Whitfield

Plaintiffs appeal from a judgment entered on an order granting a nonsuit, on the ground that they had failed to give notice to defendants, sellers of raw cream, of a breach of warranty in an action for damages for breach of the warranty.

Defendants are engaged in the business of selling dairy products, including raw cream, to the public for human consumption. During January and March, 1944, defendants sold and plaintiffs purchased for immediate consumption raw cream in containers. Plaintiff, Dorothy Whitfield, consumed the cream in her home, and for the purposes of this decision, it is not disputed that as a result thereof she contracted undulant fever. She commenced to have sensations of tiredness, chilliness, and headaches during the latter part of March and the first of April, 1944. She consulted a doctor on May 9, 1944, who diagnosed her ailment as “flu.” She was confined to bed for some time. She remained away from work until October 2, 1944. The doctor called again the second week after the first call and made several other calls in May continuing to refer to the indisposition as “flu.” A complete physical examination was given to her on May 31, 1944. On June 1, 1944, she…

I dissent.

The questions presented on this appeal were thoroughly considered and, in my opinion, were correctly decided by the District Court of Appeal when this case came before it. (Whitfield v. Jessup, 81 A.C.A. 52 [ 183 P.2d 133 ].) As shown by the opinion of that court, no notice was given by plaintiffs to defendants until almost 11 months after the purchase of the first raw cream, until over seven months after plaintiff, Dorothy Whitfield, experienced her first symptoms of illness, or until five months and 18 days after plaintiffs had been advised of the nature of such illness. Under these circumstances, the authorities cited by the District Court of Appeal show that the trial court properly granted the nonsuit since it appeared, as a matter of law, from the uncontradicted evidence that plaintiffs had failed to give the required notice “within a reasonable time.” (Civ. Code, § 1769.) I am therefore of the opinion that the judgment should be affirmed.

Edmonds, J., concurred.

Respondents’ petition for a rehearing was denied June 3, 1948. Schauer, J., and Spence, J., voted for a rehearing.

Plaintiffs appeal from a judgment entered on an order granting a nonsuit, on the ground that they had failed to give notice to defendants, sellers of raw cream, of a breach of warranty in an action for damages for breach of the warranty.

Defendants are engaged in the business of selling dairy products, including raw cream, to the public for human consumption. During January and March, 1944, defendants sold and plaintiffs purchased for immediate consumption raw cream in containers. Plaintiff, Dorothy Whitfield, consumed the cream in her home, and for the purposes of this decision, it is not disputed that as a result thereof she contracted undulant fever. She commenced to have sensations of tiredness, chilliness, and headaches during the latter part of March and the first of April, 1944. She consulted a doctor on May 9, 1944, who diagnosed her ailment as "flu." She was confined to bed for some time. She remained away from work until October 2, 1944. The doctor called again the second week after the first call and made several other calls in May continuing to refer to the indisposition as "flu." A complete physical examination was given to her on May 31, 1944. On June 1,…