Anita Pritchard, Administratrix of the Estate of Otto E. Pritchard, Deceased v. Liggett & Myers Tobacco Company, a Corporation

350 F.2d 479, 1965 U.S. App. LEXIS 4794

• Court: Court of Appeals for the Third Circuit
• Decided: July 26, 1965
• Docket: 14802_1
• Status: Published

Opinions

WILLIAM F. SMITH, Circuit Judge.

The plaintiff brought this action for personal injury alleging that he contracted lung cancer as a result of having smoked Chesterfield cigarettes for many years. The claims for relief, stated in separate counts of the complaint, alleged negligence and breach of warranty as the bases of liability. The defendant, admittedly the manufacturer of the cigarettes, denied the allegations of the complaint and pleaded assumption of risk as an affirmative defense to each of the claims. The jurisdiction of the court below was invoked on the ground of diversity of citizenship and therefore under the facts of the case the law of Pennsylvania was applicable.

The action was heretofore before this Court on an appeal from a judgment entered on a directed verdict in favor of the defendant, 3 Cir., 295 F.2d 292. The judgment was reversed and a new trial was granted pursuant to the mandate. The present appeal is from a judgment entered on a jury verdict in favor of the defendant. The earlier opinion of this Court contains a comprehensive summary of the pertinent evidence offered in the first trial. Since the evidence offered at the second trial did not differ substantially, we find it necessary to set forth herein only such additional facts as may be relevant to the narrow issues raised on this appeal.

The plaintiff, who was 63 years old at the time of the second trial, admittedly smoked cigarettes since he was 15 years of age. He was an habitual cigarette smoker for several years prior to 1924, when he began smoking Chesterfields for the first time. Thereafter, and during the critical period, between sometime in 1924 and the latter part of 1953, he smoked Chesterfields regularly, consuming “at least a carton” per week. There was ample evidence in the record from which the jury could have found, as it did, that the smoking of Chesterfields was a cause of the lung cancer, which was diagnosed and removed in 1953. This finding is not an issue on this appeal.

The alleged warranties were contained in a series of advertisements published periodically in both newspapers and magazines. These advertisements featured in bold type such factual affirmations as the following: “Chesterfields Are Best For You”; “Chesterfields Are As Pure As The Water You Drink And The Food You Eat”; “A Good Cigarette Can Cause No Ills”; “Nose, Throat And Accessory Organs Not Adversely Affected By Smoking Chesterfields”; “Play Safe Smoke Chesterfields.” (See also the earlier opinion of this Court). Many of the advertisements contained assurances that the affirmations were based upon extensive research and the opinions of medical specialists. There was implicit in these assurances a strong suggestion that while other brands of cigarettes might be harmful, Chesterfields were not.

This Court stated in its earlier opinion: “The evidence compellingly points to an express warranty, for the defendant, by means of various advertising media, not only repeatedly assured plaintiff that smoking Chesterfields was absolutely harmless, but in addition the jury could very well have concluded that there were express assurances of no harmful effect on the lungs.”

The issues were submitted to the jury on a series of special interrogatories, Fed.Rules Civ.Proc., rule 49(a), 28 U.S.C.A., all of which, except one, were answered adversely to the plaintiff. The jury found: (1) the smoking of Chesterfield cigarettes by the plaintiff was “the cause, or one of the causes,” of the cancer; (2) the defendant was not chargeable with negligence; (3) the defendant made no “express warranties upon which the plaintiff relied and by which he was induced to purchase” the cigarettes; and (4) the plaintiff assumed the risk of injury by his smoking the cigarettes. A judgment for the defendant in accord with the special findings was entered.

The plaintiff moved for a new trial on the grounds, among others, that the verdict on the breach of warranty issue was against the weight of the evidence, and the Court’s instructions to the jury on the same issue were erroneous. The motion was denied. The only grounds here urged as a basis for reversal are those relating to the breach of warranty issue; the others have been abandoned.

Denial of Motion for New Trial.

The plaintiff argues that the ver - diet was against the weight of the evidence and that the denial of his motion for a new trial, based on this ground, was error. It is well settled that a motion for a new trial on the ground herein urged is addressed to the sound discretion of the trial judge and its denial is not ordinarily reviewable on appeal. Silverii v. Kramer, 314 F.2d 407, 413 (3rd Cir. 1963); Lind v. Schenley Industries, Inc., 278 F.2d 79, 89 (3rd Cir, 1960), cert. den. 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed.2d 60; Magee v. General Motors Corp., 213 F.2d 899 (3rd Cir. 1954). Since the judgment must be reversed on other grounds, we see no need to discuss the merits of the argument.

Reliance as Requisite to Right op Action

The breach of warranty issue was tried on the assumption that reliance of the purchaser was an essential element of an express warranty as defined by statute, infra, and therefore requisite to a cause of action for its breach. The plaintiff endeavored to prove by his own testimony that the advertisements were an inducement and that in reliance thereon he regularly purchased and smoked Chesterfields. This testimony, when subjected to the test of cross-examination, fell far short of the mark and apparently failed to impress the jury.

The Court instructed the jury, consistently with the forgeoing assumption, as follows: “The law of Pennsylvania provides that any affirmation of fact, or any promise by the seller relating to the goods, is an express warranty if the natural tendency of such an affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases relying thereon.” (Emphasis supplied).

These instructions were undoubtedly consonant with the majority rule which is predicated on a construction of Section 12 of the Uniform Sales Act,¹ as adopted by many of the States. Pedroli v. Russell, 157 Cal.App.2d 281, 320 P.2d 873 (Cal.1958); Rogers v. Toni Home Permanent Co., 167 Ohio St. 244, 147 N.E.2d 612 (1958); Frank v. Salomon, 376 Ill. 439, 34 N.E.2d 424 (1941); see also text and Annotations, Frumer and Friedman, Products Liability, Vol. 1, § 16.04 [4], However, under the law of Pennsylvania the rule is not applicable where the factual affirmations run to the public and their natural tendency is to induce a purchase.

The applicable section of The Sales Act of Pennsylvania, 69 P.S. § 121, reads as follows:²

“Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon no affirmation of the value of the goods, nor any statement purporting to be a statement of the seller’s opinion only, shall be construed as a warranty.” (Emphasis supplied).

The quoted version differs from that which appears in The Uniform Sales Act.

It will be noted that in Section 12 of The Uniform Sales Act the conditional phrase “and if the buyer purchases the goods relying thereon,” at the end of which a period appears, modifies the antecedent clause. In the version here-inabove quoted the same phrase, at the end of which no punctuation appears, introduces a proviso creating an exception to the general definition appearing in the first clause. While punctuation is seldom a reliable guide to statutory construction it is a relevant factor where, as here, its effect is to change the import of the statute. The materiality of the change is a significant indication that it was the intent of the Pennsylvania legislature not to follow Section 12 of The Uniform Sales Act as written.

An express warranty, within the meaning of the Pennsylvania statute, as we construe it, is any factual affirmation or promise, the natural tendency of which “is to induce the buyer to purchase the goods.” Reliance of the buyer is not a requisite of either the warranty or a right of action for its breach. It follows that the instructions given were erroneous, as was the submission to the jury of the issue of reliance. Under the facts of this case the issue of reliance was wholly irrelevant; the only issue was whether the factual affirmations contained in the many advertisements were such as would naturally tend “to induce the buyer to purchase the goods.”

This Court was called upon to construe the statute in the case of Mannsz v. Macwhyte Co., 155 F.2d 445 (1946). Therein the respective claims for damages, one for wrongful death and another for personal injury, were predicated upon the alleged breach of an express warranty contained in a manual circulated by the manufacturer. The plaintiffs attempted to prove that the purchase of a wire rope, which broke while being used to support a scaffold, was purchased in reliance on certain representations as to strength contained in the manual. They failed in this proof; in fact, there was no evidence in the record that the manual ever came to the attention of either the purchaser, who died in the accident, or his injured employee.

This Court held that where the factual representations run to the public and are such as would naturally induce a purchase neither privity of contract nor actual reliance on the representations is an essential element of a right of action under the statute. Accord Worley v. Proctor & Gamble Mfg. Co., 241 Mo.App. 1114, 253 S.W.2d 532 (1952); see also Williston on Sales, Vol. 1, §§ 206 and 208; Frumer and Friedman, Products Liability, supra. If a manufacturer extends to the public an express warranty that his product is harmless and thereafter a purchaser suffers personal injury as a result of its breach, the manufacturer cannot disclaim liability on the ground that there was no reliance on the warranty. The express warranty is an integral part of the contract of sale and may not be disaffirmed, after a breach has occurred, on the ground that the purchaser did not actually rely on it.

In the Mannsz case, supra, this Court sustained a judgment in favor of the defendant but on the ground that the wire rope had been used for a purpose not intended by the manufacturer and this misuse placed it beyond the scope of warranty.

Assumption of Risk as Defense

An action for personal injury based upon the breach of an express warranty, although it sounds also in tort, is in substance one for breach of contract. The availability of assumption of risk as a defense in such an action depends upon which of two concepts is adopted. The distinction may be of little importance in an action for personal injury based on negligence but it is important where, as here, an additional basis of liability is the alleged breach of an express warranty. See Koshorek v. Pennsylvania Railroad Company, 318 F.2d 364, 367 (3rd Cir. 1963).

Assumption of risk in its secondary sense is ordinarily synonymous with contributory negligence and involves a failure to exercise reasonable care for one’s own safety. Under this concept recovery is barred because of the plaintiff’s departure from the standard of reasonable conduct and notwithstanding the misconduct of the defendant. Potter v. Brittan, 286 F.2d 521 (3rd Cir. 1961) and cases hereinafter cited. Harper and James, The Law of Torts, § 22.2, p. 1201; Prosser, Law of Torts, 2nd Ed. § 55. Assumption of risk in its primary and strict sense involves voluntary exposure to an obvious or known danger which negates liability. Under this concept recovery is barred because the plaintiff is assumed to have relieved the defendant of any duty to protect him. Ibid.

In Prosser, Law of Torts, supra, cited with approval in Koshorek v. Pennsylvania Railroad Company, supra, the principles determinative of the distinction are stated as follows: “In working out the distinction, the courts have arrived at the conclusion that assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it, while contributory negligence is a matter of some fault or departure from the standard of reasonable conduct, however unwilling or protesting the plaintiff may be. The two may co-exist, or either may exist without the other. .The difference is frequently one between risks which were in fact known to the plaintiff, or so obvious that he must be taken to have known of them, and risks which he merely might have discovered by the exercise of ordinary care.” See also Potter v. Brittan, supra; Sullivan v. Shell Oil Company, 234 F.2d 733, 739 (9th Cir. 1956), cert. den. 352 U.S. 925, 77 S.Ct. 221, 1 L.Ed.2d 160.

It has been held by the Superior Court of Pennsylvania, an intermediate court of appeals, that contributory negligence is inapposite as a defense in an action for breach of warranty. Jarnot v. Ford Motor Company, 191 Pa.Super. 422, 156 A.2d 568 (1959). We have found, and the parties to this appeal have cited, no other case in point. We ■are therefore obliged to follow this decision in the absence of persuasive evidence that the highest court of the State would reach a different conclusion. McLouth Steel Corp. v. Mesta Machine Co., 214 F.2d 608, 610 (3rd Cir. 1954) cert. den. Hartford Acc. & Indem. Co. v. Foster, 348 U.S. 873, 75 S.Ct. 109, 99 L.Ed. 687; St. Clair v. Eastern Airlines, Inc., 302 F.2d 477 (2nd Cir. 1962).

The rule as announced by the Superior Court appears to represent the majority view and is supported by substantial authority in other jurisdictions. Green v. American Tobacco Co., 325 F.2d 673, 679 (5th Cir. 1963), cert. den. 377 U.S. 943, 84 S.Ct. 1349, 12 L.Ed.2d 306; Brown v. Chapman, 304 F.2d 149, 163 (9th Cir. 1962); Hansen v. Firestone Tire and Rubber Company, 276 F.2d 254, 258 (6th Cir. 1960); see also Frumer and Friedman, supra, § 16.01 [3]. It was held in the cited cases that in an action for personal injury, predicated on breach of warranty, the defense of contributory negligence is inapposite. There are other decisions to the same effect. It seems reasonable to assume that the highest court of Pennsylvania would reach the same conclusion.

We are of the view, and so hold, that since contributory negligence is not available as a defense in an action for personal injury based on breach of warranty, assumption of risk in the sense of contributory negligence is likewise not available. However, if a consumer uses a product for a purpose not intended by the manufacturer and suffers an injury as a result, he may not recover because such misuse is beyond the scope of the warranty. See Frumer and Friedman, supra, § 16.01 [3]. This was in essence the holding of this Court in Mannsz v. Macwhyte Co., supra.

It is the law of Pennsylvania that a person who voluntarily exposes himself to a danger of which he has knowledge, or has had notice, assumes the attendant risk. He may not recover for personal injuries sustained as the result of the exposure, because under the circumstances the person responsible for the danger is relieved of any duty to protect the injured person. Kopp v. R. S. Noonan, Inc., 385 Pa. 460, 123 A.2d 429 (1956); Cutler v. Peck Lumber Mfg. Co., 350 Pa. 8, 37 A.2d 739 (1944). It is clear from these cases that assumption of risk, in its primary and strict sense, is available as a defense in an action for personal injuries based upon negligence. It follows as a matter of logic that the same defense is apposite in an action based on breach of express warranty.

The defense of assumption of risk rested solely on the testimony of the plaintiff which, viewed in the light most favorable to the defendant, was clearly insufficient. There was no evidence upon which the jury could have predicated a determination that the plaintiff either knew or had notice of the harmful effects of Chesterfields. Absent such evidence, the defense of assumption of risk failed.

There was overwhelming evidence that many of the defendant’s advertisements carried factual affirmations, professedly based on medical research, that Chesterfields were safe and smoking them could have no adverse effect on “the nose, throat and accessory organs.” These advertisements were calculated to overcome any fears the potential consumers might have had as to the harmful effects of cigarettes, and particularly Chesterfields. Under the circumstances it is difficult to perceive how the plaintiff,- a cabinetmaker with no scientific background, could have been charged with notice or knowledge of a danger, which the defendant, with its professed superior knowledge, extensively advertised did not exist. We should emphasize that the medical researchers engaged by the defendant in 1952, apparently failed to detect the danger.

As hereinabove noted, assumption of risk was apposite as a defense in the action based upon breach of express warranty but only in its primary sense. However, the issue raised by the defense was submitted to the jury on general instructions which were inadequate and confusing in that they failed to differentiate between the primary and secondary concepts; in the instructions these concepts were treated as equivalent. Absent such a differentiation, the instructions as given did not correctly relate the law to the issue and were therefore erroneous. Atkinson v. Roth, 297 F.2d 570, 574 (3rd Cir. 1962); McNello v. John B. Kelly, Inc., 283 F.2d 96, 101, 102 (3rd Cir. 1960). It was also error to submit the issue to the jury in the absence of evidence to support the defense. Morran v. Pennsylvania Railroad Company, 321 F.2d 402 (3rd Cir. 1963); O’Neill v. Reading Company, 306 F.2d 204 (3rd Cir. 1962); Smith v. Ellerman Lines, 247 F.2d 761, 766 (3rd Cir. 1957)

Arguments in Support op Appirmance

The defendant urges two principal - grounds for affirmance and against reversal of the judgment. Preliminarily to our discussion of these grounds it should be stated that the trial errors in this case are attributable, at least in part, to the ineptness of plaintiff’s counsel. He made no objections to the Court’s instructions or the interrogatories on which the issues were submit ted to the jury.

The defendant argues that the plaintiff here advances in support of reversal a theory different from that on which the -case was tried and submitted to the jury. This argument has no sup ■ port in the record. The plaintiff alleged the defendant’s breach of warranty as one basis of liability. The issues tried and submitted to the jury were those raised in the denial of the allegation and the defense of assumption of risk. Reversal of the judgment is sought solely on the grounds that the court below committed error in the course of the trial. This is clearly not a case in which there has been a change of theory.

The defendant argues also that since the plaintiff interposed no objection to either the court’s instructions or the interrogatories submitted to the jury, the questions raised on this appeal should not be considered. It is the general rule that the appellate court will'not consider trial errors to which no timely objection has been made. The rule is not inexorable and is subject to excep tion. Hormel v. Helvering, 312 U.S. 552 557, 558, 61 S.Ct. 719, 85 L.Ed. 1037, Mazer v. Lipschutz, 327 F.2d 42, 52 (3rd Cir. 1964); McNello v. John B. Kelly, Inc., supra; Callwood v. Callwood, 233 F.2d 784, 788 (3rd Cir. 1956). Where it is apparent on the face of the record that a miscarriage of justice may have resulted from counsel’s failure to properly protect the interest of his client by timely objection, the error must be noticed and rectified. Ibid. Since the errors in the trial of this case were fundamental and highly prejudicial, this exception to the general rule is applicable.

Judges .Ganey and Freedman concur in. the result in this case and in that portion of the opinion which deals with the defense of assumption of risk. The majority view on the question of reliance is discussed in the opinion of Judge Freedman, in which Judge Ganey joins.

The judgment of the court below will be reversed and the action will be remanded with the direction that a new trial be had.

1 . “Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon. No affirmation of the value of the goods, nor any statement purporting to be a statement of the seller’s opinion only, shall be construed as a warranty.” (Emphasis supplied.)

2 . Superseded by Uniform Commercial Code, § 2-313, adopted April 6, 1953.