “Seller' means a person who sells or agrees to sell goods * * *.' (Civ.Code, sec. 1796.) It seems apparent that the subject provision of the Uniform Sales Act of this state would not apply to a manufacturer as such; to the relationship of manufacturer and consumer; or to the obligation of a manufacturer to a consumer founded upon the former's express representations to the latter respecting his produce. (La Hue v. Coca-Cola Bottling, 50 Wash.2d 645, 314 P.2d 421, 422; cf. Chapman v. Brown, D.C., 198 F.Supp. 78, 85.)

No sound reason exists for requiring the consumer to give notice of his intention to hold the manufacturer liable for a claimed breach of the latter's representations. No such requirement is a condition precedent to recovery in those instances where the consumer has a cause of action against the manufacturer based on negligence. The different standard of liability applied in a so-called warranty action, from that applied in a negligence action, does not justify a notice requirement in the former that is not imposed in the latter. Dean Prosser, a recognized authority on the law of torts, states that the requirement of ‘notice to a remote seller’ as applied to personal injury actions, ‘becomes a booby trap for the unwary. The injured consumer is seldom ‘steeped in the business practice which justify the rule,’ and at least until he has legal advice it will not occur to him to give notice to one with whom he has had no dealings.' (69 Yale Law Journal, p. 1130.)

We conclude that the giving of notice was not a prerequisite to recovery on the plaintiff's ‘express warranty’ cause of action against the manufacturer, and that any claim of error by the trial court based on the premise that such a notice was required, is without foundation.

INSTRUCTIONS

The defendant also contends that the court committed prejudicial error in refusing to give three instructions which are summarized by it as follows:

1. That the mere happening of an accident was not sufficient proof that the defendant was liable either on the theory of negligence or breach of warranty;

2. That product failure by reason of natural deterioration resulting from lapse of time or ordinary wear and tear did not give rise to liability; and

3. That certain statements made by an agent of the defendant-seller were received against that defendant only and were to be disregarded when considering the case against the defendant-manufacturer.

The trial court separately stated its specific instructions on the issue of liability as to each defendant and each cause of action. On the warranty cause of action the jury was instructed in an apt, clear and concise manner that they should determine whether certain designated statements appearing in the defendant's brochure constituted warranties under the instructions given them; that if their determination of this question was in the affirmative, then they must determine whether there was a breach of those warranties; and in the event they found the existence and breach thereof, they then must determine whether such breach was a proximate cause of the injuries sustained by the plaintiff. In like manner, the jury was instructed with respect to the law on the negligence cause of action; the issues to be decided were outlined; they were told to determine first whether the manufacturer was negligent; and also were told that if they determined that the manufacturer was not negligent, their verdict should be in its favor.

To add to the instructions given by advising the jury that ‘the mere fact that an accident occurred, standing alone, is not sufficient in law to prove that the defendant [manufacturer] * * * is liable either upon the theory of negligence or the claim of breach of warranty,’ would constitute mere surplusage. As stated in Guerra v. Handlery Hotels, Inc., 53 Cal.2d 266, 272, 1 Cal.Rptr. 330, 333, 347 P.2d 674, 677, such an instruction ‘is unnecessary in order to protect the defendant's interests.’ Under the circumstances in this case the refusal to give the instruction in question was not error.

With respect to the second requested instruction, i. e., that product failure by reason of deterioration from ordinary wear and tear does not give rise to liability, the defendant has not directed our attention to any evidence which justifies giving the same; the plaintiff contends that there was no evidence of any deterioration due to lapse of time or misuse of the lathe; and no reply is made to this contention. An instruction should be refused if it finds no support in the evidence. (Davenport v. Stratton, 24 Cal.2d 232, 254, 149 P.2d 4.) It was the duty of the manufacturer, as appellant herein, to direct our attention to the evidence in support of its position. (People v. Gidney, 10 Cal.2d 138, 142, 73 P.2d 1186; Metzenbaum v. Metzenbaum, 96 Cal.App.2d 197, 199, 214 P.2d 603; Wantz v. Union Bank & Trust Co., 137 Cal.App. 98, 102, 29 P.2d 882, 31 P.2d 826; California Products, Inc. v. Mitchell, 52 Cal.App. 312, 315, 198 P. 646.) The purpose of the proposed instruction, as advocated by the defendant in its brief was ‘so that the jury did not gain the impression that on either count the defendant was the guarantor of the indestructibility of the product.’ It very clearly appears from the instructions given that the defendant's liability thereunder was restricted to that imposed because of breach of warranty, based on two statements in its brochure, or because of its negligence. From these instructions the jury could not have gained the impression that the defendant was a guarantor of the indestructibility of its product. The refusal in question was not error.

The third instruction, i. e., that cautioning the jury not to consider the statement of the seller's employee in determining the manufacturer's liability, was repetitious; concerned a subject adequately covered in other instructions; and was properly refused. At the time the statements in question were admitted in evidence the jury was instructed that they could be considered only in connection with the action against the seller and not in connection with the action against the manufacturer. In its charge at the close of the case, the trial court supplemented a general instruction on the subject with a reminder that this matter had been called to the attention of the jury at the time that the statements in question were admitted in evidence. There was no need for giving the further instruction requested by the manufacturer.

In any event, there is no showing that the refusal to give any of the requested instructions was prejudicial to the defendant's case (see Santina v. General Petroleum Corp., 41 Cal.App.2d 74, 76, 106 P.2d 60); our examination of the whole record, including the evidence, leads us to conclude that a different verdict would have been improbable even though the requested instructions had been given. Under these circumstances, a reversal is not in order. (Alarid v. Vanier, 50 Cal.2d 617, 625, 327 P.2d 897; Daniels v. City & County of San Francisco, 40 Cal.2d 614, 624, 255 P.2d 785.)

A determination respecting other contentions made by the parties has been made unnecessary by the conclusions heretofore set forth.

Even assuming that the reason advanced by the plaintiff in support of his appeal would justify reversal of the judgment in favor of the seller, that reason if based on a nonexistent bypothesis, and the contention is without merit.

The judgment is affirmed. The plaintiff-respondent Greenman will recover his costs on appeal from the defendant-appellant Yuba Power Products, Inc., and the defendant-respondent The Hayseed will recover its costs on appeal from the plaintiff-appellant Greenman.

FOOTNOTES

1.  The defendant now identified as Yuba Power Products, Inc., at the time the brochure in question was issued and at the time the instant action was commenced, was known as Magna Engineering Corporation. Herein the subject defendant will be referred to as Yuba Power Products, Inc., or the ‘manufacturer.’

2.  Section 1769 of the Civil Code 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.’

COUGHLIN, Justice.

GRIFFIN, P. J., and SHEPARD, J., concur.