[Download] "Vogel V. Thrifty Drug Co." by Supreme Court Of California " eBook PDF Kindle ePub Free
eBook details
- Title: Vogel V. Thrifty Drug Co.
- Author : Supreme Court Of California
- Release Date : January 02, 1954
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 56 KB
Description
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.