JURY SELECTION/VOIR DIRE
E. Marcus Davis
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I. INTRODUCTION
Voir Dire is an extremely important component of the case. Either a beginning, or an experienced, trial lawyer must devote intensive thought, imagination, preparation and practice to the voir dire of the case. Practice asking your questions to your staff, family, or an informal focus group (friends) within a few days prior to trial. Just as in painting a house, preparation of the surface, is absolutely required if the paint is to stick. Without adequate preparation the jury will reject your client’s case.
Many attorneys place such little emphasis on the importance of voir dire preparation that they make the mistake of putting voir dire preparation off until the last minute, thinking they will get around to it when all their other trial preparation is complete. This usually means little or no effort is put into developing a voir dire specific to your case.
The principal skill of the trial lawyer is honest, effective communication. Be yourself. Your approach to voir dire sets the whole tone of the case and defines you and how your message will be received by the jury from the outset. Are you real and authentic or are you trying to be someone you are not?
Running through the entire fabric of our Georgia decisions is a thread which plainly
indicates that the broad general principle intended to be applied in every case is that
each juror shall be so free from either prejudice or bias as to guarantee the inviolability
of an impartial trial…In the interest of fair trial, if error is to be committed, let it be in
favor of the absolute impartiality and purity of the jurors.[1]
II. HOW TO APPROACH THE SUBJECT
It is important to ask yourself certain fundamental questions before planning and preparing the voir dire:
1. What is my case about?
2. What about my case scares me? Am I willing to discuss those issues honestly with the jury? What are the problems with my case that I hope to overcome?
3. What do I think the jury will be troubled by and how will they react to me, my case, my client?
4. What type of juror do I want?
5. What type of juror scares me?
6. What kind of juror do I want to try to challenge for cause, or failing that, use a peremptory strike to exclude? How will I approach that process so as to not come across as meanspirited, arrogant, hostile or judgmental?
7. How do I convince the judge that what I am trying to do in voir dire is legitimate? Do I feel empowered or am I approaching this process feeling hemmed in, afraid of the judge and jury and defeated before I ever start?
8. Am I willing to just be myself and not mimic someone else or try to be “lawyer man” or “lawyer woman?” Am I willing to communicate honestly and not come across as patronizing or fake out of fear and my desire to control and manipulate? Am I willing to believe that I am actually good enough and adequate for the job at hand, even though I wasn’t first in my law school class, didn’t win the moot court competition, and have really hidden the fact for most of my career that I feel like an imposter and hope I won’t be exposed and found out.
9. How can I use voir dire to condition the jury as to the important issues of the case, help the leaders on the jury to shine and begin to set up alliances with me and other jurors?
10. How can I help the jurors who are sometimes excluded and rejected as outsiders feel valued and included as part of the winning team?
11. How do I find the jurors who are prejudiced against my case, since I will never, ever take their prejudices away by arguing with them, educating them, or belittling them in front of other jurors? How can I enlist the aid of the prejudiced juror to educate the others by having others on the jury disagree with them and express other points of view for me without doing it directly?
12. How do I discover who the common enemy of the jury is?
13. Am I willing to practice my voir dire with friends, family, or paid shadow jury so that I will be relaxed and spontaneous when the voir dire actually starts?
14. How can I avoid being ambushed by the silent juror who doesn’t answer questions but harbors opinions detrimental to my case and whose goal in getting on the jury is to sabotage the Plaintiff’s case?
“Many potential jurors mistakenly believe the civil justice system is out of control with runaway verdicts and a congested court docket brought about by a ‘sue happy society’. Such jurors must be identified and removed from the panel.”[2]
III. FEAR IN THE COURTROOM – FEAR IN YOUR HEART
The courtroom is one scary place. It is a place where people lose their children in a custody battle, lose their freedom and go to prison, lose their money and security, and sometimes even lose their life. Judges have a reputation of “biting the heads off” of lawyers. There are armed people with guns and handcuffs standing by. Let’s face it, is there anything not to be afraid of in the courtroom? No wonder we have a hard time just being ourselves and not being stiff and scared and paralyzed with fear at the start of the trial……And the poor jurors are more scared than we are! They wonder: “What will they ask me? Will they embarrass me? Am I smart enough to understand this case? Am I up to the job of the responsibility of this case? Will I look like a fool? Will these other people listen to me or like me? [3]
Out of that fear comes great opportunity. You can break the ice and be the authentic “real” person in the room and help everyone to feel safe and comfortable enough to be authentic. The reward is, you get to find out how they really feel and think, if, but only if, you reveal how you really feel and think. As Gerri Spence says, “It’s like the children’s game: “I’ll show you mine, if you show me yours!”
Start out with telling them: “I want to tell you that I am scared about my case. I am afraid you will not like my client, he/she is not attractive, has a criminal record, and that you won’t be able to put that out of our mind in figuring out if he was harmed and damaged by malpractice. Maybe I shouldn’t have even taken this case – What do you think? I am afraid I may not be adequate for this job and my client will be hurt because of it and won’t get a fair shake because of it. What do you think?” Well guess what, the juror is now thinking you are just as afraid as she or he is and the beginning of an honest relationship is starting. The jurors are afraid and they are glad to hear you are too! Be vulnerable.
IV. HOW TO REALLY LISTEN TO THE JUROR
Let’s face it, when you start asking those questions of the jury panel and the individual jurors, it’s a scary time. You are afraid a juror may “poison” the whole panel and make you lose the trial with one horrific answer. You bristle and become angry at their rant about “jackpot justice,” the “McDonald’s coffee case,” “greedy trial lawyers,” the “loopholes” that let defendants go free. Your fear and anger shows in your body language, and your condemning, argumentative, or judgmental tone of voice.
V. WHY NOT TRY A NEW APPROACH
Why not curiously listen then, instead of defensively correct, advise, argue or explain?
When we try to talk a juror out of a bias or prejudice, it will never, work. All we do is harden their intransigent position and make ourselves look bad. Remember, the goal is to deselect the jurors with prejudice against your case through challenges for cause or with peremptory challenges. If you want honest answers from the juror you are currently questioning, as well as the others waiting their turn, you must tread gently.
Here’s a suggested way to do it:
1. Keep your heart and your good intentions turned toward them, even when their heart is turned from you by doing the following:
a. Set aside your critical judgments and/or conclusions about their intentions,
behaviors and feelings;
b. Set aside your personal agenda and your attachment to outcome;
c. Acknowledge and set aside your emotional reaction, e.g. fear, anger, judgment, condemnation to their opinion and ask genuinely curious and compassionate
questions about their opinions and why they feel as they do.
The method and types of questions are subject to the discretion of the trial court. Hypothetical questions are usually not allowed if the purpose is to have the jurors indicate what their decisions will be under a certain set of circumstances, evidence or facts. But hypothetical questions which attempt to determine that the juror’s mind is free of preconceived convictions are proper and allowed.[4]
2. First and foremost ask open ended questions. You must forget how angry you are about tort reform and the erosion of our civil liberties and “listen.” Be genuinely interested in finding out why the juror feels as he does. Using their words and repeating some back to them (the psychological technique of mirroring), ask them to help you understand what they mean and why they feel that way. Be genuinely curious, like you are a news reporter in another country or even from another planet. Ask them how they see it or feel it specifically. Be truly curious about how they arrived at their opinions. Remember, that their opinion and feelings are as valid as your own and in your case, even more so, because they have the power to decide the case.
3. Let them talk a lot. They are not used to having someone listen to them without defending, correcting, solutioning, or “me-tooing” them. They may get more “worked up” before they wind down, but after a while they will begin to hear themselves and a little self-assessment and wisdom may creep in, when they don’t have to spend so much energy defending their position to you.
4. Listen for the integrity of their point of view and what you can learn about them to make you more compassionate for their situation and why they hold their opinions and prejudices (our characterization).
5. Be present and make the juror feel as though they have been fully heard. There is an incredible amount of respect and loyalty that may develop from that type of listening. How rare it is for human beings to feel that from another. [5]
Try building a partnership with the jurors by having an expansive conversation. The goal is to curiously inquire for more information. Add to what you “see” with what the other person “sees” and seek to give them additional information which could build a framework for a shared goal represented by a favorable verdict. Work together towards some shared higher purpose. Be curious about what you don’t know and don’t assume you know the other person’s intent. You have to be genuine and demonstrate the energy of genuine curiosity. Use their words, repeated back to them, in follow up questions, so that they will know you are interested and listening. Try to shift your orientation from certainty to curiosity, from simplicity to complexity and, most importantly, from “either or” to “both.” Try to develop an interest in “how it is” for another and how their information and opinion could give you a wider view. The goal is to build partnership by ending the arrogance of superior/inferior. Shared understanding is about appreciating and legitimizing another’s view vs. agreeing or disagreeing with them. You can then draw out their honest opinions with your sincere and respectful curiosity, so that you can decide whether or not you want them on your team or whether you need to exclude them. Many jurors treated in this fashion will not fight you on the questions obviously setting them up for a challenge for cause (you know it and they know it), because of the respectful listening that you have given them. People want to be heard and connect and to be valued and acknowledged. Be genuinely curious, understanding that you don’t know their world. Demonstrate you want to understand what they think and feel by asking open-ended questions.
VI. STEREOTYPES DON’T WORK
After practicing law for thirty-five years and having been convinced, now more than ever, of how much I don’t know about being a trial lawyer, I have come to the conclusion that (drum roll please) “people are people” – brilliant huh? What I mean is that ethnic and other stereotypes are so diluted and watered down by peoples’ life experience, the number the years since certain ethnic types immigrated to the United States, etc. that the best thing to do is just make no prejudgments and ask your questions. It is so difficult to find enough good jurors, with tort reform rhetoric and fear of terrorism making people so afraid that they are willing to throw away their rights, that you can’t afford to waste strikes on the basis of stereotypes. Simply find out who people are and what drives and motivates them. To do so, you must give them a sense of who you are as well. Get a feel for whether you like them and can work with them for a common goal. The most important principal is to ask the questions designed to find out, “Who are the people prejudiced against my case? Why?” We will never be able to take their prejudices away. Hence, we must make them feel safe to tell us their true beliefs and opinions without fear of scorn or judgment from us or anyone else in the courtroom. We have to draw them out being very vulnerable. Speaking one’s humanity and fears is the best way to go about it. Don’t assume silence means agreement. Make an effort to get the silent ones to talk.
The best way to accomplish this goal is to make it safe for jurors to express their honest opinions and to gently lead them into the concession that it really would be better for all concerned for a person with such valid and well thought out and reasonable and wise, (but nonetheless such a “fixed and formed” opinion that it would never change no matter what the evidence shows), to be excused from jury service. Besides, most folks with these really hard-core “fixed and formed” opinions in our society are just too darned important to be tied up in the business of sitting on a jury. Many of them will leap at the chance to be excused for cause, if you only will treat them with respect. Don’t make them feel attacked and put down by your cause challenge. These are proud, accomplished people. You don’t want them to feel that if they are challenged for cause they are foolish or you have dominated them and that you win and they lose. If you make them feel this way, they will figure out a way not to be challenged for cause and later vote against your client in deliberations.
Ask a question like this: “Mr. Jones, you have told us that you feel we would have to prove the doctor was negligent by proof beyond a reasonable doubt and that proof by a preponderance of the evidence, or more likely than not, just makes it too easy on us and hard on the doctor. In fairness, wouldn’t you agree that your opinion on that is so fixed and formed that it is unlikely to change no matter what happens in the case.”[6] Usually, the busy business person, tort reformer will spot an “escape” in those stilted words “fixed” and “formed” and seize upon it as his or her ticket out of the courtroom and back to the high paying, important job. Crucial to this outcome is establishing a communication dynamic and atmosphere where it is not a contest of wills between you and a prospective juror, but instead a respectful, low key, genuinely interested exchange of ideas. If you get the jurors “back up” odds are he or she is staying on that jury no matter what. The judge’s rehabilitative question, “You will follow the law, won’t you?” is just too easy a “save” for your opponent, once the juror is riled up and wants to spite you by getting on the jury and sabotaging your case.
VII. CHALLENGES FOR CAUSE
Challenges for cause are extremely important. You will almost never have enough peremptory challenges left to deselect the problem jurors. The only way to enhance your odds of success is to become adept at striking jurors for cause. The number of peremptory challenges is limited, but the number of challenges for cause is not.[7] Generally there are two categories for challenging the juror for cause, principal/per se challenges and challenges for favor.
A. Principal/Per Se Challenges:
These challenges are well-founded in law and statute. Per se challenges include:
1. O.C.G.A. §15-12-134. Challenge of juror in civil case for desire or expression of opinion as to which party should prevail…
In all civil cases it shall be good cause of challenge that a juror has expressed
an opinion as to which party ought to prevail or that he has a wish or desire as
to which shall succeed. Upon challenge made by either party upon either of
these grounds, it shall be the duty of the court to hear the competent evidence
respecting the challenge as shall be submitted by either party, the juror being
a competent witness. The court shall determine the challenge according to the
opinion it entertains of the evidence adduced thereon.
To be successful at challenging for cause under this statute the evidence must demonstrate that the juror’s opinions are fixed, and the juror is incapable of objectively weighing the evidence.
2. O.C.G.A.§15-12-135. Disqualification for relationship to interested party.
(a) All trial jurors in the courts of this state shall be disqualified to act or serve in
any case or matter when such jurors are related by consanguinity or affinity to
any party interested in the result of the case or matter within the sixth degree as
computed according to the civil law. Relationship more remote shall not be a
disqualification…
This statute is not limited to just kinship, but also jurors who have a relationship with a party or are related to a person having a close connection with a party or the outcome of the case. Additionally, a party is considered related by marriage to blood relatives of his spouse but not to people his spouse is related to only by marriage. For example, the wife of the spouse’s uncle would not be disqualified under this code section.[7] Challenges for favor include other relationships not delineated in O.C.G.A.§15-12-135.
B. Challenges for Favor
Challenges for favor include all jurors who have given counsel reasonable basis for apprehension of partiality or bias. Challenges for favor are rarely reversed because the appellate courts give great deference to the Trial Court’s discretion and will only be reversed upon a finding of “manifest abuse” of that discretion.[8] To preserve an appeal for failure to strike the best practice is to exhaust all peremptory challenges and make your objections to the panel before the jury is sworn or they may be waived.
O.C.G.A.§15-12-133 states:
In all civil cases the parties thereto shall have the right to an individual
examination of the panel of jurors from which the jury is to be selected,
without interposing any challenge…In the examination, the counsel for
either party shall have the right to inquire of the individual jurors
examined touching any matter or thing which would illustrate any
interest of the juror in the case, including any opinion as to which
party ought to prevail, the relationship or acquaintance of the
juror with the parties or counsel therefor, any fact or circumstance
indicating any inclination, leaning, or bias which the juror might
have respecting the subject matter of the action or the counsel or
parties thereto, and the religious, social, and fraternal connections
of the juror.
This statute forms the basis for most challenges for favor/bias.[9] Almost any relationship or bias may be grounds for disqualification if it raises a reasonable apprehension of partiality or pre-judgment. Some examples of challenges for favor are:
a. Racial prejudice;[10]
b. Leaning or bias for or against one party;[11]
c. Size of the verdict (counsel may inquire in general terms as to a jurors feelings or bias
toward “large verdicts” but may not ask the juror to commit to a specific amount or
range);[12]
d. Stockholders and relatives of corporate party or insurance company with financial
exposure;[13]
e. Employees of a party;[14]
f. Relationship to any insurance company with potential exposure in the case;[15]
g. Fixed opinions as to any material fact as to the parties, the subject matter of the case or credibility of witnesses;
h. Inability to set aside impressions or opinions based upon pre-trial publicity.[16]
Additionally, the Supreme Court decision in Kim v. Walls, 275 Ga. 177 (2002) changed the trend of “rehabilitating” jurors who were brave enough to be honest about potential biases only to be subjected to a “browbeating” by counsel or the trial court. The Court in Kim held that when “a prospective juror has a relationship with a party to the case that is either close or subordinate, or one that suggests bias, the tiral court must do more than ‘rehabilitate’ the juror through the use of any talismanic question.”[17] The Court further admonished trial courts to err on the side of dismissing a juror rather than trying to rehabilitate biased jurors. Id.
VIII.PEREMPTORY CHALLENGES
The scope of voir dire is not limited to the subjects which constitute grounds for sustaining a challenge for cause. Voir dire may also inquire into subjects which reveal bias or prejudice towards a party or issue to be tried.[18]
The number of peremptory strikes depends on the number of jurors being seated for trial. All civil matters pending before the State Courts of Georgia are tried to a jury panel of six members, unless there is a minimum claim for damages in excess of $25,000, and then the case may be heard by twelve jurors by request of either party. Civil cases before the Superior Courts of Georgia are heard by a panel of twelve jurors. In cases heard by a six-member jury each side has three peremptory strikes. In cases heard by a twelve-member jury each side has six strikes. The parties alternate strikes, with the Plaintiff striking first.[19] If alternate jurors are being selected, each party has one additional peremptory challenge to be used only in the selection of the alternates.[20]
You should be aware of Batson issues when using peremptory challenges. Batson v. Kentucky holds that deliberate exclusion of members of a particular political group, economic group, race, sex, religious faith, etc. violates due process and equal protection. The burden is on the person who feels they have been unfairly excluded to establish the Batsonissue, and then the burden shifts to the striking party to establish a neutral basis for the strike.[21]
IX. PERSUADING THE JUDGE THAT YOUR METHODS AND PURPOSE ARE LEGITIMATE
When you think about the questions you really need to ask in voir dire, you might think, “Well a judge wouldn’t really let me ask those in a trial.” If you approach the task with that attitude, it will probably become a self-fulfilling prophecy. If you think you can’t do it, you probably won’t try, or your effort will be half-hearted. Your energy will telegraph tentativeness and that you are not sure of yourself and don’t believe in what you are doing. Consider approaching it head-on with the judge before you start the voir dire: “Judge, we have a tough row to hoe in this political climate. You know 30 of the last 30 medical malpractice cases have been lost by plaintiffs in this State. There have been only three plaintiff’s medical malpractice verdicts in the last three years in the State. It is extremely difficult for a plaintiff to get a fair shake in a legitimate case. The reason is the jury pool has been brain washed and conditioned by the relentless drum beat of corporate advertising, political mailings and pronouncements by everyone from the President of the United States, to the Governor, to the Speaker of the House to talk show hosts and others about “frivolous lawsuits,” “jackpot justice,” “running doctors out of business,” “greedy plaintiff’s lawyers,” “malpractice cases causing everyone’s health insurance premiums to go up,” and the like. We need some latitude in inquiring into those matters to get a fair trial. We won’t waste your time and the juror’s time with silly questions. We respectfully ask your discretion to allow us to go into those matters and of course, if you don’t feel our purpose is legitimate, rein us in. We want to explore those matters and inquire into those matters. We want a fair trial and, in this climate, it is exceedingly difficult to get one.[22] Demonstrate impeccable intent in this regard. Use this approach to also advocate for the use of a jury questionnaire.
X. THE USE OF NOTES
Notes are an impediment to communication, When you look at them and think of the next written question, rather than listening to the answer and framing the next question by incorporating words from the last answer, you tend to miss the whole world of nonverbal communication: the scowl, the tight body position, the harsh tone of voice, the tight insincere smile, all of which speaks volumes of information that you don’t want to miss. Use a lawyer or staff person in your office to take with you.
XI. ESTABLISH RAPPORT WITH THE JURY
It is important to carry on your voir dire as you would any conversation by establishing a few common interests or life experiences between you and the juror as they answer your questions. Let them know you are one of them and that you are down to earth, approachable and sincere. Don’t go too far with this or the judge will call you down. Tell them a little bit about you, your background, your work, and your family. Share some of your weaknesses and vulnerabilities so that it won’t appear that you are not one of them. Do the same for your client. Usually your opponent will want to do the same thing, so he or she won’t object. Dress appropriately, but not too flashy or expensively. Forget the jewelry. Leave the Mercedes at home. Remember you want to be one of them, not to be perceived as above them, or play into some awful lawyer stereotype. Use “plain speaking” language. Using legalese or an overly formal speech pattern or “speechifying” will only serve to distance you from the jury.
XII. ESTABLISHING THE THEMES OF YOUR CASE
Smart lawyers have said that you should win your case by the end of voir dire and opening statement. One of the ways to effectively work toward that goal is to establish coherent themes of your case which you will carry through from voir dire, to opening, to direct, to cross, to closing. A coherent theory of your side of the case should be woven into the voir dire questions, headnotes or bullet points, to alert the jury to the themes and concepts of the case.
XIII. DISCUSSING THE “PINK ELEPHANT” IN THE LIVING ROOM
Ask questions about the issues which are of most concern to you. Devote considerable time to thinking about what the jury will be concerned about with your case and how you can effectively bring those issues out for open discussion. Those issues are in the jurors minds anyway, so do not be too afraid to talk about the “pink elephant” in the living room. Not talking about “the pink elephant” is not going to make him go away. Don’t worry about poisoning the whole jury. You should try to get a commitment from the jury to not consider the prejudicial elements of your case before they come back to haunt you in deliberation. The ignored “pink elephant” will most definitely be a topic of conversation in the jury room.
Example A:
“You know it worries me that Akeem is the product of a mixed race marriage. I am afraid you might disapprove of it and it might hurt Akeem’s case, even though the fact that he is of mixed race has nothing to do with how he became quadriplegic? How do you feel about that?”
Example B:
“You know my client has a criminal record. That doesn’t have anything to do with how he got malpracticed upon, but I am worried that he won’t get a fair shake. How do you feel about that?”
Example C:
“My client had a gambling addiction in years past and I am worried that you will reject his case because of that. How do you feel about that?
Example D:
“Are any of you worried that a large verdict in this case will cost you money personally, since it is against the county hospital?
Example E:
My father thinks we shouldn’t award money for pain and suffering. Some people feel we should. Where do you stand on that, like my Dad or some other folks?
Example F:
“Well the doctor is a good person. You know he does volunteer work for Doctors Without Borders. That worries me. Would you be inclined to give him a pass even if he committed malpractice because of his good deeds? Or would you hold him accountable even if he is usually a good doctor, but was not in this instance?”
XIV. CONCLUSION
We all want to select a jury in which everyone has the exact frame of mind that you do, agrees with you on everything, and sees it just like you see it. Unfortunately, that person doesn’t exist. There is only one you, and we are all different. About the best we can do is to reveal the jurors who are leaning one way or another. Find the ones that are leaning so hard that nothing will cause them to lean in a different direction. These jurors hopefully will be stricken for cause, or if not, use a peremptory challenge and your client will be more likely to receive justice.
Good luck with your next voir dire and I hope some of these tips and suggestions will be useful!
[1]Guoth v. Hamilton et al., 273 Ga.App.435 (2005) [Internal Citations Omitted.][2] Thomas Malone, Voir Dire and Summation, The Law and the Practice, §6:1 (2d Ed.), The Harrison Company.
[3] Gerri Spence – Voir Dire Videotape.
[4] U.R.S.C. Rule 10.1. Voir dire. The court may propound, or cause to be propounded by counsel such questions of the jurors as provided in O.C.G.A. §15-12-133; however, the form, time required and number of such questions is within the discretion of the court. The court may require that questions be asked once only to the full array of the jurors, rather than to every juror, one at a time, provided that the question be framed and the response given in a manner that will provide the propounder with an individual response prior to the interposition of challenge. Hypothetical questions are discouraged, but may be allowed in the discretion of the court. It is improper to ask how a juror would act in certain contingencies or on a certain hypothetical state of facts. No question shall be framed so as to require a response from a juror which might amount to a prejudgment of the action. Questions calling for an opinion by a juror on matters of law are improper. The court will exclude questions which have been answered in substance previously by the same juror. It is discretionary with the court to permit examination of each juror without the presence of the remainder of the panel. Objections to the mode and conduct of voir dire must be raised promptly or they will be regarded as waived.
[5] Jan Smith, Communications Consultant, Center for Authentic Leadership, Atlanta, Georgia.
[6] David Ball, Damages.
[7]Georgia Trial Handbook 6:16, citing Alexander v. State, 260 Ga. 870 (1991).
[8]Kim v. Walls, 275 Ga. 177, 178 (2002) (Internal Citations omitted.)
[9]See Generally Voir Dire and Summation §4-1 et seq.; and Trial Handbook for Georgia Lawyers §16.1 et seq.
[10]Menefee v. State, 270 Ga. 540 (1999); See Generally, Voir Dire and Summation §4-1 et seq.; and Trial Handbook for Georgia Lawyers §16:1 et seq.
[11]Perry v. State, 264 Ga. 524 (1994).
[12]Atlanta Joint Terminal; see also Davenport v. Kutner, 186 Ga. App. 152 (1988).
[13]Lewis v. Emory University, 235 Ga. App. 811 (1998).
[14]Voir Dire and Summation §4-23.
Lewi V Drum Kits
[15]Weatherbee v. Hutcheson, 114 Ga. App. 761 (1966).
[16]Morrill v. Stte, 216 Ga. App. 468 (1995).
[17]Kim v. Walls, 275 Ga. 177, 178 (2002) (Internal Citations omitted). See alsoGuoth v. Hamilton, et al, 273 Ga. App. 435 (2005); Kier v. State, 263 Ga. App. 347 (2003); and Remillard v. Longstreet Clinic, P.C.,267 Ga. App. 230 (2004).
[18]Atlanta Joint Terminals v. Knight, 98 Ga. Ap. 482 (1958).
[19].O.C.G.A.§15-12-122 and 15-12-123. (Civil cases before the federal courts of Georgia shall be heard by a panel of six jurors, unless both parties request in writing prior to trial the case be heard before a jury of twelve).
[20] O.C.G.A. §9-11-47
[21]Batson v. Kentucky, 476 US 79. See also Edmonson v. Leesville Concrete Co., 500 U.S. 614 (Batson, aplies to civil matters).
[22] Geri Spence: Voir Dire Videotape
Burr v. Sherwin Williams Co. , 42 Cal.2d 682
ROBERT BURR et al., Respondents, v. SHERWIN WILLIAMS COMPANY, Appellant.
COUNSEL
Ray W. Hays and James N. Hays for Appellant.
W. R. Bailey, Wingrove & Brown, Meredith Wingrove and Lee G. Brown for Respondents.
OPINION
Lewi V Drum Kit
GIBSON, C.J.
In July 1949 plaintiffs, Robert Burr and his wife, owned approximately 135 acres which were planted in cotton. At Burr's request, defendant Patton, a field man for defendant Central Valley Cooperative, hereinafter referred to as the cooperative, inspected the crop, found insects known as cotton daubers and advised plaintiffs to use a spray containing DDT, which is an insecticide. Burr agreed to have the cotton sprayed in accordance with Patton's recommendations and authorized him to make the necessary arrangements for obtaining the spray and hiring an aviation company to apply it. Patton, with the approval of Burr, engaged defendant Rankin Aviation Industries to do the spraying. The cooperative delivered to Rankin at the airport five new sealed, 30-gallon, nonreturnable steel drums of 'DDTOL, 25 per cent Emulsifiable,' which had been manufactured by defendant Sherwin Williams Company and delivered to the cooperative on consignment. An employee of the Rankin company opened the drums at the airport, mixed the insecticide with water and placed it in the airplane which was used to spray plaintiffs' cotton. Crop damage was noticed shortly thereafter, the plants grew abnormally, and production was adversely affected.
Three experts who examined the field testified that the cotton was damaged by a plant hormone known as 2,4-D which is used as a weed killer and has an adverse effect on [42 Cal.2d 687] cotton, even in extremely small quantities. An inspector for the Department of Agriculture of the State of California took samples from the five open drums used in the spraying operation and from two unopened drums of the same product at the warehouse of the cooperative. The samples were sent to Sacramento for testing, and officials for the department reported that several tests showed 'some evidence' of the presence of a small amount of 2,4-D or 2,4,5-T, a similar substance, in the five open drums and in the two unopened ones. The entomologist of the Bureau of Chemistry of the department stated that the weed killer was present in an amount toxic to bean sprouts, and another expert testified that cotton is more sensitive to this substance than bean sprouts.
Sherwin Williams, the cooperative, the Rankin company and various individuals employed by these companies were joined in a single action charging negligence in the manufacturing, selling and using of the Sherwin Williams' solution. The complaint also alleged breach of warranty by Sherwin Williams and the cooperative. The jury found against Sherwin Williams and in favor of the other defendants. Sherwin Williams alone appeals from the judgment and contends that no instructions should have been given on res ipsa loquitur and that those given on that doctrine and on implied warranties were erroneous.
I. Res Ipsa Loquitur Instructions
[1a] The evidence is clearly sufficient to satisfy the requirement of the doctrine of res ipsa loquitur that the accident must be of such a nature that it probably was the result of negligence by someone, since it may be assumed that an insecticide such as the product involved here, which is designed for use on plants, will not ordinarily damage cotton crops if it is properly manufactured and applied. The evidence also meets the requirement that it must appear that the defendant is probably the one who is responsible. [2] The fact that an accident occurs after the defendant relinquishes control of the instrumentality which causes the accident does not preclude application of the doctrine provided there is evidence that the instrumentality had not been improperly handled or its condition otherwise changed after control was relinquished by the defendant. (Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 444 [247 P.2d 344].) [1b] In the present case the codefendants are the only persons likely to [42 Cal.2d 688] have been responsible for any alteration of the insecticide after the sealed drums were delivered by Sherwin Williams to the cooperative, and these defendants gave explanations of their activities which would indicate that they had not mishandled or improperly changed the condition of the spray which damaged plaintiffs' crop. Moreover, as we have seen, there is evidence that unopened drums of the insecticide in the warehouse of the cooperative also contained sufficient 2,4-D to injure cotton plants. [3] Under all the circumstances the evidence warrants the conclusion that the damage to the crop was probably due to some negligent conduct on the part of Sherwin Williams in allowing its product to become contaminated or in failing to discover the contamination before it relinquished control of the product. The trial court, therefore, was justified in giving instructions on the doctrine.
[4a] The procedural effect of res ipsa loquitur is presented by the contention that the court erred in telling the jurors that the inference of negligence based upon the doctrine is mandatory rather than permissive. They were instructed that from the occurrence of the damage involved in this case, as established by the evidence, 'there arises an inference' of negligence by the defendants and that it is 'incumbent upon the defendants to rebut the inference.' [5, 6] It is settled, of course, that res ipsa loquitur raises an inference, not a presumption, and the general rule is that whether a particular inference shall be drawn is a question of fact for the jury, even in the absence of evidence to the contrary. (See Code Civ. Proc., § 1958 fn. *; Blank v. Coffin, 20 Cal.2d 457, 461 [126 P.2d 868]; Hamilton v. Pacific Elec. Ry. Co., 12 Cal.2d 598, 602-603 [86 P.2d 829].) [7] This, however, does not preclude the conclusion that res ipsa loquitur may give rise to a special kind of inference which the defendant must rebut, although the effect of the inference is somewhat akin to that of a presumption. (Hardin v. San Jose City Lines, 41 Cal.2d 432, 435 et seq. [260 P.2d 63], and cases there cited; see Code Civ. Proc., § 1959. fn. †)
The Hardin case held that an instruction similar to the one involved here was properly given in an action against a common [42 Cal.2d 689] carrier for injuries received by a passenger and that the carrier was obliged to meet the res ipsa loquitur inference by evidence sufficient to offset or balance it. (41 Cal.2d at p. 435 et seq.) A similar burden has been placed upon defendants in other cases where there were special relationships between the parties. (Dierman v. Providence Hospital, 31 Cal.2d 290, 295-296 [188 P.2d 12] [medical patient]; Ales v. Ryan, 8 Cal.2d 82, 106 [64 P.2d 409] [medical patient]; see Ybarra v. Spangard, 25 Cal.2d 486, 490, 492, 494 [154 P.2d 687, 162 A.L.R. 1258] [medical patient]; cf. George v. Bekins Van & Storage Co., 33 Cal.2d 834, 839-841 [205 P.2d 1037] [bailment].) It has also been held that the defendant must show that he was not at fault where the plaintiff was injured as a result of a dangerous activity in which the defendant was engaged and as to which the defendant was required to exercise great care. (See Chutuk v. Southern Calif. Gas Co., 218 Cal. 395, 398-400 [23 P.2d 285] [furnishing gas]; Damgaard v. Oakland High School Dist., 212 Cal. 316, 318-324 [298 P. 983] [dangerous chemical experiment]; Bergen v. Tulare County Power Co., 173 Cal. 709, 719-721 [161 P. 269] [furnishing electricity]; Diller v. Northern Cal. Power Co., 162 Cal. 531, 536-537 [123 P. 359, Ann. Cas. 1913D 908] [furnishing electricity]; Ficken v. Jones (1865), 28 Cal. 618, 625-628 [driving cattle through city]; Junge v. Midland Counties etc. Corp., 38 Cal.App.2d 154, 157, 159 [100 P.2d 1073] [furnishing electricity]; Harmon v. San Joaquin L. & P. Corp., 37 Cal.App.2d 169, 175 [98 P.2d 1064] [furnishing electricity].)
In some types of situations, because of the nature of the particular accident, an inference of negligence upon the part of the defendant may be so strong that no reasonable man could fail to accept it in the absence of explanatory evidence. (See Alabama & V. Ry. Co. v. Groome, 97 Miss. 201 [52 So. 703, 704]; Angerman Co. v. Edgemon, 76 Utah 394 [290 P. 169, 171, 79 A.L.R. 40]; Pillars v. R. J. Reynolds Tobacco Co., 117 Miss. 490 [78 So. 365, 366]; Prosser on Torts [1941], 304.) Facts of this character appear to have been presented in Ales v. Ryan, 8 Cal.2d 82 [64 P.2d 409], where there was evidence that the defendant surgeon closed an incision without having removed a sponge. (See also cases collected in Prosser, Res Ipsa Loquitur in California [1949], 37 Cal.L.Rev. 183, 220-221.) Another basis for imposing the burden of explanation on the defendant in res ipsa loquitur [42 Cal.2d 690] cases has been that the facts are peculiarly within his knowledge. (Dierman v. Providence Hospital, 31 Cal.2d 290, 295-296 [188 P.2d 12] [failure to produce in evidence a tank of anesthetizing gas where possible cause of injury to plaintiff was that the gas was contaminated]; Druzanich v. Criley, 19 Cal.2d 439, 444-445 [122 P.2d 53] [failure of driver to explain what happened in automobile accident which occurred when automobile left road while plaintiff passenger was dozing].)
Lewi V Drum Kit Guitar
In a number of cases, which are difficult to classify, the courts, without discussion of the problem involved here, have either sustained instructions similar to the one given in the present case or have stated as a part of the rule that it is incumbent upon the defendant to show that he was not negligent. (See Hinds v. Wheadon, 19 Cal.2d 458, 461 [121 P.2d 724] [explosion of tank]; Hinds v. Wheadon, 67 Cal.App.2d 456, 460-464 [154 P.2d 720] [same case, subsequent opinion]; Kenney v. Antonetti, 211 Cal. 336, 339-340 [295 P. 341] [straying horse]; Michener v. Hutton, 203 Cal. 604, 606, 609-611 [265 P. 238, 59 A.L.R. 480] [falling object]; Sherrillo v. Stone & Webster Eng. Corp., 110 Cal.App.2d 785, 790-791 [244 P.2d 70] [defective scaffold]; Meyers v. G. W. Thomas Drayage etc. Co., 108 Cal.App.2d 529, 532-533 [239 P.2d 118] [falling object]; Welch v. Sears, Roebuck & Co., 96 Cal.App.2d 553, 558-561 [215 P.2d 796] [falling object]; Radisich v. Franco-Italian Packing Co., 68 Cal.App.2d 825, 840-841 [158 P.2d 435] [defective winch].)
A few decisions have criticized instructions to the effect that res ipsa loquitur imposes a mandatory burden upon the defendant to rebut the inference of negligence and have apparently proceeded on the theory that the doctrine creates an inference which is enough to avoid a nonsuit but which the trier of fact may accept or reject as it sees fit, even though the defendant offers no evidence. (Pruett v. Burr, 118 Cal.App.2d 188, 195- 196 [257 P.2d 690] [action arising from the same spraying operation involved in the present case but as a result of damage to cotton belonging to plaintiffs' neighbor]; Black v. Partridge, 115 Cal.App.2d 639, 648-650 [252 P.2d 760]; Bazzoli v. Nance's Sanitarium, Inc., 109 Cal.App.2d 232, 239-241 [240 P.2d 672]; Albert v. McKay & Co., 53 Cal.App. 325, 329-330 [200 P. 83]; cf. Anderson v. I. M. Jameson Corp., 7 Cal.2d 60, 66-67 [59 P.2d 962].) This view, which is inconsistent with most of the California decisions, is very difficult to apply, and there are substantial [42 Cal.2d 691] reasons why we should hold that in every type of res ipsa loquitur case the defendant should have the burden of meeting the inference of negligence.
It must now be regarded as settled that the requirement that the defendant rebut the inference of negligence is the rule with regard to the specific groups of cases noted above, which represent the great majority of the decisions in California relating to the question. Moreover, as a practical matter it will be much simpler, for both trial and appellate courts, to apply this rule uniformly to all situations where an inference of negligence is based upon res ipsa loquitur. Another result will be the elimination of much difficulty in the drawing of instructions which will adequately inform the jury of its duties. In the absence of such a uniform rule, the nature and extent of the burden of proof imposed upon the defendant might frequently depend upon how conflicting testimony is resolved, particularly in cases where there is a dispute as to which of the parties had a superior knowledge. [8] The doctrine, of course, does not apply at all unless it appears that there is a probability of negligence, and writers who support the view that the defendant should be required to rebut the inference of negligence point out that in res ipsa loquitur cases the defendant is almost always in a better position to explain what occurred. (See Harper on Torts [1933] 185; Cal. Jury Instructions, Civil, 1952 Pocket Part, 92; Carpenter, The Doctrine of Res Ipsa Loquitur in California, 10 So.Cal.L.Rev. 166, 181; Carpenter, A Rejoinder to Professor Prosser, 10 So.Cal.L.Rev. 467, 470.) Accordingly, it is not unfair to require him to explain his conduct.
[9] It is our conclusion that in all res ipsa loquitur situations the defendant must present evidence sufficient to meet or balance the inference of negligence, and that the jurors should be instructed that, if the defendant fails to do so, they should find for the plaintiff. [4b] The trial court, therefore, did not err in giving instructions that it was incumbent upon Sherwin Williams to rebut the inference of negligence.
[10] The instructions given, however, were erroneous in that, while they purported to state all the conditions under which res ipsa loquitur would be applicable, they did not inform the jury that plaintiffs must show that the instrumentality which caused the damage was not mishandled or its condition otherwise changed after control was relinquished [42 Cal.2d 692] by the person against whom the doctrine is to be applied. In giving instructions which define res ipsa loquitur it is ordinarily necessary to cover this problem where, as here, there is evidence that several persons had control of the instrumentality at different times before the accident. (Black v. Partridge, 115 Cal.App.2d 639, 650 [252 P.2d 760]; Zentz v. Coca Cola Bottling Co., 92 Cal.App.2d 130, 133 [206 P.2d 653]; see Gordon v. Aztec Brewing Co., 33 Cal.2d 514, 519-520 [203 P.2d 522].) Under the circumstances of the present case it was error to give the instructions which set forth the doctrine without mentioning plaintiffs' burden regarding the possibility that third persons may have been responsible for what happened.
II. Warranty Instructions
The trial court instructed the jury in the language of subdivisions (1) and (2) of section 1735 of the Civil Code fn. * relating to the implied warranties of fitness of purpose and merchantable quality. The jurors were also told that, if there was an implied warranty under this section, there was no requirement of privity of contract between the manufacturer and the ultimate consumer, and the manufacturer would be liable, regardless of negligence, for the damage caused by any breach of this warranty. fn. † Sherwin Williams contends that the instructions are erroneous because, it asserts, (1) it is not liable for breach of warranty in view of the fact that it had made a disclaimer of warranty in labels which [42 Cal.2d 693] were placed on the drums of insecticide, and (2) privity of contract is essential to liability for breach of warranty.
The labels which contained the disclaimer stated, 'DDTOL 25% Emulsifiable is a solution of DDT in xylene which can be used on plants when it is mixed according to directions ....' After giving mixing directions and recommendations for use on various products, such as potatoes, seed alfalfa and clover, onions, and other truck crops, but without mentioning cotton plants, the labels set forth the following chemical analysis:
Tabular Material Omitted
Certain cautionary instructions were given, and the label concluded with the statement, 'Seller makes no warranty of any kind, express or implied, concerning the use of this product. Buyer assumes all risk in use or handling, whether in accordance with directions or not.'
[11] The statutory implied warranties of quality can, of course, be disclaimed by the seller, provided the buyer has knowledge or is chargeable with notice of the disclaimer before the bargain is complete. (Civ. Code, § 1791; Miller v. Germain Seed etc. Co., 193 Cal. 62 [222 P. 817, 32 A.L.R. 1215]; Sutter v. Associated Seed Growers, Inc., 31 Cal.App.2d 543-547 [88 P.2d 144]; Couts v. Sperry Flour Co., 85 Cal.App. 156 [259 P. 108]; see Prosser, Warranty of Merchantable Quality, 27 Minn.L.Rev. 117, 157-160.) Notice of disclaimer can be conveyed to the buyer by means of printed notices on letterheads, labels and the like. (C. Lomori & Son v. Globe Laboratories, 35 Cal.App.2d 248, 256 [95 P.2d 173]; William A. Davis Co. v. Bertrand Seed Co., 94 Cal.App. 281 [271 P. 123]; see 1 Williston on Sales [rev.ed. 1948] 631.) [12] Although plaintiffs themselves did not see the drums prior to the time their cotton crop was sprayed, they are chargeable with notice of the contents of the labels because the persons to whom the insecticide was delivered were obviously their agents for purposes of the spraying operation.
[13] In determining whether an effective disclaimer of the statutory warranties has been made, we must look to the [42 Cal.2d 694] label as a whole, and the general rule is that a disclaimer is to be strictly construed against the seller. (See Prosser, Warranty of Merchantable Quality, 27 Minn.L.Rev. 117, 160; 77 C.J.S. 1151.) [14] The language of the Sherwin Williams disclaimer, when so construed, is sufficient to exclude the implied warranty contained in subdivision (1) of section 1735 of the Civil Code that the goods shall be reasonably fit for the purchaser's particular purpose. Plaintiffs' particular purpose was to use the spray as an insecticide on cotton plants, but the disclaimer expressly negatives any warranty concerning 'use,' and nowhere does the label state that the product was suitable for cotton plants. [15] Although there is evidence that the cooperative acted as consignee-agent of Sherwin Williams for the purpose of selling the spray and might therefore have authority to make representations which would counteract the disclaimer, there is no contention that any such representations were made. It follows that instructing the jury in the terms of this subdivision of section 1735 was error.
The next question is whether the label excludes the implied warranty of 'merchantable quality' which arises under subdivision (2) of section 1735 of the Civil Code where goods are bought by description. Many definitions of 'merchantable quality' have been given, but all of them include the basic proposition that the quoted words refer to goods which are reasonably suitable for the ordinary uses and purposes of goods of the general type described by the terms of the sale and which are capable of passing in the market under the name or description by which they were sold. (See Kenney v. Grogan, 17 Cal.App. 527, 533 [120 P. 433]; 1 Williston on Sales [rev.ed. 1948] § 243, pp. 641-643; Prosser, Warranty of Merchantable Quality, 27 Minn.L.Rev. 117, 125-139; 46 Am.Jur. 526-527; 77 C.J.S. 1184-1185.) [16] Hence it seems clear that the statutory warranty is sufficiently broad to impose liability, in the absence of disclaimer, if the goods contain an impurity of such a nature as to render them unusable, and therefore unsalable, for the general uses and purposes of goods of the kind described. The parties do not discuss, but apparently assume, that the presence of 2,4-D weed killer in the DDT spray ordered by plaintiffs would, without the asserted disclaimer, amount to a breach of the implied warranty of merchantable quality.
[17] Keeping in mind the rule noted above that a disclaimer is to be strictly construed against the seller, we conclude [42 Cal.2d 695] that the Sherwin Williams disclaimer is insufficient to exclude the implied warranty of merchantable quality. The label, after describing the product and listing the ingredients, states merely that there is no warranty as to 'the use of this product' and that the buyer 'assumes all risk in use.' The description of the product on the label is in accord with the description of the spray which was ordered by plaintiffs, and the language of the disclaimer, when properly interpreted, is limited to a denial of any warranty that a substance which meets this description is an effective or safe insecticide. [18] The language does not purport to disclaim the implied warranty that the substance in the drums actually meets the description of the product ordered by plaintiffs so as to be generally salable in the same manner as other products of the type described. More specifically, there is nothing in the disclaimer which suggests that Sherwin Williams was refusing to warrant that the liquid in the drums was compounded so as to conform with the description and was free from any impurity which would make it unsalable for the general purposes of a product of the kind ordered by plaintiffs. Accordingly, the trial court did not err in giving an instruction upon the implied warranty of merchantable quality.
We shall now consider whether the court erred in instructing the jury that an implied warranty under subdivision (1) or (2) of section 1735 of the Civil Code 'runs with the goods to the ultimate consumer, there being no requirement of privity of contract between the ultimate consumer and the manufacturer.' [19] The general rule is that privity of contract is required in an action for breach of either express or implied warranty and that there is no privity between the original seller and a subsequent purchaser who is in no way a party to the original sale. (See Lewis v. Terry, 111 Cal. 39, 44 [43 P. 398, 52 Am.St.Rep. 146, 31 L.R.A. 220]; Cliff v. California Spray Chemical Co., 83 Cal.App. 424, 430 [257 P. 99]; 1 Williston on Sales [rev.ed. 1948] § 244, pp. 645-648; 46 Am.Jur. 489-490; 17 A.L.R. 672, 709; 140 A.L.R. 192, 249-250.) In this state an exception to the requirement of privity has been made in cases involving foodstuffs, where it is held that an implied warranty of fitness for human consumption runs from the manufacturer to the ultimate consumer regardless of privity of contract. (Klein v. Duchess Sandwich Co., Ltd., 14 Cal.2d 272 [93 P.2d 799]; Vaccarezza v. Sanguinetti, 71 Cal.App.2d 687, 689 [163 P.2d 470].) [42 Cal.2d 696] Another possible exception to the general rule is found in a few cases where the purchaser of a product relied on representations made by the manufacturer in labels or advertising material, and recovery from the manufacturer was allowed on the theory of express warranty without a showing of privity. (See Free v. Sluss, 87 Cal.App.2d Supp. 933, 936-937 [197 P.2d 854] [soap package contained printed guarantee of quality]; Bahlman v. Hudson Motor Car Co., 290 Mich. 683 [288 N.W. 309, 312-313] [automobile manufacturer represented top of car to be made of seamless steel]; Baxter v. Ford Motor Co., 168 Wash. 456 [12 P.2d 409, 15 P.2d 1118, 88 A.L.R. 521] [automobile manufacturer represented windshield to be nonshatterable glass]; Simpson v. American Oil Co., 217 N.C. 542 [8 S.E.2d 813, 815-816] [representation on label that insecticide was nonpoisonous to humans]; Prosser on Torts [1941] 688-693; 1 Williston on Sales [rev.ed. 1948] 648- 650; Feezer, 'Manufacturer's Liability for Injuries Caused by His Product,' 37 Mich.L.Rev. 1; Jean-blanc, 'Manufacturer's Liability to Persons Other than Their Immediate Vendees,' 24 Va.L.Rev. 134, 146-155.) Neither exception is applicable here. [20] The facts of the present case do not come within the exception relating to foodstuffs, and the other exception, where representations are made by means of labels or advertisements, is applicable only to express warranties. As we have seen, the instruction involved here dealt only with implied warranties. Accordingly, it was error for the trial court to instruct that privity was not required.
The question whether plaintiffs could recover because of breach of an express warranty was apparently not presented to the jury, but, since there may be a new trial, it is appropriate to point out that the record contains sufficient evidence to show that there were representations which could form the basis of an express warranty. [21] The principal elements of an express warranty are an affirmation of fact or promise by the seller and reliance thereon by the buyer. (Civ. Code, § 1732. fn. *) [22] As we have seen, the labels on the drums gave a chemical analysis of the contents which purported to list all of the active ingredients, totalling 90 per [42 Cal.2d 697] cent, and designated the remaining 10 per cent as 'inert ingredients.' This analysis is in effect a representation that the ingredients listed were the only active ones contained in the spray, and, if the other necessary requirements were established, the label would amount to an express warranty which would be breached by the presence of the unlisted 2,4-D weed killer. (Cf. 1 Williston on Sales [rev.ed. 1948], 527-533.) [23] An express warranty of the chemical content of the spray, of course, is not excluded by the disclaimer, which relates only to use. We need not consider at this time whether plaintiffs can show reliance by themselves or their agents upon the statements on the label or whether they can establish that there was privity between themselves and Sherwin Williams or that they come within some exception to the rule.
Conclusion
[24] The trial court erred in its instructions (1) by purporting to define res ipsa loquitur without including an essential condition, (2) by stating that privity was not required in order to find that Sherwin Williams was bound by the statutory implied warranties, and (3) by stating that recovery might be based upon an implied warranty of fitness for a particular purpose. The errors in the instructions relate to essential matters, and it is our conclusion that under all the circumstances there has been a miscarriage of justice.
The judgment is reversed.
Shenk, J., Edmonds, J., Carter, J., Traynor, J., Schauer, J., and Spence, J., concurred.
FN *. Section 1958 of the Code of Civil Procedure provides, 'An inference is a deduction which the reason of the jury makes from the facts proved, without an express direction of law to that effect.'
FN †. Section 1959 of the Code of Civil Procedure provides, 'A presumption is a deduction which the law expressly directs to be made from particular facts.'
FN *. Section 1735 of the Civil Code reads in part as follows: 'Subject to the provisions of this act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows:
'(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.
'(2) Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality. ...'
FN †. The instruction read: 'If you decide that any of the provisions of the code section which I have just read to you are applicable, and further decide that an implied warranty was made by the manufacturer, that warranty runs with the goods to the ultimate consumer, there being no requirement of privity of contract between the ultimate consumer and the manufacturer. And if you further find that the manufacturer breached such warranty, then it is liable for the damage caused by such breach, regardless of negligence.'
FN *. Section 1732 of the Civil Code defines express warranty as follows: 'Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon. ...'
Opinion Information| Date: | Citation: | Category: | Status: |
| Fri, 04/16/1954 | 42 Cal.2d 682 | Review - Civil Appeal | Opinion issued |
| 1 | ROBERT BURR et al.(Respondent) |
| 2 | s, v. SHERWIN WILLIAMS COMPANY, Appellant.(s, v. SHERWIN WILLIAMS COMPANY) |
| 3 | ROBERT BURR et al.(Respondent) |
| Disposition | |
| Apr 16 1954 | Opinion: Reversed |