*3
experienced
surgeon
and
thoracic
from
City
Bethuel M. Webster, New York
Buffalo, New York. The record shows
(Frederick
Haas,
Cohn,
P.
Donald J.
postgraduate
that he did
in thor-
work
Webster, Sheffield, Fleischmann, Hitch-
surgery
hospitals
acic
at several
and at
Chrystie,
cock &
City,
New York
Earl
attending
testimony
the time of his
Reed,
Jackson,
F.
Kenneth
Thorp,
G.
surgeon
hospitals
thoracic
at five
in New
Armstrong,
Reed &
Pittsburgh, Pa., on
Overholt,
York state.
Boston, Massachusetts,
Dr. Richard H.
brief),
appellee.
testified that
GOODRICH,
Before
STALEY and
postgraduate
after medical school he did
FORMAN,
Judges.
Circuit
surgery
University Hospi-
in
work
at
Philadelphia
tal in
and served as instruc-
STALEY,
Judge.
Circuit
surgery
University
tor
at the
of Penn-
Pritchard,
Otto E.
plaintiff,
sylvania.
commenc-
and,
He established
at
action, alleging
ed this
that cancer of
testimony,
time of his
was a member
right
lung
smoking
was caused
the Overholt
Thoracic Clinic Boston.
Chesterfield
between 1921 and Dr. Charles S. Cameron testified that
the
ing
time it
removed in
receiving
1953.1 Bas-
education,
his medical
negligence
his case on
and
breach
served as a Rockefeller
Fellow
warranty, plaintiff sought compensatory
Hospital
large
York,
Memorial
in New
damages.
punitive
cancer clinic. For a time he served as
medically
The cancer
sylvania
involved here
Jersey
defendant New
cor-
bronchogenic carcinoma, squa-
known as
poration.
parties agree
that Penn-
type.
mous cell
sylvania
applies.
substantive law
diversity
Jurisdiction is based on
of citi-
plaintiff
zenship,
being a citizen of Penn-
the con-
men
not differ as to
could
director
and scientific
medical
Society.
time
clusions of
drawn
fact
At
Cancer
American
the evidence.
testimony,
was Dean
Dr. Cameron
of his
College in Phila-
Medical
of Hahnemann
delphia
granted,
“The motion
dealing
project
a research
where
Jury
find a verdict
directed to
relationship
tobacco
between
with the
Liggett
favor of
the defendant
also
progress. He
and cancer was
Myers
Company,
Tobacco
organiza-
national
served
several
against
E. Pritch-
Otto
dealing
one
tions and an international
—
ard.”
writings
His
with cancer control.
publications deal-
complaint
and included
extensive
ing
Plaintiff’s basic
is that
*4
govern-
guaran
prepared
allegedly
for
right,
with cancer
was denied the
agencies.
of
Morton L. Levin
mental
Dr.
him
Amendment to
teed to
Seventh
the
plaintiff’s
Buffalo,
York,
Constitution,
was the
New
the
to
his case submit
expert.
was a well
jury.
position
last
He also
medical
ted to the
by contending
He refines his
to
qualified
though
In 1936
came
witness.
that even
this is a
Hospital
diversity ease,
of New
purpose
the State
the Cancer
of
of deter
the
study
specialize
mining
the
of
York to
the
whether
case should be sub
his
epidemiology
jury,
cancer. He was asso-
applica
of
the
mitted to
the standards
special
ciated
by
commission created
Employ
with a
ble to actions
Federal
under the
Legislature
Liability
Act,
New York
study
the
State
ers’
et
U.S.C.A. §
seq.,
as direc-
Act,
1937 to
cancer
served
and the Jones
46 U.S.C.A. §
seq.,
of
tor of the Bureau of Cancer Control
et
must
be used
a federal
Department of
Cir., 1960,
the
York
Scuka,
New
State
Dill
court. See
testimony,
145;
Health.
time
At the
of
5 Moore’s Federal Prac
professor
Levin was
head of the
jf
seq. (1951). Further,
Dr.
Department
tice
38.09 et
Epidemiology
of
the Ros-
contends 'that even
the
if
standards
adopted by
Pennsylvania
Park
Institute and a mem-
ap
well
Memorial
the
courts
ply,
of
Council’s
ber
the National Research
he is entitled to have his case sub
study
special
the
committee created
mitted to a
under his evidence. The
carcinogenic
additives, and
effect of food
Pennsylvania
defendant answers that
law
governs
associated with
Health
was
the World
plaintiff
both as to what
had
the
Organization
prove
of
sufficiency
United Nations.
the
and the
of the evi
go
jury,
dence to
the
and that under
The
mo-
defendant made
series of
properly
standard the district court
First,
tions.
it moved to dismiss the
directed a verdict.
warranty
denied, only
count
which
be followed
another motion made at
question, however,
That
need not
plaintiff’s
the close of
on causa-
evidence
here,
be decided
for we think that even
tion and another
at the close
made
of
Pennsylvania
under the rule followed in
plaintiff’s case based on
contention
plaintiff’s
evidence in the record be
negli-
plaintiff
to establish
failed
definitely presents
jury ques
fore
us
granted
gence. The court
the motion as
May Department
Larkin v.
tion.
Stores
warranty
of
claim but
the breach
de-
Co., Cir.,
7.
March
1952.
August 10,
August
1953.
June
proposition
14. To
its
that no im-
warranty
plied
merchantability
existed
Saturday
Evening Post, December
8.
plaintiff
failed
since
show
1931.
cigarettes
Chesterfield
did
meet
September 22,
Pittsburgh Press,
9.
generally,
sold
standards
quotes
1952.
us to
refers
from
Equipment
Frantz
Co. v. Leo Butler
Life, January 26,
10.
1953.
459, 464-465,
1952, 370 Pa.
Program
September 24,
there, however,
1952.
706. The court
11.
Simi-
September
referring to
cases
were made on
those
where
lar statements
items are
brand name.
It
sold
has never been
Act, 69 knew or should
the breach
the Uniform
known of
49 of
Sales
have
Section
may
contains
considered. That was true
Pa.Stat.Ann. §
Purdon’s
Pennsylvania
provides:
passage
requirement
of the
even before
notice
“
Fearl,
* * *
Uniform Sales Act. Hanna v.
acceptance
if,
But
sending
556. In
18 A.
give
buyer
goods,
fail to
of the
question
ju-
reasonableness
the breach
notice to the seller of
Pennsyl-
court,
construing
ry, the
while
warranty,
any promise
or
within
Ingersoll
vania
law
Prod-
Bonker
buyer
reasonable time after
(D.Mass.
Corp.,
F.Supp. 5,
ucts
ought
such
or
know of
knows
breach,
1955), said:
liable
the seller shall not be
ap-
it is
therefor.”
“The cases indicate
consideration
propriate to
into
take
notice,
received
Plaintiff’s
which was
Undoubted-
plaintiff’s situation.
agent
21,1954,
defendant’s
October
ly
been able
would
read:
to the defendant
write
letter
you
our
is to inform
“This
know,
long
August
did
She
before
Pritchard,
client,
E.
has elected
Otto
however,
mother had im-
that her
injury
as a
he received
to treat
mediately
grocery store.
notified
Ciga-
smoking Chesterfield
result of
have seen
I assume she could
While
warranty
as a
breach
rettes
August
lawyer
1, still was
before
Liggett Myers
part of
Tobacco
&
her to wait
so unreasonable for
Co.”
months,
day
which was
of four
short
inference
Where
than one
more
fourth and
weeks after her
two
facts,
may
undisputed
drawn from
I
operation,
the extent
last
disputed,
timeliness and
the facts are
say
a matter
law
now that as
must
sufficiency
of a
of war
of breach
notice
?”
recover
she cannot
ranty
questions
for the
to res
is,
considered
to be
One
factors
olve.15 The
of reasonableness
giving
delay
or its
notice
form
did
the circum
must be
determined
Pennsylvania
prejudice the seller? The
stances in the
case. Columbia
individual
approached
prejudice ques-
cases
*7
Automobile Ins.
Co. v. American
Axle
Co., Cir.,
engrafting
by
of laches
doctrine
tion
1933,
206, 208.
F.2d
6
63
Act, Kull
49 of the Uniform Sales
onto §
authority
580,
Co., 1933,
Pa.
There
to
311
is
Motors
v. General
1925,
562; Bromley Morse,
peculiar circum
proposition
284
that
166 A.
v.
surrounding
buyer
“Laches,”
588,
after he
131
479.
Pa.
A.
stances
pur-
Royson Engineering Co.,
alleged
Magnavox
that
here
the Chesterfields
Co. v.
1961,
Pa.Super. 139,
plaintiff
A.2d 559.
195
169
were not
smoked
and
chased
generally
quality
same
as those
of the
and discussed
Burket v. West
Cited
sold.
Supply Co., 41
moreland
Westmoreland
(Pa.Com.P1.1958).
35
The Uniform
L.J.
Hosiery
v. Albert M. Green
15. Victorson
Code,
Purdon’s
Commercial
12A
Pa.Stat.
717,
Mills,
Cir.,
41
3
2-607(3),
forward
§
Ann.
carries
the re
Motorcoaches,
806;
Inc.
Texas
A.L.R.2d
quirements
on notice
breach under §
Go.,
Cir.,
F.
A. G.
Motors
3
Sales Act.
49
Uniform
Drafts
Gypsum
91;
Co.
F.2d
United States
men’s comments to that
subsection read
Foundry
Birdsboro Steel
& Machine
follows:
“The time of notification
as
is
Pa.Super.
by applying
to be determined
commercial
Pa.L.Encyc.
(1960).
buyer.
As
a
to
standards
merchant
‘A rea
timeliness,
it has been said that “the
time’
for notification
a
sonable
re
time,
question
judged by
of what
is
reasonable
consumer
is to be
tail
different
the Commercial Code as under the
under
so that
in his case it will
standards
be
Act,
extended,
requiring
will
of fact for
rule
Sales
noti
designed
unless but one inference can be
commer
defeat
fication
faAth,
deprive
good
therefrom as to reasonableness.”
drawn
cial had
not
Sell, Sales,
Survey
Pa.Law,
remedy.”
(Em
1956-1957
consumer
his
faith
(1958).
phasis supplied.)
19 U.
Pitt.L.Rev.
See
defective materials
In or distributor of the
said
Pennsylvania Supreme Court
present
it was
269, used
in a bus were
when
Estate,
re Grote’s
inspected
instru-
them
and
de-
one
383, 387,
when
“arises
A.2d
obtaining
parts for the
mental in
prej-
new
rights
so
position or
fendant’s
Bodek & Son
entire fleet.
Avrach,
In Aaron
length
inexcusable
and
of time
udiced
225, 227,
146 A.
circum-
delay, plus
facts
attendant
thing
plaintiffs
injustice to
“the
stances,
it
that would
go and look
did was
ask defendants
a claim
presently
permit
the assertion
assertion
was no
blankets. There
against him.”
wrong
anything
that
there was
a substan
plaintiff lost
Here, the
any
them,
state
if was it failed to
it
lung
weight
v/as
his
after
tial amount of
course, plaintiff
particulars.” Here, of
removed on December
clearly
he suf-
informed
during convalescence
record shows that
smoking
injury as
fered an
a result of
forty pounds
weighed one hundred and
-
Chesterfields.
weight
one
pre-operation
near
from a
negligence claim, plaintiff con-
theOn
days
ninety pounds. Ten
hundred
conclusively
tends
the evidence
hospital,
discharged
being
from the
negligent in
shows that defendant was
recurring
he was readmitted because
failing to
sub-
warn him that certain
vomiting
inability
He
to swallow.
stances, allegedly cancer-producing, were
January 6, 1954.
there until
remained
although
present
knew
Chesterfields
Thereafter,
periodically
an
visited
or should
Defend-
have known
fact.
Pittsburgh
his
hospital in
where
other
ant contends that there
no evidence
esophagus
suffered
dilated. He also
in the record to show that at
time
hemorrhages
experienced shortness
cancer,
contracted
defendant had
1954, he was
In June of
of breath.
or in the exercise of reasonable care
given physiotherapy
treatments
any knowledge
or notice
had
should
right
follow-up
leg,
Dr. Kent as
saw
lung
probably
cancer
would
during
year following
patient
sur
prolonged
resulted from
excessive smok-
gery.
physical
apparently
His
condition
ing.
such that he did not return to work
layman
Plaintiff
inex
until 1955.
was a
Pennsylvania,
sup
who
one
complications
perienced in
scientific
product
plies a
another
and knows or
many
involved here that took
weeks
should know that the foreseeable use is
preparation and trial to unravel. There
dangerous to human life unless certain
allegation or
intimation that
de
taken,
precautions are
and who realizes
any prejudice
fendant has suffered
or should
realize
the user will not
receiving
notice sooner or in a dif
vigilance
in the exercise
recognize
reasonable
*8
comprehensive
and more
ferent
form.
danger,
duty
the
is under a
to
prejudice is
The lack of
by
best manifested
consequences
the user of such
warn
and
vigorous
thorough
and
the
defense
proper precautions. Hopkins
to advise
Although
presented.
notice was not
Nemours, Cir., 1952,
De
E. I. Du Pont
given
approximately
months,
for
ten
it
Refining
199
Co.,
Maize v.
F.2d
Atlantic
cannot be said that under these circum
352 Pa.
untimely
stances it was
and insufficient as
449; Restatement,
A.L.R.
Torts
§
a matter of law.
(1934).
precautions necessary
to
comply with the standard of reasonable
To
his contention that
the
vary
danger
with
ness
the
involved.
inadequate,
form of notice was
defendant
Refining
Atlantic
Co., supra;
Maize
MacDougall
cites and
on two
relies
decisions which de
Pennsylvania
Power &
comment. In
brief
Texas Motor
serve
coaches,
Light Co., 311 166 A. Inc. v. A. C. F. Motors
only
Cir.,
evidence
On the
awareness of inspectors
danger,
ap
notice was that
two
offered the
testi-
by
employed
mony
expert
parently
of several
witnesses.
manufacturer
Dr.
knowledge
or
are to use
of the
leads those who
deed
Kremer testified that
smoking
epider-
to
char-
the chattel
believe it to be
connection between
and
than
being
in a
for use
acter Or
condition safer
moid
many
disseminated
cancer was
likely to
it
be.”
years
Kaunitz
he knows
Restatement,
to be
to be
prior
or
1953. Dr.
b,
relationship
Torts,
comment
be-
testified that he noted
Furthermore,
lung
(1934).17
smoking
heavy
between
as
tween
early
cancer
and
and
defendant
no tests
said
made
Cameron
as
while Dr.
carcinogenic
relationship
content of
determine the
Chesterfields,
be-
that
literature
relationship
smoking
or
between
lung
avail-
tween
was
and
cancer
lung
smoking.
century ago.
cancer and
Under these
himself be-
half
He
able
circumstances,
relationship in
whether it was reasonable
came interested in the
for
conducted
defendant not
dif-
that
mid
Dr.
testified
1930’s.
Overholt
clearly
suspicious
ferent
tests was
connection
additional
became
that a
lung
smoking
matter that
been submitted
heavy
and
should
existed between
jury.
early 1940’s,
that he
in the
and
cancer
smoking.
stopped
Levin
himself
Dr.
The same can
said
defendant’s
relationship be-
started research
on
give warning
any
failure to
producing
cancer-
smoking
lung
cancer
tween
and
ingredients
in Ches-
that were
reading
dealing
article
German
terfields. That is made clear what was
subject.
Refining Co.,
said Maize v. Atlantic
301
Co., Mo.1958,
think
We
caused cancer in him. unwilling go. that I am Further than dangerous potentially Take a sub- sale HOLLAND COMPANY, FURNACE ject Everybody whiskey. Petitioner, matter like consumption knows of intoxicat- that the ing beverages may differ- cause several FEDERAL COMMISSION, TRADE goes types physical ent This harm. Respondent. clear Testa- back to the era of the Old No. 12451. ment: Appeals United States Court early up “Woe unto them that rise Seventh Circuit. morning, they may in the fol- 11, 1961. Oct. * * strong low Isa. drink 5:11. woe? sor-
“Who hath who hath
row? hath contentions? who who babbling? hath who hath wounds
without cause? who hath redness eyes ? “They tarry long wine; at the
* * Prov. 23:29~30. whiskey buys If a man and drinks too gets of it trouble as
much some liver
a result I do not think the manufacturer (1) the is liable unless manufacturer whiskey tells the will not customer (2) whiskey adulter-
hurt him or whiskey methyl alcohol, ated —made surely The same is true of instance.
one who churns sells butter
customer who should on a nonfat diet. likewise, true, one same is as to who peanuts salted to a cus- roasts sells on
tomer who should be Surely a no-salt diet. peanuts if the butter liability pure there is no if the cholesterol dangerously.
count rises ice, Especially appropriate which this connection condition of the fact dangerously although ap- thin Illustration comment 6 310: so B, pearing. B that he has “1. A tells tried the ice reliance A’s state- pond upon ments, attempts pond and found thick to skate certain in, enough skating knowing catching falls severe for safe that he cold. A knowing nothing it and to B.” has not tried is liable
