Lai Wum Chin Mock v. Belfast Beverages, Inc.

[771]

KAUFMAN, P. J.

This is an appeal from a judgment of dismissal after sustaining a demurrer to the plaintiffs’ complaint and the failure of plaintiffs to amend their complaint. On appeal, it is argued that the judgment must be reversed because the complaint states a cause of action for breach of implied warranty, and because the cause of action was not barred by the statute of limitations.

On December 18, 1959, plaintiffs, Lai Wum Chin Mock and Wing H. Mock, filed their complaint alleging that in October 1958, they were the owners of a grocery store in San Francisco, and purchased from defendants for resale a bottle labeled Belfast G-ingerale, produced, bottled, distributed and sold by defendants; that the defendants then and there warranted that the bottle was in a safe and nonhazardous condition, and contained no defects which would render it unsafe to move and to handle and to place on a shelf and to store. The complaint alleged further that on October 30, 1958, when the plaintiff, Lai Wum Chin Mock, took the bottle from a shelf in the grocery store and set it on the floor in a normal manner with the other bottles, it exploded causing physical injuries and monetary damages.

On February 10, 1960, defendants filed their demurrer to the complaint on the grounds of failure to state a cause of action and the statute of limitations (Code Civ. Proe., § 340, subd. 3). The demurrer was sustained with 10 days’ leave to amend on May 3, 1960. No amended complaint was filed, and the judgment against the plaintiffs entered on May 18, 1960.

The first question on appeal is whether the complaint states a cause of action for breach of implied warranty. This question was recently laid to rest by

Vallis

v.

Canada Dry Ginger Ale, Inc.,

190 Cal.App.2d 35 [11 Cal.Rptr. 823], and we conclude here that the complaint clearly establishes such cause of action. However, the second and major question is whether the properly applicable statute of limitations is the one-year period for personal injury actions set forth by section 340, subdivision 3, of the Code of Civil Procedure as the defendants contend, or the two-year period for oral contracts set forth by section 339, subdivision 1, of the Code of Civil Procedure, as the plaintiffs contend. The courts in this state have examined this question in great detail on many occasions and have repeatedly concluded that the one-year statute of limitations applies