The opinion
GIBSON, C. J., Concurring and Dissenting.
It is clear that, as to Owens, the judgment of nonsuit should be affirmed. The parties stipulated that plaintiff had no cause of action against Owens for breach of warranty, and she failed to make a prima facie ease against this defendant based on negligence. Although there is substantial evidence that the breaking of the bottle resulted from a defect in it, there is no evidence from which it can be inferred that this defect was present when the bottle was delivered by Owens to Arden, who thereafter used it for several months before it broke.
With respect to Arden, however, I am of the view that the judgment of nonsuit should be reversed, because the evidence is not insufficient as a matter of law to sustain plaintiff’s cause of action for breach of warranty. As shown by the discussion in the concurring and dissenting opinions of Justices Carter and Traynor, there is testimony from which the jury could reasonably infer that the bottle was not improperly handled in plaintiff’s home and that when the bottle was delivered by Arden it contained a defect which caused it to break. If an inference to that effect were drawn by the jury, the defect in the bottle would constitute a breach of warranty by Arden under section 1735 of the Civil Code (Uniform Sales Act, §15), which reads in part: “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.” (Italics added.)
Section 1735 does not refer merely to goods sold but to all “goods supplied under a contract to sell or a sale.” It has been held that when bottled beverages are sold, the bottles in which they necessarily must be delivered are supplied under the contract of sale within the meaning of the statute *239 although the bottles are bailed rather than sold. (Geddling v. Marsh, (1920), 1 K.B. 668; see 1 Williston on Sales (rev. ed. 1948), 582, n. 1.) The Geddling ease related to a sale of “lime juice and soda” in bailed bottles and was decided under section 14 of the English Sale of Goods Act, 1893, which contains provisions nearly identical with those quoted above from section 1735. The findings in that ease showed that the sale came within the first subdivision of the section, but the reasoning of the court is equally applicable to a sale coming within the second subdivision. Accordingly, even if we assume that the bottle involved here was bailed, it would be subject to any warranty which would be applicable under either of the quoted subdivisions if the bottle had been sold.
The sale of a bottle of milk by a dairy under the circumstances appearing here clearly comes within the language of the second subdivision of the statute, and the seller’s implied warranty of merchantable quality under this provision includes a warranty that his product is reasonably fit for the general purpose for which goods of that kind are sold. (See Simmons v. Rhodes & Jamieson, Ltd., 46 Cal.2d 190, 194 [ 293 P.2d 26 ] ; Burr v. Sherwin Williams Co., 42 Cal.2d 682, 694 [ 268 P.2d 1041 ].) It is obvious that a milk bottle which is so defective that it will break under normal handling is not fit for the ordinary use for which it was intended and that the delivery of such a defective bottle constitutes a breach of warranty.
The buyer may recover for breach of the statutory warranty without proving negligence on the part of the seller. (Tremeroli v. Austin Trailer Equip. Co., 102 Cal.App.2d 464, 475 [ 227 P.2d 923 ] ; Vaccarezza v. Sanguinetti, 71 Cal.App.2d 687, 689 [ 163 P.2d 470 ] ; 1 Williston on Sales (rev. ed. 1948), 617.) Accordingly, it is not necessary to consider in this dissent whether the evidence is sufficient to support a judgment upon the theory that Arden was negligent. Likewise it is not necessary to discuss whether our decision in Honea v. City Dairy, Inc., 22 Cal.2d 614 [ 140 P.2d 369 ], precludes resort to the doctrine of res ipsa loquitur under the evidence presented here.
I would affirm the judgment with respect to Owens and reverse it with respect to Arden.
Appellant’s petition for a rehearing was denied May 21, 1958. Gibson, C. J., Carter, J., and Traynor, J., were of the opinion that the petition should be granted.