Opinion
Page __
__ Cal.App.2d __259 P.2d 450VOGELv.THRIFTY DRUG CO.Civ. 19508.California Court of Appeals, Second District, First DivisionJuly 20, 1953Rehearing Denied Aug. 6, 1953.
Hearing Granted Sept. 17, 1953.
[259 P.2d 451] Kenny & Morris and Eleanor V. Jackson, Los Angeles, for appellant.
Moss, Lyon & Dunn, Sidney A. Moss and Henry F. Walker, Los Angeles, for respondent.
PER CURIAM.
Plaintiff appeals from an adverse judgment entered pursuant to verdict in an action brought by her to recover for injuries alleged to have been sustained because of eating a piece of glass in ice cream served by defendant.
As a customer of defendant, plaintiff states that she seated herself at a counter and was served an ice cream soda. After placing some ice cream in her mouth she testified that she chewed on it, broke her dental plate, felt a cutting sensation, spit the contents of her mouth out into a napkin, and found that it was her broken lower dental plate and small pieces of glass. She complained to defendant and later sought and obtained medical care.
Plaintiff fixes the date of her injury as December 15, 1950. She filed her original complaint in this case on May 23, 1951. Pursuant to stipulation, plaintiff filed an amended complaint on August 16, 1951, and the case was tried on the issues framed by that amended complaint and the answer thereto. This amended complaint alleged the purchase at defendant's store of the ice cream; that defendant so negligently served the ice cream to plaintiff that it contained glass; that by virtue of defendant's negligence plaintiff, while eating the ice cream, ate the glass; that she sustained injury therefrom. On May 1, 1952, the day of the trial, plaintiff moved the court to permit her to amend for complaint by adding a second cause of action which would set out a cause of action for implied warranty under section 1735 of the Civil Code, alleging that on December 15, 1950, plaintiff, as a customer of defendant purchased an ice cream soda, and, 'That defendants in so serving plaintiff as aforesaid warranted the same to be in all respects proper for the purpose of eating, chewing and swallowing.
'That plaintiff relied upon said implied warranty of fitness in eating said ice cream.
'That by reason of eating said glass and as a proximate result of defendant's permitting said glass to be in said ice cream, plaintiff sustained the following injuries,' setting them out.
This appeal is based on plaintiff's view that the trial court erred in refusing permission to file this proposed amendment on the day of trial and its refusal to give the jury certain instructions concerning breach of warranty, which are as follows:
'Special Instruction No. 2.
'The transaction between a restaurant keeper and customer constitutes a sale and that as a necessary incident to such sale there exists an implied warranty which imposes upon the restaurant keeper the obligation to furnish to patrons food 'reasonably fit' for human consumption, and that if a patron suffers injury as a result of eating food which is not reasonably fit for human consumption, the restaurant keeper is liable in damages therefor.'
'Special Instruction No. 13.
'You are instructed that if you find that the defendant, Thrifty Drug Co., served to the plaintiff food or ice cream not reasonably fit for human consumption by reason of the presence of a foreign substance such as glass, and if you find that the plaintiff put such food and foreign substance in her mouth and was damaged thereby, you must find the defendant liable.'
There is a difference between the theory of negligence contained in the amended complaint and the theory of implied warranty in the second amended complaint which plaintiff sought to file on the day of the trial. In the legal research made by her counsel prior to filing of the original complaint in May of 1951, various cases dealing with the subject should have been considered.
[259 P.2d 452] In Mix v. Ingersoll Candy Co., 6 Cal.2d 674, at page 675, 59 P.2d 144, at page 145, decided in 1936, we note in the second paragraph that: 'Two causes of action were separately alleged in plaintiff's complaint, one for damages for injuries resulting from an alleged breach of an implied warranty, the other for personal injuries resulting from the alleged negligence of defendants * * * in the preparation and serving of the chicken pie.' A reading of the entire case in no way justifies any assumption that these two causes of action are one and the same.
Barrios v. Iwaki, 32 Cal.App.2d 198, 200, 89 P.2d 417, 419, says, "It is the rule that warranties not pleaded cannot be relied upon either in support of an action or as a defense." This case was decided in 1939 and we assume it had been noted by plaintiff's counsel more than one day before the trial in May, 1952.
In Goetten v. Owl Drug Co., 6 Cal.2d 683, 59 P.2d 142, the court granted a new trial because it had limited the jury's consideration to the question of negligence and had excluded the question of implied warranty. This order was affirmed on appeal. Plaintiff has not suggested, and we have not found in the opinion in the cited case any support for a contention that in a complaint a cause of action for negligence includes a cause of action for implied warranty under Sec. 1735 of the Civil Code.
In Klein v. Duchess Sandwich Co., Ltd., 14 Cal.2d 272, at page 275, 93 P.2d 799, at page 800, decided in 1939, we find as a separate paragraph:
'In their complaint herein, plaintiffs pleaded two separate causes of action: In substance, (1) that the defendants were guilty of negligence; and (2) that the defendants had breached an implied warranty that the sandwich was fit for human consumption.'
In Wilson v. Ray, 100 Cal.App.2d 299, at page 303, 223 P.2d 313, at page 315, decided in November, 1950, we find, 'where a party relies upon an implied warranty he must pleaded the warranty.'
The amendment of a pleading immediately before a trial is not a matter of right but is placed within the sound discretion of the trial judge. An appellate court will not interfere with the action of the trial judge unless it clearly appears that there has been an abuse of discretion. To a certain extent the measure of the soundness of the discretion used must be found in the facts of each case. Dibblee v. Title Ins. & Trust Co., 55 Cal.App.2d 286, 295, 130 P.2d 775; Manha v. Union Fertilizer Co., 151 Cal. 581, 584, 91 P. 393. No sufficient or satisfactory reason has been brought to our attention for the delay of plaintiff in seeking leave to file a second amended complaint. Plaintiff on this appeal does not claim that when she appeared before the presiding judge in charge of the master calendar of the trial court and her case was called on April 30, and again on May 1, the day of trial, that she announced she was not ready for trial. We may therefore assume that she announced ready for trial, which meant trial on the issues framed by the pleadings as they then stood. This did not include the second cause of action based upon implied warranty or contained in the proposed second amended complaint.
Refusal of the trial court to give the instructions above quoted was proper because they did not relate to issues before the jury for determination. We deem it unnecessary to consider the defendant's suggestion (based in part on McNeal v. Greenberg, 40 Cal.2d 740, 255 P.2d 810, that they are not legally correct. Where a breach of warranty is not pleaded, instructions relating thereto are properly refused. Alvernaz v. H. P. Garin Co., 127 Cal.App. 681, 688, 16 P.2d 683.
After consideration of the legal aspects of the case and an examination of the testimony at the trial, we have concluded that the conscientious trial judge abused the discretion vested in him when he refused to permit plaintiff to amend her complaint. The interests of justice required that plaintiff, as an individual litigant, should not be penalized because her attorney had not properly prepared the pleadings in her case, if as a condition to her filing the amended complaint she had [259 P.2d 453] consented to such continuance or delay as might be required to enable defendant to plead and thereafter prepare for trial, and further that she pay defendant's costs occasioned by such delay. It is apparent that the facts proved would be substantially the same under the amended pleading as they were under the original complaint. Defendant's attorney would have been able, in a minimum of time, to prepare appropriate instructions and to object to any of plaintiff's instructions which were incorrect or inapplicable.
The judgment is reversed with direction to the trial court to permit plaintiff to file a second amended complaint.