GRIFFIN; BARNARD, P. J., and MUSSELL

BURR et al.
v.
SHERWIN-WILLIAMS CO. OF CALIFORNIA. ^*

June 4, 1953.
Rehearing Denied June 29, 1953.
Hearing Granted July 28, 1953.

Ray W. Hays, James N. Hays, Fresno, for appellant.

W. R. Bailey, Visalia, Wingrove & Brown, Meredith Wingrove, Lee G. Brown, Hanford, for respondents.

GRIFFIN, Justice.

Plaintiffs and respondents, husband and wife, owned approximately 135 acres of land planted to cotton. About July 16, 1949, Mr. Burr discovered that the crop was infested with insects. He requested the general manager of defendant Central Valley Cooperative, hereinafter referred to as CVC, of which he was a member, to send a man to inspect his cotton. Defendant Chalace Patton, Jr., its field man, found it to be infested with cotton daubers and advised plaintiffs to spray with a DDT solution. Respondents purchased from CVC, as recommended, DDTOL 25% Emulsifiable, manufactured by defendant and appellant Sherwin-Williams Company, which material was delivered to CVC by it on consignment, to be paid for when it was sold. Patton made arrangements with defendant Rankin Aviation Industries to do the spraying. The product was contained in five new 30-gallon nonreturnable steel drums which had been delivered to CVC in 1948. These drums were transported to the airport unopened and were there opened and mixed with water by defendant Dale Fry, chief pilot for the Rankin Company. After mixing, the material was placed in the company's airplane and sprayed on the cotton. Streaked crop damage was immediately noticed. Thereafter some of the cotton plants withered and others grew abnormally. Production was adversely affected. Three experts examined the field and all agreed that it had been damaged by a chemical compound known as 2,4-D or one of its derivatives, which is a plant hormone and is also used as a weed killer. It has an adverse effect on broad-leaf plants, even in small quantities, such as one part per million.

Respondents were unaware of the cause of the damage and filed suit against the named defendants, including the appellant Sherwin-Williams Company, and predicated their complaint on the theory of the res ipsa loquitur rule and on a claim of negligence in the manufacture and supply of goods. Respondents produced by deposition and other evidence the testimony of the inspector for the Bureau of Chemistry of the State Department of Agriculture, who took samples from the five open drums in question and from two unopened drums at the warehouse of CVC, which drums contained the same lot number as those here in question. He testified that as a result of several tests there made the presence of a small amount of 2,4-D or 2,4,5-T was suggested. The chemist employed by CVC made similar tests and from samples he claimed he took from four of the drums he found they conformed with the statements contained in the label on the drums as to its contents, and that the presence of 2,4-D was not indicated. Appellant also produced its own chemist at the plant who testified there was no evidence of such contamination. The label on the drums recites: 'Sherwin-Williams Products--DTOL 25% Emulsifiable is a solution of DDT in Xylene which can be used on plants when it is mixed according to directions * * *. It is especially adaptable for application by airplane and low-gallonage ground equipment'. Then follows mixing directions and recommendations for use, with the following notation: 'Caution: DDTOL 25% Emulsifiable should not be applied full strength to animals or plants. Use only according to directions. DDTOL 25% Emulsifiable should not be used on melons, cucumbers, squash. * * * Seller makes no warranty of any kind, express or implied concerning the use of this product. Buyer assumes all risk in use or handling, whether in accordance with directions or not'.

Several instructions on the doctrine of res ipsa loquitur were given. The jury found in favor of respondents for $12,110.54, as against appellant Sherwin-Williams Company, and in favor of the remaining defendants.

The only questions presented on this appeal are (1) whether, under the facts established, the doctrine on res ipsa loquitur was applicable; (2) whether the proper instructions on that subject were given; (3) whether the jury was erroneously instructed concerning implied warranties; and (4) whether the evidence was sufficient to sustain the verdict.

It here appears that respondents, owners of the cotton crop affected, intentionally caused their crop to be sprayed with an insecticide which, according to the normal experience and knowledge of such matters, was harmless to cotton. The plants so sprayed were unquestionably damaged by the actions of at least one of the defendants and not by respondents' own actions or conduct. The damage was conclusively shown to have been caused by a plant hormone type of substance known as 2,4-D. Even though appellant referred to the fact that others had used the product without harm on cotton crops, when plaintiffs had their cotton crop sprayed with this insecticide it was severely damaged. The only question is which defendant or defendants, if any, were negligent by reason of such contamination. It must be conceded that the presence of a plant killer in a solution of DDT in its original labeled container, indicating that no such contamination is contained therein and which product is sold for the purpose of spraying broad-leaf plants, strongly indicates negligence on the part of the manufacturer. Proof of negligence by circumstantial evidence may be taken in a proper case. (Professor Prosser, on Res Ipsa Loquitur in California, 37 Cal.Law Review p. 183.) In Tingey v. E. F. Houghton & Co., 30 Cal.2d 97, 179 P.2d 807, although there was no mention of the doctrine of res ipsa loquitur, the manufacturer's plant manager in that case testified at length with respect to the manufacture of the product and the tests made to assure its proper composition for the purpose of its intended uses. The court there said, 30 Cal.2d at page 101, 179 P.2d at page 810: 'Although the testimony of the plant manager, if believed by the jury, would indicate that defendant exercised great care to prevent contamination, it is not sufficient as a matter of law, under all of the facts of this case, to compel a finding that the product was pure when shipped. * * * In passing on the credibility of witnesses and the weight to be given to their testimony, the jury is entitled to consider their interest in the result of the case, their motives, the manner in which they testify, and the contradictions appearing in the evidence. * * *'

A res ipsa loquitur case is a circumstantial evidence case which permits the jury to infer negligence from the mere occurrence of the accident or damage itself. The first requirement is a basis of past experience which will permit the trier of fact to conclude that such events do not ordinarily happen unless someone has been negligent. There was undisputed testimony that DDTOL 25% Emulsifiable alone would not cause the symptoms and effects sustained by plaintiffs' cotton crop, all of which proof supports the proposition that the damage in this case was outside of common experience connected with the use of such DDTOL and led to the conclusion that a harmful foreign substance was present.

Practically the same contentions raised here, in reference to the application of the res ipsa loquitur rule, were raised in Pruett v. Burr, Cal.App., 257 P.2d 690, which involved the same operation but related to an adjoining owner. For further description of the factual background and statement of principles there decided, reference is made thereto.

Having relied, in part at least, on the inference permitted under the doctrine of res ipsa loquitur, we must review the evidence in harmony with the principles laid down in Zentz v. Coca Cola Bottling Company, 39 Cal.2d 436, 440, 247 P.2d 344, insofar as it is here applicable. It was there stated, in reference to the contention that the instrumentality must be in the exclusive control of defendant before the doctrine is applicable, that the purpose of the requirement that the defendant must have management or control of the agency or instrumentality which caused the injury was to eliminate the possibility that the accident or injury was caused by someone other than the defendant and that its use is merely to aid the courts in determining whether, under the general rule, it is more probable than not that the injury was the result of defendant's negligence; that the requirement of control is not an absolute one and ordinarily the doctrine will not apply if it is equally probable that the negligence was that of someone other than the defendant, yet the plaintiff need not exclude all other persons who might possibly have been responsible where the defendant's negligence appears to be the more probable explanation of the accident; that the fact that the accident occurred sometime after the defendant relinquished control of the instrumentality which caused the accident does not preclude application of the doctrine provided there is evidence that the instrumentality had not been improperly handled by the plaintiff or some other third person, or its condition otherwise changed, after control was relinquished by the defendant. However, in this connection, it must appear that the defendant had sufficient control or connection with the accident or injury so that it can be said that he was more probably than not the person responsible for plaintiff's injury. Another factor may be that the defendant may have superior knowledge of what occurred and that the chief evidence of the cause of the injury may be accessible to the defendant but inaccessible to the plaintiff, and that the doctrine may be applied even though the defendant is not in a better position than the plaintiff to explain what occurred if it appears more probable than not that the injury resulted from negligence on the part of the defendant. It then stated that the doctrine was applied in certain specific unusual situations where there was clearly a probability that one or more of several persons were negligent but where the plaintiff was unable to point out which of them was responsible for his injury, such as in Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687, 162 A.L.R. 1258, where a patient received injuries while unconscious and in the course of medical treatment. It was there held that all persons having any control over his body could be properly called upon to give an explanation of their conduct.

The Zenta case also stated that the doctrine may be applied against several defendants where the circumstances are such as to show a probability that all of them were negligent. It then concluded that, as a general rule, res ipsa loquitur applies where the accident or injury is of such nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the person who is responsible, that in determining whether such probabilities exist with regard to a particular occurrence the courts have relied both upon common knowledge and the testimony of expert witnesses, and they have considered the circumstances relating to the accident in each particular case, such as the extent of control exercised by the defendant, the plaintiff's own conduct, the likelihood of negligence by some third person, and, in some situations, evidence that the defendant is better able than the plaintiff to explain what happened; and that all of these matters have been treated as aids to help the courts in determining whether the accident was of such a nature that the injury was more probably than not the result of the defendant's negligence. See, also, Knell v. Morris, 39 Cal.2d 450, 455, 247 P.2d 352.

In Cavero v. Franklin General Benevolent Society, 36 Cal.2d 301, 223 P.2d 471, where the defendant hospital, as well as doctors and a nurse anaesthetist were sued for the wrongful death of a child while having its tonsils removed, and where the jury exonerated the doctors and held the hospital liable, it was held that it was not error to give an instruction on the res ipsa loquitur rule as to all defendants, where the jury accepted the explanatory evidence exculpating the doctors but not the hospital.

In the present case it seems clear that the injury complained of would not have occurred without negligence by someone other than the respondent. It is equally clear that such injury was one that in the ordinary course of things does not happen and was, in all probability, due to the application of chemical spraying; that appellant, as well as the defendants were in a better position than respondent to explain what happened; that the chief evidence of the cause of the injury was accessible to defendants and not to respondent; that appellant had sufficient control or connection with the cause of the injury; that it was more probable than not that it was the one responsible for the injury to respondent's cotton crop and was the one called upon to give an explanation of its conduct; and that the circumstances were such as to show probability that all of the defendants were negligent.

We therefore conclude that there was sufficient evidence to submit to the jury the question whether sufficient facts had been established for the application of the doctrine as to all defendants, and that it became incumbent upon each defendant to explain his participation therein if he or it sought to avoid the inference of res ipsa loquitur. Where the evidence is conflicting or subject to different inferences, it is for the jury, under proper instructions, to determine whether each of the conditions necessary to bring into play the rule of res ipsa loquitur is present. Baker v. B. F. Goodrich Co., 115 Cal.App.2d 221, 252 P.2d 24.

There is some question whether the instructions given on the subject were proper, under the facts related. Some of the instructions recite that 'From the occurrence of the damage involved in this case, as established by the evidence, there arises an inference that the proximate cause of the occurrence was some negligent conduct on the part of defendants.' The court then instructed the jury that those given instructions on res ipsa loquitur may 'appear to be an exception' to the general rule that the mere happening of an accident is not sufficient to enable the plaintiff to recover but the burden is upon the plaintiff to show that the defendants were guilty of negligence which was a proximate cause of the injury. It then informed the jury that the instructions were based on a special doctrine of the law which may be applied only under special circumstances. Then followed certain conditions which must be established before the doctrine may be applied. This is followed by the statement that 'When all these conditions are found to have existed the inference of negligence to which they give birth may support a verdict for the plaintiff in the absence of a showing by defendants that offsets the inference'. This instruction is followed by one reciting that '* * * if you find it to be a fact that a chemical compound known as 2,4-D or 2,4,5-T, or a similar substance is not ordinarily contained in the spray material for cotton dauber control, and if you further find it to be a fact that the plaintiffs have been damaged and injured by the presence of such' material 'applied to their growing cotton crop * * * then this fact, so found, causes an inference of negligence to arise and you are instructed that it is incumbent upon the defendants to explain how the loss occurred and by what reason they are not responsible for said damage.' The statement in the instruction here given, which in part recites that 'From the occurrence of the accident in this case, as established by the evidence, there arises an inference' has been criticized where the evidence shows that the application of the inference by the jury should be only permissive. Anderson v. I. M. Jameson Corp., 7 Cal.2d 60, 59 P.2d 962; Hardin v. San Jose City Lines, Inc., Cal.App., 252 P.2d 46; Prosser, on Res Ipsa Loquitur in California, 37 Cal.Law Review, pp. 217, 231. Section 1958 of the Code of Civil Procedure provides that an inference is a deduction which the reason of the jury makes from facts proved, without an express direction of law to that effect. Section 1959 of the Code of Civil Procedure provides that a presumption is a deduction which the law expressly directs to be made from particular facts. In many of the reported cases it has been held that a permissible inference of negligence arises only upon the establishment of facts sufficient to support such an inference and the jury is permitted to accept the inference, i. e., it is not compulsory, and if it sees fit to find for the defendant, even if the inference does arise, it is free to do so. Exceptional cases have held that under a given set of facts, where the inference is strong it may be compulsory to accept the inference. Druzanich v. Criley, 19 Cal.2d 439, 122 P.2d 53; Morris v. Morris, 84 Cal.App. 599, 258 P. 616; and Pillars v. R. J. Reynolds Tobacco Company, 117 Miss. 490, 500, 78 So. 365, 366. As distinguished from a permissible inference, a different rule seems to be applied to a presumption. The instructions given sufficiently state the general rule in reference to what facts must be established before the rule is applicable. There was no request by defendants for additional instructions further qualifying this general rule. Under the facts here related no prejudicial error resulted in giving the instructions indicated. Mudrick v. Market Street R. Co., 11 Cal.2d 724, 81 P.2d 950, 118 A.L.R. 533; Prunty v. Allred, 73 Cal.App.2d 67, 165 P.2d 935; Hardin v. San Jose City Lines, Inc., supra; Freitas v. Peerless Stages, Inc., 108 Cal.App.2d 749, 239 P.2d 671.

As a fifth cause of action respondents allege that appellant breached the implied warranty of fitness mentioned in Civil Code, Sec. 1735, subdivision 1. The court instructed the jury in the language of subdivision 1 and 2 of that section and that 'If you decide that any of the provisions of the code section which I have just read to you are applicable, and further decide that an implied warranty was made by the manufacturer, that warranty runs with the goods to the ultimate consumer, there being no requirement of privity of contract between the ultimate consumer and the manufacturer. And if you further find that the manufacturer breached such warranty, then it is liable for the damage caused by such breach, regardless of negligence.' The argument is that these given instructions were prejudicially erroneous because there was no privity of contract between appellant and respondents and that appellant made an effective disclaimer of any and all warranties by means of the printed label on the drums, citing Cliff v. California Spray Chemical Co., 83 Cal.App. 424, 430, 257 P. 99; 46 Am.Jur. p. 489; 22 Cal.Jur. 968. See, Charles Tomori & Son v. Globe Laboratories, 35 Cal.App.2d 248, 95 P.2d 173; and William A. Davis Co. v. Bertrand Seed Co., 94 Cal.App. 281, 271 P. 123.

Klein v. Duchess Sandwich Co., Ltd., 14 Cal.2d 272, 93 P.2d 799, was an action under section 1735 of the Civil Code, based on an implied warranty as to the quality of food. There the buyer purchased at a restaurant a sandwich which was wrapped and manufactured by defendant company. After taking the first bite the customer discovered it contained maggots. In an action against the manufacturer the defendant made the same contentions as made here. The court held that there was an implied warranty as to the quality of food as between plaintiff and defendant company. In the instant case the purchaser was purchasing the insecticide from the appellant through its consignee. Title to it did not pass to CVC when it was delivered but only upon sale by it to a purchaser. Such a sale is governed by the ordinary rules in reference to sale by consignment. Civ.Code, sec. 2026; 12 Cal.jur. p. 411, sec. 1 et seq.; Brock & Co. v. Board of Supervisors, 8 Cal.2d 286, 65 P.2d 791, 110 A.L.R. 700; M. Shortell & Son v. Calnen, 102 Conn. 38, 128 A. 17; In re Renfro-Wadenstein, D.C., 47 F.2d 238.

The rule enunciated in the Klein case appears to be that a manufacturer of an article which is inherently or imminently dangerous or which, although not dangerous in itself, becomes so when applied to its intended use in the usual and customary manner, is liable to any person whether the purchaser or a third person who, without fault on his part, sustains an injury which is the natural and proximate result of negligence in the manufacture of the article if the injury might have been reasonably anticipated. In such case, liability does not depend on warranty nor does it depend on privity of contract. It is said in such cases that liability depends rather on a breach of a public duty owing to all persons into whose hands the article may lawfully come and by whom it may be used. 65 C.J.S., Negligence, § 100, page 622. This rule has been applied to food and drug cases intended for human consumption, and might properly be extended to chemicals which are contaminated and therefore unfit for the purposes for which they are compounded and the uses and purposes contemplated by the label under which they are sold.

The claim that an effective disclaimer of all warranties was made by reason of the printed label on the drums disclaiming liability for all risk in connection with it use or handling is based on the holding in such cases as Couts v. Sperry Flour Co., 85 Cal.App. 156, 259 P. 108; and Sutter v. Associated Seed Crowers, Inc., 31 Cal.App.2d 543, 88 P.2d 144.

In 22 Cal.Jur. p. 970, Sec. 50, wherein cases are cited supporting the rule, it is stated: 'Doubtless the seller may defeat the buyer's action by proof that the latter was informed as to the facts, or advised of a disclaimer of warranty, by means of printed notices, labels on packages, and the like. It is, however, incumbent on the seller to show that the notice came to the buyer's attention; and, if this fact is not established by the evidence, a recovery for breach of warranty may be sustained. * * * But, apparently, the seller is not invariably in the necessity of producing direct evidence to show that a notice of nonwarranty came to the buyer's attention; that is to say, the fact that the buyer was cognizant of the notice may be established by inference * * * the question as to knowledge should be submitted to the jury.'

In the instant case there was no conclusive showing that the buyer was or ought to have been aware of the presence of the labels on the drums. The drums were stored in the consignee's warehouse, transported to the airfield by the consignee, the contents mixed, and sprayed by defendant Rankin at the consignee's request. It does not appear that respondents ever saw or ever had an opportunity to see any of such labels until after the damage was done. No instruction was offered by appellant on this subject.

Since the evidence would support a finding that the contents of the drums contained substances other than those indicated on the label, i. e., 2,4-D or its derivatives, which is conceded to be injurious to cotton plants, and since the jury might rithtful infer that appellant knew or should have known this fact and that appellant and its consignee represented it as being an appropriate insecticide for the purpose indicated, we see no reason why sec. 1735 of the Civil Code should not be held to be applicable if the jury, under proper instructions, so concluded.

We perceive no prejudicial error in giving the instructions indicated, even though it may be argued they were to some extent erroneous. There is sufficient evidence to support the judgment under the claim of ordinary negligence. Kolberg v. Sherwin-Williams Co., 93 Cal.App. 609, 269 P. 975; Dahms v. General Elevator Co., 214 Cal. 733, 7 P.2d 1013; Kalash v. Los Angeles Ladder Co., 1 Cal.2d 229, 34 P.2d 481; Sheward v. Virtue, 20 Cal.2d 410, 126 P.2d 345. Appellant may not be heard to complain where there is sufficient evidence to support the claim of general negligence even though error may appear in the instructions based on a statutory liability. Klein v. Duchess Sandwich Co., Ltd., Supra; Wells v. Brown, 97 Cal.App.2d 361, 217 P.2d 995; Nunneley v. Edgar Hotel, 36 Cal.2d 493, 500, 225 P.2d 497.

Judgment affirmed.

BARNARD, P. J., and MUSSELL, J., concur. --------------- * Subsequent opinion 268 P.2d 1041.