Escola v. Coca Cola Bottling Co.

TRAYNOR, J.

I concur in the judgment, but I believe the manufacturer’s negligence should no longer be singled out as the basis of a plaintiff’s right to recover in cases like the present one. In my opinion it should now be recognized that a manufacturer incurs an absolute liability when an article that he has placed on the market, knowing that it is to be used, without' inspection, proves to have a defect that causes inju^ to human beings. McPherson v. Buick Motor Co., 217 382 [111 N.E. 1050, Ann.Cas. 1916C 440, L.R.A. 1916F established the principle, recognized by this court, t spective of privity of contract, the manufacturer *462 sible for an injury caused by such an article to any person who comes in lawful contact with it. (Sheward v. Virtue, 20 Cal.2d 410 [126 P.2d 345]; Kalash v. Los Angeles Ladder Co., 1 Cal.2d 229 [34 P.2d 481].) In these cases the source of the manufacturer’s liability was his negligence in the manufacturing process or in the inspection of component parts supplied by others. Even if there is no negligence, however, public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. It is evident that the manufacturer can anticipate some hazards not. Those who suffer injury from defective products are unprepared to meet its consequences. The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business. fTis to the public interest to discourage the marketing of products having defects that are a menace to the public. If such products nevertheless find their way into the market it is to the public interest to place the responsibility for whatever injury they may cause upon the manufacturer, who, even if he is not negligent in the manufacture of the product, is responsible for its reaching the market. However intermittently such injuries may occur and however haphazardly they may strike, the risk of their occurrence is a constant risk and a general one. Against such a risk there should be general and constant protection and the manufacturer is best situated to afford such protection.

The injury from a defective product does not become a matter of indifference because the defect arises from causes other than the negligence of the manufacturer, such as negligence of a submanufacturer of a component part whose defects could not be revealed by inspection (see Sheward v. Virtue, 20 Cal.2d 410 [126 P.2d 345]; O’Rourke v. Bay & Night Water Heater Co., Ltd., 31 Cal.App.2d 364 [88 P.2d 191]; Smith v. Peerless Glass Co., 259 N.Y. 292 [181 N.E. 576]), or own causes that even by the device of res ipsa loquitur be classified as negligence of the manufacturer. The of negligence may be dispelled by an affirmative proper care. If the evidence against the fact in *463 f erred is ‘ clear, positive, uncontradicted, and of such a nature that it cannot rationally be disbelieved, the court must instruct the jury that the nonexistence of the fact has bee established as a matter of law.” (Blank v. Coffin, 20 Cal.2 457, 461 [126 P.2d 868].) An injured person, however, not ordinarily in a position to refute such evidence or iden the cause of the defect, for he can hardly be familiar with manufacturing process as the manufacturer himself is. leaving it to the jury to decide whether the inference has dispelled, regardless of the evidence against it, the neglig rule approaches the rule of strict liability. It is needle circuitous to make negligence the basis of recovery and inr what is in reality liability without negligence. If publi icy demands that a manufacturer of goods be responsibl their quality regardless of negligence there is no reason to fix that responsibility openly.

In the case of foodstuffs, the public policy of the state is formulated in a criminal statute. Section 26510 of the Health and Safety Code prohibits the manufacturing, preparing, compounding, packing, selling, offering for sale, or keeping for sale, or advertising within the state, of any adulterated food. Section 26470 declares that food is adulterated when “it has been produced, prepared, packed, or held under insanitary conditions whereby it may have been rendered diseased, unwholesome or injurious to health.” The statute imposes criminal liability not only if the food is adulterated, but if its container, which may be a bottle (§ 26451), has any deleterious substance (§26470 (6)), or renders the product injurious to health. (§26470 (4)). The criminal liability under the statute attaches without proof of fault, so thaf the manufacturer is under the duty of ascertaining whether an article manufactured by him is safe. (People v. Schwartz, 28 Cal.App.2d Supp. 775 [70 P.2d 1017].) Statutes of this kind result in a strict liability of the manufacturer in tort to the member of the public injured. (See eases cited in Prosser, Torts, p. 693, note 69.)

The statute may well be applicable to a bottle whose defects cause it to explode. In any event it is significant that the statute imposes criminal liability without fault, reflecting the public policy of protecting the public from dangerous products placed on the market, irrespective of negligence in their manufacture. While the Legislature imposes criminal lia *464 bility only with regard to food products and their containers, there are many other sources of danger. It is to the public interest to prevent injury to the public from any defective ¡foods by. the imposition of civil liability generally.

The retailer, even though not equipped to test a product, ¡under an absolute liability to his customer, for the implied ¡rranties of fitness for proposed use and merchantable qualinclude a warranty of safety of the product. (Goetten Owl Drug Co., 6 Cal.2d 683 [59 P.2d 142] ; Mix v. Ingersoll ndy Co., 6 Cal.2d 674 [59 P.2d 144] ; Gindraux v. Maurice Mercantile Co., 4 Cal.2d 206 [47 P.2d 708]; Jensen v. Berris, Cal.App.2d 537 [88 P.2d 220]; Byan v. Progressive GroStores, 255 N.Y. 388 [175 N.E. 105; 74 A.L.R. 339] ; s v. Krum, 222 N.Y. 410 [118 N.E. 853, L.R.A. 1918F 2].) This warranty is not necessarily a contractual one Chamberlain Co. v. Allis-Chalmers etc. Co., 51 Cal.App.2d 520, 524 [125 P.2d 113]; see 1 Williston on Sales, 2d ed., §§ 197-201), for public policy requires that the buyer be insured at the seller’s expense against injury. (Race v. Krum, supra; Ryan v. Progressive Grocery Stores, supra; Chapman v. Roggenhamp, 182 Ill.App. 117, 121; Ward v. Great Atlantic & Pacific Tea Co., 231 Mass. 90, 94 [120 N.E. 225, 5 A.L.R. 242]; see Prosser, The Implied Warranty of Merchantable Quality, 27 Minn.L.Rev. 117, 124; Brown, The Liability of Retail Dealers For Defective Food Products, 23 Minn.L.Rev. 585.) The courts recognize, however, that the retailer cannot bear the burden of this warranty, and allow him to recoup any losses by means of the warranty of safety attending the wholesaler’s or manufacturer’s sale to him. (Ward v. Great Atlantic & Pacific Tea Co., supra; see Waite, Retail Responsibility and Judicial Law Making, 34 Mich.L.Rev. 494, 509.) Such a procedure, however, is needlessly circuitous and engenders wasteful litigation. Much would be gained if the injured person could base his action directly on the manufacturer’s warranty.

The liability of the manufacturer to an immediate buyer injured by a defective product follows without proof of negligence from the implied warranty of safety attending the sale. Ordinarily, however, the immediate buyer is a dealer who does not intend to use the product himself, and if the warranty of safety is to serve the purpose of protecting health and safety it must give rights to others than the dealer. In the words *465 of Judge Cardozo in the McPherson ease: “The dealer was indeed the one person of whom it might be said with some approach to certainty that by him the car would not be used-Vet, the defendant would have us say that he was the one pe son whom it was under a legal duty to protect. The law d not lead us to so inconsequent a solution.” While the fendant’s negligence in the McPherson case made it unn sary for the court to base liability on warranty, Judge dozo’s reasoning recognized the injured person as the party in interest and effectively disposed of the theory the liability of the manufacturer incurred by his warr should apply only to the immediate purchaser. It thus p the way for a standard of liability that would make the n faeturer guarantee the safety of his product even when is no negligence.

This court and many others have extended protection cording to such a standard to consumers of food pr taking the view that the right of a consumer injured wholesome food does not depend “upon the intricacies law of sales” and that the warranty of the manufactu. the consumer in absence of privity of contract rests on p policy. (Klein v. Duchess Sandwich Co., Ltd., 14 Cal.2d 282 [93 P.2d 799]; Ketterer v. Armour & Co., 200 F. 321, 322, 323 [160 C.C.A. 111, L.R.A. 1918D 798]; Decker & Sons v. Capps, 139 Tex. 609 [164 S.W.2d 828, 142 A.L.R. 1479]; see Perkins, Unwholesome Food As A Source of Liability, 5 Iowa L.Bull. 6, 86.) Dangers to life and health inhere in other consumers’ goods that are defective and there is no reason to differentiate them from the dangers of defective food products. (See Bohlen, Studies in Torts, Basis of Affirmative Obligations, American Cases Upon The Liability of Manufacturers and Vendors of Personal Property, 109, 135; Llewellyn, On Warranty of Quality and Society, 36 Col.L.Rev. 699, 704, note 14; Prosser, Torts, p. 692.)

In the food products eases the courts have resorted to various fictions to rationalize the extension of the manufacturer’s warranty to the consumer: that a warranty runs with the chattel; that the cause of action of the dealer is assigned to the consumer; that the consumer is a third party beneficiary of the manufacturer’s contract with the dealer. They have also held the manufacturer liable on a mere fiction of negli *466 gence: “Practically he must know it [the product] is fit, or bear the consequences if it proves destructive.” (Parks v. C. C. Yost Pie Co., 93 Kan. 334 [144 P. 202, L.R.A. 1915C 179]; see Jeanblane, Manufacturer’s Liability to Persons Other Than Their Immediate Vendees, 24 Va.L.Rev. 134.) ich fictions are not necessary to fix the manufacturer’s lia'.ity under a warranty if the warranty is severed from the itract of sale between the dealer and the consumer and ■ed on the law of torts (Decker & Sons v. Capps, supra; osser, Torts, p. 689) as a strict liability. (See Green v. General Petroleum Corp., 205 Cal. 328 [270 P. 952, 60 A.L.R. 5]; McGrath v. Basich Bros. Const. Co., 7 Cal.App.2d 573 P.2d 981]; Prosser, Nuisance Without Fault, 20 Tex.L. ., 399, 403; Feezer, Capacity To Bear The Loss As A Facial The Decision Of Certain Types of Tort Gases, 78 U. of .Rev. 805, 79 U. of Pa.L.Rev. 742; Carpenter, The Doc-e of Green v. General Petroleum Corp., 5 So.Cal.L.Rev. 1271 j Pound, The End of Law As Developed In Legal jS And Doctrines, 27 Harv.L.Rev. 195, 233.)' Warranties ¡lot necessarily rights arising under a contract. An action warranty “was, in its origin, a pure action of tort,” and Jy late in the historical development of warranties was an -Action in assumpsit allowed. (Ames, The History of Assumpsit, 2 Harv.L.Rev. 1, 8; 4 Williston on Contracts (1936) § 970.) “And it is still generally possible where a distinction of procedure is observed between actions of tort and of contract to frame the declaration for breach of warranty in tort.” (Williston, loe. cit.; see Prosser, Warranty On Merchantable Quality, 27 Minn.L.Rev. 117, 118.) On the basis of the tort character of an action on a warranty, recovery has been allowed.for wrongful death as it could not be in an action for breach of contract. (Greco v. S. S. Kresge Co., 277 N.Y. 26 [12 N.E.2d 577, 115 A.L.R. 1020]; see Schlick v. New York Dugan Bros., 175 Mise. 182 [22 N.Y.S.2d 238] ; Prosser, op. cit., p. 119.) As the court said in Greco v. S. S. Kresge Co., supra, “Though the action may be brought solely for the breach of the implied warranty, the breach is a wrongful act, a default, and, in its essential nature, a tort.” Even a seller’s express warranty can arise from a noncontractual affirmation inducing a person to purchase the goods. (Chamberlain Co. v. Allis-Chalmers etc. Co., 51 Cal.App.2d 520 [125 P.2d 113].) “As an actual agreement to contract is not essential, the obli *467 gation of a seller in such a ease is one imposed by law as distinguished from one voluntarily assumed. It may be called an obligation either on a quasi-contract or quasi-tort, because remedies appropriate to contract and also to tort are applicable.” (1 Williston on Sales, 2d ed. §197; see Ballantine, Classification of Obligations, 15 Ill.L.Rev. 310, 325.)

As handicrafts have been replaced by mass production with its great markets and transportation facilities, the close relationship between the producer and consumer of a product has been altered. Manufacturing processes, frequently valuable j secrets, are ordinarily either inaccessible to or beyond the ken of the general public. The consumer no longer has means or skill enough to investigate for himself the soundness of a product, even when it is not contained in a sealed package, and his / erstwhile vigilance has been lulled by the steady efforts off manufacturers to build up confidence by advertising and marketing devices such as trade-marks. (See Thomas v. Winchester, 6 N.Y. 397 [57 Am.Dec. 455]; Baxter v. Ford Motor Co., 168 Wash; 456 [12 P.2d 409, 15 P.2d 1118, 88 A.L.R. 521] ; Crist v. Art Metal Works, 230 App.Div. 114 [243 N.Y.S. 496], affirmed 255 N.Y. 624 [175 N.E. 341]; see also Handler, False and Misleading Advertising, 39 Yale L.J. 22; Rogers, Good Will, Trade-Marks and Unfair Trading (1914) eh. VI, A Study of The Consumer, p. 65 et seq.; Williston, Liability For Honest Misrepresentations As Deceit, Negligence Or Warranty, 42 Harv.L.Rev. 733; 18 Cornell L.Q. 445.) Consumers, no longer approach products warily but accept them on faith,! relying on the reputation of the manufacturer or the trade mark. (See Max Factor & Co. v. Kunsman, 5 Cal.2d 446, 463 [55 P.2d 177]; Old Dearborn etc. Co. v. Seagram-Distillers Corp., 299 U.S, 183 [57 S.Ct. 139, 81 L.Ed. 109, 106 A.L.R. 1476]; Schechter, The Rational Basis of Trade Mark Protection, 40 Harv.L.Rev. 813, 818.) Manufacturers have sought to justify that faith by increasingly high standards of inspection and a readiness to make good on defective products by way of replacements and refunds. (See Bogert and Pink, Business Practices Regarding Warranties In The Sale Of Goods, 25 Ill.L.Rev. 400.) The manufacturer’s obligation to the consumer must keep pace with the changing relationship between them; it cannot be escaped because the marketing of a product has become so complicated as to require one or more *468 intermediaries. Certainly there is greater reason to impose liability on the manufacturer than on the retailer who is but a conduit of a product that he is not himself able to test. (See Soule, Consumer Protection, 4 Encyclopedia of The Social Sciences, 282; Feezer, Manufacturer’s Liability For Injuries Caused By His Products: Defective Automobiles, 37 Mich.L. Rev. 1; Llewellyn, Cases And Materials on Sales, 340 et seq.)

The manufacturer’s liability should, of course, be defined in terms of the safety of the product in normal and proper use, and should not extend to injuries that cannot be traced to the product as it reached the market.

Appellant’s petition for a rehearing was denied August 3, 1944. Edmonds, J., voted for a rehearing.