Lewis

Plaintiffs Wayne Lewis and Harl Fry were employed by Charles J. Rounds Company as a crane operator and pile driver, respectively. On June 28, 1963, they and fellow employees were engaged in constructing a storm drain on South Rexford Drive just north' of West Pico Boulevard in Beverly Hills. Plaintiffs were injured when the boom of a crane they were using collapsed and fell; they filed suit. Their complaint for personal injuries was answered by defendants American Hoist & Derrick Company (herein American;), manufacturer of the crane, Brown-Bevis Industrial Equipment Company (herein Brown or Brown-Bevis), local distributor of American equipment, and MacWhyte Company, a manufacturer of wire rope.

Although plaintiffs’ complaint, as amended, raised issues of negligence, breaches of warranties and strict liability, plaintiffs abandoned the first two theories and proceeded solely on the theory of strict liability in tort. (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57 [ 27 Cal.Rptr. 697 , 377 P.2d 897 , 13 A.L.R.3d 1049 ].)

Brown-Bevis filed a cross-complaint against Charles J. Rounds Company (Rounds) and Allied Insurance Company (Allied), 1 Rounds’ workmen’s…

I would affirm the entire judgment.

In this case of first impression the majority holds that the retailer (Brown) may be excused upon the ground that it was ignorant of the use for which the crane was intended, as understood by both the manufacturer and the user.

It is important to remember that this kind of liability is not based upon fault. The retailer may be, and usually is, wholly innocent of any fault or wrongdoing. In Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 262 [ 37 Cal.Rptr. 896 , 391 P.2d 168 ], and again in Elmore v. American Motors Corp. (1969) 70 Cal.2d 578, 587 [ 75 Cal.Rptr. 652 , 451 P.2d 84 ], the Supreme Court stated the reasons for holding the retailer strictly liable in a case of this kind. The majority decision in this case cannot be reconciled with that reasoning.

The explanations of strict liability in the Restatement, and in the BAJI instructions, do not recognize any separate retailer’s defense of the kind *589 asserted here. Both authorities explain the defective condition of the product in terms of the expectation of the user, not the knowledge or intent of the seller.

Restatement Second of Torts section 402A, comment g, states: “The rule…

Hagenbaugh, Murphy & Davies and Ronald L. Katsky for Intervener, Cross-defendant and Respondent.

No appearance for Cross-defendant and Respondent.

OPINION

DUNN, J.

Plaintiffs Wayne Lewis and Harl Fry were employed by Charles J. Rounds Company as a crane operator and pile driver, respectively. On June 28, 1963, they and fellow employees were engaged in constructing a storm drain on South Rexford Drive just north of West Pico Boulevard in Beverly Hills. Plaintiffs were injured when the boom of a crane they were using collapsed and fell; they filed suit. Their complaint for personal injuries was answered by defendants American Hoist & Derrick Company (herein American), manufacturer of the crane, Brown-Bevis Industrial Equipment Company (herein Brown or Brown-Bevis), local distributor of American equipment, and MacWhyte Company, a manufacturer of wire rope.

Although plaintiffs' complaint, as amended, raised issues of negligence, breaches of warranties and strict liability, plaintiffs abandoned the first two theories and proceeded solely on the theory of strict liability in tort. ( Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57 [ 27 Cal. Rptr. 697 , 377 P.2d 897 , 13…