Vogel v. Thrifty Drug Co.

• Decision Date: 02 July 1954
• Citation: 272 P.2d 1,43 Cal.2d 184
• Court: California Supreme Court
• Parties: VOGEL v. THRIFTY DRUG CO. L. A. 22924.

Page 1

272 P.2d 1

43 Cal.2d 184

VOGEL v. THRIFTY DRUG CO.

L. A. 22924.

Supreme Court of California, in Bank.

July 2, 1954.

Rehearing Denied July 28, 1954.

Kenny & Morris and Eleanor V. Jackson, Los Angeles, for appellant.

Moss, Lyon & Dunn, Sidney A. Moss and Henry F. Walker, Los Angeles, for respondent.

SCHAUER, Justice.

Plaintiff appeals from a judgment entered on a jury verdict in her action, based on alleged negligence, to recover for personal injuries assertedly resulting from glass she claims was present in an ice cream soda served to her by defendant drug company. As sole grounds for reversal, she contends that the trial court erred (1) in refusing to permit her to file an 'amendment to (amended) complaint' setting forth a separate count aimed towards alleging a cause of action based upon breach of an implied warranty asserted to arise under the Uniform Sales Act (Civ.Code, § 1735, subd. (1)), and (2) in refusing to submit the issue of breach of the implied warranty to the jury. It appears, however, that (1) the proffered amendment fails to allege one of the elements essential to recovery upon such a warranty, viz., the giving of the notice of breach thereof which is required by section 1769 of the Civil Code and that (2) the requested and refused instructions were not relevant to any issue raised by the pleadings on which the cause was tried. We conclude, therefore, and for the other reasons hereinafter stated, that the trial court is not shown to have erred in respect to either of the matters complained of and that the judgment must be affirmed.

In the original complaint, filed May 23, 1951, plaintiff alleged that on December 15, 1950, she purchased from defendant, paid for, and was served a dish of ice cream; that defendant 'so negligently and carelessly served and delivered to Plaintiff said ice cream that said ice cream contained a piece or preces of glass. That by virtue of * * * (such) negligence, as aforesaid, Plaintiff, while eating the aforementioned ice cream did also eat the said pieces or piece of glass' by reason of which she sustained injuries consisting of cut and lacerated mouth and lips and internal cuts and lacerations. The only other allegations ¹ of the complaint were of plaintiff's general and special damages. Thereafter, on August 16, 1951, plaintiff filed an amended complaint in all respects identical to her original complaint except that the sums alleged and prayed for as damages were increased, and it was stated that plaintiff purchased and was served an ice cream soda rather than a dish of ice cream. Such amended complaint, like the original, pleads a cause of action grounded only in negligence and avers that 'as a direct and proximate result of said defendants' negligence, plaintiff sustained the * * * injuries' for which she seeks compensation.

The cause appears to have been calendared to go to trial on April 30, 1952, and on that day plaintiff served defendant with a copy of a proposed amendment to her amended complaint. On the following day, when the case was actually called for trial, plaintiff moved for permission to file the amendment. Defendant objected and after arguments the motion was denied. It is in the making of this order that plaintiff asserts the trial court primarily erred. The question before us is not whether we would affirm if the trial court had granted the motion but whether we can hold, on the record as presented to us, that as a matter of law the trial court abused its discretion.

By the amendment plaintiff sought to add to the complaint a separate count intended to plead a new cause of action based on the theory of breach of an implied warranty of fitness, upon which she relied in eating the ice cream. Such proposed amendment alleges that 'defendants served and delivered to plaintiff said ice cream which contained a piece or pieces of glass. * * * That defendants in so serving plaintiff * * * warranted the same to be in all respects proper for the purpose of eating, chewing and swallowing. * * * That plaintiff relied upon such implied warranty of fitness in eating said ice cream * * * and as a proximate result of defendant's permitting said glass to be in said ice cream, plaintiff sustained the * * * injuries' enumerated. The pleading contains neither a direct allegation, nor does it aver facts from which an inference can be drawn, that the notice required by section 1769 of the Civil Code was given.

After plaintiff's motion to file the proposed amendment was denied the case proceeded to trial upon the first amended complaint and defendant's answer thereto. Plaintiff offered three instructions based on the theory of implied warranty, which the court refused.

It is settled in this state that the implied warranty of fitness imposed by subdivision (1) of section 1735 of the Civil Code applies to the sale of food of the type and under the circumstances here involved. (Mix v. Ingersoll Candy Co. (1936), 6 Cal.2d 674, 676, 680-681, 59 P.2d 144; Goetten v. Owl Drug Co. (1936), 6 Cal.2d 683, 687, 59 P.2d 142; see also Gindraux v. Maurice Mercantile Co. (1935), 4 Cal.2d 206, 208, 47 P.2d 708; Klein v. Duchess Sandwich Co., Ltd. (1939), 14 Cal.2d 272, 276, 93 P.2d 799; Whitfield v. Jessup (1948), 31 Cal.2d 826, 828-829, 193 P.2d 1.) Plaintiff urges that she should have been permitted to file her proposed amendment to separately state the implied warranty theory, and that in any event all of the facts necessary to support a recovery upon that theory as well as upon the theory of negligence were set forth in the amended complaint upon which trial was had and that she was therefore entitled to have the warranty theory submitted to the jury. But in making this argument plaintiff overlooks an element essential to stating a cause of action for breach of the implied warranty, i. e., an allegation that plaintiff gave notice of the breach to the defendant within a reasonable time.

Section 1769 of the Civil Code provides that 'In the absence of express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or the sale. But, if, after acceptance of the goods, the buyer fails to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows or ought to know of such breach, the seller shall not be liable therefor.' This court has specifically held that the quoted section applies 'to goods sold for...