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

WHITFIELD et al. v. JESSUP et al.

Civ. 15765.

Decided: July 28, 1947

Samuel A. Rosenthal, of Los Angeles, for appellants. Reed & Kirtland, of Los Angeles (Henry E. Kappler, of Los Angeles, of counsel), for respondents.

The question for decision is whether notice of a claim for damages on account of bacteria-infected, raw cream was timely where the consumer delayed notifying the dealer for five months and 18 days, after she had been advised that her illness was the result of her consumption of the products of such dealer.

The defendants, Roger and Marguerite Rice Jessup, were at all times mentioned herein engaged in the sale and distribution of dairy products. In the months of January, February and March, 1944, plaintiff Dorothy Whitfield consumed certain raw cream which had been distributed by defendants and bought by her husband. Such purchases continued intermittently until about April 10, 1944. During April she experienced symptoms of an illness and on May 9 she consulted a physician who on June 2 advised her that she was suffering from undulant fever. On November 20, 1944, through an attorney not of record herein, she notified the defendants of her illness and of her claim for damages ‘as the result of using your dairy products.’ On February 28, 1945, she and her husband filed the present action predicated upon the breach of an implied warranty of fitness. When the cause came on for trial plaintiffs introduced into evidence the letter of November 20 which is in language as follows: ‘Gentlemen: My client, Dorothy Whitfield of 722 North Jackson street, Los Angeles, California, has retained me to press a claim against your company. She tells me that her doctor advises her that she now has undulant fever as a result of using your dairy products. Before proceeding with this matter I would like to have your attorney get in touch with me in order that we may discuss the matter of an amicable settlement.’ Thereupon the motion for nonsuit, having been argued, was granted. From the ensuing judgment of dismissal comes this appeal.

Such notice was conveyed to defendants almost eleven months after the purchase of the first raw cream, over seven months after experiencing her first symptom of illness, and five months and 18 days after the physician advised plaintiffs that Dorothy was suffering from undulant fever. Inasmuch as for the purpose of the motion for nonsuit the cause of the disease suffered was concededly her consumption of the products of defendants' dairy, the sole question for determination is whether the letter of plaintiff's attorney was a sufficient compliance with the law to impose liability upon the merchant.

Section 1769 of the Civil Code, sometimes known as section 49 of the Uniform Sales Act, provides as follows:

‘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.’

In Restatement of the Law of Contracts, Volume 2, Section 412, it is said:

‘Under a contract for the sale of goods, the failure of the buyer, after acceptance of goods tendered as performance of the contract, to give notice to the seller of the latter's breach of any promise or warranty, within a reasonable time after the buyer knows or has reason to know of such breach, discharges the seller's duty to make compensation.’

The interpretation given to this uniform sales statute is that the purpose of the notice is to advise the seller that he must meet a claim for damages as to which he is entitled to have early warning that he may inspect such goods as may remain in the buyer's possession and which the latter claims to be defective. Columbia Axle Company v. American Automobile Insurance Company, 6 Cir., 63 F.2d 206, 207. The contention made by appellants has been presented before the courts of other jurisdictions from whose decisions, with one single exception, the judicial trend appears to hold as a non-compliance a belated notice of a claim against a merchant on account of bacteria-infested food. In a New York case (Kennedy v. F. W. Woolworth Co., 205 App.Div. 648, 200 N.Y.S. 121, 122) it was held that the statute was never intended to apply to the sale of ‘goods for immediate human consumption.’ But the Supreme Court of Massachusetts, in construing the statute where the plaintiff had taken ill from food purchased from the defendant, held that the giving of notice to a vendor of an alleged breach of warranty within a reasonable time ‘is intended for the protection of the seller against belated claims for damages,’ and that when a purchaser bases his action upon such alleged breach of warranty the notice of the breach to the seller ‘must refer to particular sales, must fairly advise the seller of the alleged defect, and specify with reasonable particularity in what the breach consists, and must be such a notice as to repel the inference of waiver.’ Putnam v. Great Atlantic & Pacific Tea Co., 304 Mass. 364, 23 N.E.2d 866, 867. The Supreme Court of New Hampshire was even more direct in repudiating the New York holding in an action for damages based upon the claim that plaintiffs had contracted trichinosis from eating pork purchased from the defendants. The judgment of the trial court was reversed with the pronouncement that the general provision of the sales act in regard to warranties applies to sales of food and lies at the foundation of plaintiff's case; that the subsequent provisions of the act limiting the right of recovery for a breach of one of the warranties previously imposed do apply to cases arising out of sales of food. It is a fair interpretation of the statute that the rule should be reasonably certain and at the same time avoid a hardship on the buyer by requiring that his acceptance of title necessarily deprives him of the seller's obligations. Also, the rule should avoid hardship on the seller by not allowing a buyer at any time within a period of the statute of limitations to assert the defective condition of the goods although he made no objection when they were received. This explains why the positive requirement of prompt notice was inserted in the statute. The primary purpose of the notice is to advise the merchant that he must meet a claim for damages, as to which he is entitled to an ‘early warning.’ There is no reason why a seller of food for immediate human consumption needs protection from belated claims for damages any less than a seller of food for less immediate use. Hazelton v. First National Stores, 88 N.H. 409, 190 A. 280, 282.

The Supreme Court of Washington is equally as emphatic in rejecting the New York construction of section 49. It holds that food distributed for human consumption clearly falls within the definition of ‘goods'. Before it can be excluded the statute must be so amended as to leave no doubt of the intention of the lawmakers not to include it within ‘goods' manufactured or distributed. There is no basis for the contention that the legislature intended, by implication, to exclude aritcles of food merely because they might be immediately consumed by the purchaser. In such a case the opportunity to investigate may be more difficult, but this does not justify a court in making exceptions. Baum v. Murray, 23 Wash.2d 890, 162 P.2d 801, 806.

There is no provision in the statute requiring that goods be returned to enable the buyer to maintain his action for breach of warranty. But the very absence of such requirement emphasizes the reasonableness of the rule requiring prompt notice of claim to the merchant, in order that he might advantageously investigate the merits of the claim of a breach of implied warranty. The position of the buyer of poisoned food has been assimilated to that of a person injured by a defective street. Sargent v. Town of Gilford, 66 N.H. 543, 27 A. 306. To be entitled to recover against the city evidence must show that he has filed a statement of his claim within the period designated by the statute. Such requirement is founded upon a principle of fairness in controversy. It is wholly apart from the statute of limitations which governs the time of commencing an action. In causes based upon negligence in the preparation of food for human consumption the protection of a merchant or processor from unjust claims renders it necessary that the claimant put the prospective defendant upon prompt notice to the end that investigation may be made and all valuable available evidence be obtained.

While the question of whether a notice was given ‘within a reasonable time after the buyer knows or ought to know of the breach,’ is one of fact, yet where there is no dispute as to the time of such notice with reference to the date of the purchase the question as to whether the time was reasonable is one of law. Columbia Axle Company v. American Automobile Insurance Company, supra; Ice Bowl, Inc., Spalding Sales Corporation, 56 Cal.App.2d 918, 921, 133 P.2d 846; American Manufacturing Company v. United States Shipping Board Emergency Fleet Corporation, 2 Cir., 7 F.2d 565; Laundry Service Company v. Filedity Laundry Machine Company, 187 Minn. 180, 245 N.W. 36.

It has been held in many cases that six months' delay in sending a notice of claim arising under section 49 of the Uniform Sales Act (Civ.Code, sec. 1769) is fatal. Stewart v. B. R. Menzel & Company, 181 Minn. 347, 232 N.W. 522; Patterson Foundry & Machine Company v. C. S. Williams Lacquer Company, 52 R.I. 149, 158 A. 721; Columbia Axle Co. v. American Automobile Insurance Company, supra; Hazelton v. First National Stores, Inc., 88 N.H. 409, 190 A. 280, 283; Putnam v. Great Atlantic & Pacific Tea Company, supra; Chess & Wymond Co. v. LaCrosse Box Co., 173 Wis. 382, 181 N.W. 313; Bomze v. M. Schwarz Textile Corporation, 100 Pa.Super. 588. In other cases a delay of four months defeated the actions. Laundry Service Company v. Fidelity Laundry Machine Company, supra; Ice Bowl, Inc., v. Spalding Sales Corporation, supra. In a recent case the Supreme Court of Massachusetts held that a delay of 40 days after the appearance of the symptoms of plaintiff's illness and 27 days after the physician had opined that the rash was a ‘local’ condition, was not a ‘reasonable time’ as required by the statute. Murphy v. Gilcrest Co., 310 Mass. 635, 39 N.E.2d 427, 428.

While it is true that on the motion for a nonsuit (a) all the evidence must be construed most strongly against the defendant, (b) the court must indulge in every inference or presumption fairly arising from the evidence, and (c) the count must accept the view most favorable to the plaintiff if the evidence is fairly susceptible of two constructions (citing Estate of Flood, 217 Cal. 763, 21 P.2d 579; Darling v. Dreamland Bedding & Upholstering Company, 44 Cal.App.2d 253, 257, 12 P.2d 338; Slater v. Shell Oil Company, 39 Cal.App.2d 535, 539, 103 P.2d 1043; Knecht v. Lombardo, 33 Cal.App.2d 447, 450, 91 P.2d 917, yet on the question of the timeliness of appellants' notice to the defendants the evidence is of one notice only which was unreasonably delayed.

Judgment affirmed.

MOORE, Presiding Justice.

McCOMB and WILSON, JJ., concur.

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