Binion v. Sasaki

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[Civ. No. 9243. Second Appellate District, Division Two. February 27, 1935.]

IDA BINION, Appellant, v. K. SASAKI et al., Respondents.

COUNSEL

A. J. Bledsoe for Appellant.

J. Marion Wright for Respondents. [5 Cal. App. 2d 16]

OPINION

Stephens, P. J.

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 Atl. 884, 63 A.L.R. 334].) [1] 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 Atl. 271].)

The judgment is affirmed.

Crail, J., and Scott, J., pro tem., concurred.