Perry v. Thrifty Drug Co.

• Decision Date: 16 November 1960
• Citation: 186 Cal.App.2d 410,9 Cal.Rptr. 50
• Parties: Frank PERRY, Plaintiff and Appellant, v. THRIFTY DRUG CO., a corporation, and The Chemway Corporation, Defendants and Respondents. Civ. 24717.
• Court: California Court of Appeals Court of Appeals

Page 50

9 Cal.Rptr. 50

186 Cal.App.2d 410

Frank PERRY, Plaintiff and Appellant, v. THRIFTY DRUG CO., a corporation, and The Chemway Corporation, Defendants and Respondents.

Civ. 24717.

District Court of Appeal, Second District, Division 2, California.

Nov. 16, 1960.

Flaum, Manasse & Dana, S. Ernest Beuchel, Los Angeles, for appellant.

Crider, Tilson & Ruppe, Henry E. Kappler, Los Angeles, for respondents.

HERNDON, Justice.

This is an appeal from a judgment entered in defendants' favor rendered by the trial court sitting without a jury. The plaintiff's action was for damages for personal injuries arising out of the use of a patent medicine which was manufactured by defendant Chemway Corporation and sold to the plaintiff by defendant Thrifty Drug Company.

The plaintiff, in his complaint, asserted four causes of action as follows: (1) breach of oral warranty by the Drug Company; (2) breach of implied warranty by the manufacturer; (3) breach of implied and expressed warranties by both defendants; and (4) negligence of both defendants. The plaintiff alleged that the defendants were given notice of the breach of warranty in causes of action (1), (2) and (4); but failed to allege the giving of such notice in his third cause of action.

By their answer, the defendants denied most of the material allegations of the complaint, including the allegations with respect to plaintiff's giving notice of the alleged breaches of warranty.

At the pre-trial hearing, the court adopted by reference a pre-trial conference statement which was prepared by plaintiff's counsel, but which was signed also by defendant's counsel. In this statement the issues were set forth as follows: '1. Negligence of the defendants, if any; 2. Contributory negligence of plaintiff, if any; 3. Nature and extent of injuries; 4. Nature and extent of warranties.'

At the trial, plaintiff abandoned his cause of action on the theory of negligence and proceeded on the warranty theories. He offered no evidence to prove the giving of any notice of breach of warranty.

At the conclusion of the trial, the trial judge ordered judgment for defendants, holding that plaintiff had failed to allege or prove an indispensable element of his case, to wit, the giving of notice of breach as required by section 1769 of the Civil Code.

Plaintiff states the sole determinative question as follows:

'In an action for breach of warranty wherein the pleading and proof of notice of a breach of warranty is an indispensable element of the cause of action, may plaintiff be entitled to a verdict and judgment where he fails to prove said notice if this element of the cause is not set forth and put in issue by the pretrial conference? More simply stated, if the issue of notice is not set forth as an issue in the pretrial conference order, must plaintiff be put to proof of same?'

It is conceded by the plaintiff that in any breach of warranty action under the Sales Act (Civil Code, section 1721, et seq.), he must plead and prove that proper notice of the breach of warranty was given by the buyer to the seller within a reasonable time after discovery thereof (Civil Code, section 1769, supra; Vogel v. Thrifty Drug Co., 43 Cal.2d 184, 188, 272 P.2d 1). The plaintiff abandoned his negligence cause of action; however, he properly alleged notice in two of the three warranty causes of action. There is nothing in the record to indicate any abandonment of counts one and two, each of which contained the averment '* * * that as soon as plaintiff discovered the said breach, he immediately notified the defendants, and each of them, of the said breach.'

As we have indicated, the present order, in its applicability to the warranty causes of action, indicated that the issues were the '[n]ature and extent of the injuries' and the '[n]ature and extent of warranties'. Rule 8.6 of...