*1 Session, Hearings ana, Highway, Congress, located on Airline a main 1st on Rouge artery Rights, II, p. 1448. between Baton New Civil Part Orleans, Louisiana, operating eleven ma- message Again, rights on his civil jor facilities, ten of amusement 19, 1963, June the President said: were manufactured outside State again of recent weeks have “Events Louisiana, which its facilities advertised Negro deeply our underlined how citi- radio television and over the solicited being injustice resent arbi- zens public generally, of the the business with trarily equal denied access those no restriction to race or interstate facilities and accommodations which law, travel, can, with the sanction open pub- are otherwise to the solely Negroes refuse service because lic.” of their race color. Representa- United House of States holding completely ignores a Such a tives, Judiciary, Committee 88th on strong and, me, history conclusive Congress, Session, Hearings 1st Congressional general Executive Rights, II, p. Civil Part 1447. purpose tent and to the effect injustice, To correct President enactment of Title II: emphasized that: possible “Would make it to remove “Federal action needed now to secure daily affront and humiliation in- right of all citizens to the full discriminatory volved denials ac- enjoyment of all facilities which are open ostensibly cess to facilities open general public.” general public.”1 Representa- United States House of respectfully I dissent. tives, Judiciary, Committee on the 88th Hearings Congress, Session, 1st Rights, II, p.
Civil 1448. Part
And, again, President, in submit-
ting Congress part of the Civil Rights scrutiny Act here under explaining purpose doing so, stat- Mary Jr., Green, GREEN and ed: Edwin Appellants, reasons, today propos- I “For these am ing, Rights Act Civil COMPANY, AMERICAN TOBACCO 1963, provision guarantee all citi- Appellee. equal zens access the services and restaurants, hotels, places
facilities of No. 22435. amusement, and retail establish- Appeals United States Court of ments.” Fifth Circuit. Representa- United States House of 24, Jan. 1968. tives, Judiciary, Committee 88th Rehearing Congress, Hearings En Banc Session, 1st Granted Rights, Civil II, p. 25, Part March 1448. 1968.
The effect of the narrow construction
as made both the district court and of this Court —this narrow being
construction based an “in- legislative history ju-
conclusive” to —is
dicially determine and hold that park Rouge,
amusement in Baton Louisi- Judiciary 1. Statement made House Representatives Report No. 88th reporting Committee on Title II Congress, Session, I, p. 1st Part bill on November 1963. U.S. House
Notwithstanding finding, the ver- because, dict went to the defendant response interrogatory, to another further found that on or February the defendant Tobacco Hastings, Irma Robbins Lawrence V. Company application the reasonable Miami, Fla., appellants. Feder, *3 foresight human of skill and could not Miami, Fla., Bradford, Edward A. Lee Lucky have known users that of Strike Neaher, City, appellee. York for R. New cigarettes, Green, such as Mr. PHILLIPS,* COLEMAN and Before thereby put danger contracting of lung cancer. Judges. SIMPSON, Circuit course, appealed. Of On 2,May 1962, Cir., 70, panel 304 F.2d a Judge: COLEMAN, Circuit composed Judges Rives, of this Court of appeal from a This is verdict Cameron, and Griffin Bell1 affirmed the judgment in the for defendant judgment cigarette of favor manu- implied on war- second trial suit facturer. In that result jury finding ranty, grounded prior on a jury finding on turned that there was plaintiff’s in the same case that decedent developed foresight no human skill or cigar- smoking died of and that cancer which could have afforded the manufac- a For the sec- ettes was cause thereof. knowledge turer a of the harmful effects. time, and remand for a ond we reverse Judge dissented, quite cogently Cameron new trial. pointing that even out for of im- breach years ago, December, Nearly ten plied warranty decision amounted to brought 1957, Edwin Sr. suit Green, holding a exercise of reasonable against Company, Tobacco American Company on care of Tobacco claiming that he had incurred can- liability. would exonerate it from smoking cer as result of the defendant’s a petition rehearing, On for decided cigarettes. Lucky product, Strike 20, 1962, 85, page June 304 F.2d at re- filing About two after months hearing granted to the extent of 1958, suit, February 25, on Mr. Green certifying Supreme of Flor- died. His administrator was substituted following question: ida2 the plaintiff and his also filed suit widow Wrongful impose under the Florida Death Stat- “Does of law Florida liability, cig- On two a ute. theories breach manufacturer and distributor negligence, implied warranty liability, arettes absolute as for breach implied warranty, cases after consolidation tried for death caused cigarettes jury, by using for returned verdicts such from 1924 or answer, however, February 1, 1956, the defendant. 1925 until the can- interrogatories having developed prior certain under submitted cer to Febru- 49(b), 1, ary Rule Pro- occurring Federal Rules Civil 1956 and the death cedure, U.S.C.A., February 25, in this 1958, when the defend- first found that Mr. Green ant manufacturer and distributor could primary on, to, lung, 1, 1956, cancer of February application was the cause or one the causes of the reasonable of human smoking death, Lucky foresight, skill Strike have known that cigarettes cigarettes proximate cause or users of such would be en- dangered proximate of the causes cancer. the inhalation of the main * Circuit, sitting by designa- 25.031, Statutes, 2. 1959, Of the Tenth § Florida F.S.A. tion. Court authorized to receive and answer certificates as to law state Judge retired Rives has since from act appellate from federal courts. Judge April ive service Cameron died 2, 1964. “The contention that wholesome- from such smoke stream lung?” determined ness of a should be contracting other than its actual standard 170]. S.2d at [154 consumption, safety human when for be noted It is to be * supplied purpose, impose gins of Florida law “Does the persuaded one which we [is] distributor manufacturer on a in the decided cases.” no foundation liability, breach absolute [Again emphasis ours]. nearly It was [ ?]”. again Judge later, with Six months year before dissenting, held this Court Cameron responded [154 in a 5-2 decision judgment plain- it could not enter for the The Court 1963]. June liability, 325 F.2d tiffs concluded: 673, that: the reason *4 does question framed thus “That the rule the “The Florida Court’s present our consideration for only cigarettes ‘reason- that a must be which the issue of whether ably fit have a particular and wholesome’ and this in caused a cancer or for un- ‘reasonable fitness human of law as a matter stance were consumption’.” the in Florida under merchantable request conditions, a nor stated does it deference, With we feel that view warranty scope im- the of statement of language im- the italicized overlooked case. plied in of this circumstance the mediately above but the views instead, is, inquiry lim- The us before us, panel binding upon of Florida law ited to the status course, developments of it not for were liability imposition of for breach of ‘as later to be discussed. warranty’ implied the when manufac- Appeals pointed The Court of further by the or ‘could not turer warrantor on trial of in out the first the case that application skill human reasonable of jury, the the District Court the re- foresight, have the and known of charged quest plaintiffs, the of had been danger’.” [emphasis ours] products “The that manufacturer proceeded Supreme Court The Florida public are for sale which offered to the lan- state in clear and unmistakable original package their for con- human guage: impliedly sumption or use warrants that “That or seller’s a manufacturer’s reasonably or its are wholesome knowledge opportunity for or actual purpose fit for the for which are knowledge a unwhole- defective or “reasonably” adverb sold The wholly some condition is irrelevant modify or fit” “wholesome had been liability theory implied on the inserted in instruction at consent the the warranty, question the certified plaintiffs. the Panel af- must therefore be answered the said, part of the then “As a law already indicated, do As firmative. parties therefore, are, the case bound inquiry ei- the in terms not feel that scope implied warranty as so the the response requests a on ulti- ther the District defined Court”. liability case mate issue of disposi- requires comment by the This was followed crucial deter- tion issues between the court mination, page 677, F.2d at that relating under law finding jury had not made sufficient scope war- and breach is, question reasonableness, that on the ranty product supplied hu- cigarettes not the to whether or were reasonably consumption man shall be “reasonably and wholesome” fit fit wholesome fore- therefore the defendant was purpose.” developing from issue closed however, say, another trial. on to went
1Q1 significant for, thereafter, The date then We directed: May 5, 1965, in the case of McLeod parties nonetheless “[T]he Company, v. W. S. Merrell Division of jury’s bound answers Richardson-Merrell, Inc., 174 So.2d interrogatories may not written [and] Court of Florida stated that relitigate already de- the issues thus Company, Green v. American Tobacco cig- smoking Lucky Strike [that cided Fla., 154 So.2d was: of the causes of the arettes was one against “A suit cancer and that manufacturer. It commodity involved a under death] causes was avail- guise presenting indiscriminately public gen- able evidence to the erally. reasonableness, is, Green can be summarized as a cigarettes applied whether reason- case rule of absolute or ably fit and strict wholesome.” the manufacturer commodity placed who chan- Judge concurring Cameron, consumption nels of trade dissentiiig part, was of the view public generally”. “Was that purchased by do him would not [Green] I. harm” should not directly nowWe come required to show “that Judgment of whether under review were not fit and wholesome *5 is to be affirmed or reversed. general public”. for the specifications We are confronted with tell, parties As far as we can the made the District erred in Court the fol- direct, no further to obtain the effort lowing respects: positive answer of the of denying 1. In Plaintiff’s Motion ques- Florida to that of the for Directed Verdict on the Issue of propounded inquiry, tion which had the Liability made at close of the the de- impose “Does the law of Florida on a fendant’s case and renewed the cigar- manufacturer and distributor close of all the evidence as the evidence liability, ettes absolute as for breach conclusively established defendant’s * * * implied warranty [?]”. implied warranty breach of of reason- might The well have been consumption for able fitness human ** * encouraged to do so view of lan- the and use. guage Florida Court had added charging jury 2. In a safety to the effect that actual human for implied warranty breach of of reason- ' consumption was the standard consumption able fitness for human determination the wholesomeness a only cig- and use occurs if defendant’s product. endanger “any important arettes num- cigarette any respon- ber of foregoing The result of the was that smokers — * * large segment sible went the case second number — any responsible segment general which, of the pursuant opinion of 325 ** * public as to the threat of (and any F.2d 673 the sole factor cancer,” lung charge surprise such therewith) not inconsistent was wheth- having effectively directed a verdict er the used Mr. Green were * * for defendant *. fit and wholesome for human use, being parties expressly com- permitting expert 3. In defendant’s attempt relitigate manded testify they witnesses do already established facts that Green died lung know the cause of cancer and that lung and that nobody lung knows the cause can- cause of that cancer. *. cer again excluding 4. verdict certain kinds of evidence, e., Company. judgment testimony concerning Tobacco there- i. (1) experimentation (2) 27, dated November 1964. animal 102 large —any responsible Surgeon ‘Report General’s number— it segment smokers—then of those au- other scientific Committee’ implied war- would be breach ranty done as work thorities well ** imposed fitness, persons *. other testifier with who sells the manufacturer dispose of minor matters shall We not, cigarettes. did there If first. * warranty *. be no breach view, trial court In our coun- [Plaintiffs’ “MR. HASTINGS opportunity to offer an both sides denied May approach the bench ?” : sel] experiments on of court evidence of out (Side of the out Bar Conference erroneous, was not and this animals hearing jury) of the Employers Liability Assurance
Bish v. 62; 1956, Corp., Cir., 236 Trav F.2d not like Counsel do “THE COURT: Company Wilkes, 5 elers Insurance They ‘important number’. the words Cir., 1935, 701. F.2d bit too definite. that it a little think endanger any respon- I mean does it commit re did the Court Neither segment public. sible declaring inadmissible versible error in cigarette smoking endanger them Does surgeon Bish, supra; generals report, If cancer? the threat as to Fla.App., 1966, Clement, 184 So. Rice v. does, is vio- 2d lated.” give course, may expert an Of foregoing plain quite it is From of ex results based object plaintiffs’ counsel did periments by and in connec to us others language supplemental may experiments, such describe tion charge, not make content Ins. did Mut. Life but he Woelfle v. Connecticut 418; objection Co., of record. Ob Cir., Cf. a matter F.2d States, viously, attempted Paper then Co. v. United International *6 charge Cir., the the so as to eliminate F.2d have amend objection, We Thereafter, previously acceptance was. indicated our of whatever it exception. may As experts offered no further view that counsel language important amended, the as to cross the use of scientific examined segments was, very large they in ef works relied on the numbers unless any fect, Thus, if there was work which the cross examiner wishes withdrawn. supplemental use, Bish, supra. in the amended to error whole, charge, we as a viewed giving reverse cannot We doubt, certainly plain was error. charge Specification in described Therefore, exceptions in absence of giving supplemental 2. The No. con properly we do not now reserved charge by controversy after was caused it, Fed.R.Civ.P., 28 U.S. Rule 51 sider jury had retired whether to C.A. inadvertently had used the word “findings” instead of [of “admissions” any ap Nor find merit do we in the first Out of a trial]. pellants’ contention were en that any up pos desire to clear commendable titled to a verdict on the directed point, the of error on this sible chance argued liability. de that of It jury called had the back into that fendant’s was valueless and evidence courtroom, place: which this took after panel now overrule should * * * I told “THE also of COURT: decision constituted law Going you question that was general public case second trial. say danger simply matter, of we common heart retry distinguished case Mr. had to from Green. the District Court from your And he had determination. under directions received That is for endanger any cigarettes did The value the evidence Court. if these reasonably cigarette drawn important all inferences to be smokers number therefrom, the date of that DR. HOCKETT: as of particular to decide. for the you “Q. Doctor, do know the cause body? of cancer the human a forensic battle The second trial testimony plaintiffs’ No, sir, experts. A. I not.” The do cig- expert tended show witnesses objection No was made this testi- smoking approximately causes arette mony. heavy the witnesses defined [as 10% DR. FLIPSE: cigarette die of smokers the term] “Q. you lung Do know the cause of twenty years lung cancer after about cancer? smoking. A. No. proof Appellee met this the follow- Q. you any Do think there is causal ing manner: smoking connection between lung Moran testified that his studies Dr. cancer? attempted find and research he Personally A. I don’t believe there lung but, “I cause of cancer don’t out the is; but that is a I point To this know the cause it”. cannot decide because we don’t objection. Dr. there was no Moran was know the cause.” he had reasonable med- then asked if following exchange then occurred: or not ical as to whether many “[DR. FLIPSE] We know smoking any bearing cigarettes has go the basal conditions with a lung plaintiffs’ cancer. The ob- change cancer, but don’t know jection was overruled. witness then the cause. testified: Q. Sir, you name some of the “Q. you say Can with reasonable things working that medicine is certainty smoking medical try on now to to determine if lung cause of ais cause or is related public? beginning of cancer? No,
A. sir. MR. HASTINGS: Q. you Do know what cause does object. We rep- One of the bases if cancer or cancer and, too, etitious this is not related body other of a hu- whether are or are not the being? man reason —are fit for human No, *7 consumption. A. sir.” by testimony: This was followed other THE COURT: Doctor, DR. L. only speak T. JACKSON: your as to own knowledge, you what know. He “Q. is not you field, Since are in the cancer asking you you suspect what Doctor, you but what do know the cause you know. of cancer? A. [******] I cer. do not know the cause can- is that Nobody knows the I believe right? you answered cause cancer; of it. Q. you any Do know of definite link THE WITNESS: lung smoking between and can- Nobody knows the cause. people cer who smoke ? THE COURT: A. I do not know actual You mean what he knows or what proven link fundamental between suspects he is the cause of cancer cigarettes lung cancer upon experience. based his medical * * *» MR. BRADFORD: objection No was made to this testi- mony. question. Answer that then it cer is unknown cannot be said question. read the Please A. cigarettes that a cause [as cancer] THE COURT: reasonably fit and wholesome any conclusion you arrived Have general public. consumption knowledge as your upon medical based juries may feel be re- We do not that of cancer? suspected causes quired to return verdicts choices be- THE WITNESS: mutually impossible propositions. tween not.” I have Although jury in this second trial unalterably bound, informed, so Flipse on cross was Finally testified Dr. finding predecessor of its that
examination, had indeed been a cause of the cancer say it due to some- cannot “We smoking ** death Mr. Green and that Basically, thing *. inhale we Lucky had been one of Strike causes it.” know what we don’t proximate cancer, causes of that it attorney rested, defense When repeatedly experts it heard from following mo- made for the Greens province believing, had the inherent tion: chose, possibly if it that such could not “MR. HASTINGS: be none true since know the cause recess, Honor, we before Your and, therefore, prove cancer cannot to strike the testi- to move would like cause. That was not the standard Burford, Flipse, Dr. mony Dr. of Dr. directed this Court that case gave opin- Jackson, who and Dr. Little express should retried. There di- no re- there was to the effect that ions rection that the cause of must death smoking lationship and can- between relitigated in the not be course of set- Fifth Circuit that cer on basis tling safety question of reasonable clearly ad- evidence stated general public. for use regard assume this must duced with fairness, recog- In all we must likewise conclusively established the fact distressing equally predicament nize the Green, man, died had Edwin judge. of the trial blush he At the first a result cancer presented previously with the deter- smoking; therefore we feel fact mined that deceased had died from testimony by these witnesses product, then he was use considered. should not be preside determination told over the whether nevertheless was THE COURT: such a safe for Denied.” public. recalled, ap- will It now dilemma, The answer our it, emphasize propriate that we should judgment, appellee have was that could expressly found proof plaintiffs’ rebutted as to the inci- smoking Lucky Strike cigarette lung cancer in dence of smokers proximate causes of was one testimony categori- presenting without caused the cancer thus cally contradictory to had al- that which proximate was, turn, causes one of the *8 ready been found as a fact. recall the em- likewise of death. We reasons, judgment explicit of this Court must phatic, instructions this For these par- new it the case that for a when remanded remanded reversed and findings by these were bound ties trial. relitigate parties could II. already under decided issues thus here. not end The matter does guise presenting evidence on the of reasonableness. some material In the absence law, controlling occur change state says Appellee this line of deci ring former of our testimony since date been admissible should have 673, 1963, 11, sion, 325 F.2d December if cause of can- for the reason that
105
*
purpose
supplied for
re-
remand
of our former
the directions
persuaded has
one which
are
have
we
[is]
case and
this
main the law of
in the
cases.”
no foundation
remand.
decided
second
on the
adhered to
to be
hand,
been
if there
other
On the
emphasize the words “actual
We must
controlling state
change in the
material
passage.
safety” appearing in the above
clarifying
law,
either
enactment
Then,
already pointed
page
out,
101
as
follow
interpretation,
bound
we are
ante, after
the second trial
[the
below
v.
Vandenbark
now exists.
the law
it
as
trial now under
Su-
consideration]
538,
Co.,
61
311 U.S.
Glass
Owens-Illinois
Florida,
preme
in McLeod v. W.
Court of
Huddle
347,
(1941);
L.Ed. 327
85
S.Ct.
Co.,
of Richardson-Mer-
S. Merrell
Div.
232, 64
Dwyer,
S.Ct.
322 U.S.
ston v.
rell, Inc.,
May
1965,
supra,
5,
took occa-
(1944);
v.
1015,
L.Ed. 1246
Jones
88
explain
meant
what
it had
sion
1955,
Cir.,
225 F.2d
Schellenberger,
7
Company,
v. American Tobacco
Green
989,
denied,
784,
S.Ct.
76
350 U.S.
cert.
Fla., 154
It said that on the
So.2d
(1956).
476,
855
100 L.Ed.
applied
it
rule
of this case
had
facts
appeal
argument
After
(see
liability
quota-
absolute or
strict
file,
we have
parties
requested the
to).
tion alluded
received,
briefs
change has, indeed, taken
such a
Supreme
whether
28, 1965,
April
On
place.
Court of Florida decided the case
Drugs,
Inc.,
Foley
177 So.2d
v. Weaver
longer
remains
There no
product
a bottle
221. The accused
duty
power
doubt
reducing pills. When
contained
entry
proper
to direct
cases
Court
open
attempted
prospective
user
Neely
K.
judgment
v.,
Martin
n.
v.
of a
o.
broke,
by unscrewing
top
it
the bottle
317,
Inc.,
Co.,
87
Eby
U.S.
386
Constro.
right
fragmented,
her
and thus lacerated
(1967).
1072, 18
75
L.Ed.2d
S.Ct.
brought
negligence
Suit was
wrist.
referred,
page
have heretofore
We
warranty.
and breach
language
100,
imp
Supreme Court
that a
held
retailer’s
our
answered
Florida when it
lied-warranty
food did
as
follows:
certified
question,
not extend to this container.
decision,
arriving
how
at this
course of
the wholesome-
“The contention
referring
previously
ever,
cases
be determined
should
ness
meat,
canned
decided as to tinned
its actual
than
other
standard
safety
consumption,
sardines,3
when
human
stated
the Court
Cudahy Packing Co.,
3. Blanton
154 Fla.
wholesome-
v.
able fitness” or “reasonable
872,
(1944) ;
twice
by
rep-
personal
facts found
“
*
resentative
widow are entitled to
and
or
of food
to items
absolutely liable
hold the manufacturer
original package
products in the
other
injuries already
by prior
found
for
human
for
for sale
offered
which are
by him.
to have been sustained
per-
generally, a
consumption or use
reversing
being so,
re-
purchases
items in
to
such
This
addition
son who
judgment
remanding
implied
express
con-
a new
or
for
liance
they are
trial
District
we must also direct the
or assurance
dition
judgment
plain-
or
the uses
Court to enter
for the
and fit for
wholesome
purposes
they
are adver-
on the
tiffs
and to sub-
for which
injured
damages
jury.
sold,
mit
the issue of
to another
and who
or
tised
or
the unwholesome
result
remanded,
Reversed and
with direc-
therein
substances
deleterious
tions.
buyer, may hold
unknown
retailer
or the
SIMPSON,
Judge (dissent-
the manufacturer
either
Circuit
damages
injuries sustained
for
ing)
liable
:
theory
by him,
on the
deference, I
With
dissent from the ma
or fitness
of wholesomeness
jority opinion.
I
view
second
pur-
product for the
or
article
such
fairly
having
of this case as
been
con
offered
poses
it was
for which
ducted under the
laid down
standards
public”.
remand,
this Court
Green v. American
years
Tobacco,
Further,
our
Foley
after
two
108 4 liability certifica- solute or strict the situation decided since the
Court cases
to
proceedings,
occurred
there has
now before us.
tion
legal
change
controlling
a material
majority
by
captivated
The
seems
principles
decision of the
since the
the characterization in McLeod that
appeal
panel
case,
325
first
the
“applied
Green
a rule of absolute or strict
predicate the trial
F.2d
On this
liability to the manufacturer of a com-
judgment n. o. v.
directed to enter
court is
modity
placed
who had
init
the channels
liability
and to limit the third
as to
consumption by
public
of trade for
the
damages.
to the sole issue
generally”.
In
Su-
Green the Florida
change
preme
apply
Court did
a rule of absolute
I fail to find
material
liability
by
or strict
said
of McLeod
the sense that it
Florida law
reason
liability
depend upon
supra. Indeed,
post-Green
Foley,
that
edge
did not
knowl-
further
foreseeability
pronouncements
or
Florida
the
harmful effects.
diametrically opposite
point
This was
Never-
the
before it.
Court
conclusion,
theless,
upon
prior panel
later
as the
case
in this
be commented
recognized
ab-
ap-
it made clear that
in this dissent.
or
solute
strict
was to be
standard
drug-
two retail
McLeod decided that
plied
consump-
to reasonable fitness for
implied
gists
under an
liable
tion.
warranty
dispensing in the
of fitness for
upon
portions
opinion
container
The
of the McLeod
manufacturer’s
drug
quoted by majority standing
physician’s prescription
as
known
the
alone
commodity
may
(advertised
plausibly appear
out of context
support
as a
“Mer/29”
controlling body cholesterol)
holding
majority.
to a custom-
the
taking
injury from
the
immediately following
er who suffered
drug
However,
por-
the
by
physician. The
as
directed
quoted by
majority,
tion of McLeod
below)
petitioner
(plaintiff-customer
exactly
we find further
elaboration as
advisory opinion in
contended
what
is involved in the McLeod case.
Co., Fla., 154
v. American Tobacco
Green
effect,
petition-
The court stated: “In
position.
sustained
So.2d
asking
upon
impose
er McLeod is
us to
prescription druggists
these retail
an ab-
disposing
contention
solute,
liability
strict
in an
without
Supreme Court said:
fault
added)
(Emphasis
action in tort.”
174
distinguishing
several
“There are
page,
So.2d at 739. On
same
while
against a
a suit
elements. Green was
summarizing
holding,
fur-
its
the court
a commod-
It involved
manufacturer.
concept
ther added:
of strict
lia-
“The
ity
indiscriminate-
which was available
bility
applied
without
should not be
generally.
ly
public
can
fault
Green
prescription druggists
applied
summarized
a case
liability
added).
(Emphasis
stant situation.”
of absolute or strict
rule
commodity who
the manufacturer
foregoing
nothing
language,
From the
trade
placed
channels
it in the
liability
could be clearer than that strict
general-
by
public
consumption
for
ly.
recog
is,
been,
without
and has
well
fault
lacking in
The case before us
nized
Florida courts.
v.
Cliett
significant
many
elements.”
of these
Corp.,
Lauderdale Biltmore
39
476
So.2d
(Fla.1949);
language just quoted
includes
45
Market,
Seneer v. Carl’s
majority opin-
(Fla.1950).
my
quoted
page 101 of the
Where
breth
go
entirely
top
astray
equating
ion,
ren
is in
at
is advanced
and which
categorically separate
liability
concept
page
strict
with
105 of
applied
rule of ab- out fault
re-
stating
with strict
without
that Green
Foley
Co.,
Drugs, Inc.,
Div. of
Weaver
S. Merrell
177 So.2d
4. McLeod v. W.
(1965).
Inc.,
Richardson-Merrell,
So.2d 736
(1965); and
672”,
Market,
supra, 45 So.2d
fitness
gard
product’s reasonable
to a
language
proceeded
forth
public.
to set
then
consumption
top
page
majority
quoted
Foley,
other case relied
point
opinion.
106 of the
majority,
involved the
*12
before
all
cases were
here
that
these
is
druggist
liability
for a defect
of a retail
by
Florida
and discussed
reducing pills, known
in
for
a container
certified
our
when it answered
being a
“Thindown”,
container
as
question
The Blanton
154
169.
So.2d
glass
screw-on
with a
bottle which closed
171,
7,
page
quoted in
on
is
footnote
case
attempted
top.
purchaser’s
to
wife
The
coupled
Cliett.
citation to
with a
top.
unscrewing
by
open
the bottle
holding
is dis-
Market
in
v. Carl’s
Sencer
broke, fragmented,
and
The bottle
By
extensively
page
no
on
cussed
right
piece
wrist.
lacerated her
strained,
interpretation,
how
no matter
up
Supreme Court took the case
Florida
logically
Foley
could
holding below
on certiorari because the
change
applicable Florida
as a
in
viewed
plaintiffs
of action
had no cause
that
portion
relied
law when the
against
im
for breach of
retailer
an
quote
majority
from a
is a
plied warranty
and
of fitness
merchant
ago.
eighteen years
Florida case decided
ability
with Canada
was in
conflict
direct
Foley and McLeod
The references
in
Dry
Shaw,
Bottling
118
of Fla. v.
Co.
establishing
holding of
to the
Green as
(2d D.C.A.1960), decided
So.2d 840
liability
read in context.
strict
must be
Appeal im
Second District Court
to
In these and other cases the reference
posing liability upon
re
and
both bottler
liability
reference
strict or absolute
ap
tailer.
The case under
review was
only
long
concept
to
that
lia-
followed
proved
Dry disapproved.
and Canada
bility
imposed
is
for
Foley,
proposi
therefore,
for
stands
defective
regardless
defect could
of whether
tion
caus
to defective containers
manufactur-
have been discovered
ing injury
impose upon
Florida will not
terminology
er.
is a common
This
liability
implied warranty of
retailers
for
negligence
distinguish
nothing
between the
fitness.
It decided
whatever
concept
opposed
of fault as
respect
liability
with
manu
either
regardless
concept of
upon implied
facturer
war
or retailer
Co.,
Supply
of fault. Carter v. Hector
ranty
respect
with
either
food or other
(Fla.1961);
128
Lau-
product
So.2d 390
Cliett v.
consump
intended for human
Corp., supra;
Mi-
derdale Biltmore
tion. The Florida
Court stated
Bottling
Todd,
So.2d)
(Foley, page
ami Coca Cola
Co. v.
ex
(Fla.1958).
So.2d 34
act
it had not
thereto
before
presented
It
fore
been
that court.
significant
It
to me
neither
holdings
proceeded
to discuss its
reply
their
nor
their
brief
imposing liability upon both retailer-sell
despite urging
appellants,
brief did the
er
sold
and manufacturer
of foodstuffs
prior panel, re-
this Court
to reverse the
injuries
in sealed
caused
containers
Foley.
any way
fer in
McLeod or
to either
by unwholesome or deleterious
substanc
emphasize
radical
inter-
To further
therein, citing
Cudahy
Blanton v.
es
Pack
pretation
places
Fo-
now
ing
(1944)
Co.,
154 Fla.
Ill product sold is fit to be Co., supra, b when the 169.” a 154 So.2d cco ”* added). use. (Emphasis 196 So.2d at safe for added). (Emphasis point ex Roberts Justice At another holding in McLeod plained court’s firmly It has been established “ drug retail held that follows: e [W] prior panel purposes of this case that theory gist liable could be held cigarettes are not adulterated: warranty of if [sic] breach presented “There has never been drug supplied merchantability where the Lucky any contention that evidence was, plaintiff unadulter in fact dangerous cigarettes were more Strike Justice It was ated.” 196 greater propensity or had cause key word Roberts’ observation bearing cancer than further ex To “unadulterated”. other brand names. Nor has there plain, he added: been contention that the is a clear distinction between “There which Mr. smoked contained Green foreign any spoiled, not adulterated— substance, or con- ingre- es- taminated or other substandard one which meets all the standards injury dient which caused his particular product but for a tablished Instead, plaintiffs’ death. contention risk known attended with a *14 cig- beginning from the been that has product which consumer —and a Lucky arettes —not Strike is, fact, in adulterated defective— F.2d alone —cause cancer.” is, stand- which meet the does not at 676. particular ards established for My research has not revealed Flor- would, product because —and finding ida decision li- a manufacturer defect, such unknown and undetectable able in which there defect was not some produce con- a harmful effect product. or adulteration in the For the at 120 sumer thereof.” 196 So.2d majority proof now to of a de- decide (Original emphasis). (or or fect adulteration at least that Justice Roberts then concluded product harmful effects felt liability, McLeod, in which was no there segment public) a substantial of the distinguishable no was was longer because there necessary, is no as a matter adulteration, defect or but there law, goes beyond anything yet far decided liability should in Russell because or even de- foreshadowed the Florida blood was fact or defective adulterated cisions. presence virtue of the serum One further source will be discussed hepatitis unre- albeit undetectable and my position dissent, relative
movable. Supreme is the Florida Court’s ad- visory
If taken opinion Justice Roberts’ is elaboration in this out- case. At the correct, nothing certainly was said set the Florida Court was care- Foley or decided in or McLeod which ful to delineate what it was and any way quoted Th,e contradicts the above pertinent on called to decide. first passage, position portion im- then the Florida on of the as follows: is plied warranty clearly is in which “We conclude also that the there has to first be an actual adultera- present thus framed does our product tion in the before there can be consideration of whether the resulting from its harm from cigarettes which caused a in this use. Dean has Prosser reached the same particular instance as a matter were conclusion, e., i. that “there no strict is of law unmerchantable2 Florida un Prosser, (Strict Liability Consumer),
5. The Pall of the Citadel to the 50 Minn.L.Rev. (1966). conditions, reasonably expected by nor stated does is con-
der the cases; scope jury question sumer is a * * * in most statement request warranty implied applied in the circumstances This test as to warranty ac- tion for of this case.” breach ’ ” keyed “reasonably ’. is to what is fit” like- stated that it court Further (Emphasis added) whether on to decide was not called wise majority product pages and whole- fit relied at general purpose. majority opinion for its 101 and 105 of some language safety” the “actual of the Flor- preceding quota- In footnote 2 to the establishing ida Court as lia- tion, court refers Section Florida bility. misplaced. If Such reliance is Friedman, Products 25 of Frumer the construction cor- Liability, collected cases are wherein rect, American has been made Tobacco volving suf- contents are whose an insurer. require no ficiently repulsive so as my proof Such cases unwholesomeness. is said view what and all that product safety” para- contain- where include those about “actual is that it is slime, mud, bugs, mice, flies, industry roaches ed mount to The latter standards. portion paragraph page exists that Little doubt and worms. presence 173 of product of such articles Green makes it clear that consumption renders Supreme for human “ac- Court’s intended references safety” unmer- product product unwholesome tual not in- said a matter of law. chantable as tended to be construed as a modification 29.03 which this case harmless The same individual court noted [1] substances”, Fruman and footnote refers to Section was tried the reactions discussed “the Friedman [the second *15 theory ordinarily problem time, Supreme of the test of whether a tioned tion.6 sonably It is guarded my opinion fit for human use and statements that the above men- to what it the consump- Florida rea- not of which we “discussion remand] after called on well foot- to decide as as the the because unwarranted here deem vitally important noted to references precedent limited and the Florida lack of products liability which areas defense non-adversary pro posed in this not indi- were discussed is a clear be ceeding.” panel cation that the action of the remanding the in for a new trial toas Florida Su- Again, 11 the in footnote cigarettes’ emi- fitness was reasonable approval Fru- quotes with preme Court nently Any analysis Wis- correct. other conclusion of a and Friedman’s mer “ ‘What supported only that: to the effect would be if the Florida consin case knowledge, the wholesomeness that a risk which are contention convinced “The inception determined be was from the a should the safety actual than its intended to be attached other doctrine standard supplied exists, consumption, when to the mercantile function. There human proposition think, in purpose, novel we objection no real alternative and no valid is persuaded law, we are to this distribution of one which bur- our and the den, public protected cases. if in the decided the health is be no foundation has industry any practical exploitation prevailing stand- in sense from hold To by ordinary who, profit motive, supplant standard those for a the under- ards proof, supply objective and should take to the vast and and ever increas- truth product’s ing variety people the issue the conclusive by unprecedented powers con- pur- human use or of commercial reasonable fitness for persuasion daily urged the sumption, shift are be to and (Emphasis added) latent de- consume.” whatever risk of chaser by ultimately proven may at 173. fectiveness experience human advancement clearly ranty Supreme and affirma- Court had does not cover substances tively product, defendant’s that when the manufactured harmful ruled ef- plaintiff’s developed fatal caused the fects of which no human foresight had found skill or cancer, as first can afford knowl- Supreme edge.” (Emphasis supplied Florida Court was of which Lucky opinion) aware, unmer- Strikes were Flori- chantable as a matter law. The Judge points Rives then out that Supreme has Court’s decision Green da plaintiffs’ was taken verbatim from re- Nor that court. never been criticized quested written instruction No. 11 as to Supreme in- Court ever has the Florida consented to the prior panel court dicated “reasonably” sertion the adverb remanding new for a was incorrect modify fit”, “wholesome de- trial, question of whether limited to the object emphasized fendant did not Lucky “reasonably fit and Strikes portion. Judge Rives continued: “As Indeed, Florida Su- wholesome.” parties of the law of this case the specifically approved preme of the are, therefore, scope bound of the “for trial on issues remand Green implied warranty as so defined Community Bank, Blood fact.” Inc. mine.) (Emphasis district court.” Russell, supra. Thus, (1) on the first the district recognized parties court both “rea- supporting can be A final reference sonably scope or fit” supra, wholesome as the Friedman, found in Fruman and implied warranty of the law of as the 16.03[4], p. 62, au- Vol. wherein § (2) case, Flor- Court of analyzed thors recognized scope ida im- it as the of the opinion in and concluded Court’s Green plied warranty, (3) this Court on scope warran- “Whatever prior appeal specifically identified this ty, tenor concept case, as the law of and direct- say whether least [the] * retrial, ed the lower court follow it on which cause (4) carefully upon retrial the lower consump- court for human are fit directions, (5) followed there tion, limitation that [the] unfettered intervening change appli- no been against manufacturer does warrant cable Florida law. If is such there (Original emphasis) unknowable risks.” thing being as the “law of ever the case” though in ac- the authors Even permanently impregnably establish- the Florida cord with what view as *16 ed, listed series events above should position, the issue their conclusion that purposes establish for all for time and all at is for the of reasonable fitness scope this case and nature odds with construction implied warranty of “rea- here panel, viz: sonable wholesomeness and fitness as a matter should be decided public.” of law. By majority’s pen stroke of the Further, emphasized, as it should consistent treatment of the majority opinion set forth in the parties all courts involved (325 page panel. F.2d is obliterated from is as the record. It 2) under headnote though clearly what the record shows did charged follows: happen happened never at all. On the products “The manufacturer us, record before I cannot concur. pub- offered sale are original package Respectfully, vehemently, for human but I dissent lic their impliedly holding consumption warrants or use from the of both Part I and Part majority opinion. whole- II af- are I would its purpose firm “FINIS” the trial court and write some fit for litigation. long implied war- such to this sold, but troublesome