Judson Pacific-Murphy, Inc. v. Thew Shovel Co.

DEVINE, P. J.

We have before us the question of the propriety of a judgment founded on an order sustaining a demurrer without leave to amend, the demurrer being based on the statute of limitations and on failure to state a cause of action.

Plaintiff was the purchaser of a crane which was engaged in the entirely laudable work of raising steel for the building of Hastings College of Law. The crane proved unequal to the task, and broke. The action is for damages to the crane itself, not to any person or other property.

The complaint is in two counts: the first professedly on breach of warranty, which has been abandoned. (Plaintiff did not purchase the crane from defendant, the manufacturer, but from a distributor.)

The second count, it is stated by plaintiff, is upon negligence, on the theory that the manufacturer is liable for having manufactured negligently a “dangerous” article, the crane, and is liable under the doctrine of

MacPherson

v.

Buick Motor Co.,

217 N.Y. 382 [111 N.E. 1050], which doctrine has been recognized in California.

(Kalash

v.

Los Angeles Ladder Co.,

1 Cal.2d 229 [34 P.2d 481] ;

Sheward

v.

Virtue,

20 Cal. 2d 410 [126 P.2d 345]; see Rest. Torts, § 394 et seq.)

Plaintiff purchased the crane July 1, 1949, and the crane broke on July 23, 1951. An action for breach of warranty against any party liable therefor would have been barred by the statute of limitations. (Code Civ. Proc., § 339, subd. 1.)

Plaintiff contends that it has a cause of action for negligence, as stated above, and that such cause did not accrue until the damage occurred on July 23, 1951, and that the

*Supp. 830

action having been commenced May 1, 1953, it is within the statutory time for an action for damages to personal property. (Code Civ. Proe., § 339, subd. 1.)