Rubino v. Utah Canning Co.

• Decision Date: 03 February 1954
• Court: California Court of Appeals Court of Appeals
• Parties: RUBINO et al. v. UTAH CANNING CO. et al. Civ. 15646.

Page 163

266 P.2d 163

123 Cal.App.2d 18

RUBINO et al. v. UTAH CANNING CO. et al.

Civ. 15646.

District Court of Appeal, First District, Division 1, California.

Feb. 3, 1954.

Ferrari & Ferrari, San Francisco, for appellants.

Bronson, Bronson & McKinnon, San Francisco, for respondent.

FINLEY, Justice pro tem.

This is an appeal by plaintiffs from a judgment dismissing their amended complaint following the sustaining of a demurrer thereto after which plaintiffs failed to amend.

The question presented is whether the action is barred by a statute of limitations.

Plaintiffs, husband and wife, allege in their amended complaint that on October 2, 1950, they ate some Del Mesa brand peas at the home of a niece; that these peas were canned by the Utah Canning Company, distributed by respondent Louis T. Snow & Co., and purchased from First Doe Grocery Store; that at the time of said purchase defendants and each of them had impliedly warranted that said peas were a food fit for human consumption; that unknown to plaintiffs they were not so fit and that after having eaten some of the peas plaintiffs became violently ill; that immediately following the 'appearance of the symptoms hereinabove described,' plaintiffs 'made diligent investigation to determine the cause of said symptoms but were unable to do so until on or about the first day of February, 1952 * * *.'

The original complaint was filed on February 27, 1952. A demurrer was sustained to it and the amended complaint filed on June 23, 1952. Demurrer was again interposed, urging among other grounds the bar of the one year statute of limitations, subdivision 3, section 340, Code of Civil Procedure. This demurrer was also sustained with leave to amend, but plaintiffs failed to do so. Judgment followed in favor of Louis T. Snow & Co., the only defendant appearing, and apparently the only one served.

Appellants contend that the cause of action here is one for breach of implied warranty, which sounds in contract, and therefore comes within the purview of subdivision 1, section 339, Code of Civil Procedure, the two year limitation statute. They also contend that the statute started to run not from the date of injury but from the date of discovery of the cause of injury.

Respondent urges that an action for personal injuries, even though couched in terms of breach of warranty, is one in tort and is barred by the provisions of subdivision 3, section 340, Code of Civil Procedure, the one year statute, and also that in an action for personal injuries resulting from the wrongful act of another, the statute of limitations runs from the time the wrong was committed and not from the time of discovery of the cause of injury.

The answer to the question as to which statute of limitations governs must be found in an analysis of the two sections of the Code of Civil Procedure above referred to. Are these sections mutually exclusive; are they mutually inclusive, at least in part, or does one lay down a more general rule which may include causes specifically enumerated in the other without the converse being true? In other words, is one general while the other is more specific but included in the general?

Subdivision 1, section 339, Code of Civil Procedure, so far as applicable here, provides a two year limitation within which an action may be brought 'upon a contract, obligation or liability not founded upon an instrument of writing * * *.'

There is ordinarily no privity of contract between a processor of foods for human consumption and the ultimate consumer thereof. The liability of the processor to the consumer is founded upon an implied warranty of fitness of the food for that purpose. Civ.Code, § 1735; Vaccarezza v. Sanguinetti, 71 Cal.App.2d 687, 163 P.2d 470; Klein v. Duchess Sandwich Co., Ltd., 14 Cal.2d 272, 93 P.2d 799; Dryden v. Continental Baking Co., 11 Cal.2d 33, 77 P.2d 833.

An implied warranty, one imposed by law, is obviously '* * * a contract, obligation or liability not founded upon an instrument of writing * * *.' Were we to go no further it would seem apparent then that subdivision 1, section 339, Code of Civil Procedure, would govern and that any action predicated upon a liability for violation of an implied warranty must be brought within the two year limitation. It will be noted, however, that the language of the section above quoted is quite general. There is no indication that the 'obligation or liability' referred to must depend in any degree upon an oral or implied contract or that personal rights or injuries as well as property rights could not be the basis for the 'obligation or liability.' Further, there is nothing to indicate a legislative intent that that section must apply to all cases falling within its purview to the exclusion of a shorter limitation period applying to a restricted but included classification.

Section 340 of the Code of Civil Procedure provides a one year limitation within which actions based upon the causes enumerated must be brought. At the time this action was commended subdivision 3 of that section read, in part, as follows: 'An action * * * for injury to or for the death of one caused by the wrongful act or neglect of another, or by a depositor against a bank for the payment of a forged or raised check, or a check that bears a forged or unauthorized endorsement'. (Emphasis added.)

There is no provision in this subdivision which would fall without the scope of the language of subdivision 1 of section 339 of the Code of Civil Procedure. The words 'contract,' 'obligation' or 'liability' used in the latter about cover the field. The only qualification is that they cannot be founded upon an instrument of writing. An action for 'injury to or for the death of one caused by the wrongful act or neglect of another,' whether the wrongful act be the breach of an implied contract or obligation or liability or whether it be based upon neglect to perform an obligation implied or imposed by law, would still be in violation of a 'contract, obligation or liability not founded upon an instrument of writing'. On the other hand, there could be many violations of a contract, obligation or liability not founded upon an instrument of writing which would not result in 'injury to or for the death of one caused by the wrongful act or neglect of another'. Therefore we see that all violations of subdivision 3 of section 340, Code of Civil Procedure, would fall within the more general provisions of subdivision 1, section 339, Code of Civil Procedure, but that not all of the possible liabilities arising under subdivision 1 of this section would also fall within the provisions of subdivision 3 of section 340, Code of Civil Procedure. Subdivision 3 of section 340, Code of Civil Procedure, is obviously, therefore, the more specific and subdivision 1 of section 339, Code of Civil Procedure, the more general of the two.

In this action plaintiffs claim injury caused by acts of defendants in canning, distributing and selling peas unfit for human consumption. It is not alleged in the complaint in so many words that these acts were wrongful, but if they were not wrongful in contemplation of law, either as a breach of contract is wrongful or the commission of a tort is wrongful, then they must be rightful. If they are not considered in law to be wrongful, then plaintiffs would have no cause of action.

In 2 Bouv.Law Dict., Rawle's Third Revision, p. 3500 'wrong' is defined as 'An injury; a tort; a violation of right. * * * In its most usual sense, wrong signifies an injury committed to the person or property of another, or to his relative rights unconnected with contract; and these wrongs are committed with or without force. But in a more extended signification, wrong includes the violation of a contract; a failure by a man to perform his undertaking or promise is a wrong or injury to him to whom it was made; 3 Bla.Com. 158.'

In order for a cause of action against respondent to have arisen, the injury to appellants must have been caused by the wrongful act or neglect of respondent, and whether considered wrongful as a breach of implied contract of warranty, or wrongful as an indirect assault upon the persons of plaintiffs, the cause would still fall within the language of subdivision 3 of section 340 of the Code of Civil Procedure.

As further evidence that the Legislature did not intend to exclude causes of action founded upon implied contract or warranty from the one year limitation effected by section 340 of the Code of Civil Procedure it will be remembered that subdivision 3 thereof specifically covers actions by 'a depositor against a bank for the payment of a forged or raised check, or a check that bears a forged or unauthorized endorsement'. The relationship between a bank and its depositors is that of debtor and creditor. Glassell Dev. Co. v. Citizens' Nat. Bk., 191 Cal. 375, 216 P. 1012, 28 A.L.R. 1427; Union Tool Co. v. Farmers' etc. Nat. Bk., 192 Cal. 40, 218 P. 424, 28 A.L.R. 1417; Basch v. Bank of America, 22 Cal.2d 316, 139 P.2d 1. The debtor and creditor relationship, whether express or implied, is certainly contractual in nature. The case of Allen v. Bank of America, 58 Cal.App.2d 124, 136 P.2d 345, specifically holds that the relation between banker and depositor is founded on contract, and it is common knowledge that most of the reciprocal rights and duties between them are implied or supplied by law.

When we stop to consider that an action by a depositor against a bank for the payment of a forged or raised check or an action on account of a check that bears a forged or unauthorized endorsement is brought under the one year statute by inclusion in the same sentence of the same subdivision, to wit, subdivision 3 of section 340, Code of Civil Procedure, as is an action for injury to or for the death of one caused by the wrongful act or neglect of another, it becomes obvious that the language of the section does not exclude...