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


Civ. 9243.

Decided: February 27, 1935

A. J. Bledsoe, of Los Angeles, for appellant. J. Marion Wright, of Los Angeles, for respondents.

The trial court awarded judgment for defendants in an action for damages for negligence in selling vegetables impregnated with arsenic and upon an alleged warranty that they were fit for human consumption. Plaintiff appeals.

Plaintiff's husband purchased the vegetables; his wife, the plaintiff, ate of them and became ill. The findings assume, rather than assert, that arsenic was in or on the vegetables when purchased. We therefore make the same assumption.

Upon competent evidence the findings absolve defendants from the charge of negligence. Minutilla v. Providence Ice Cream Co., 50 R. I. 43, 144 A. 884, 63 A. L. R. 334. Under the authorities the warranty, if any, went to the purchaser only, and the purchaser is not the party plaintiff. Rhodes v. Libby, McNeill & Libby, 133 Or. 128, 288 P. 207; Chysky v. Drake Bros. Co., 235 N. Y. 468, 139 N. E. 576, 27 A. L. R. 1533; Welshausen v. Charles Parker Co., 83 Conn. 231, 76 A. 271

The judgment is affirmed.

STEPHENS, Presiding Justice.

We concur: CRAIL, J.; SCOTT, Justice pro tem.

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