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Opinions The Honorable Roger J. Traynor
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7-5-1944

Escola v. Coca Cola Bottling Co.

Roger J. Traynor

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Recommended Citation
Roger J. Traynor, Escola v. Coca Cola Bottling Co. 24 Cal.2d 453
(1944). Available at:
http://repository.uchastings.edu/traynor_opinions/151

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 I
July 1944] EscoLA v. COCA OoLA BOTTLlNG Co. 458
452 RmLE ii. BuaHES (24 C.2d
been the same as previously, $2,700. There was no chan"e in reasonable and arbitrary. The fact that the· salaty 'of a
her rank. or grade, working hours or duties. The deduc ions teacher of like experience and years of service was not re
were not made because of any inefficiency on her part but duced is particularly strong in support of appellants' claim
1
as _a penalty for failing to go to school. Respondents in their of discrimination. That there must be some·· degree of uni
formity was recently recognized by this court in the case
brief·contend that there is no penalty involved; but we :note
of Fry v. Board of Education, 17 Cal.2d 753 [112 P.2d
!h t in t e Bupetin issued by the board in September, 1936,
229]), wherein it is stated at page 757; "It must be conceded
it IS_ recited: It was concluded that teachers reaching the
that, within the limits :fixed by the School Code, the Board
max1 um should be stimulated to maintain their professional
proficiency by continued training. To make this effective has discretionary control over the salaries of teachers. (Cit
it was a :eed that a alar'!I penalty should be imposed upo ing cases.) However, it must also be conceded that the
those fa1hng to do thIS within a reasonable length of time ' Legislature had enjoined on such Boards, with reasonable
(Italics ours.) • limits, the principle of uniformity of treatment as to salary
"Al o, the rule as applied to petitioner is discriminatory. for those performing like services with like experience. • • •" '
The_ evidence shows that high school teachers of English with '' And in that case the Supreme Court reversed the :finding
as little as _ten ye_a:8 of ex erience were receiving $2,748 per of the trial court that the board had not acted arbitrarily.
annu , while petitioner, with twenty-nine years of successful \ "We conclude that the rule of the board requiring peti
tioner to acquire additional college units or suffer a reduc tion
experience, was, after the reductions, the lowest paid among
su.ch teachers. There w no general reduction of salaries, in salary to which she was otherwise entitled was in ex". cess
the only ones reduced being those of teachers who had not of the powers of the board. The judgment is reversed and the
complied with the 'condition.' lower court is directed to issue the writ of mandamus as
"In Kacsur v. Board of Education, 18 Cal.2d 586, 592 [116 prayed."
P.2d 593], the court said: In my opinion the judgment should be reversed.
" 'However, there are limitations on the power of boards
of t:r;ustees to change salaries of permanent teachers. One Shenk, J ., and Curtis, J ., concurred.
of the '' legal consequences'' referred to in the Abraham case Appellant's petition for a rehearing was denied August 8,
supra (Abr ham v. Si"!'s, 2 Cal.2d 698 [42 P.2d 1029] ), i
1944. Shenk, J., Curtis, J., and Carter, J., voted for a re
that the :fixmg of salaries must not be discriminatory, arbi
trary or unreasonable. The above cited cases all so qualify hearing.
the eneral power of the administrative agencies to :fix the
alar1es of permanent teachers. Because of this qualification
1t necessarily follows that there must be a comparison with
the s laries of other teachers or salaries of previous years. [S. F. No. 16951. In Bank. July 5, 1944.]
.If this could not be done, the qualification would be mean GLADYS ESCOLA, Respondent, v. COCA COLA BOTTLING
ingless.' (Italics ours.) COMPANY OF FRESNO (a Corporation), Appellant.
'' The record there showed that the respondent board at
tempted to reduce appellants' salaries from $1600 to $1325 [1] Negligence - Evidence-Res lpsa. Loquitur-Limita.ticins of
1 Doctrine.-The doctrine of res ipsa. loquitur does not apply
ractically the minimum allowed by law. No other sal rie
· unless def11ndant had exclusive control of the thing causing
were reduced; most _of them were raised; and the salary of
a_ teacher of approx mately the same years of service, expe r [1] See 19 Ca.1.Jur. 704; 38 Am.Jui'. 989.
ence and qnali:ficat10ns remained the same. The court said • '' :McK. Dig. References: [1] Negligence, § 135; [2, 4] Negligence,
'T hese facts standing alone are sufficient to force th•o § 136; [3] Negligence, § 128; [5] Negligence, § 141; [6, 7, 9] Neg
conclusion that the attempted action of the board was un- ligence, § 138; [8] Negligence, § 56; (10] Negligence, § 139.•
454 EscoLA v. CocA CoLA BOTTLING Co. [24 C.2d
July 1944] EscoLA v. CocA CoLA BOTTLING Co. 455
the injury and the accident is of such a nature that it ordi 124 C.2d 453]

narily would not occur in the absence of negligence by de fendant. [7] Id. - Evidence - Res Ipsa Loquitur-Breaking of Bottle.
[2] Id.-Evidence-Res Ipsa Loquitur-Control of Instrumental ity.- Where a bottle of beverage breaking in a restaurant •em
The doctrine of res ipsa loquitur may be applied on the ployee's hand was charged with gas under pressure, and the
theory that defendant had control of the instrumentality causing charging of the bottle was within the exclusive control of
the injury at the time of the alleged negligent act, although not defendant bottling company, an inference of defendant's neg
at the time of the accident, provided plaintiff: first proves that ligence would arise, under the doctrine of res ipsa loquitur,
the condition of the instrumentality had not been changed after if the bottle was excessively charged.
it left defendant's possession. ) Id.-Exercise of Care by Bottling Company.-Where an ex
(3] Id.-Evidence-Burden of Proof.-In an action against a bot plosion resulted from a defective beverage bottle ?ontai?in_g
tling company for injuries sustained by a restaurant employee a safe pressure, the bottling company would be hable if 1t
when a bottle of beverage broke in her hand, defendant is negligently failed to discover such fl.aw. If the defect were
not charged with the duty of showing affirmatively that some visible, an inference of negligence would arise from the
thing happened to the bottle after it left its control or man company's failure to discover it.
agement; the burden is on plaintiff: to show that there was f9] Id.-E·vidence-Res Ipsa Loquitur-Breaking of Bottle.-In
due care during that period and that she handled the bottle an action against a bottling company for injuries sustained

(4]
carefully.
Id.-Evidence-Res Ipsa Loquitur-Control of Instrumental ity.-
\ by a restaurant employee when a bottle of beverage broke
or exploded in her hand, plaintiff: was entitled to rely on the
While the doctrine of res ipsa loquitur will not be ap plied doctrine of res ipsa loquitur to supply an inference of de
unless plaintiff has eliminated the possibility that he was fendant's negligence, where the method used by the bottle
responsible for the accident, a plaintiff suing a bottling maker for testing bottles for defects not apparent to the
company for injuries resulting from the breaking of a bottle eye was almost infallible, where used bottles were filled and
in her hand need not eliminate every remote possibility of distributed by defendant without again being subjected to
injury to the bottle after it left defendant's control; the re the same tests, and where, regardless of whether the explo
quirement is satisfied if there is evidence permitting a reason sion in question was caused by an excessive charge or a de
able inference that the bottle was not accessible to extrane fect in the glass, there was a sufficient showing that neither
ous harmful forces, and that it was carefully handled by cause would ordinarily have been present if due care had
plaintiff: or any third person who may have moved or touched been used, defendant having had exclusive control over both
it. the charging and inspection of the bottles.
[6] Id.-Evidence-Sufficiency.-In an action against a bottling [10) Id.-Evidence-Res Ipsa Loquitur-Rebutting Inference. When
company for ,injuries sustained by a restaurant employee a defendant produces evidence to rebut the inference of
when a bottle of beverage broke in her hand, the evidence negligence which arises on application of the doctrine of res
supported a reasonable inference that the bottle was not dam ipsa loquitur, it is ordinarily a question of fact.for the jury
aged by any extraneous force after delivery to the restaurant to determine whether the inference has been dispelled.
by defendant. APPEAL from a judgment of the Superior Court of Mer
[6] Id.-Evidence-Res Ipsa Loquitur-Breaking of Bottle.-In ced County. James D. Garibaldi, Judge. Affirmed.
order that a restaurant employee, suing a bottling company
for injuries sustained by reason of a bottk of beverage break ing Action for damages for personal injuries resulting from
in her hand, may rely on the doctrine of res ipsa loquitur to bursting of bottle of coca cola. Judgment for plaintiff af
supply an inference that defendant's negligence was re firmed.
sponsible for the defective condition of the bottle at the time
it was delivered to the restaurant, it must appear that bottles H. K. Landram for Appellant.
of carbonated liquid are not ordinarily defective without
negligence by the bottling company. C. Ray Robinson, Willard B. Treadwell, Dean S. Lesher,
Loraine B. Rogers, Belli & Leahy and Melvin M. Belli for
Respondent.
 456 l!lscoLA v. CocA CoLA BOTTLING Co. [24 C.2d July iM4] EscoLl. v. CocA CoLA :Bo1rTtiNG Co. 457
[24 C.2d 453]

I I O_ne of defendant's drivers, called as a witness by plaintifr,

GIBSON, C. J.-Plaintiff, a waitress in a restaurant was testrfied that he had seen other bottles of Coca Cola in the
in jured when a bottle of Coca Cola broke in her ha d. She past explode and had found broken bottles in the warehoui:;e
alleged that defendant company, which had bottled and de when he took the cases out, but that he did not know what
l!vered; the a lege defective bottle to her employer, was made them blow up.
neg hgent m sellmg bottles containing said beverage Plaintiff then rested her case, having announced to the court
which on accoun! of excessive pressure of gas or by th t being unable to show any specific acts of negligence she
reason of some de ect m the.bottle wa dangerous ... and relied completely on the doctrine of res ipsa loquitur.
.likely to explode." This appeal IS from a Judgment upon a Defendant contends that the doctrine of res ipsa loquitur
jury verdict in favor of plaintiff. does not apply in this case, and that the evidence is insufii
Defendant's driver delivered several cases of Coca Cola to cient to support the judgment.
the restaurant, placing them on the floor, one on top of the Many jurisdictions have applied the doctrine in cases in
other, under and behind the counter, where they remained volving exploding bottles of carbonated beverages. (See Payne
at least thirty-six hours. Immediately before the accident, v. Rome Coca-Cola Bottling Co., 10 Ga.App. 762 [73 S.E.
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 re
frigerator. She then proceeded to take the bottles from the
\ 1087] ; Stolle v. Anheuser-Busch, 307 Mo. 520 [271 S.W.
497, 39 A.L.R. 1001] ; Bradley v. Conway Springs Bottling
Co., 154 Kan. 282 [118 P.2d 601]; Ortego v. Nehi Bottling
case with her right hand, one at a time, and put them into Works, 199 La. 599 [6 So.2d 677]; MacPherson v. Canada
.the refrigerator. Plaintiff testified that after she had placed Dry Ginger Ale, Inc., 129 N.J.L. 365 [29 A.2d 868]; Macres
three bottles in the refrigerator and had moved the fourth v. Coca-Cola Bottling Co., 290 Mich. 567 [287 N.W. 922] ;
bottle about eighteen inches from the case '' it exploded in Benkendorfer v. Garrett (Tex. Civ. App.), 143 S.W.2d 1020.)
my hand.'' The bottle broke into two jagged pieces and in Other courts for varying reasons have refused to apply tho
flicted a deep five-inch cut, severing blood vessels, nerves and doctrine in such cases. (See Gerber v. Faber, 54 Cal.App.:ald
muscles of the thumb and palm of the hand. Plaintiff fur 674 [129 P.2d 485] ; Loebig's Guardian v. Coca-Cola Bottling
ther testified that when the bottle exploded, "It made a sound Co., 259 Ky. 124 [81 S.W.2d 910] ; Stewart v. Crystal Coca
similar to an electric light bulb that would have dropped. Cola ottling Co., 50 Ariz. 60 [68 P.2d 952]; Glaser v. Seitz,
It made a loud pop." Plaintiff's employer testified, "I was 35 Misc. 341 [71 N.Y.S. 942] ; Luciano v. Morgan, 267 App.
about twenty feet from where it actually happened and I Div. 785 [ 45 N.Y.S.2d 502] ; cf. Berk ens v. Denver Coca-Cola
heard the explosion.'' A fellow employee, on the opposite Bottling Co., 109 Colo. 140 [122 P.2d 884] ; Ruffin v. Coca
side of the counter, testified that plaintiff "had the bottle, Cola Bottling Co., 311 Mass. 514 [42 N.E.2d 259]; Slack v.
I should judge, waist high, and I know that it didn't bang Premier-Pabst Corporation, 40 Del. 97 [5 A.2d 516]; Wheeler
either the case or the door or another bottle . . . when it v. Laurel Bottling Works, 111 Miss. 442 [71 So. 743, L.R.A.
popved. It sounded just like a fruit jar would blow up " 1916E 1074]; Seven-Up Bottling Co. v. Gretes, -- Va. -
The witness further testified that the contents of the bottle [27 S.E.2d 925] ; Dail v. Taylor, 151 N.C. 284 [66 S.E. 135,
'' flew all over herself and myself and the walls and one thing 28 L.R.A.N.S. 949] .) It would serve no useful purpose to
and another.'' discuss the reasoning of the foregoing cases in detail, since
The top portion of the bottle, with the cap, remai·ned in the problem is whether under the :facts shown in the instant
plaintiff's hand, and the lower portion fell to the floor hut case the conditions warranting application of the doctrine
did not break. The broken bottle was not produced at the have been satisfied.
trial, the pieces having been thrown away by an employee [1] Res ipsa loquitur does not apply unless (1) defen dant
of the restaurant shortly after the accident. Plaintiff. how had exclusive control of the thing causing the injury and
ever, described the broken pieces, and a diagram of the· bottle (2) the accident is of such a nature that it ordinarily
was made showing the location of the "fracture line" where
the bottle broke in two.
458 :ElscotA v. CocA CotA BoTTttKto Co. f24 C.2<1 July 1944] EscotA v. CocA CotA BOTTLING Co. 459
[24 C.2d 4531
would not occur in the absence of negligence by the defen MacPherson v. Canada Dry Ginger Ale, Inc., 129 N.J.L. 365
dant. (Honea v. City Dairy, Inc., 22 Cal.2d 614, 616-617 [29 A.2d 868, 869) ), and, accordingly, the issue should be
[140 P.2d 369], and authorities there cited; cf. Hinds v. submitted to the jury under proper instructions.
Wheadon, 19 Cal.2d 458, 461 [121 P.2d 724] ; Prosser on In the present case no instructions were requested or given
Torts [1941], 293-301.) on this phase of the case, although general instructions upon
[2] Many authorities state that the happening of the ac res ipsa loquitur were given. Defendant, however,. has ruade
cident does not speak for itself where it took place some time no claim of error with reference thereto on this appeal.
after defendant had relinquished control of the instrumental [6] Upon an examination of the record, the evidence ap
ity causing the injury. Under the more logical view, how. pears sufficient to support a reasonable inference that the
ever, the doctrine may be applied upon the theory that d bottle here involved was not damaged by any extraneous force
fendant had control at the time of the alleged negligent act, after delivery to the restaurant by defendant. It follows,
although not at the time of the accident, provided plaintiff therefore, that the bottle was in some manner defective at
first proves that the condition of the instrumentality had not the time defendant relinquished control, because sound and
been changed after it left the defendant's possession. (See properly prepared bottles of carbonated liquids do not ordi narily
cases collected in Honea v. City Dairy, Inc., 22 Cal.2d 614,
617-618 [140 P.2d 369].) [3] As said in Dunn v. Hoff \ explode when carefully handled.
[6] The next question, then, is whether plaintiff may rely
man Beverage Co., 126 N.J.L. 556 [20 A.2d 352, 354], "de upon the doctrine of res ipsa loquitur to supply an inference
fendant is not charged with the duty of showing affirmatively that defendant's negligence was responsible for the defective
that something happened to the bottle after it left its control condition of the bottle at the time it was delivered to the
or management; ... to get to the jury the plaintiff must show restaurant. Under the general rules pertaining to the doc
that there was due care during that period." Plaintiff must trine, as set forth above, it must appear that bottles of car
also prove that she handled the bottle carefully. The reason bonated liquid are not ordinarily defective without negli
for this prerequisite is set forth in Prosser on Torts, supra, gence by the bottling company. In 1 Shearman and Redfield
at page 300, where the author states: '' Allied to the condi on Negligence (rev. ed. 1941), page 153, it is stated that:
tion of exclusive control in the defendant is that of absence '' The doctrine . . . requires evidence which shows at least
of any action on the part of the plaintiff contributing to the he probability that a particular accident could not have
accident. Its purpose, of course, is to eliminate the possibil Qccurred without legal wrong by the defendant.'' •
ity that it was the plaintiff who was responsible. If the An explosion such as took place here might have been
boiler of a locomotive explodes while the plaintiff engineer caused by an excessive internal pressure in a sound bottle,
is operating it, the inference of his own negligence is at least by a defect in the glass of a bottle containing a safe pressure,
as great as that of the defendant, and res ipsa loquitur will or by a combination of these two possible causes. The ques
not apply until he has accounted for his own conduct." tion is whether under the evidence there was a probability
(See, also, Olson v. Whitthorne & Swan, 203 Cal. 206, 208- that defendant was negligent in any of these respects. If so,
209 [263 P. 518, 58 A.L.R. 129).) [4] It is not necessary, the doctrine of res ipsa loquitur applies.
of course, that plaintiff eliminate every remote possibility of [7] The bottle was admittedly charged with gas under
injury to the bottle after defendant lost control, and the re pressure, and the charging of the bottle was within the ex
quirement is satisfied if there is evidence permitting a rea clusive control of defendant. As it is a matter of common
sonable inference that it was not accessible to extraneous knowledge that an overcharge would not ordinarily result
harmful forces and that it was carefully handled by plaintiff without negligence, it follows under the doctrine of res ipsa
or any third person who may have moved or touched it. loquitur that if the bottle was in fact excessively charged an
(Of. Prosser, supra, p. 300.) If such evidence is presented, inference of defendant's negligence would arise. [8] If
the question become& Qne for the trier of fact (see, e.g.,
4GO EscoLA v. Coe.A COL.A BOTTLING Co. [24 C.2d
the explosion resulted from a defective bottle containing a
July 1944) Escou. v. CocA CoLA BoTTtrno Co.
(24 C.2d 453]
i-afe pre:-sure, the defendant would be liable if it negligently
failed to discover such flaw. If the defect were visible, an occur in used bottles there is a duty upon the bottler to mako
inference of negligence would arise from the failure of defen appropriate tests before they are refilled, and if such tests
dant to discover it. Where defects are discoverable, it may are not commercially practicable the bottles should not be
be assumed that they will not ordinarily e:,cape detection if a re-used. This would seem to be particularly true where a
reasonable inspection is made, and if such a defect is over looked charged liquid is placed in the bottle. It follows that a de
an inference arises that a proper inspection was not rnnde. A fect which would make the bottle unsound could be discov
difficult problem is presented where the defect is Ullknown and ered by reasonable and practicable tests.•
consequently might have been one not discover t,ble by a Although it is not clear in this case whether the ex]'.)losion
reasonable, practicable insp tion. In the Honea case we was caused by an excessive charge or a defect in the glass,
refused to take judicial notice of the technical prac tices and there is a sufficient showing that neither cause would ordi
information available to the bottling industry for finding defects narily have been present if due care had been used. Further,
which cannot be seen. In the present case, defendant had exclusive control over both tho charging and
however, we are supplied with evidence of the standard meth inspection of the bottles. Accordingly, all the requirements
ods used for testing bottles. necessary to entitle plaintiff to rely on the doctrine of res ipsa
A chemical engineer for the Owens-Illinois Glass Company loquitur to supply an inference of negligence are present.
and its Pacific Coast subsidiary, maker of Coca Cola bottles, [10] It is true that defendant presented evidence tend
explained how glass is manufactured and the methods used ing to show that it exercised considerable precaution by care
in testing and inspecting bottles. He testified that his com fully regulating and checking the pressure in the bottles and
pany is the largest manufacturer of glass containers in the by making visual inspections for defects in the glass at sev
United States, and that it uses· the standard methods for eral stages during the bottling process. It is well settled,
testing bottles recommended by the glass containers associa however, that when a defendant produces evidence to rebut
tion. A pressure test is made by taking a sample from' each the inference of negligence which arises upon application of
mold every three hours-approximately one out of every the doctrine of res ipsa loquitur, it is ordinarily a question
GOO bottles-and subjecting the sample to an internal pressure of fact for the jury to determine whether the inference has
of 450 pounds per square inch, which is sustained for one been dispelled. (Druzanich v. Oriley, 19 Cal.2d 439, 444
minute. (The normal pressure in Coca Cola bottles is less [122 P.2d 53] ; Michener v. Huttm, 203 Cal. 604, 610 [265
than 50 pounds per square inch.) The sample bottles are P. 238, 59 .A.L.R. 480] .)
also subjected to the standard thermal shock test. The wit The judgment is affirmed.
neES stated that these tests are '' pretty near'' infallible.
[9] It thus appears that there is available to the industry Shenk, J., Curtis, J., Carter, J., and Schauer, J., concurred.
a commonly-used method of testing bottles for defects not
TRAYNOR, J.-I concur in the judgment, but I believe
apparent to the eye, which is almost infallible. Since •Coca
the manufacturer's negligence should no longer be singled out
Cola bottles are subjected to these tests by the manufacturer,
as the basis of a plaintiff's right to recover in cases like the
it is not likely that they contain defects when delivered to
present one. In my opinion it should now be recognized that
tho bottler which are not discoverable by visual inspection.
a manufacturer incurs an absolute liability when an article
Both new and used bottles are filled and distributed by de
that he has placed on the market, knowing that it is to be used
fendant. The used bottles :1re not again subjected to the
without inspection, proves to have a defect that causes injury
tc:;ts referred to above, and it may be inferred that defects
to human beings. McPherson v. Buick Motor Co., 217 N.Y.
not discoverable by visual inspection do not develop in bottles
382 [111 N.E. 1050, Ann.Cas. 1916C 440, L.R.A. 1916F 696],
after they are manufactured. Obviously, if such defects do
established the principle, recognized by this court, that irre
spective of privity of contract, the manufacturer is respon-
462 EscoLA v. CocA CoLA BOTTLING Co. [24 C.2d July 1944] EscoLA v. CocA CoLA BoT'l'LING Co. 463
[24 C.2d 453]

sible for an injury caused by such an article to any person

who comes in lawful contact with it. (Sheward v. Virtue, 20 ferred is "clear, positive, uncontradicted, and of such a nature
Cal.2d 410 [126 P.2d 345] ; Kalash v. Los Angeles Ladder Co., that it cannot rationally be disbelieved, the court must in
struct the jury that the nonexistence of the fact has been
1 Cal.2d 229 [34 P.2d 481].) In these cases the source of the
established as .a matter of law." (Blank v. Coffen, 20 Cal.2d
manufacturer's liability was his negligence in the manufac
457, 461 [126 P.2d 868] .) An injured person, however, is
turing process or in the inspection of component parts sup
not ordinarily in a position to refute such evidence or identify
plied by others. Even if there is no negligence, however, pub
the cause of the defect, for he can hardly be familiar with the
lic policy demands that responsibility be fixed wherever it
manufacturing process as the manufacturer himself is.. In
will most effectively reduce the hazards to life and health in
leaving it to the jury to decide whether the inference has been
herent in defective products that reach the market. It is
dispelled, regardless of the evidence against it, the negligence
evident that the manufacturer can anticipate some hazards
rule approaches the rule of strict liability. It is needlessly
and guard against the recurrence of others, as the public can
circuitous to make negligence the basis of recovery and impose
not. Those who suffer injury from defective products are
what is in reality liability without negligence. If public pol
unprepared to meet its consequences. The cost of an injury
icy demands that a manufacturer of goods be responsible for
and the loss of time or health may be an overwhelming mis
their quality regardless of negligence there is no reason not
fortune to the person injured, and a needless one, for the
to fix that responsibility openly.
risk of injury can be insured by the manufacturer and dis
tributed among the public as a cost of doing business. It is
In the case of foodstuffs, the public policy of the state is
formulated in a criminal statute. Section 26510 of the Health
to the public interest to discourage the marketing of products
and Safety Code prohibits the manufacturing, preparing,
having defects that are a menace to the public. If such prod
compounding, packing, selling, offering for sale, or keeping
ucts nevertheless find their way into the market it is to the
for sale, or advertising within the state, of any adulterated
public interest to place the responsibility for whatever injury
food. Section 26470 declares that food is adulterated when
they may cause upon the manufacturer, who, even if he is not
negligent fa the manufacture of the product, is responsible for '' it has been produced, prepared, packed, or held under in
its reaching the market. However intermittently such in juries sanitary conditions whereby it may have been rendered
may occur and however haphazardly they may strike, the risk diseased, unwholesome or injurious to health." The statute
of their occurrence is a constant risk and a general one. imposes criminal liability not only if the food is adulterated,
Against such a risk there should be general and con stant but if its container, which may be a bottle ( § 26451), has any
protection and the manufacturer is best situated to afford such deleterious substance ( § 26470 ( 6) ), or renders the product
protection. injurious to health. (§ 26470 (4)). The criminal liability
The injury from a defective product does not become a under the statute attaches without proof of fault, so that the
matter of indifference because the defect arises from causes manufacturer is under the duty of ascertaining whether an
other than the negligence of the manufacturer, such as negH article manufactured by him is safe. (People v. Schwartz,
gence of a submanufacturer of a component part whose de 28 Cal.App.2d Supp. 775 [70 P.2d 1017].) Statutes of this
fects could not be revealed by inspection (see Sheward v. Vir kind result in a strict liability of the manufacturer in tort to
tue, 20 Cal.2d 410 [126 P.2d 345]; O'Rourke v. Day & Night the member of the public injured. (See cases cited in Prosser,
Water Heater Co., Ltd., 31 Cal.App.2d 364 [88 P.2d 191]; Torts, p. 693, note 69.)
Smith v. Peerless Glass Co., 259 N.Y. 292 [181 N.E. 576]), or The statute may well be applicable to a bottle whose defects
unknown causes that even by the device of res ipsa loquitur cause it to explode. In any event it. is significant that the
cannot be classified as negligence of the manufacturer. The statute imposes criminal liability without fault, reflecting the
inference of negligence may be dispelled by an affirmative public policy of protecting the pub ic from d ngerou_s pro
showing of proper care. If the evidence against the f :t in- ucts placed on the market, irrespective _of neghge _c e m th ir
manufacture. While the Legislature imposes crlilllnal lia-
464 EscoLA v. CocA CoLA BOTTLING Co. [24 C.2d July 1944) EscoLA v. CocA CoLA BOTTLING Co.
[24 C.2d 453] 465
bility only with regard to food products and their containers,
there are many other sources of danger. It is to the public of Judge Cardozo in the McPherson case : '' The dealer was
interest to prevent injury to the public from any defective indeed the one person of whom it might be said with some
goods Ly the imposition of civil liability generally. approach to certainty that by him the car would not be used.
The retailer, even though not equipped to test a product, Yet, the defendant would have us say that he was the o.ne per
is under an absolute liability to his customer, for the implied son whom it was under a legal duty to protect. The law does
warranties of fitness for proposed use and merchantable qual not lead us to so inconsequent a solution." While the de
ity include a warranty of safety of the product. (Goetten fendant's negligence in the McPherson case made it unneces sary
v. Owl Drug Co., 6 Cal.2d 683 [59 P.2d 142]; Mix v. Ingersoll for the court to base liability on warranty, Judge Car dozo 's
Candy Co., 6 Oal.2d 674 [59 P.2d 144]; i'l-indraux v. Mauri?e reasoning recognized the injured person as the real party in
Mercantile Co., 4 Oal.2d 206 [47 P.2d 708] ; Jensen J/..JJerris, interest and effectively disposed of the theory that the
31 Cal.App.2d 537 [88 P.2d 220]; Ryan v. Progressive Gros liability of the manufacturer incurred by his warranty should
cery Stores, 255 N.Y. 388 [175 N.E. 105; 74 A.L.R. 339]; apply only to the immediate purchaser. It thus paves the way
Race v. Krum, 222 N.Y. 410 [118 N.E. 853, L.R.A. 1918F for a standard of liability that would make the manu facturer
1172].) This warranty is not necessarily a contractual one guarantee the safety of his product even when there is no
(Chamberlain Co. v. Allis-Chalmers etc. Co., 51 Cal.App.2d negligence.
G20, 524 [125 P.2d 113] ; see 1 Williston on Sales, 2d e ., This court and many others have extended. protection ac
§§ 197-201), for puulic policy requires that the buyer be m cording to such a standard to consumers of food products,
surcd at the seller's expense against injury. (Race v. Krum, taking the view that the right of a consumer injured by mi
supra; Hyan v. Progressive Grocery Stores, supra; Chapman wholesome food does not depend "upon the intricacies of the
v. Rovgenkamp, 18 Ill.App. 117, 121; Ward v. Great Atlan law of sales" and that the warranty of the manufacturer ,to
tic ,f: Pacific Tea Co., 231 Mass. 90, 94 [120 N.E. 225, 5 A.L.R. the consumer in absence of privity of contract rests on public
242]; see Prosser, The Implied Warranty of Merchantable policy. (Klein v. Duchess Sandwich Co., Ltd., 14 Cal.2d 272,
Quality, 27 l\Iinn.L.Rev. 117, 124 ; Brown, The L ability of 282 [93 P.2d 799) ; Ketterer v. Armou,r & Co., 200 F. 321, 322,
Retail Dealers For Def cctive Food Products, 23 Mmn.L.Rev. 323 [160 C.C.A. 111, L.R.A. 1918D 798]; Decker & Sons v.
585.) The courts recognize, however, that the ret iler can Capps, 139 Tex. 609 [164 S.W.2d 828, 142 A.L.R. 1479] ;. see
not bear the burden of this warranty, and allow him to re Perkins, Unwholesome Food As A Source of Liability, 5 Iowa
coup any losses by means of the warranty of safety attending L.Bull. 6, 86.) Dangers to life and health inhere in other
the wholesaler's or manufacturer's sale to him. (Ward v. consumers' goods that are defective and there is no reason to
differentiate them from the dangers of defective food prod
Great Atlantic & Pncific Tea Co., supra; see Waite, Retail
ucts. (See Bohlen, Studies in Torts, Basis of Affirmative Ob
Uesponsibility and Jiidicial Law Making, 34 Mich.L.Rev. 494,
ligations, American Cases Upon The Liability of Manufac turers
509.) Sul!h a procedure, however, is needlessly circuitous and
and Vendors of Personal Property, 109, 135; Llewellyn, On
engenders wasteful litigation. Much would be gained if the Warranty of Quality and Society, 36 Col.L.Rev. 699, 704, note
injured person could base his action directly on the manu 14; Prosser, Torts, p. 692.)
facturer's warranty.
In the food products cases the courts have resorted to vari
The liability of the manufacturer to an immediate buyer
injured by a defective product follows without proof of negli ous fictions to rationalize the extension of the manufacturer's
o-ence from the implied warranty of safety attending the sale. warranty to the consumer: that a warranty runs with the
Ordinarily, however, the immediate buyer is a dealer who does chattel; that the cause of action of the dealer is assigned to
not intend to use the product himself, and if the warranty of the consumer; that the consumer is a third party beneficiary
safety is to serve the purpose of protecting health and safety of the manufacturer's contract with the dealer. They have
it must give rights to others than the dealer. In the words also held the manufacturer liable on a mere fiction of negli-
 466 EscoLA ti. CocA CotA BOTTLING Co. [24 C.2d
July 1944] EscoLA v. CocA CoLA BOTTLING Co. 467
[24 C.2d 453]
gence: "Practically he.m1:1st know it [the product] is fit, or
bear the cons_equences if 1t proves destructive." (Parks v. gation of a seller in such a case is one imposed by law as
C. C. Yost Pie Co., 93 Kan. 334 [144 P. 202, L.R.A. 19150 distmguished from one voluntarily assumed. It may be called
179]; see Jeanblanc, Manufacturer's Liability to Persons an obligation either on a quasi-contract or quasi-tort, because
Other T an Their Immediate Vendees, 24 Va.L.Rev. 134.) remedies appropriate to contract and also to tort are appli cable."
S:U?h fictions are not necessary to fix the manufacturer's li (1 Williston on Sales, 2d ed. § 197; see Ballantine, Classification
bility under a warranty if the warranty is severed from the of ObligaUons, 15 Ill.L.Rev. 310, 325.)
contract of sale between the dealer and the consumer and As handicrafts have been replaced by mass production with
based on the law of torts (Decker di; Sons v. Capps, supra; its great markets and transportation facilities, the close rela
Prosser, Torts, p. 689) as a strict liability. (See· Greenv tiimship between the producer and consumer of a product has
General Petroleum Co p., 205 Cal. 328 [270 P. 952, 60 A.L.R: been altered. Manufacturing processes, frequently valuable
475] ; McGrath v. Basich Bros. Const. Co., 7 Cal.App.2cl573 secrets, are ordinarily either inaccessible to or beyond the ken
[46 P.2d 981]; Prosser, Nuisance Without Fault, 20 Tex.L. of the general public. The consumer no longer has means or
Rev., 399,403; !.eezer, Capacity To Bear The Loss AsA Fac skill enough to investigate for himself the soundness of a
tor In The Decision Of Certain Types of Tort Cases 78U of prod uct, even when it is not contained in a sealed package,
P .L.Rev. 805, 79 U. of Pa.L.Rev. 742; Carpenter, 1The Doc and his erstwhile vigilance has been lulled by the steady
tnne of Green v. General Petroleum Corp., 5 So.Cal.L.Rev. efforts of manufacturers to build up confidence by advertising
263, 271; Pound, The End of Law As Developed In Legal and marketing devices such as trade-marks. (See Thomas v.
Rules And Doctrines, 27 Harv.L.Rev. 195, 233.) Warranties Win chester, 6 N.Y. 397 [57 Am.Dec. 455] ; Baxter v. Ford
are not necessarily rights arising under a contract. An action Motor
ona warranty "was, in its origin, a pure action of tort "and Co., 168 Wash. 456 [12 P.2d 409, 15 P.2d 1118, 88 A.L.R.
onl?" la_te in the istorical development of warranties as an 521]; Crist v. Art Metal Works, 230 App.Div. 114 [243 N.Y.S.
a?tionm assumps1t allowed. (A:m_es, The History of Assump 496), affirmed 255 N.Y. 624 [175 N.E. 341]; see also Handler,
nt, 2 H rv.L. e:· 1! 8; 4 W1lhston on Contracts (1936) False and Misleading Advertising, 39 Yale L.J. 22; Rogers,
§ 970.) An it 1s still generally possible where a distinction Good Will, Trade-Marks and Unfair Trading (1914) ch. VI,
of procedure 1s observed between actions of tort and of con A Study of The Consumer, p. 65 et seq.; Williston, Liability
tra t !o frame th declaration for breach of warranty in.tort." For Honest Misrepresentations As Deceit, Negligence Or War
(Wil ston, lo . cit.; see Prosser, Warranty On Merchantable ranty,-42 Harv.L.Rev. 733; 18 Cornell L.Q. 445.) Consumers
Quality, 27 Mmn.L.Rev. 117, 118.) On the basis of the tort no longer approach products warily but accept them on faith,
character of an action on a warranty, recovery has been al relying on the reputation of the manufacturer or the trade
lowed for wrongful death as it could not be in an action for mark. (See Max Factor & Co. v. Kunsman, 5 Cal.2d 446,
breach of contract. (Greco v. S. S. Kresge Co., 277 N.Y. 26 463 [55 P.2d 177]; Old Dearborn etc. Co. v. Seagram-Dis tillers
[12 N.E.2d 577, 115 A.L.R. 1020]; see Schlick v. New York Corp., 299 U.S. 183 [57 S.Ct. 139, 81 L.Ed. 109, 106
JJ_ugan Bros., 175 Misc. 182 [22 N.Y.S.2d 238) • Prosser op A.L.R. 1476] ; Schechter, The Rational Basis of Trade Mark
cit., ; 119.) As the court said in Greco v. S.S. Kresge co' su Protection, 40 Harv.L.Rev. 813, 818.) Manufacturers have
pra, hou h the action may be brought solely for the br ach sought to justify that faith by increasingly high standards of
of the nnplied warranty, the breach is a wrongful act a de inspection and a readiness to make good on defective products
fault, and, in its essential nature, a tort.'' Even a eller 's by way of replacements and refunds. (See Bogert and Fink,
?xpre s warranty can arise from a noncoritractual aflrmation Business Practices Regarding Warranties In The Sale Of
mduc nga person to purchase the goods. (Cham.berlait1 Co.
Goods, 25 Ill.L.Rev. 400.) The manufacturer's obligation to
- All'tS-Chalmers etc. Co., 51 Cal.App.2d 520 [125 P.2d 113].)
the consumer must keep pace with the changing relationship
As an actual agreement to contract is not essential, the obli- b tween them; it cannot be escaped because the marketing of
a product has become so complicated as to require one or more
 468 v. 108
!RvrnE REcLdtArtoN !)IsT. No. [24 C.2d July IRVINE v. RECLAMATION DIST. No. 108 469
[24 C.2d 468]
1944] i te ediaries. Certainly there is greater reason to impose
hab1hty on the manufacturer than on the retailer who is but authorizing law and the bond itself provide for interest.
a conduit of a product that he is not himself able to test. (See Where the statute states that the bond shall bear interest the
only reasonable implication is that it shall continue to bear
Soule, Consumer Protection, 4 Encyclopedia of The Social interest after maturity.
Sciences, 282; Feezer, Manufacturer's Liability For Injuries
Caused By His Products: Defective Automobiles, 37 Mich.L. [3] Id.-Nature and Characteristics.-Government bonds are or
dinarily classed with negotiable instruments and can pass freely
Rev. 1; Llewellyn, Cases And Materials on Sales, 340 et seq.) from hand to hand. They are the solemn and binding obliga
The manufacturer's liability should, of course, be defined in tion of the government.
terms of the safety of the product in normal and proper use, [4]
and should not extend to injuries that cannot be traced to Id.-Interest-Bonds-After Maturity.-The interest accruing
after maturity of government bonds which provide for interest
the product as it reached the market. is not accurately speaking, da ages, but is rather an implied
part of the basic contract. There is no derogation of sovereign
Appellant's petition for a rehearing was denied August 3, immunity in applying this principle, or in concluding that Civ.
1944. Edmonds, J., voted for a rehearing. Code, § 3289, is applicable.
[6] Id.-Interest- Coupons-After Maturity.-As distinguished
from interest on the principal of matured government bonds,
there is ordinarily no provision for interest on the interest
coupons at any time, and hence the general rule is applicable
[Sac. No. 5616. In Bank. July 10, 1944.J that interest will not run against a government obligation un less
it is imposed by statute or authorized contract.
JAMES IRVINE, Appellant, v. RECLAMATION DIS [6] Reclamation-Bonds-Interest After Maturity.-Reclamation
TRICT NO. 108 et al., Respondents. bonds issued under Pol. Code,§ 3480 (as in existence in 1925),
§ 3480b (formerly § 3480½), which affirmatively specify that
[Sac. No. 5610. In Bank. July 10, 1944.J such a bond shall bear interest until paid, continue to bear inter
est after maturity, there being nothing in such sections which
REED J. BEKINS et al., as Trustees etc., Appellants, v. evince a.n intent that interest should not continue after maturity.
RECLAMATION DISTRICT NO. 1500 et al., Respon The elimination from§ 3480, by amendment in 1917, of a former
dents. clause that interest did continue on the bonds after maturity,
but that it shall cease unless the bonds are presented and cer
[la, lb] Public Securities - Interest - Bonds-After Maturity. tain conditions exist, evinces the thought that while interest
Where government bonds are issued which provide for inter est, continues, the restrictions on that continuance are no longer
the interest continues after maturity unless there is some effective.
provision in the authorizing statute evincing an intent that [7] Id.-Bonds-Interest Coupons-Interest After Maturity.-In
they should not bear such interest. (Meyer v. City and County terest coupons attached to reclamation bonds issued under Pol.
of San Francisco, 150 Cal. 131, 88 P. 722, 10 L.R.A.N.S. 110, Code, § 3480 (as it existed in 1925), do not bear interest aft r
and Bullard v. Riverside County Drainage District, 41 Cal.App. maturity, as the elimination from that section, by amendment m
2d 900, 107 P.2d 929, disapproved.) 1917, of a former clause expressly authorizing interest under
certain conditions only, indicates an intention that coupons
[2] Id.-Interest-Bonds-After Maturity.-There is a clear dis under the amended act shall not bear interest.
tinction between a government obligation which makes no
men tion of interest and an obligation, such as a bond,
[8] Id.-Bonds-Interest After Maturity.-That portion of Pol.
where the Code § 3480 (as it existed in 1925), which states that within
90 d ys before any interest payable date of reclamation dis
[1] See 21 Cal.Jur. 1051; 43 Am.Jur. 517. trict bonds, the treasurer shall estimate the amount of money
McK. Dig. References: [1, 2, 4, 5] Public Securities § 19; necessary to pay the interest and principal maturing on the
(3] Public Securities, § 1; [6-10J Reclamation, § 86 (1). '
[6] See 9 Cal.Jur. 918.