*1 A. 20358. Nо. In Bank. [L. 1948.] al., Appellants, CLAUDE WHITFIELD JENKINS et al., Respondents. et ROGER JESSUP Appellants. Rosenthal for Samuel A. *2 Henry
Reed & Kirtland and Kappler E. for Respondents. Plaintiffs appeal CARTER, judgment J. from a entered on granting ground an nonsuit, order on the failed give defendants, to notice to sellers of cream, raw of warranty damages breach of in action for breach of the warranty. engaged selling dairy
Defendants in the business of including products, cream, raw to the public human con- sumption. During January and March, 1944, defendants sold and plaintiffs purchased for immediate raw cream in cоntainers. Plaintiff, Dorothy Whitfield, consumed the cream in her home, and for purposes the of decision, this disputed a result as thereof she un- contracted dulant fever. She commenced tiredness, to have sensations of chilliness, during part and headaches the latter and of March April, the first of May 1944. She 9, consulted doctor on diagnosed 1944, who her ailment as “flu.” She confined to away bed for some time. She remained from until work October 2, 1944. again The doctor called the second week after the call and May first made several other cаlls con- tinuing refer indisposition complete “flu.” A as physical given examination was On 31, her on 1944. 1, 1944, June she became delirious taken to the hos- and pital where remained until the middle of con- she June. She tinued to suffer from “up the ailment as and down” is typical the disease. 20,
On attorney, November Mrs. Whitfield’s Mr. Fainer, stating wrote letter to client defendants that his press against’’ “has retained me to you; a claim and that "she tells that she me her doctor advises her [Mrs. Whitfield] dairy using your now has undulant fever as the result of products. I proceeding
“Before with this matter would to have like your attorney get in touch with me order that we matter discuss of an amicable settlement.” the predicated counts, Plaintiffs’ action was on two one warranty negligence implied the on breach of other stipulation negli- the fitness of cream. Pursuant gence wаs on count was dismissed. The motion for nonsuit ground had not notice warranty by implied statute. of the breach of the express implied provides: “In the absence of or statute agreement acceptance goods by the parties, damages buyer discharge liability from shаll not the seller warranty remedy legal promise for breach of or other But, acceptance if, in the contract to sell or the sale. after give to the seller fails any promise or within a reasonable breach of breach, knows, ought to know after [Emphаsis liable added.] seller shall therefor.” (Civ. portion italicized Code, 1769.) is the § The rule stated the section which is here of concern. Re- American Law Institute’s the same as that stated pre- rule Contracts, 412) probably (Rest. statement added code section was vailing in California before the 983-988). It is the identical 22 Cal.Jur. (see, cases cited Annotated, (Uniform Laws language Act Uniform Sales *3 provision of the purposes of the Sales, §49). One of the harshness ameliorate the Act was to Uniform Sales acceptance mere in that the common lаw rule some states a waiver goods constituted passage of title to the warranty, and all remedies for breach against stale protection give the seller some same time to discussion, Williston by requiring (See, notice. claims ed.], §714.) Contracts [rev. however, argued, the notice
It is that does apply goods consumption sold for immediate human not to distinguished chattels, from the of other sale and reliance upon Kennedy Co., App.Div. v. 205 648 placed Woolworth Silverstein, also, (See, Macy v. R. Co., N.Y.S. H. 121]. [200 916], refusing apply 5 to it where App.Div. 266 N.Y.S.2d [40 [gymnasium equipment] im the sale of an article for clearly applies use.) sales act on its face mediate articles for immediate human con sale of food or other use or throughout sumption. statutory provisions The reference " ’’ goods. determining the sale of In on the lаw of sales is to implied the food is for there is an fit dealing under the statutes with the law consumption human accepted that the sale of food for it is of the sales goods consumption is a sale of under the stat human immediate
829
Co., Ltd.,
(See,
ute.
Klein v. Duchess
14
272
Sandwich
Cal.2d
799];
Ingersoll Candy
v.
P.2d
Mix
Cal.2d
674
[93
[59
144];
v.
Drug Co.,
P.2d
Goetten Owl
we have whether here tort or contract. jurisdictions constantly have refused
The courts in other
held that
the statute
Kennedy
and have
to follow the
case
im
in the
for
applies
involved
to warranties
sale
Alpha
(Savage v.
including food.
mediate
Kanavos,
v.
Co.,
38];
300
520
Johnson
Lunch
Mass.
N.E.
[16
;
N.E.2d
v. Union News
It is the statute for inapplicable sales of food immediate consumption, to afford the opportunity the reason for notice is seller an article, good to make defective and that cаnnot be done been consumed. It is doubtful that it has the seller right. (See, Code, 1789, dealing Civ. has warranty.) in case of breach of remedies of the But requirement it if that is a reason for notice only in Columbia Axle Co. v. American reason. As stated 207 206, page 63 F.2d : “While it Automobile Ins. required by permit of the notice the statute to purpose be one inspection of the whether the seller to make certainly only not, purpose. its hands of vendee Judge notice,’ Hand, Learned ‘is said purpose of the ‘The damages, he must meet claim the seller that to advisе requires he rightly wrongly, the law which, as to Manufacturing v. warning.’ American Co. early shall have (C.C.A. 2); etc., F.2d 565 Board, Shipping United States Bottling Co., supra Inc. v. Fulle, Diamond cf. Truslow & (See 1142)].” 492, 71 A.L.R. (151 A. Conn. requirement, general purpose for as to the effect same p. 289, and Annotated, vol. Laws colleсted, Uniform Supp. p. 204.) here was no doubt that notice
There can be plaintiffs’ The letter was from and content. form sufficient being made that a in itself indicated claim counsel which claim made that a and it advised dairy products of defendants’ use contracted the disease form of No by defendants. sold merely the seller apprize It need required. (See, v. First damages. Hazelton him for to look intends Engineering Ace Kanavos, supra; Stores, supra; Johnson Nat. *5 Bend Malting o. v. West Wis. 91 NW.2d C ; Murray, supra.) Baum v. 627] justified concluding The trial court was not as a matter of law that the within a reasonable notice was purchases time. The cream from oc the raw February during January, curred and March preceding (November) given. part month was latter during April March and Whitfield feel Mrs. commenced to symptoms (she of the disease know that werе did such) feeling such headaches and and weak tiredness During April ness. She consulted a doctor on 9th. she diag was too ill “bother” doctor to even with cream. The away nosed her as “flu.” ailment She remained from work part early until All during of October. May she was seriously incapаcitated and the doctor continued to call on her her “flu.” diagnosing During trouble as two the first weeks in hospital. appears June she confined in a diagnosed disease was as undulant fever about June 2d. After the two the hospital weeks in Mrs. Whitfield was con fined to her days bed homе. was able She to be a few up July finally but hospital forced to return to following July two weeks 16th. After returning to her home she was confined to bed. There up and conditions during down August. continued She was able to be out during bed September. never She had before heard of the disease, undulant fever.
Having in mind the appropriate provision rule under this sales, may law of that “It be taken as axiomatic that what constitutes reasonable time must be determined from (Co circumstances in the case” individual lumbia Axle Co. American Automobile supra, Ins. p. 208), say this court сannot aas matter of that an un law Certainly reasonable had elapsed. time time did not commence run before Mrs. Whitfield knew the disease was undulant fever. She had never before heard of the disease and it appear does not she was may advised that it be сaused bacillus raw Perhaps cream. she did not dis cover physical she had complete until examination in November and consulted supposed her counsel. It is not be inspect she analyzed would the cream—have it aby laboratory before was consumed. Thе defect latent and it only way reasonable to infer that might of it through occur would be body the effects on her phy- respect sician’s advice not then effects. She would know the source of her illness until she been advised of it. Be reason of her po- illness not have in a she been intelligent sition sufficiently to form conclusion alert protect rights. her What containing defects, are foods latent sold immediately consumed, presents question a different than *6 ordinary subject does the sale where the article is examina- tion and use which revеal For all reasons will its defect. these by light little upon is shed the issue an examination of the deciding certain of not periods that time were or were by cir- reasonable. The case be controlled its special must cumstances. judgment
The reversed. is Gibson, J., Shenk, J., Traynor, J., C. сoncurred. SCHAUER., I agree Mr. “what J. Justice Carter that purview of Civil reasonable time the [within Code must be determined from the 1769] case,” agree in the individual I circumstances but do ‘‘ Certainly run with him that time did not commence to the fever,” knew before Mrs. Whitfield the disease was undulant etc. by contеmplated view the “reasonable time” my by solely be determined consideration
section 1769 not to rather, but, of the that the test of circumstances the the the surround and affect circumstances as relates to buyer. well Failure possibly public, the as the seller, and ele- promptly be an of to discover the defect the I do not time of notice but ment in the reasonableness of the pre intended, that it implication, the if subscribe vents, full necessarily lapse the postpones, the of even the unreasonable, beyond it would be when period con- public interest, any, and the seller’s interests if a basis for action. permit the notice as sidered, to one, nonsuit, close but I the case here think District of the opinion cited in the light authorities of the of the article 133), P.2d nature Appeal (183 Court public as to аs well importance sold and claimed as that a defect such notice as to prompt defendant trial conclusion of here, persuaded I am law, is unreasonable. one of judge the issue is judgment. affirm the I would Accordingly SPENCE, J. I dissent. questions presented appeal thoroughly on this were and, my opinion, correctly
considered by were decided Appeal District Court when this case came it. before (Whitfield Jessup, A.C.A. As by shown opinion court, no by notice was plaintiffs to defendants until almost 11 after months purchase cream, of the first raw until over seven months Dorothy after plaintiff, Whitfield, experienced symp her first days toms illness, or until five and 18 plain months after tiffs had been advised of the nature of such illness. Under these circumstances, the authorities cited the District Court Appeal properly granted show that the trial court appeared, nonsuit since it law, as a matter of un from the contradicted give evidence that failed to (Civ. Code, notice “within a time.” 1769.) opinion I am judgment therefore should be affirmed.
Edmonds, J., concurred. Respondents’ petition rehearing for a was denied June *7 1948. Schauer, J., Spence, J., rehearing. voted for a May 6, No. 5822. In Bank.
[Sac. 1948.] ALAN J. al., Respondents, AYLWARD et v. STATE
BOARD al., OF CHIROPRACTIC EXAMINERS et Appellants.