*2 “Yes X RIYES, BELL, Before CAMERON and Judges. Circuit «No- your
“If answer is ‘Yes,’then RIVES, Judge. Circuit “(2) Was the cancer in left his lung brought Green, Sr., the cause one causes Edwin suit death? Company American Tobacco in Decem- 1957, claiming ber had incurred “Yes X lung smoking cancer a result of de- “No-- product, Lucky ciga- fendant’s Strike your “If answer to the above later, February rettes. A months few ‘Yes,’ question is then 25, 1958, Mr. Green died. Under the Statute,1 “(3) smoking Florida Survival claim sur- Was the vived, son, Green, Mr. Green’s Edwin Strike Jr., appointed estate, decedent, administrator Green, proximate of his cause plaintiff.2 substituted or one of proximate wid- causes of 45.11, 768.01, 768.02, Florida Section Statutes 1959. 3.Sections Florida Statutes 25(a), 2. Rule Federal Rules of Civil Pro- cedure. development in his which a cancer left lung? depends law held to make ¤ ‘Yes ability of the maufacturer to know X *3 about the harmful in its substances «No- product ? your above “If answer “(3) Judge not Did err the trial question then is ‘Yes/ taxing against plain- costs as the on, “(4) Could defendant expert tiffs a total of nine witness 1956, by prior tо, February per fees the amount $100.00 application human reasonable expert, beyond being sums foresight that known have skill and by amount allowable and authorized cigarettes, Lucky Strike users of Federal statute?’’ Green would such as decedent began smoking Green, Sr., Edwin endangered, by the inhalation Lucky cigarettes 1925 in 1924 or Strike Lucky smoke main stream years when he He was about old. 16 contracting cigarettes, of can- Strike packages per smoked from one day three lung? cer physician early until when his “Yes- advised him he that had contracted can- ” “No X lung. By cer of the left the longer di- time of judgment Upon verdict, jury’s agnosis operable the cancer nowas Ameliorating the defendant. was entered for each case or given, was curable. treatment plaintiffs judgment proceeded but cancer on A cost $1,969.74, course, typical, amount of in the was entered fatal in Mr. resulted expert February 25, wit- $900.00 which included on Green’s death $100.00 at the rate ness assessed fees testimony at the trial concern- each. principally ed issues with the of whether plaintiffs present no Upon appeal, the by Mr. Green’s death was caused can- rulings Count questions on as to originating lung, is, pri- cer that negligence, contentions restrict their but lung mary cancer, whether can- theory 1, implied war- Count by smoking caused cer was ranty. their brief: As stated cigarettes. Eight eminent medi- Strike They only cal doctors testified on each present- side. “Three disagreement. sharp were in The district by appeals: ed properly submitted to the “(1) doctrine Under the Florida questions of medical Their causation.4 warranty testimony in conflict whether also plaintiffs as a entitled February 1, 1956, first when was requested law, in their as matter lung had that Mr. can- discovered Green 49(b), post-trial motions under Rule knowledge cer, progressed had scientific findings jury’s special based such an extent defendant smoking of defendant’s foresight, could, cigarettes proximately Lucky Strike smoking learned plaintiffs' to con- dеcedent caused probable lung cause of cancer. fatal case tract a cancer lung? Plaintiff-appellants main in- state their sistence follows: “ Judge (2) err trial Did refusing grant request- point upon plaintiffs’ “The fundamental rely ap- charges plaintiffs issue ed which charging erred, peal instead is that the Trial Court law, ruling of fitness matter of that the v. Fla.1955, Indemnity Stary, Holloway, Montgomery Cir., 84 v. So. Co. Fla.1958, Robinson, 34, 39; F.2d 108-109. 2d Metzel v. 386; American see Great pur- particular which deals for a fitness he knowing pose, purpose human manufacturer pur- supplies it law and that is held inspect opportunity chaser deleterious make does not cover article, judg- products, harm- but relies substances in its seller, an‘ im- ment there unknown ful of which are effects ‘warranty,’ plied it is could not have condition called, developed fit for the that the been article is known foresight. applied.” purpose to is to skill or Plaintiffs contend which it knowledge the manufac- Inc., 1940, 144 Smith Burdine’s *4 is and immaterial turer irrelevant 229, 223, 227, 131 A.L.R. Fla. 198 So. an to the manufacturer’s saleslady 115, buyer requested at a a law, implied warranty under Florida good lipstick. The a cosmetic counter a implied and that a manufacturer's lipstick saleslady and selected a certain warranty is not limited to harmful use. intended recommended it for its the manufac- substances of which lipstick poisonous sub- a contained knowledge, or turer either had allegedly injured health stance knowledge or should had could buyer. for breach of of the implied an action knowledge according de- have had warranty the trial of fitness foresight.” veloped human skill and defend- a for court directed verdict Supreme ant. The Florida With insistence we cannot buyer versed and held that whether agree. contrary, To the convinced we are saleslady judgment relied on the warranty by implied doctrine jury, saying: was for the qualities a manufacturer and seller of the thing pur and fitness of the sold for existence of “The existence non or pose implied warranty which it is intended or desired of fitness a an superior opportunity is founded on particular purpose must and neces- gain knowledge product sarily and to depend upon whether or does judgment buyer form a principle That fitness. his own not the relied clearly pur- can all be deduced from at the time warranty implied judg- of the Florida cases on chase relied on the skill by whether seller, manufacturer is a ment of the and this dealer. question of fact determined appropriate a instruc- comparatively early In the case (198 229.) tions.” So. Berger Berger Co., 1918, v. E. & Fla. 76 So. Cudahy Packing Co., 80 a dealer held liable In Blanton on an a lot of lum- 1944, Fla. a 154 man- purposes product, ber fit for the for which or canner of a meat ufacturer “Tang,” purchased. dealer knew that it was known as sold to retailer quoted length pas- The court at some packages held a or cans liable sealed sage Benjamin (5th ed.) from on Sales for breach the ultimate cоnsumer 595, beginning with the “An implied sentence: an that such called, warranty, consump- it is and fit wholesome distinguished covenant in law as part: tion. The said in express express warranty, an contract or theory “The really pre- in all cases founded general liability comports with parties sumed intention of the and trend best reasoned cases. reason.” 80 at So. 299. The court con- The manufacturer knows content cluded : quality and of the food public “We think rule is well estab- and offered to the canned generally principle consumption. lished which embodies public quoted above person vitally where concerned in wholesome supply food, jeopard- contracts an article or its health be will poisonous, pay- and serves As If unhealthful them. ized. between guest, placed deleterious foods who has no real means determining upon the market whether meal served injuries consumption, fit for human occur restaurateur, supply position thereof then the should whо is in a law adequate injured person an determine before fact during remedy. period speedy preparation, is our conclu- It properly burden implied warranty rem- sion that should rest edy one who accom- will has or should have such enforcement plish (19 keep pure at the desired end.” So.2d facilities the food 316.) fresh injury to make highly customer im- from their use Biltmore Cor In Cliett v. Lauderdale (39 probable impossible.” if not guest poration, Fla.1949, So.2d 478.) So.2d dining proprietor sued hotel Sistrunk, Fla.1952, In Lambert v. room, claiming ill as had become 434, 435, So.2d the Florida eating impure the result or unwhole held there was no *5 “on some food. The action was based warranty arising by from de- statements theory of an stepladder fendant’s salesmen that a consumption.” for human the food was fit strong and would last a lifetime and that (39 476.) So.2d The trial court sustained plaintiff part never break it. In would complaint. Flor The demurrer a Supreme of Florida said: Court Supreme In the Court reversed. ida quoted opinion, from сourse of its it concept “It has been said that Cushing Rodman, App.D.C. 82 v. 65 upon of rests 864, 868, passage F.2d 104 A.L.R. a foundation of ethics business “ beginning: implied war basis of ‘The exception to the max- constitutes an judg ranty justifiable is on the reliance beware,’ buyer ‘let en- im itself * * ment or skill warrantor compassing of the idea that is no there Continuing, of Flor warranty implied respect with goods being ida said: quality sold. To of the exception play, into must come any "Indeed, if would seem spring some from moral therefore between distinction were to drawn obligation seller, keep- and the restaurant the retailer accurately, perhaps on the more duty transaction, er in such a duty some such amount- breach of greater than latter should advantage ing taking to fraud or the many retailer who in that of the by buyer su- of the reason some opportunity no better instances has knowledge seller, perior knowledge cer- fact buyer by seller’s reliance on the deleterious contain tain foods judgment. ultimate than substances «(cid:127)*»** purchases the article. consumer who keeper need is no to dwell a the restaurant “There For in sense buyer relies class is the direct prepares own the seller’s in his kitchen he meals dining guests particular fitness a for the his article and serves his intended, possible purpose hardly think because the use It is room. prepared stepladder a as well known to dishes buyer opportunity knowl- as to a and is as limited his wherein ingredients edge is not far as it known. This feature well customer, lipstick greater is common to the involved than that Burdine's, Inc., largely, supra position if Smith v. is in hence he guest [Fla.1940, entirely, So. The dif 198 223]. denied observed, ference, already he we have judge fitness before their
75
concurring specially, in
Justice Hobson
sold.
articles
nature
in the
joined
he
ingredients of
cannot
One
know
Terrell,
Justice
analysis.
stated:
lipstick
without chemical
know
as a salesman
One
as much
can
opin-
“Furthermore,
I
am
looking
stepladder by simply
ion that the
is sued
retailer
opportunity
it. And this
lack
judgment might be
whom
inspect
factor
also
secured, should,
turn,
be allowed
Packing
Cudahy
case of Blanton v.
manufacturer,
to sue
Co., supra [Fla.1944, 19
313].”
So.2d
disagreement
my
the reason for
Bottling
See
Co.
also Florida Coca Cola
expressed
the views
Associ-
Jordan, Fla.1953,
910;
v.
Hos
62 So.2d
ate Justice Tillman.
I do not follow
Co., Fla.1953,
kins v.
Jackson Grain
thought
holding
a retail
514;
So.2d
Food
of Florida
Stores
Fair
grocer liable in a
char-
case
Fla.1957,
Macurda,
860;
v.
So.2d
acter
bankrupting
would
result
Bottling
Todd,
Miami Coca Cola
v.Co.
grocer.
independent
individual
Fla.1958,
clearly the trial of erroneous. present case. solely appeal predicated This im- theory that American breached first “This rule of I not think plied do to Green. Doyle & Fuerst announced Kraemer, wholesomeness one warrants who 129 La. 56 So. showing escape liability by can L.R.A.,N.S., 480, efforts in its care exercised reasonable Supreme Court of Louisiana held my is, in idea to achieve it. Such an public food at a con- opinion, of the whole a refutation eating conclusively pre- place is warranty. be- cept Because I do sumed to know unwholesome of, this limita- lieve that the inclusion is answer- condition duty upon American’s tion warranty damages purchaser able justified, unable I am made because ill unwhole- affirming majority opinion join in the holding someness. basis of this of the below. the action was said to be that: «<* ** every ought one I. good qualities, bad, know recently2 things delineated This which he fabricates in warranty: general craft, art, nature of exercise or busi- public pro- ness of which makes appeal purpose of this “For the fession, lack and that such knowl- apparently concede defendants edge imputed fault, to him aas sufficient to sus- that the evidence is pur- which makes liable findings jury that the tain chasers of his fabrications ingested plaintiff shell crab damage resulting from vices or it caused his in- and that Arnaud’s jury. which he defects thereof did not ample our view there was they known to them make justify evidence before ignorant of.’ were findings. contended, It try- however, erred in that the court *##*## theory the case on there “While the [Le- holding plain- Bot- Blanc v. Louisiana Coca-Cola tling required prove that tiff was Co., La. So.2d 873] guilty negligence, dealing Arnaud’s was lia- with a manufacturer’s actually applica- injuries bility either caused the con- ipsa doctrine ingredients of res lo- sumption tion of deleterious * * * [p. quitur. beverage, 885] in a bottled contained carefully pointed out that under Lou- primary detеr- “The jurisprudence plaintiff isiana *9 de- whether under the mination is rely upon is entitled to such a case law of Louisiana the cisions implied warran- the manufacturer’s eating public place proprietor of a product ty is that its safe for by him who serves a food fabricated consumption.” [Emphasis sup- containing foreign a substance plied.] * ** lia- is under an dealing damages bility proximately we were Arnaud’s While for foreign presence sulting impurity a ob- under the with the from the case 2. Arnaud’s denied, Restaurant, 99 Cot 348 U.S. S.Ct. L. Inc. al. v. et ter, Cir., 1954, Ed. 717. 212 F.2d certiorari fact; ject, the determinant In our war- was great quoted ranty placed upon theory liability comports we reliance Supreme general Doyle with from the better from case trend Louisiana, supported, Court of where the consumer reasoned on by eating pur- principle least, had been food from made sick decisions * * * respect jurisdiction. from the own chased seller our which the uncontradicted seller made рrin- “These cases establish highest proof de- exercise ciple oth- that as to items of food gree Never- preparation. of care original package er theless, Supreme Louisiana Court of which for sale hu- offered for held that the “at seller was fault if generally, man person use proved articles and dele- be vitiated purchases items terious.” express reliance they condition or assurance applied was law The law there wholesome and fit the uses or sitting for Louisiana, while here we are they purposes for are adver- which applying Florida's a Florida court and injured sold, tised or iswho language quoted some law. The the result dele- of unwholesome or importance Su- the reason for terious substances therein which preme Florida, case3 buyer, are unknown to hold ques- presenting described as either the or the re- impression, of first tion referred to injuries damages tailer liable in for Doyle case, supra, оne of authori- theory him, sustained fashioning it relied Flor- ties wholesome- governing im- rule ida plied doctrine of ness or of such article or warranty. fitness In Cliett the Florida purposes for court stated: public.” [Em- offered question "The sole for determina- phasis added.] pleading tion on proprietor whether public Inc., Markets, restaurant et Sencer al. v. Carl’s dining room who serves a meal con- taining pay- Court, banc, considering unwholesome to a en food ing guest consump- dealer, for immediate not the claim facturer, manu- premises persons by eating tion on an ab- under sick made damages they
solute sardines from a from which can resulting proximately the im- were served the consumers. It held from purities, theory an im- that both manufacturer and the deal- * ** plied of fitness. er were liable if unwholesome food were consuming quoting public, offered to the "Some courts have held that Sales, Rev.Ed., Vol. Williston on the absence of statute a victualer page 635: serving food for immediate con- “ sumption premises may imposition ‘The absolute li- ability upon held liable for food deleterious a dealer who sells health, proof goods reputable without that he canned manufac- guilty negligence; while others been ture has denied a few deci- ground have determined that aside from sions negligence possibly par- such a cannot discover that a defective, purveyor of foods a valuable con- ticular can is and that it is, therefore, unjust subject sideration is an absolute lia- bility liability. unwholesome argument, served same *10 him, theory however, regard implied may an be in made of * * * warranty any implied warranty, only not of of fitness. 3. Cliett Corp., 39 So.2d v. Lauderdale Biltmore Fla., 476, 477. recognized articles, principle court has or other food buyer ‘that as that to items or other have been aware must of foods original products package a in discover seller could not defect Accordingly, canned which are it if offered for sale for human existed.
if goods exception per- generally, or use a to made governing purchases general son sales such items in rule implied express implied food, reliance of or law of whole they warranty and or assurance condition that be revised should placed wholesome and basis. the uses on another fit “ purposes they for which are adver- general principle of ‘But the sold, injured tised or and who is this, opposed and common law the result unwholesome dele- certainly to be is ever if a dealer terious substances therein which are injuries caused made liable for buyer, may unknown to the hold goods been where he has defective either the manufacturer guilty fault, the reasons are * * tailer liable stronger holding liable for selling defective than in opinion “There is a conflict of accountability And kind of about the other sale. of a manu- weight authority, presumably for facturer to a consumer the- reasons, ory warranty liable implied deаler a in ab- though selling in even such food privity, sence of but this reputable aligned containers sealed become with those courts ”4 holding may brought brand.’ that suit against the manufacturer notwith- Bottling Com- Coca Cola In Miami ” ** * standing privity. want of Todd, pany, 101 So.2d v. Inc. [Emphasis added.] recognized rule of the Florida court comment: above in this whether the rule of implied warranty cases arose recognizes Flor- that “The bottler from by contract from tort was settled places cold drinks bottlers of ida law Supreme Court of Florida Car rule absolute lia- the same Supply Co., 1961, ter v. Hector 128 So.2d warranty bility implied as can- “Perhaps judicial incipi- 391: in its food, Coca-ColaBot- ners ency liability the rule of war tling Company Jordan, Fla., 1953, v. ranty grounded in some measure 910.” covering the law deceit therefore warranty extending the In complexion assumed the tort action. seed, rule agreed generally However is now recognized banc,5 Florida, en implication arises out validity continuing vitality ” * ** relаtionship. of a contractual foregoing words: in these rules pur That case involved an effort apply general chaser rule an ultimate “The sue the rule a seller with whole- whom purchaser not he was subject privity one not being an absolute of the sale not not saler losing rejecting for human force with the use. to be seems instance, application of time. For passage majority takes note of the could casos reach manufacturer. 4. The specially dissenting concurred Justices Justices two were favor fact holding manufacturer, None of but Justices dissented. two however, majority dealer, them, differed with the to the same absolute duty majority holding of the manufac- had declared to be the rule in Judges Terrell Florida. absolute. turer merely they emphasized were Hobson Co., grocer, Hoskins Jackson Grain holding retail be- favor many So.2d consumer otherwise cause *11 392) neg case, (p. rule in the court To establish such a claim based their that, clеarly ligence language indicating up admittedly used it incumbent appellants prove in on knew, American use cases human that privity always by exists, proper war care— exercise ranty probably care— of the seller is absolute: more than reasonable known, could have nicotine7 that “Again emphasize we that in present and arsenic the smoke from in entirely case at bar Carter relied Lucky likely Strikes to do harm were alleged an or- in neg the decedent. The count based on impose liability der to ligence jury, submitted to the gardless on the retailer with of fault ap found in favor of American no priv- relation to there whom peal portion was taken from that ity. Finding we do the lack as that duty appellants But verdict. privity pre- parties between these prove could, that American implication cluded the of a warran- application of human skill ty, plaintiff necessarily would foresight, anticipate that Strikes relegated action in tort for to an endanger would decedent’s health was negligence. effect, Actually this, in not, law, part under Florida ac a of an is where the ultimate upon implied warranty. tion based appeal placed the court of him. event, Every warranty promise that type in the situation ais immediately us, it, contract, stipulation, before would be makes a it necessary prove subject for him to that the an assurance war- knew, known, ranty retailer performed or should have will be or that good of the defective condition of the warrantor will make the loss aris- commodity. ing To this extent from its breach. Under Florida’s law, appeal correctly ruled hold- in was an uncon- guarantee proof of this element would ditional Green finding support put, use to which fault on the would be by all, as understood retailer. This is in di- would not do him harm rect reason contrast sub- rule deleterious ingredient proof wholly unnecessary stance contained them. ”** implied warranty situation. I think the Florida cases establish a [Emphasis added.]6 rule of law constitutes a condition every sale reading A of these cases and authori use, consumption or which has same clearly ties demonstrates me legal appellee effect in this case as if Question 4 as framed was effective had entered into a written contract with presenting jury only the claim covering decedent, cig- every package of that Green’s death resulted from Amer purchased by him, arettes couched negligence ignored ican’s and that it these words: entirely the liberal rule based guarantees upon implied cig- warranty, American which was cov package ered arettes contained in this complaint. another count in the numerically ucts seq solute is in the holding purveyors plied warranty. and 77 tions found in 74 A.L.R.2d 75 A.L.R.2d From these legion for human A.L.R.2d, vanguard and are collected in annota- et The cases on the seq. et pp. of those seq. minority, And see plain and other doctrine of et states, that Florida sеq., which are to an ab- “Implied et et subject prod- seq., seq., im- yet et 7. Defined ucts Warranty Review, 241, 245-246; Prosser, found extracted 1099; tionary, “ parent sault * Consumer),” * * Liability” and Frumer and liqnid tobacco College the Citadel Webster’s New Florida,” poisonous [*] colorless, (1960), leaves, [*] 69 Yale Law Edition, (Strict 12 U. Friedman, alkaloid oily, acrid, pp. from which 1-8. p. 991, World Liability “The As- Fla.Law * * * Journal “Prod- trans- Dic- *12 ing being the conclusive- by purchaser, seller was human that fit being, by be used to drawing ly presumed lighting know of the existence regardless any lungs, so unwholesome the condition from them into smoke knowledge cause, cigar- ingredients that lack of the that plain fault. This be him as a in the smoke ettes carried deposited language opinion, from the the blood walls holding im- therein, well that end further vessels situated plied warranty product is ingredients is that the ab- that said will safe consumption use. or into the blood stream sorbed produce will soothing smoker Cliett, Court, held The Florida relaxing sensations use; equivocation without that normally attending that such liability if serves under an absolute any contain not do said regardless impure foods unwholesome or substance; harmful or deleterious empha source. It their character or indemnify the user it will and that warranty applied to sized too that damage injury, any loss or generally products use for human — not smoking may result from the only food. cigarettes. of said allegations Sencer was decided on II. complaint. storekeeper A had of the majority opinion, I understand which, As when served eaten, produced can sardines distinguish the the effort is made complaint sickness. The us the one before cases from Florida alleged, alternatively, that the sardines chiefly ground that the decided dangerous foreign “contained matter some where cases deal with situations did deleterious within itself.” foreign object was at or substance reject ground complaint injury I un- caused the user. root allege that it did not sardines majority further that foreign derstand matter, specified contained some Floridа that thinks that enough fact It otherwise. that what was cases, has, ad- several ever the can was sardines contained with which verted the ease a manu- deleterious within held That was itself. presence facturer could determine Flor sufficient Court of substances, as vel non of deleterious knowledge As to the matter of ida. given compared opportunity with ability what was can sardines or gain knowledge, purchaser dem- such knowledge, storekeep acquire Court intend- onstrates wholly er of course was without foreseeability proof ed make obtaining knowledge—yet sol means ab .by the exercise care harm liability was ute fastened him. recovery qua non of under the im- a sine knowledge In Hoskins neither nor the plied I rule. am able foreign presence specified of a substance score, agree majority either opinion simply was mentioned. The holds passages quoted I the italicized and think clearly that there decisions, supra, dem- from the Florida оriginal products package where which, my into the error onstrate for human use or sold majority opinion, the has fallen. A brief injury results reason of and that helpful. will résumé presence of some unwholesome dele- presence piece In Arnaud’s terious substance. shell which should not been in the empha- Florida Court Carter dish served to the customer tioned, men- again that, were sized but what we stressed in consumption, proof opinion sold for human the food was in fact ought to have known seller knew unwholesome when served. It is clear “wholly condition of the unwholesome our the unwholesome- unnecessary.” liability, ness alone fastened the hold-
g3 *13 holdings which, the Florida the into of that case I am unable read to majority me, fa- seems to which is decisions which contains more ideas to vorable advances for its failure to the Greens than to American. as the basis clear to be the follow what me seem to damages upon In his action for based holdings unequivocal and of the lung the claim that he had contracted ad- the court discussed. It is true ciga- smoking cancer from Chesterfield cases, verts, to more than once lung rettes between 1921 and the his time plain fact that the was removed in his Pritchard based position ac- to seller was in much better warranty liability upon claim of quire knowledge char- nature and of the negligence. merchantability and thing ingredients of acteristics of the District Court for the Western District These purchaser sold than use. Pennsylvania dismissed action jus- me, discussions, it seems were warranty, founded breach of and apply determination to of its tification granted Company’s the Tobacco motion stringent implied warranty doctrine charg- plaintiff’s for directed verdict as to field sales this limited contracts negligence. es of Appeals Court purchaser imposing instead of for ings. Third Circuit rul- both reversed negligence. proving difficult task of predi- Since Pritchard’s action was is, it, indication that There as I see upon Pennsylvaniа’s cated Uniform Sales intending down the court was to water Act, 1-339, 69 P.S. which establishes §§ obligations of a contract quite liability, different bases includ- proof level of knowledge, the element of from governing tort actions. recognized by common law of Florida as decisions, significant very its court It that American little also can gained by rely single phase discussion does not Florida case to of this decision. It support position. is sufficient its It is content observe thought that, granted rely on the contention ad- evidence Lucky duced to the trial died Green because he smoked sufficient support cigarettes, upon Pennsylvania’s case Strike them based maker of restricted rule death should not held liable upon negligence, indicating and could find evi- unless from the even that could, it was sufficient to dence that sustain a exercise claim based upon express warranty. care, known that the dele- ciga- terious substances in Strike III. good rettes would do harm. Little by discussing plaintiff will be donе from Pritchard the cases offered evi- dence, other states do not follow the rule held inadmissible for insufficient proof, embraced the Florida Court with of the existence of 795 articles spect governing allegedly dealing with effect harmful prints, of tainly body. such sales. American an tobacco Since Cer- briefs, evidence, appendix coupled one its entire Appeals record before us and information possessed by everyone,8 Third Circuit Otto E. Pritchard make it certain dealing Liggett Myers Co., now that & we Tobacco with a situation of recognized reported F.2d I will comment seriousness. Magazine report anything reassuring In the issue of but Newsweek in con lung cancer, March “On with tobacco article headed nection disease, Again,” report coronary gastric Line heart describes Ulcers. Physi just Royal College public April 7, press made And 1962 car bearing in London cians tbe title “Smok ries a U. P. release which I. states: parliament passed ing and Health.” It stated that the So “The Italian outlawing a bill unequivocal advertising cigarets ciety issued an indictment cigarettes. products.” Tbe statistics included in other tobacco summarizing briefly points Before IV. majority between difference illuminating "Im dissertation on An myself, quote I rule which the authors Warranty appears in plied Florida" of the Law Journal article distilled Review, University Law ma- two of the Florida cases which the XII, 3, pp. et No. Fall Vol. jority (Pages 253- I have adverted para quotation seq.9 from two of A 254): *14 interesting: graphs will be found years case, “Five after Blanton the liability subject Corp. “The of Lauderdale Biltmore Cliett v. rapidly probably expand- liability the most nailed food down the in the area of at substantive law cases. present are at least time. There A “Rule XI. seller food for *#* this: three reasons value ab- consumers immediate Moreover, goods frequently pack- are solutely injuries as a re- liable for aged containers, in often sealed and the sult unwholesomeness оf purchaser the abili- the ty, does the on fitness opportunity, desire regardless human negligence, inspection of articles make being the basis purchased. Third, the and masterful liance consumer on seller’s logic of realistic Mr. Justice Cardozo [Emphasis judgment." in skill and Buick in the famous MacPherson v. original.] (217 382, 111 Motor Co. case N.Y. rule in the I basic understand be 1050) year in 1916 has N.E. announced fitness strong given to courts and counsel buy- by majority or not “whether perhaps impetus, and in some cases er, purchase, relies time necessary courage to re-examine judgment of the seller.” the skill and subject previous decisions dispute here. is no There * * * [Page 241] Green, death, he testified that before bought cigarettes Lucky in sealed summary, Strike “By way it be will just grocery packages as from the store although seen that the doctrine bought many packaged of food items Buick has MacPherson v. Motor Co. great manufacturers; by reputable had that he responsible for a ben- been investigаtion that, and change no notice made no relating law eficial ingredi- whether, harmful to determine products liability, there is still a present never ents were and that he had great majority deal of confusion in a cigarette subjected to chemical had analysis glaring contrast of the states among had never had an occa- comparatively few settled using stopped He them do so. sion to they applied principles as are con- that he had he was advised when jurisdictions. Happily, Flor- various lung cancer. tracted gone to the forefront ida ques- cigarettes that have resolved the states majority treats logical belonging in this area in a original tions involved package the cate- * * [Pages just respects application manner gory of foods as implied warranty.10 247-248] But doctrine good case, 9. While a number the cases dis- or other referred to Cliett products" “foods majority gen- this dissent cussed words and added the “use analyzed article, erally” alternative for the words as an inapplicable pointed consumption.” main. conclusions problem out As is “human states, portion “consumption” us inasmuch above, before as it of a survey, however, coming cig- will confined to “The Strike the smoke questions defects in articles “consumption” as the arettes real ** sold portion of food intro- item system through the duced into the question as would seem to be no 10. There alimentary cases, beginning canal. this since the segregates plication “products foresight hu- it intended for of human skill and ingredients consumption” man different would not “three into reveal the harmful one, places most classes.” In which the class had found the accused foods; two, places alcoholic class contained. cig- beverages; and three includes class respectfully For reasons I dissent. The basis classification arettes. for this wholly I have been find. unable to Cer- ON PETITION FOR REHEARING. tainly, them, I understand PER CURIAM. give any do not such a classi- hint of ficatiоn. So far case, as concerns this fol- lowing jury’s facts are established Strangely enough, majority holds interrogatories answers to Rule imposed (b), Procedure, Federal Rules of Civil all to of foods “believed *15 (1) 28 U.S.C.A.: The decedent Green food, Liability accord- wholesome.” as to primary lung; (2) had cancer in his left thinking, only to its exists lung the cancer in his left was the cause foreign substance, the food contains some death; (3) or one of the causes of his way spoiled, or differs in some from smoking Lucky cigarettes Strike represented it to be. If decedent, Green, awas majority this, is correct the writ- proximate proximate cause or one of the ings have, my of the Florida courts development causes of the of cancer in opinion, been in vain of im- and law lung; (4) his left American Tobacco governing plied contracts sales Company on, prior could not to, Feb- the same that was before Mr. Justice ruary 1, 1956, by applica- the reasonable Cardozo MaсPherson wrote tion foresight, human skill and Supreme and Florida decided known that Lucky users of ciga- Strike case.11 Cliett rettes, decedent, such Green, as the would any any Nor I find do statement endangered, by the inhalation justifies discrimi- Florida case main cigarettes, Lucky stream smoke from Strike majority opinion nation which the makes contracting cancer purveyors favor of cigarettes. such articles lung. them, Finally, I as read interrogatories justify the Florida cases do not Those propound- were charge quoted majority opinion in the ed and answered assumption the appear excepting the manufacturer the ab- from of certain facts which without liability imposed upon dispute, (a) solute pertinent if the such as: At all jury ap- find should times American Company Tobacco Sight seems have been lost of they condition or assurance that are actions of the court below which are purposes wholesome or fit for the uses or brought appel- thеy before us for review. The for sold, advertised requests writing injured lants filed and who is as the result of un- spell for court law of out the Florida wholesome or deleterious substances therein, contracts as established which are buyer, unknown to the respect products for human con- hold either the manufacturer or the ” sumption. These several instructions retailer re- liable.’ incorporated support requested fused the court below Cited as for this in- directly principles taken from decided struction were the Hoskins and Cliett cases, supra. cases. No. 22 Illustrative of them is Instruction reading long as follows: A discussion was had between the ‘‘Implied Warranty lawyers concerning and the court the quested “The Florida has instructions. The court stated recognized principle exception ‘that as to would be allowed with respect of food or items other each instruction which was original package which are offered for marked refused and that it would not be gen- necessаry plaintiffs sale for human or use to take erally, person purchases exception. such items further express in reliance parties requested stipulate,, is the still been cigarettes; possible, if Strike the contents of certificate distributor provided primary February they for in said rule. If are- (b) lung stipulate, they report Green unable so to of decedent left should cancer diagnosed. definitely respective He died this Court their views on or had been August 1, before 1962.1 February petition To such extent the rehear- diversity action, Florida In this ing is rights governs liabilities law Granted. parties. Does law distribu impose on a manufacturer liability, cigarettes tor of warranty, death breach using caused 1, 1956, February 1924 or until having developed prior to Feb cancer occurring ruary and the .1, death February 25, defendant when the distributor could not manufacturer on, February 1956, by to, prior *16 UNITED INSURANCE COMPANY OF application human skill AMERICA, corporation,
foresight, users of such known that Petitioner, endangered, by be would v. the main stream smоke inhalation of LABOR NATIONAL RELATIONS cigarettes, contracting from such Respondent. BOARD, lung? is no Florida There cancer No. 13500. clearly precisely point and so decision dispositive Appeals be United all fours as to States Court on this Seventh Circuit. proposition question of law. June importance ques- In view of the tion, especial and in consideration of the July 2, As Amended Judges of this Court fact one disposition from this Court's dissented original question hearing, of that Judges Court, petition of this rehearing, remain the same views original opinions expressed in their hearing, grant decided to rehearing petition for the extent necessary certify
proposition the laws of Florida to Florida, provided 25.031, under Section Florida Stat- F.S.A., implemented by utes Appellate Rules, 4.61 of the Florida Rule Rules, Appellate (In re F.S.A. 1961). March Fla., See Office, 1960, Clay Insurance v. Sun 207, 212, 80 S.Ct. 4 L.Ed.2d
U.S. Clay, 1170; Fla., Insurance Office Sun So.2d 735. copies legible printed, to- may least four report typed, accom be 1. Such typed panied by filed. either brief