Edwin Green, Jr., as Administrator of the Estate of Edwin Green, Deceased, and Mary Green v. American Tobacco Company

304 F.2d 70

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 20, 1962
• Docket: 19003
• Status: Published

Opinions

RIVES, Circuit Judge.

Edwin Green, Sr., brought suit against American Tobacco Company in December 1957, claiming that he had incurred lung cancer as a result of smoking defendant’s product, Lucky Strike cigarettes. A few months later, on February 25, 1958, Mr. Green died. Under the Florida Survival Statute,¹ the claim survived, and Mr. Green’s son, Edwin Green, Jr., appointed administrator of his estate, was substituted as plaintiff.² The widow, Mary Green, also filed suit under the Florida Wrongful Death Statute.³ The two suits were consolidated by order of the district court, and. came on for jury trial upon an amended complaint which asserted in separate counts six theories of liability: (1) Breach of Implied Warranty ; (2) Breach of Express Warranty; (3) Negligence; (4) Misrepresentation; (5) Battery; and (6) Violation of the Federal Food, Drug and Cosmetic Act, the Federal Trade Commission Act, and the Florida Food, Drug and Cosmetic Act.

At the close of the plaintiffs’ evidence, in a ruling not questioned on appeal, the district court sustained the defendant’s motion for a directed verdict on all counts except Count 1, breach of implied warranty, and Count 3, negligence. At the close of all the evidence, the defendant renewed its motion for directed verdict on those two counts. The court reserved its ruling on that motion, and submitted the cases to the jury upon the two theories of liability, breach of implied warranty and negligence. The jury returned general verdicts for the defendant, and answered written interrogatories submitted under Rule 49(b), Federal Rules of Civil Procedure, 28 U.S.C.A., as follows:

“(1) Did the decedent Green have primary cancer in his left lung?.

“Yes X

«No-

“If your answer is ‘Yes,’ then

“(2) Was the cancer in his left lung the cause or one of the causes of his death?

“Yes X

“No--

“If your answer to the above question is ‘Yes,’ then

“(3) Was the smoking of Lucky Strike cigarettes on the part of the decedent, Green, a proximate cause or one of the proximate causes of the development of cancer in his left lung?

♦‘Yes X

«No-

“If your answer to the above question is ‘Yes/ then

“(4) Could the defendant on, or prior to, February 1, 1956, by the reasonable application of human skill and foresight have known that users of Lucky Strike cigarettes, such as the decedent Green would be endangered, by the inhalation of the main stream smoke from Lucky Strike cigarettes, of contracting cancer of the lung?

“Yes-

“No X ”

Upon the jury’s verdict, judgment in each case was entered for the defendant. A cost judgment against the plaintiffs was entered in the amount of $1,969.74, which included $900.00 for expert witness fees assessed at the rate of $100.00 each.

Upon appeal, the plaintiffs present no questions as to the rulings on Count 3, negligence, but restrict their contentions to the theory of Count 1, implied warranty. As stated in their brief:

“Three question only are presented by these appeals:

“(1) Under the Florida doctrine of implied warranty are not the plaintiffs entitled to judgment as a matter of law, as requested in their post-trial motions under Rule 49(b), based upon the jury’s special findings that the smoking of defendant’s Lucky Strike cigarettes proximately caused the plaintiffs' decedent to contract a fatal case of cancer of the lung?

“ (2) Did not the trial Judge err in refusing to grant plaintiffs’ requested charges on the issue of implied warranty and in charging instead that the implied warranty of fitness which a manufacturer under Florida law is held to make depends upon the ability of the maufacturer to know about the harmful substances in its product ?

“(3) Did not the trial Judge err in taxing as costs against the plaintiffs a total of nine expert witness fees in the amount of $100.00 per expert, such sums being beyond the amount allowable and authorized by Federal statute?’’

Edwin Green, Sr., began smoking Lucky Strike cigarettes in 1924 or 1925 when he was about 16 years old. He smoked from one to three packages per day until early 1956, when his physician advised him that he had contracted cancer of the left lung. By the time of diagnosis the cancer was no longer operable or curable. Ameliorating treatment was given, but the cancer proceeded on its typical, fatal course, and resulted in Mr. Green’s death on February 25, 1958.

The testimony at the trial was concerned principally with the issues of whether Mr. Green’s death was caused by a cancer originating in the lung, that is, primary lung cancer, and whether that cancer was caused by his smoking of Lucky Strike cigarettes. Eight eminent medical doctors testified on each side. They were in sharp disagreement. The district court properly submitted to the jury the questions of medical causation.⁴ Their testimony was also in conflict on whether by February 1, 1956, when it was first discovered that Mr. Green had lung cancer, scientific knowledge had progressed to such an extent that the defendant could, by reasonable foresight, have learned that the smoking of cigarettes was a probable cause of lung cancer.

Plaintiff-appellants state their main insistence as follows:

“The fundamental point upon which the plaintiffs rely on this appeal is that the Trial Court erred, as a matter of law, in ruling that the implied warranty of fitness which a manufacturer of products for human consumption is held by Florida law to make does not cover deleterious substances in its products, the harmful effects of which are unknown to the manufacturer and could not have been known by any developed human skill or foresight. Plaintiffs contend that the knowledge of the manufacturer is irrelevant and immaterial to the manufacturer’s liability on an implied warranty under Florida law, and that a manufacturer's implied warranty is not limited to harmful substances of which the manufacturer either had knowledge, or should have had knowledge or could have had knowledge according to developed human skill and foresight.”

With that insistence we cannot agree. To the contrary, we are convinced that the doctrine of implied warranty by a manufacturer and seller of the qualities and fitness of the thing sold for the purpose for which it is intended or desired is founded on his superior opportunity to gain knowledge of the product and to form a judgment of its fitness. That principle can clearly be deduced from all of the Florida cases on implied warranty whether by the manufacturer or by the dealer.

In the comparatively early case of Berger v. E. Berger & Co., 1918, 76 Fla. 503, 80 So. 296, a dealer was held liable on an implied warranty that a lot of lumber was fit for the purposes for which the dealer knew that it was purchased. The court quoted at some length a passage from Benjamin on Sales (5th ed.) 595, beginning with the sentence: “An implied warranty, or as it is called, a covenant in law as distinguished from an express contract or express warranty, really is in all cases founded on the presumed intention of the parties and upon reason.” 80 So. at 299. The court concluded :

“We think the rule is well established which embodies the principle above quoted that where a person contracts to supply an article in which he deals for a particular purpose, knowing the purpose for which he supplies it and that the purchaser has no opportunity to inspect the article, but relies upon the judgment of the seller, there is an‘ implied condition or ‘warranty,’ as it is called, that the article is fit for the purpose to which it is to be applied.”

In Smith v. Burdine’s Inc., 1940, 144 Fla. 500, 198 So. 223, 227, 229, 131 A.L.R. 115, a buyer requested of a saleslady at a cosmetic counter a good lipstick. The saleslady selected a certain lipstick and recommended it for its intended use. The lipstick contained a poisonous substance which allegedly injured the health of the buyer. In an action for breach of implied warranty of fitness the trial court directed a verdict for the defendant. The Florida Supreme Court reversed and held that whether the buyer relied on the judgment of the saleslady was for the jury, saying:

“The existence or non existence of an implied warranty of fitness for a particular purpose must and necessarily does depend upon whether or not the buyer relied upon his own judgment at the time of the purchase or relied on the skill or judgment of the seller, and this is a question of fact to be determined by a jury under appropriate instructions.” (198 So. 229.)

In Blanton v. Cudahy Packing Co., 1944, 154 Fla. 872, 19 So.2d 313, a manufacturer or canner of a meat product, known as “Tang,” sold to the retailer in sealed packages or cans was held liable to the ultimate consumer for breach of an implied warranty that such product is wholesome and fit for human consumption. The court said in part:

“The implied warranty theory of liability comports with the general trend of the best reasoned cases. The manufacturer knows the content and quality of the food products canned and offered to the public for consumption. The public generally is vitally concerned in wholesome food, or its health will be jeopardized. If poisonous, unhealthful and deleterious foods are placed by the manufacturer upon the market and injuries occur by the consumption thereof then the law should supply the injured person an adequate and speedy remedy. It is our conclusion that the implied warranty remedy of enforcement will accomplish the desired end.” (19 So.2d at 316.)

In Cliett v. Lauderdale Biltmore Corporation, Fla.1949, 39 So.2d 476, a guest sued the proprietor of a hotel dining room, claiming that he had become ill as the result of eating impure or unwholesome food. The action was based “on the theory of an implied warranty that the food was fit for human consumption.” (39 So.2d 476.) The trial court sustained a demurrer to the complaint. The Florida Supreme Court reversed. In the course of its opinion, it quoted from Cushing v. Rodman, 65 App.D.C. 258, 82 F.2d 864, 868, 104 A.L.R. 1023, a passage beginning: “ ‘The basis of implied warranty is justifiable reliance on the judgment or skill of the warrantor * * Continuing, the Supreme Court of Florida said:

"Indeed, it would seem that if any distinction were to be drawn between the retailer and the restaurant keeper in such a transaction, the duty of the latter should be greater than that of the retailer who in many instances has no better opportunity for knowledge of the fact that certain foods may contain deleterious substances than has the ultimate consumer who purchases the article. For in a sense the restaurant keeper is the direct manufacturer of the meals he prepares in his own kitchen and serves to his guests in his dining room. It is hardly possible to think of any dishes prepared by him wherein his opportunity for knowledge of the ingredients is not far greater than that of the customer, hence he is in a position largely, if not entirely, denied to the guest to judge of their fitness before he serves them. As between the paying guest, who has no real means of determining whether the meal served is fit for human consumption, and the restaurateur, who is in a position to determine this fact before and during the period of preparation, the burden should properly rest with the one who has or should have such facilities to keep the food pure and fresh as to make an injury to the customer from their use highly improbable if not impossible.” (39 So.2d at 478.)

In Lambert v. Sistrunk, Fla.1952, 58 So.2d 434, 435, the Florida Supreme Court held that there was no implied warranty arising from statements by defendant’s salesmen that a stepladder was strong and would last a lifetime and that plaintiff would never break it. In part the Supreme Court of Florida said:

“It has been said that the concept of implied warranty rests upon the foundation of business ethics and constitutes an exception to the maxim ‘let the buyer beware,’ itself encompassing the idea that there is no warranty implied with respect to the quality of the goods being sold. To come into play, the exception must therefore spring from some moral obligation on the part of the seller, or perhaps more accurately, on the breach of some such duty amounting to fraud or the taking advantage of the buyer by reason of some superior knowledge in the seller, or the reliance by the buyer on the seller’s judgment.

«•*»**

“There is no need to dwell on the class of cases where the buyer relies upon the seller’s judgment of the fitness of a particular article for the purpose intended, because the use of a stepladder is as well known to a buyer as to a seller and is as limited as it is well known. This feature is common to the lipstick involved in Smith v. Burdine's, Inc., supra [Fla.1940, 198 So. 223]. The difference, as we have already observed, is in the nature of the articles sold. One cannot know the ingredients of a lipstick without chemical analysis. One can know as much as a salesman of a stepladder by simply looking at it. And this lack of opportunity to inspect was also a factor in the case of Blanton v. Cudahy Packing Co., supra [Fla.1944, 19 So.2d 313].”

See also Florida Coca Cola Bottling Co. v. Jordan, Fla.1953, 62 So.2d 910; Hoskins v. Jackson Grain Co., Fla.1953, 63 So.2d 514; Food Fair Stores of Florida v. Macurda, Fla.1957, 93 So.2d 860; and Miami Coca Cola Bottling Co. v. Todd, Fla.1958, 101 So.2d 34.

The appellants rely most strongly upon two very recent cases decided by the Supreme Court of Florida. Sencer v. Carl’s Markets, Fla.1950, 45 So.2d 671, and Carter v. Hector Supply Co., Fla.1961, 128 So.2d 390. In Sencer v. Carl’s Markets, supra, it was held that a retail dealer in food products sold in sealed packages or cans is liable to the consumer on the theory of implied warranty for injuries sustained because of a deleterious, unwholesome or unfit substance for human consumption appearing in the sealed package or can. The trial court had sustained demurrer to the plaintiff’s complaint. The Supreme Court of Florida reversed, two justices dissenting, two concurring specially, and three concurring in an opinion in effect approving the argument of counsel for appellants stated as follows:

“Counsel for appellants point out that the duty to offer and sell wholesome food in sealed cans and packages to the consuming public should rest alike on the manufacturer and retailer because the retailer is experienced in buying from the manufacturers ; he is acquainted with the products and the manufacturers; he relies upon representations made to him. The public is vitally concerned in wholesome food or its health will be jeopardized and a legal distinction as to liability as between the manufacturer and retailer should not exist.” (45 So.2d 673.)

Justice Hobson concurring specially, in an opinion in which he was joined by Justice Terrell, stated:

“Furthermore, I am of the opinion that the retailer who is sued and against whom judgment might be secured, should, in turn, be allowed to sue the manufacturer, which is the reason for my disagreement with the views expressed by Associate Justice Tillman. I do not follow his thought that holding a retail grocer liable in a case of this character would result in bankrupting the individual independent grocer. The retail merchant can avoid placing himself in a position wherein he could not, in turn, sue the manufacturer by electing to purchase only from responsible manufacturers within the jurisdiction of the courts in which he might enter suit.” (45 So.2d 673.)

Thus, the implied warranty by the retailer was sustained not only because of the retailer’s better position in selecting and dealing with the manufacturer, but because the retailer had a right of indemnity over against the manufacturer.

In Carter v. Hector Supply Co., supra, the action was by an injured employee of a purchaser of a riding sulky against the retailer. The Florida Supreme Court held that the employee could not impose liability on the retailer on the basis of implied warranty because of absence of privity of contract. That point is not important here because in this litigation no privity defense was raised.

In the course of its opinion, however, the Florida Supreme Court did say that the employee “relied entirely on an alleged implied warranty in order to impose absolute liability regardless of fault on the retailer with relation to whom there was no privity.” Further in the course of its opinion, the Florida Supreme Court disagreed with the holding of the District Court of Appeal (122 So. 2d 22) to the effect that proof of actual or implied knowledge of the defect on the part of the retailer is essential to his liability on an implied warranty. The Supreme Court of Florida said:

“The ultimate holding of the court of appeal is to the effect that proof of actual or implied knowledge of a defect on the part of a retailer is essential to his liability on an implied warranty in an action brought by one other than the purchaser. The court of appeal relied upon Lambert v. Sistrunk, Fla.1952, 68 So.2d 434. Here again we think its confidence was misplaced for the simple reason that Lambert involved a direct purchaser-seller situation in which the purchaser had an opportunity equal to that of the seller to inspect the item purchased. It did not involve a third party effort to impose implied warranty responsibility on a retailer.

“The instant holding of the court of appeal, however, is essentially correct in finding that a retailer could be held liable to a third party in a negligence action as contrasted to absolute liability under an implied warranty only if the retailer could be charged with actual or implied knowledge of the defect. Again we emphasize that in the case at bar Carter relied entirely on an alleged implied warranty in order to impose absolute liability regardless of fault on the retailer with relation to whom there was no privity. Finding as we do that the lack of privity between these parties precluded the implication of a warranty, the plaintiff would necessarily be relegated to an action in tort for negligence. Actually this, in effect, is where the ultimate judgment of the court of appeal placed him. In that event, in the type of situation immediately before us, it would be necessary for him to prove that the retailer knew, or should have, known, of the defective condition of the commodity. To this extent the court of appeal ruled correctly in holding that proof of this element would support a finding of fault on the part of the retailer. This is in direct contrast with the rule that such proof is wholly unnecessary in an implied warranty situation.” (128 So.2d 392.)

The actual holding of the court was thus expressed:

“The sum of our holding here simply is that one who is not in privity with a retailer has no action against him for breach of an implied warranty, except in situations involving foodstuffs or perhaps dangerous in-strumentalities, a problem not presently here.” (128 So.2d 393.)

If the language in Carter v. Hector Supply Co., supra, relied on by appellants, is anything more than dictum, it does not go so far as to sustain the appellants’ position in the present case. It does not say that it is immaterial that the manufacturer could not have known, or had no opportunity to gain knowledge, or to form a judgment as to the dangerous qualities of the product manufactured and sold.

We think, therefore, that the jury’s general verdicts for the defendant are sustained by its negative answer to special interrogatory No. 4.

“No. 4. Could the defendant on, or prior to, February 1, 1966, by the reasonable application of human skill and foresight have known that users of Lucky Strike cigarettes, such as the decedent Green, would be endangered, by the inhalation of the main stream smoke from Lucky Strike cigarettes, of contracting cancer of the lung?”

The defendant could not be held liable as an absolute insurer against consequences of which no developed human skill and foresight could afford knowledge. The district court did not err in charging the jury that,

“* * * The manufacturer of products which are offered for sale to the public in their original package for human consumption or use impliedly warrants that its products are reasonably wholesome or fit for the purpose for which they are sold, but such implied warranty does not cover substances in the manufactured product, the harmful effects of which no developed human skill or foresight can afford knowledge.”

Founded on the presumed intention of the parties and upon reason is the doctrine that the existence or nonexistence of an implied warranty of fitness for a particular purpose depends upon whether or not the buyer, at the time of the purchase, relies on the skill and judgment of the seller. The buyer is presumed so to rely only when the seller is thought to have a superior opportunity to exercise such skill, or to gain knowledge of the product or of its source, and hence to form a better judgment of its fitness. The common sense of that doctrine may be appreciated by foreseeing its probable application to three different classes of products intended for human consumption: (1) those believed by all to be wholesome, for example, most foods; (2) those known by all to be injurious to some while perhaps beneficial or pleasurable to others, for example, alcoholic beverages; (3) those heretofore thought by all to be wholesome or tolerable, but which constantly expanding scientific research, thought and knowledge have now proved, or at least convinced many, to be injurious, such as cigarettes in the smoke of which appear polycyclic aromatic hydrocarbons and minute quantities of arsenic, and eggs, milk and butter with their high cholesterol content—and what the future may develop the most vivid imagination cannot foretell. Applying that doctrine, as we have stated it, to (1), no absolute liability is imposed upon the seller unless the product contains some foreign substance, is spoiled, or differs in some way from the product it is represented to be. As to (2), the same exceptions obtain; otherwise, the buyer knows as much about the article as the seller, and relies upon his own judgment rather than that of the seller. As to (3), that doctrine leaves as a question of fact to be determined by the jury under appropriate instructions whether the seller, in the estimation of the parties, had a superior opportunity to gain knowledge of the product or its source, and, hence, whether the buyer, at the time of purchase, relied on the judgment of the seller. It is that doctrine, thus founded! upon reason and on the presumed intention of the parties, which, we think, is clearly to be deduced from all of the Florida cases.

Under the present statute, 28 U. S.C.A. § 1821, the district court had no authority to tax costs for compensation to an expert witness in excess of the statutory attendance per day, mileage and subsistence allowance.⁵ The cost ^judgment is therefore reversed for entry by the district court of a judgment in accordance with this opinion. The judgments for the defendants are affirmed. Costs of appeal are taxed against the appellants.

1 . Section 45.11, Florida Statutes 1959.

2 . Rule 25(a), Federal Rules of Civil Procedure.

3 .Sections 768.01, 768.02, Florida Statutes 1959.

4 . Montgomery v. Stary, Fla.1955, 84 So. 2d 34, 39; Metzel v. Robinson, Fla.1958, 102 So.2d 385, 386; see Great American Indemnity Co. v. Holloway, 5 Cir., 1960, 286 F.2d 106, 108-109.

5 . Henkel v. Chicago, St. P., M. & O. Ry. Co., 1932, 284 U.S. 444, 52 S.Ct. 223, 76 L.Ed. 386; Department of Highways v. McWilliams Dredging Co., W.D.La., 1950, 10 F.R.D. 107, aff’d 5 Cir., 1951, 187 F.2d 61; Cheatham Electric S. D. Co. v. Transit Development Co., 2 Cir., 1919, 261 F. 792, 796; Firtag v. Gendleman, Dist.Ct.D.C., 1957, 152 F.Supp. 226; Commerce Oil Refining Corporation v. Miner, Dist.Ct.R.I., 198 F.Supp. 895, 897-898, 6 Moore’s Federal Practice, § 54.77 (5), p. 1367.