27 Express Warranty

Baxter v. Ford Motor Co., Supreme Court of Washington (1932)
(168 Wash. 456)

During the month of May, 1930, plaintiff purchased a model A Ford town sedan from defendant St. John Motors, a Ford dealer, who had acquired the automobile in question by purchase from defendant Ford Motor Company. Plaintiff claims that representations were made to him by both defendants that the windshield of the automobile was made of nonshatterable glass which would not break, fly, or shatter. October 12, 1930, while plaintiff was driving the automobile through Snoqualmie pass, a pebble from a passing car struck the windshield of the car in question, causing small pieces of glass to fly into plaintiff’s left eye, resulting in the loss thereof. Plaintiff brought this action for damages for the loss of his left eye and for injuries to the sight of his right eye. The case came on for trial, and, at the conclusion of plaintiff’s testimony, the court took the case from the jury and entered judgment for both defendants. From that judgment, plaintiff appeals. [***]

The principal question in this case is whether the trial court erred in refusing to admit in evidence, as against respondent Ford Motor Company, the catalogues and printed matter furnished by that respondent to respondent St. John Motors to be distributed for sales assistance. Contained in such printed matter were statements which appellant maintains constituted representations or warranties with reference to the nature of the glass used in the windshield of the car purchased by appellant. A typical statement, as it appears in appellant’s exhibit for identification No. 1, is here set forth:

“Triplex Shatter-Proof Glass Windshield. All of the new Ford cars have a Triplex shatter-proof glass windshield—so made that it will not fly or shatter under the hardest impact. This is an important safety factor because it eliminates the dangers of flying glass—the cause of most of the injuries in automobile accidents. In these days of crowded, heavy traffic, the use of this Triplex glass is an absolute necessity. Its extra margin of safety is something that every motorist should look for in the purchase of a car—especially where there are women and children.”

Respondent Ford Motor Company contends that there can be no implied or express warranty without privity of contract, and warranties as to personal property do not attach themselves to, and run with, the article sold.

[The court here referred at length to Mazetti v. Armour & Co., 75 Wash. 622 (1913)]

In the case at bar the automobile was represented by the manufacturer as having a windshield of nonshatterable glass “so made that it will not fly or shatter under the hardest impact.” An ordinary person would be unable to discover by the usual and customary examination of the automobile whether glass which would not fly or shatter was used in the windshield. In that respect the purchaser was in a position similar to that of the consumer of a wrongly labeled drug, who has bought the same from a retailer, and who has relied upon the manufacturer’s representation that the label correctly set forth the contents of the container. For many years it has been held that, under such circumstances, the manufacturer is liable to the consumer, even though the consumer purchased from a third person the commodity causing the damage. Thomas v. Winchester, 6 N.Y. 397. The rule in such cases does not rest upon contractual obligations, but rather on the principle that the original act of delivering an article is wrong, when, because of the lack of those qualities which the manufacturer represented it as having, the absence of which could not be readily detected by the consumer, the article is not safe for the purposes for which the consumer would ordinarily use it.

The vital principle present in the case of Mazetti v. Armour & Co., supra, confronts us in the case at bar. In the case cited the court recognized the right of a purchaser to a remedy against the manufacturer because of damages suffered by reason of a failure of goods to comply with the manufacturer’s representations as to the existence of qualities which they did not in fact possess, when the absence of such qualities was not readily discoverable, even though there was no privity of contract between the purchaser and the manufacturer.

Since the rule of caveat emptor was first formulated, vast changes have taken place in the economic structures of the English speaking peoples. Methods of doing business have undergone a great transition. Radio, billboards, and the products of the printing press have become the means of creating a large part of the demand that causes goods to depart from factories to the ultimate consumer. It would be unjust to recognize a rule that would permit manufacturers of goods to create a demand for their products by representing that they possess qualities which they, in fact, do not possess, and then, because there is no privity of contract existing between the consumer and the manufacturer, deny the consumer the right to recover if damages result from the absence of those qualities, when such absence is not readily noticeable. “An exception to a rule will be declared by courts when the case is not an isolated instance, but general in its character, and the existing rule does not square with justice. Under such circumstances a court will, if free from the restraint of some statute, declare a rule that will meet the full intendment of the law.” Mazetti v. Armour & Co., supra.

We hold that the catalogues and printed matter furnished by respondent [***] Ford Motor Company for distribution and assistance in sales were improperly excluded from evidence, because they set forth representations by the manufacturer that the windshield of the car which appellant bought contained Triplex nonshatterable glass which would not fly or shatter. The nature of nonshatterable glass is such that the falsity of the representations with reference to the glass would not be readily detected by a person of ordinary experience and reasonable prudence. Appellant, under the circumstances shown in this case, had the right to rely upon the representations made by respondent Ford Motor Company relative to qualities possessed by its products, even though there was no privity of contract between appellant and respondent Ford Motor Company. [***]

The trial court erred in taking the case from the jury and entering judgment for respondent Ford Motor Company. It was for the jury to determine under proper instructions, whether the failure of respondent Ford Motor Company to equip the windshield with glass which did not fly or shatter was the proximate cause of appellant’s injury. [***]

Reversed, with directions to grant a new trial with reference to respondent Ford Motor Company; affirmed as to respondent St. John Motors.

Note 1. What if the defendant in Baxter could not find safer glass to use, because none existed? What if they had used their very best efforts to find better glass, and genuinely and accurately believed that the glass they used was the safest available?

Note 2. Ford tried to argue that any warranties “run with the article sold.” What would that mean, in practical terms? Would it contravene the rule in MacPherson?

Note 3. The consumer in Baxter claims to have relied on the representations made in the express warranty. Does this assertion seem like a mere pretext to recover from an ordinary car accident? Or does it seem sound to hold the defendant to claims made in their brochure? Should the plaintiff have to prove reasonable reliance on the brochure, namely, that they reasonably relied on it in deciding to purchase the car (and perhaps would not otherwise have purchased it)? What does it do to the duties of those in the position to make such claims if reasonable or justifiable reliance by the consumer is a requirement for recovery under tort law? Does it sound in contract or tort law, in your estimation? Finally, does the conduct by the defendant here seem to generate liability more on the basis of negligence or strict liability?

Note 4. Why does the court believe that it was error to exclude the catalogues and printed advertising of Ford Motor Company in the prior litigation? On what grounds do you think the lower court likely excluded it in the first place?

Coca-Cola Bottling Co. of Helena v. Mattice, Supreme Court of Arkansas (1951)
(219 Ark. 428)

Appellee, Dr. H. W. Mattice, recovered a verdict and judgment for $12,500 against appellant, Coca-Cola Bottling Co. of *429 Helena, Arkansas for injuries sustained from the alleged explosion of a bottle of Coca-Cola manufactured by appellant at its bottling plant in Forrest City, Arkansas.

[***] Appellee resides at Marianna, Arkansas where he has engaged in the practice of dentistry since 1922. About 10 a. m. on the day of his injury in September, 1947 appellee’s wife purchased from a Marianna grocer a case of Coca-Colas which had been delivered to the grocery store by a truck from appellant’s plant at Forrest City. The case of drinks was removed from a stack in the store where it had been placed by appellant’s truck driver and carefully placed in the car driven by appellee’s wife and transported to the Mattice home. Mrs. Mattice carefully placed the case behind a shrub where such drinks were usually kept.

After lunch at the Mattice home, appellee, his daughter, Clyde Mattice, and office assistant, Sybil Rice, started to return to appellee’s office in his car about 1 p.m., when appellee indicated that he would like to take some Coca-Colas to the office. Either Mrs. Mattice or Miss Rice took five or six bottles of Coca-Cola from the case and placed them on the floor of the rear compartment of the two-door sedan on the right side with the bottles lying flat on the floor and the crowns facing the rear seat. Clyde Mattice entered the front seat and appellee the rear seat of the car. Appellee was seated slightly to the left side on the rear seat of the car and was reaching over the bottles of Coca-Cola to open the right hand car door for Miss Rice to enter, when one of the bottles exploded. Appellee’s hand was about twenty-four inches above the bottles and the flying glass severed the radial nerve of his right wrist and cut his index finger. Since there is no contention that the verdict is excessive, we refrain from further detail of the serious and disabling nature of the injury. Appellee and his daughter were positive in their statements that he did not touch the bottles with his feet *430 and that said bottles were not otherwise agitated after they were placed on the floor of the car.

At the conclusion of the testimony on behalf of appellee, appellant moved for an instructed verdict on the ground that appellee had failed to establish the material allegations of the complaint and particularly the allegation that appellant was negligent in putting too high a carbonation in and otherwise negligently charging, filling, and capping the bottle which allegedly caused the injury. The motion was overruled on the ground that a prima facie case had been made under the doctrine of res ipsa loquitur, which the court held applicable.

Appellant then offered general but detailed proof of its bottling operation at its Forrest City plant about the time of the injury showing the various precautionary steps in the bottling process designed to prevent overcharging with carbonation or the use of defective bottles. Although daily written reports were made showing the hourly bottle pressure, bottle temperature and gas volume employed in the bottling process in September, 1947, such records were not preserved or introduced in evidence.

Scientific proof was also introduced to show that Coca-Cola bottles generally could withstand pressures several times greater than appellant’s equipment, when properly used, could put in them and that during the bottling process the bottles were subjected to such pressure as to eliminate weak or defective bottles. There was also general proof to the effect that the bottled product was handled carefully in making deliveries to retail stores but no specific proof as to the manner in which the case in question was handled.

Appellant’s first contention for reversal is that the trial court erred in holding the doctrine of res ipsa loquitur applicable. We held the doctrine applicable to exploding bottled beverages in the recent case of Coca-Cola Bottling Co. of Fort Smith v. Hicks, 215 Ark. 803, but it is insisted that this is the minority rule and that appellee’s proof is insufficient to invoke *431 the rule announced in that case. We there held that the fact that the instrumentality causing an injury may have actually passed out of the physical possession of the defendant does not foreclose application of the res ipsa loquitur doctrine, ‘when a plaintiff shows that an exploding bottle was handled with due care after it left the control of the defendant, and that the bottle had not been subject to extraneous harmful forces during that time’. It is undisputed that the case of Coca-Colas which contained the bottle which later exploded was delivered to T. K. Fong’s Grocery by appellant. Appellee offered testimony tending to show that the case of Coca-Colas remained undisturbed in the store where it was stacked by appellant’s driver until it was carefully placed in appellee’s car and transported to his home and deposited in the shrubbery near the house where it remained unmolested for about two hours when six of the bottles were removed and placed on the car floor without any undue handling of the bottles. There was further evidence that the six bottles were in no manner disturbed from the time they were placed on the floor until the bottle exploded.

In instructions requested by both parties the jury was required to find, and the burden was placed on appellee to show, that the explosion was not caused by any act of appellee or third persons who may have handled the bottle and that no other independent cause intervened to bring about the explosion from the time the bottle left the control of appellant. When the evidence is considered in the light most favorable to appellee, we deem it sufficient to satisfy the burden thus placed upon him.

It is next argued that even if the res ipsa doctrine is applicable, the prima facie case made by appellee, or the presumption of negligence arising from proof of the circumstances of the injury, was completely dispelled when appellant ‘offered’ proof of its due care ‘at or about’ the time the bottle of Coca-Cola in question was manufactured and sold. [***] If the prima facie case made by plaintiff in a case where the doctrine of res ipsa loquitur is applicable may be completely dissipated by merely offering some proof of due care on defendant’s part, then the whole doctrine is dangerously weakened if not completely devitalized. If the trier of facts is bound to accept such offered proof regardless of its questionable or perjured character, the jury’s time-honored province of determining the credibility of witnesses and the weight to be given testimony is not only invaded but utterly subdued.

We next consider the assignments of error relating to the giving of Plaintiff’s Requested Instructions Nos. 2 and 3, which read:

‘No. 2. If you find from a preponderance of the testimony that the bottle of Coca Cola exploded and proximately caused the injury complained of, was manufactured, sold and distributed by the defendant herein and that it actually exploded and caused the injury; and you further find from a preponderance of the evidence that there was no negligence on the part of the plaintiff H. W. Mattice and that no independent cause intervened between the time the bottle left the exclusive possession of the defendant and the time of the explosion, that would cause the explosion, you are then instructed that the fact of the explosion of the said bottle raises a presumption of negligence on the part of the defendant and your verdict will be for the plaintiff, unless you should find that the presumption of negligence has been overcome by evidence on the part of the defendant.

*435 ‘Upon proof of the fact of the explosion, as set out in the above instruction, the burden of proof then shifts to the defendant to show by a preponderance of the evidence that it was free from negligence and upon failure of the defendant to meet that burden of proof you will be warranted in finding for the plaintiff.’

‘No. 3. You are instructed that where the explosion is caused by a bottle of Coca-Cola that is under the control and custody of the defendant, or that after it left the control and custody of the defendant it is shown by a preponderance of the evidence that the bottle has not been subjected to extraneous harmful forces during that time, and that the explosion and injury is such that in the ordinary course of things would not occur, if those who have such control and custody use proper care, the happening of the explosion with the resulting damage is prima facie evidence of negligence, and shifts to the defendant the burden of proving that it was not caused by the negligence of the defendant.’

Each of the instructions was specifically objected to because it placed the burden of proof in the whole case on appellant to show that it was not guilty of negligence when the burden is actually upon appellee to prove negligence and because the instructions set up two different burdens for appellant and were contradictory within themselves and with other instructions given. In disposing of this contention, we examine briefly the development of the res ipsa doctrine. It was announced by the English courts apparently as a court-made rule of substantive law. The English decisions hold that the presumption of negligence arising under the doctrine is a legal presumption which shifts the burden of proof to defendant to prove himself free from negligence by a preponderance of the evidence. The English cases were followed by early decisions in this country. Typical of these is our own case of Railway Co. v. Hopkins, 54 Ark. 209, where an instruction was approved which definitely recognized the burden shifting rule. [***]

In later American cases much confusion and division of authority have developed concerning the effect of the doctrine on the burden of proof, as is demonstrated by the following statement in 65 C.J.S., Negligence, § 220(9) b: ‘The general rule, as broadly stated in the cases, is that, where plaintiff has established a presumptive or prima facie case of negligence by virtue of the doctrine of res ipsa loquitur, it is then incumbent on defendant, if he wishes to avoid the effect of the doctrine or the risk of the inference or presumption which may arise, to introduce evidence to explain, rebut, or otherwise overcome the presumption or inference that the injury complained of was due to negligence on his part.

[c] [T]he general rule that the burden of proving negligence on the part of defendant rests throughout the trial on plaintiff is generally held not affected by the doctrine of res ipsa loquitur, and the burden is still on plaintiff to establish the negligence of defendant, and, on the whole evidence, he must have the preponderance in order to succeed, although where defendant *437 fails to overcome the presumption or inference raised by the doctrine this burden is sustained. The application of the doctrine of res ipsa loquitur does not convert defendant’s plea of the general issue or general denial into an affirmative defense with respect to the burden of proof.’ The confusion becomes more confounded when the list of cases cited in support of the above statement shows several states following both views.

While our earlier cases clearly recognized the rule as adopted by the English courts, later cases have adopted the so-called general rule as above stated and hold that the true burden of proof in the sense of the risk of nonpersuasion does not shift but that the burden of producing or going forward with the evidence does shift.

In Arkansas Light and Power Co. v. Jackson, supra, [c], the following instruction was challenged:

‘You are instructed that, where injury or death is caused by a thing or instrumentality that is under the control or management of the defendant, and the injury or death is such that in the ordinary course of things would not occur, if those who have such control or management use proper care, the happening of the injury is prima facie evidence of negligence, and shifts to the defendant the burden of proving that it was not caused through lack of care on defendant’s part.’ In approving this instruction the court said: ‘This instruction does not tell the jury there was a presumption of negligence from the mere occurrence of the injury, nor did it relieve the plaintiff from the burden of proving negligence. The burden of proof to establish negligence was on the plaintiff, and the instruction did not shift this burden. …

‘The doctrine of res ipsa loquitur does not relieve the plaintiff of the burden of proving negligence; it merely declares the conditions under which a prima facie showing of negligence has been made, and, where this has been done, the defendant having the custody and control of the agency causing the injury and the opportunity to make the examination to discover the cause, must furnish the explanation which this opportunity affords to overcome the prima facie showing made by the plaintiff. Such is the purport of the instruction as we understand it, and no error was committed *438 in giving it under the facts of this case.’ [***]

[W]e find no error in the giving of Plaintiff’s Requested Instruction No. 3 or the first paragraph of Instruction No. 2. But the language of paragraph 2 of Plaintiff’s Requested Instruction No. 2 clearly shifted the true burden of proof to the appellant to show by a preponderance of all the evidence that it was free from negligence. It conflicted with other instructions given placing the burden of proof on appellee to establish his case by a preponderance of all the evidence. In the annotation in 42 A.L.R. 865 numerous cases are cited from those jurisdictions which recognize the so-called general rule, holding the giving of similar instructions prejudicial and ground for reversal. So we hold that the giving of paragraph 2 of Requested Instruction No. 2 resulted in reversible error. [***]

For the error indicated in the giving of Appellee’s Requested Instruction No. 2, the judgment is reversed and the cause remanded for a new trial.

Note 1. Review the three prongs of the test for res ipsa loquitur (discussed in connection with Byrne v. Boadle, Court of Exchequer (1863) in Module 3) in light of the analysis above. Review our earlier discussion of the distinctions between the burden of production (which the court here refers to as the “burden of going forward”) and the burden of persuasion. Recall, too Rodriguez v. City of New York , 31 N.Y.3d 312 (2018) in Module 4 and the dueling opinions’ view of whether the plaintiff on a summary judgment must prove that they are free from negligence to prevail at that stage. What is the significance here, of where to place the burden? What is at stake and why might it either differ or resemble the comparative fault context of Rodriguez?

Note 2. You have learned that burden-shifting is a device through which legal rules can “place a thumb on the scale” for a party, that is, can help a party on a given issue or action. It is not usually fully dispositive (although it can be); typically it does provide some meaningful assistance. As you encounter various different kinds of actions in products liability law, consider whether the underlying policy concerns, and tort law’s purposes, justify existing or additional use of burden-shifting devices in order to assist stakeholders at different points in legal conflicts. The next case features another exploding Coca-Cola bottle. The majority opinion deploys res ipsa loquitur again, while the concurrence, penned the extremely influential Justice Traynor, provides a harbinger of the strict liability rule that will follow in a later landmark case for which he writes the majority opinion. Normatively, consider the arguments in favor of channeling plaintiffs through the standard negligence action versus permitting them to use strict liability to recover.

Escola v. Coca Cola Bottling Co. of Fresno, Supreme Court of California (1944)
(24 Cal.2d 453) En bank [sic]

Plaintiff, a waitress in a restaurant, was injured when a bottle of Coca Cola broke in her hand. She alleged that defendant company, which had bottled and delivered the alleged defective bottle to her employer, was negligent in selling ‘bottles containing said beverage which on account of excessive pressure of gas or by reason of some defect in the bottle was dangerous … and likely to explode.’ This appeal is from a judgment upon a jury verdict in favor of plaintiff.

Defendant’s driver delivered several cases of Coca Cola to the restaurant, placing them on the floor, one on top of the other, under and behind the counter, where they remained at least thirty-six hours. Immediately before the accident, plaintiff picked up the top case and set it upon a near-by ice cream cabinet in front of and about three feet from the refrigerator. She then proceeded to take the bottles from the case with her right hand, one at a time, and put them into the refrigerator. Plaintiff testified that after she had placed three bottles in the refrigerator and had moved the fourth bottle about 18 inches from the case ‘it exploded in my hand.’ The bottle broke into two jagged pieces and inflicted a deep five-inch cut, severing blood vessels, nerves and muscles of the thumb and palm of the hand. Plaintiff further testified that when the bottle exploded, ‘It made a sound similar to an electric light bulb that would have dropped. It made a loud pop.’ Plaintiff’s employer testified, ‘I was about twenty feet from where it actually happened and I heard the explosion.’ A fellow employee, on the opposite side of the counter, testified that plaintiff ‘had the bottle, I should judge, waist high, and I know that it didn’t bang either the case or the door or another bottle,’ when it popped. It sounded just like a fruit jar would blow up…’ The witness further testified that the contents of the bottle ‘flew all over herself and myself and the walls and one thing and another.’

The top portion of the bottle, with the cap, remained in plaintiff’s hand, and the lower portion fell to the floor but did not break. The broken bottle was not produced at the trial, the pieces having been thrown away by an employee of the restaurant shortly after the accident. Plaintiff, however, described the broken pieces, and a diagram of the bottle was made showing the location of the ‘fracture line’ where the bottle broke in two.

*457 One of defendant’s drivers, called as a witness by plaintiff, testified that he had seen other bottles of Coca Cola in the past explode and had found broken bottles in the warehouse when he took the cases out, but that he did not know what made them blow up.

Plaintiff then rested her case, having announced to the court that being unable to show any specific acts of negligence she relied completely on the doctrine of res ipsa loquitur. Defendant contends that the doctrine of res ipsa loquitur does not apply in this case, and that the evidence is insufficient to support the judgment. Many jurisdictions have applied the doctrine in cases involving exploding bottles of carbonated beverages. [cc] It would serve no useful purpose to discuss the reasoning of the foregoing cases in detail, since the problem is whether under the facts shown in the instant case the conditions warranting application of the doctrine have been satisfied.

Res ipsa loquitur does not apply unless (1) defendant had exclusive control of the thing causing the injury and (2) the accident is of such a nature that it ordinarily *458 would not occur in the absence of negligence by the defendant. [cc] Many authorities state that the happening of the accident does not speak for itself where it took place some time after defendant had relinquished control of the instrumentality causing the injury. Under the more logical view, however, the doctrine may be applied upon the theory that defendant had control at the time of the alleged negligent act, although not at the time of the accident, provided plaintiff first proves that the condition of the instrumentality had not been changed after it left the defendant’s possession. [***] As said in Dunn v. Hoffman Beverage Co., 126 N.J.L. 556, ‘defendant is not charged with the duty of showing affirmatively that something happened to the bottle after it left its control or management; [***] to get to the jury the plaintiff must show that there was due care during that period.’ (3) Plaintiff must also prove that she handled the bottle carefully. The reason for this prerequisite is set forth in Prosser on Torts, supra, at page 300, where the author states: ‘Allied to the condition of exclusive control in the defendant is that of absence of any action on the part of the plaintiff contributing to the accident. Its purpose, of course, is to eliminate the possibility that it was the plaintiff who was responsible. If the boiler of a locomotive explodes while the plaintiff engineer is operating it, the inference of his own negligence is at least as great as that of the defendant, and res ipsa loquitur will not apply until he has accounted for his own conduct.’ [c] It is not necessary, of course, that plaintiff eliminate every remote possibility of injury to the bottle after defendant lost control, and the requirement is satisfied if there is evidence permitting a reasonable inference that it was not accessible to extraneous harmful forces and that it was carefully handled by plaintiff or any third person who may have moved or touched it. Cf. Prosser, supra, p. 300. If such evidence is presented, the question becomes one for the trier of fact (see, e. g., *459 MacPherson v. Canada Dry Ginger Ale, Inc., 129 N.J.L. 365), and, accordingly, the issue should be submitted to the jury under proper instructions.

In the present case no instructions were requested or given on this phase of the case, although general instructions upon res ipsa loquitur were given. Defendant, however, has made no claim of error with reference thereto on this appeal. Upon an examination of the record, the evidence appears sufficient to support a reasonable inference that the bottle here involved was not damaged by any extraneous force after delivery to the restaurant by defendant. It follows, therefore, that the bottle was in some manner defective at the time defendant relinquished control, because sound and properly prepared bottles of carbonated liquids do not ordinarily explode when carefully handled.

The next question, then, is whether plaintiff may rely upon the doctrine of res ipsa loquitur to supply an inference that defendant’s negligence was responsible for the defective condition of the bottle at the time it was delivered to the restaurant. Under the general rules pertaining to the doctrine, as set forth above, it must appear that bottles of carbonated liquid are not ordinarily defective without negligence by the bottling company. [***]

An explosion such as took place here might have been caused by an excessive internal pressure in a sound bottle, by a defect in the glass of a bottle containing a safe pressure, or by a combination of these two possible causes. The question is whether under the evidence there was a probability that defendant was negligent in any of these respects. If so, the doctrine of res ipsa loquitur applies. The bottle was admittedly charged with gas under pressure, and the charging of the bottle was within the exclusive control of defendant. As it is a matter of common knowledge that an overcharge would not ordinarily result without negligence, it follows under the doctrine of res ipsa loquitur that if the bottle was in fact excessively charged an inference of defendant’s negligence would arise. If *460 the explosion resulted from a defective bottle containing a safe pressure, the defendant would be liable if it negligently failed to discover such flaw. If the defect were visible, an inference of negligence would arise from the failure of defendant to discover it.

Where defects are discoverable, it may be assumed that they will not ordinarily escape detection if a reasonable inspection is made, and if such a defect is overlooked an inference arises that a proper inspection was not made. A difficult problem is presented where the defect is unknown and consequently might have been one not discoverable by a reasonable, practicable inspection. In the Honea case we refused to take judicial notice of the technical practices and information available to the bottling industry for finding defects which cannot be seen. In the present case, however, we are supplied with evidence of the standard methods used for testing bottles.

A chemical engineer for the Owens-Illinois Glass Company and its Pacific Coast subsidiary, maker of Coca Cola bottles, explained how glass is manufactured and the methods used in testing and inspecting bottles. He testified that his company is the largest manufacturer of glass containers in the United States, and that it uses the standard methods for testing bottles recommended by the glass containers association. A pressure test is made by taking a sample from each mold every three hours—approximately one out of every 600 bottles—and subjecting the sample to an internal pressure of 450 pounds per square inch, which is sustained for one minute. (The normal pressure in Coca Cola bottles is less than 50 pounds per square inch.) The sample bottles are also subjected to the standard thermal shock test. The witness stated that these tests are ‘pretty near’ infallible.

It thus appears that there is available to the industry a commonly-used method of testing bottles for defects not apparent to the eye, which is almost infallible. Since Coca Cola bottles are subjected to these tests by the manufacturer, it is not likely that they contain defects when delivered to the bottler which are not discoverable by visual inspection. Both new and used bottles are filled and distributed by defendant. The used bottles are not again subjected to the tests referred to above, and it may be inferred that defects not discoverable by visual inspection do not develop in bottles after they are manufactured. Obviously, if such defects do *461 occur in used bottles there is a duty upon the bottler to make appropriate tests before they are refilled, and if such tests are not commercially practicable the bottles should not be re-used. This would seem to be particularly true where a charged liquid is placed in the bottle. It follows that a defect which would make the bottle unsound could be discovered by reasonable and practicable tests.

Although it is not clear in this case whether the explosion was caused by an excessive charge or a defect in the glass there is a sufficient showing that neither cause would ordinarily have been present if due care had been used. Further, defendant had exclusive control over both the charging and inspection of the bottles. Accordingly, all the requirements necessary to entitle plaintiff to rely on the doctrine of res ipsa loquitur to supply an inference of negligence are present.

It is true that defendant presented evidence tending to show that it exercised considerable precaution by carefully regulating and checking the pressure in the bottles and by making visual inspections for defects in the glass at several stages during the bottling process. It is well settled, however, that when a defendant produces evidence to rebut the inference of negligence which arises upon application of the doctrine of res ipsa loquitur, it is ordinarily a question of fact for the jury to determine whether the inference has been dispelled. …

The judgment is affirmed. SHENK, CURTIS, CARTER, and SCHAUER, JJ., concurred. EDMONDS, J, dissenting. Rehearing denied.

TRAYNOR, Justice, concurring.

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 injury to human beings. MacPherson v. Buick Motor Co., 217 N.Y. 382, established the principle, recognized by this court, that irrespective of privity of contract, the manufacturer is responsible *462 for an injury caused by such an article to any person who comes in lawful contact with it. [***] 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 and guard against the recurrence of others, as the public cannot. 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. It is 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 [***] or unknown causes that even by the device of res ipsa loquitur cannot be classified as negligence of the manufacturer. The inference of negligence may be dispelled by an affirmative showing of proper care. If the evidence against the fact inferred *463 is ‘clear, positive, uncontradicted, and of such a nature that it can not rationally be disbelieved, the court must instruct the jury that the nonexistence of the fact has been established as a matter of law.’ Blank v. Coffin, 20 Cal.2d 457, 461. An injured person, however, is not ordinarily in a position to refute such evidence or identify the cause of the defect, for he can hardly be familiar with the manufacturing process as the manufacturer himself is. In leaving it to the jury to decide whether the inference has been dispelled, regardless of the evidence against it, the negligence rule approaches the rule of strict liability. It is needlessly circuitous to make negligence the basis of recovery and impose what is in reality liability without negligence. If public policy demands that a manufacturer of goods be responsible for their quality regardless of negligence there is no reason not 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, St.1939, p. 989, 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, St.1941, p. 2857, declares that food is adulterated when ‘it has been produced, prepared, packed or held under insanitary conditions whereby it may have become contaminated with filth, or 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, St.1939, p. 983), 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 that 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. Statutes of this kind result in a strict liability of the manufacturer in tort to the member of the public injured. [***]

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 liability *464 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 goods by the imposition of civil liability generally.

The retailer, even though not equipped to test a product, is under an absolute liability to his customer, for the implied warranties of fitness for proposed use and merchantable quality include a warranty of safety of the product [***] 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 MacPherson case [217 N.Y. 382,]: ‘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. Yet the defendant would have us say that he was the one person whom it was under a legal duty to protect. The law does not lead us to so inconsequent a conclusion.’ While the defendant’s negligence in the MacPherson case made it unnecessary for the court to base liability on warranty, Judge Cardozo’s reasoning recognized the injured person as the real party in interest and effectively disposed of the theory that the liability of the manufacturer incurred by his warranty should apply only to the immediate purchaser. It thus paves the way for a standard of liability that would make the manufacturer guarantee the safety of his product even when there is no negligence.

This court and many others have extended protection according to such a standard to consumers of food products, taking the view that the right of a consumer injured by unwholesome food does not depend ‘upon the intricacies of the law of sales’ and that the warranty of the manufacturer to the consumer in absence of privity of contract rests on public policy. [***] 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. [***]

In the food products cases 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 negligence: *466 ‘Practically he must know it [the product] is fit, or take the consequences, if it proves destructive.’ [***] Such fictions are not necessary to fix the manufacturer’s liability under a warranty if the warranty is severed from the contract of sale between the dealer and the consumer and based on the law of torts [cc] As the court said in Greco v. S. S. Kresge Co., supra [277 N.Y. 26], ‘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.’ [c]

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 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 of manufacturers to build up confidence by advertising and marketing devices such as trade-marks. See Thomas v. Winchester, 6 N.Y. 397; Baxter v. Ford Motor Co., 168 Wash. 456; [cc].

Consumers no longer approach products warily but accept them on faith, relying on the reputation of the manufacturer or the trade mark. See [cc] 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. 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.

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.

Note 1. Why isn’t the availability of res ipsa loquitur enough, in Justice Traynor’s view, to solve the pressing public policy concerns around defective products?

Note 2. The majority opinion follows a “formalist” approach: it uses the doctrine of res ipsa loquitur and existing tools and rules and arrives at an outcome for the plaintiff. Generally doing so, however, might require a court to consider custom evidence from the bottling industry, expert evidence on that topic, witness testimony on the handling of the bottle during its entire life cycle, and extensive factual accounts from all the possible parties and their witnesses. Justice Traynor’s concurrence reflects impatience with this means of resolving the problem, even if he approves of the outcome.

Recall how in Coca-Cola Bottling Works v. Lyons (the Mississippi case), the court noted that it could use a theory of joint ownership, or a theory that soda was a gift whose title “ran” with the object. The court appeared to be stating how it could circumvent the privity requirement, and how a formalist approach, using the law’s formal rules could technicallypermit recovery. Instead, however, the court grounded its holding in a functionalist approach that used substantive tort principles (rather than technical rules) to find that recovery should be allowed even without formal privity. Traynor’s concurrence here displays that same commitment to functionalizing tort law. He states that “[i]n the food products cases the courts have resorted to various fictions to rationalize the extension of the manufacturer’s warranty.” By characterizing these tactics as “fictions,” Traynor is critiquing courts that use and contort formal rules, simply because they are possible means of resolution (like the joint ownership theory in Lyons), when they are not the best or the rational means to use. Traynor would have preferred the functionalist reasoning of the Lyons court’s ultimate holding and rationale. In his view, the proper course of action was to allow function, rather than form, to dictate the legal analysis and outcome.

Note 3. Identify at least two of Justice Traynor’s policy arguments. Why is he concurring rather than dissenting? Why do you imagine that he was concurring, rather than assigned to write the majority opinion? This concurrence is one of the most famous opinions in 20^th century tort law, which is somewhat unusual for a concurring opinion. It is widely thought to have paved the way for strict liability in products liability cases. In the next case, decided nearly two decades later, Justice Traynor writes for the majority, building on his concurrence in Escola.