*1 BOTTLING CO. OF PEPSI COLA ANCHOR- AGE, Inc., Appellant, CO., Inc.,
SUPERIOR BURNER SERVICE Appellee.
No. 625.
Supreme Court Alaska.
May 19, 1967. *2 Matthews, Jr., M. and Theodore
Warren Burr, Pease, Pease, Boney An- Jr., of & appellant. chorage, for Moore, Jr., and K. Sin- Daniel A. James j& Wiles, gleton, Delaney, Hayes, Moore appellee. Anchorage, for NESBETT, J.,C. Before and DIMOND WITZ, and RABINO JJ.
OPINION RABINOWITZ, Justice. Appellant this action in instituted recovery superior sought court where damages appellee’s resulting from purported properly repair a failure to Appellant complaint boiler. based separate sounding both causes action (breach (negligence) in tort and in contract implied warranty). After trial an appellee’s favor general verdict dismissing judgment was returned and a appellant’s causes of action thereafter entéred.
Appellant contends that a new trial required because of the trial court’s failure “limiting” instruction applicability of certain evidence which, instruction, could without such possibly by the have been considered contributory negli- its determination of the argues gence Appellant issue. it is entitled to a new because of lower court’s refusal to instruct separate upon on its action based warranty. breach of Appellant engaged in the business marketing Pepsi bottling, canning, and products beverages Cola and other had Anchorage, In Alaska. plant processing constructed a installed two boilers to heat and furnish manufacturing carry out its steam needed to ques- operations. Originally the boiler in they but during oil-fired the month of whether indicated the need to have cleaned, thoroughly had the boiler October and whether gas. they early vert it morn- necessity to natural warned of the of blowing *3 down lines ing keeping periodic hours of December one of the and check (every the employees that half hour hour) discovered the on boiler.2 question operational. boiler in was not particular significance Of to the issues in Appellee requested to was then called and appeal this is the fact during that the trial *** get “check it start- the boiler and appellee elicited evidence which concerned respond- appellee’s employees ed.” Two of condition, the improper and maintenance refiring request ed in to this and succeeded appellant, of prior the boiler to the event shortly in the before Later boiler noon. on occurred December 1963.3 day be the to the boiler “was discovered On the several when occasions evidence firing any in an without water and of offered, appellant’s this character was extremely damaged and overheated” objected requested counsel that the dition. judge give trial limiting instruction to the any effect that evidence of im al- appellant In tort of action its proper prior maintenance of the boiler to in leged appellee’s negligence that consisted 2, 1963, December was not be to considered employees the failure the of its “to discover regard the in to the lack of water in the boiler” and “to examine whether contributorily had been presence prior the boiler for the of water” negligent after appellee had refired the ap- relighting to boiler.1 In the its answer position, boiler Appellant’s on December 2. pellee pled, part, in defense of contrib- the here, both at although trial that evi utory negligence. dence of this nature was admissible in re developed trial was The evidence at the gard to the value of the and damages boiler appel- sharp dispute in as to what services general, the should have been in employees in re perform lee’s asked to were structed that this neither evidence was rele boiler; gard malfunctioning as to to to, considered, nor vant was to be in de appellee’s employees to ac what undertook ciding In issue. what, boiler; complish to to the as overruling appellant’s objection initial to appellee’s employees said anything, two testimony, judge this line stated appellant’s employees, particularly, more that the matter was one that “should be han employees that appellee’s whether disclosed given dled in the Court’s overall instructions character, temporary at the end the case.” complaint appellant appel- 1. added In an amended 3. The bulk of this evidence prior care, also of action which lack of condi- an additional cause lant’s and the boiler, ac- this new cause of tion sounded tort. was focused on appellant alleged appellee’s em- condition of the boiler time it was at the ployees by appellee gas-fired converted to a boil- returning the boiller er in 1963. The also heard October completely cleaning testimony inspector without from a service state boiler May line and float chamber water column as to the condition of on the boiler addition, failing to warn and plaintiff Also was the testi- 1963. introduced operation manager mony appellant’s general dangerous plant’s practices hazardous. boiler was maintenance regard to the boiler. undisputed appellee’s 2. that after em- It is completed ployees their boil- work on the At the same time the court also stated employees get place any did not check don’t think can er “I p.m. step proceedings look at until 4 in each little tell- boiler jury, day it was same when discovered ‘Now consider for ” firing purpose, purpose.’ without but the boiler not for this water extremely was in an overheated condi- shut tion. At the boiler was time off. prior boiler to December trial court’s maintenance At the conclusion appellant's objected and evidence of acts charge jury, relating boiler, limiting oc- omissions refusal to court’s subsequent appellee’s refiring curred which read: instruction boiler December Review on properly plaintiff had Whether point that at record further discloses no before the defend- maintained jury given during trial were the repairs De- make called in to ant was concerning purposes instruction issue irrelevant to the cember had this evidence been admitted. liability. Failure defendant’s *4 the properly plaintiff maintain the to Appellee’s argument initial line of is not, does boiler before December appellant’s requested limiting since in that contributory law, as matter of constitute erroneous, struction was the trial court was negligence. obligation to it.6 give under no hand, requested jurors subject The instructions is the the On other provides in they 51(a) “that the Rule which that found covered Civil instructed if part: caused proximately cident in was appellant, contributory negligence” of the such At the of the evidence close any rec precluded
then was from during trial as court earlier the the time overy.5 reasonably directs, any party file to given requests which were written the court instruct
In the instructions
be-
made
the
the law
in the re-
jury,
the
no differentiation was
on
set forth
appellant’s negligent
quests.7
tween evidence of
the
instructed
issue of con-
trial court further
could
tributory
on the
be considered
negligence
(i.e.,
of hab-
evidence
parties
degree
negligence
it)
of the
corroborative of evidence as
the
was
* * *
consequence
even
no
to
maintenance
is of
negligence
plaintiff
(Note:
undisputed
though
is
the
the
December 2.
It
* * »
slight
plaintiff
nothing
way
is
did
recovery
to recover because
after the
was refired
not entitled
maintenance
boiler
by contributory negligence.
it
in an
condi-
is barred
until
found
overheated
Knight,
tion.)
Mitchell
In
disap-
1964),
(Alaska
expressed
Ness, Opinion
our
No.
Groseth v.
proval
1966)
(Alaska
(foot-
because
of such an instruction
421 P.2d
note
possibility
omitted),
in-
that it
have been
not faced with the
could
we were
requiring
degree
terpreted
precise
a lesser
is
raised in
case
issue
proof
say by way of
to establish
at bar. There we did
subjecting
to
in turn
dicta:
correctly
higher degree
proof.
Bar-
Harris v.
Since this instruction did
Lesh, Inc., Opinion
estoppel (we
to
&
No.
state the law as
rett
(Alaska
regard
1967) and
Bertram
ele-
P.2d 331
sider it deficient
Harris, Opinion
reliance)
giving
P.2d 909
in-
No.
ment of
this
(Alaska 1967), presented
possibly
occasions where
misled the
struction could
therefore,
disapproval
jury and,
of such
trial court
we reiterated our
cor-
rectly
proposed
instruction.
instruction.
refused
distinguishable in
Groseth is
that we
requested
Appellee
in-
contends
held that there was no evidence warrant-
was erroneous because evidence
struction
estoppel
of an
issue
submission
prior
condition
jury.
In the
case
bar
evidence
regard
appellant’s negligence
thereto
contributory
was sufficient
causation;
was relevant
to the issue of
jury.
permit
go
issue to
question of
was relevant
danger
procedure
appellant’s knowledge
textually
7.This
of civil
rule
is
light
operation of the boiler in
continued
identical to Rule 51 of the Federal Rules
alleged warnings
from
received
of
appellee’s
had
Civil Procedure.
employees;
evidence
that such
pertinent
provision
Also
is the
of Civil
By
this record.
virtue of
appel-
counsel for
51(b)
part:
Rule
states
lant’s
objections
numerous
point
on this
made during
trial, by
the course of the
vir-
The court shall instruct
on all
tue of
requested instruction, and
matters of law which
neces-
considers
aas
result
objection to the
sary
giving
for their information in
their
court’s
give
requested
refusal to
instruc-
verdict.
tion,
point
was unequivocally brought to
It
re
established
the attention
judge.
of the trial
As we men-
quested
defective,
instruction is
court
earlier,
tioned
in its instructions
trial
duty
give
supply
under no
it or
a cor
court did not at
distinguish
time
be-
Assuming appellant’s
rect instruction.8
re
tween
appellant’s part
acts and omissions on
quested
erroneous,
limiting instruction was
prior
2, 1963,
which occurred
to December
correctly
the trial court
it.
refused to
transpired
events
on Decem-
inquiry.
is not
But
the end
our
appellee’s
ber 2 after
employees
appel-
left
concluded that if
Numerous authorities have
plant.
lant’s
We are of the
that the
defective,
erroneous,
in
judge
charge
in his
should have in-
struction directs
attention to an
the court’s
*5
jury
the
formed
that any
appel-
evidence
jury
issue which the
has not been instructed
negligent
upon
necessary
the
lant’s
but which is
to
the
enable
maintenance of
boiler
case,
jury
intelligently
the
prior
to
determine
“the
not,
to December 2 was
in and of it-
failing
charge
in
to
not be
court’s error
self, a
finding
sufficient
basis for
of con-
request to
excused
defects in a
technical
tributory negligence
appellant’s part.10
charge.”
omission,
Due to this
appellant’s
the issue of
fairly pre-
was not
refusal
We hold that the court’s
jury.
sented
any limiting
to the
in-
Without
give any limiting
concerning
instruction
jury
struction the
could have concluded that
appellant’s allegedly improper maintenance
1963,
contributorily
solely
prior
2,
negligent
was
of the boiler
to December
was
appearing in
error under the circumstances
of its
because
maintenance of the
Holtzoff,
request
Practice
8. 2B Barron &
Federal
the
directs
the court’s atten-
447,
(rev.
point upon
jury
ed.
and Procedure
at
§
tion to a
which the
has
charged
1961).
upon
not been
but
in-
which an
helpful,
struction would be
court’s
following
Richardson
9. See the
decisions:
failing
charge may
error
not be
Co.,
334, 338
334 F.2d
v. Walsh Constr.
excused
quest
technical defects
in a re-
Ry.
1964); Chicago
(3d
N.
Cir.
& W.
charge.
Rieger,
(8th
F.2d
Co. v.
supra
Holtzoff,
Barron &
1964);
United States
Cir.
Oliveras v.
447-448.
tra,
See id.
Con
1963) ;
Co.,
(2d
Lines
F.2d 890
Cir.
Capital
Stewart v.
Transit
Beaty
Center,
Shopping
Inc. Monarch
App.D.C. 346,
(1939),
boiler December The in the lates to breach of war- omission prejudicial ranty cause charge of action. As to court’s to the alleged that “con- action error.12 * * * * * * tracted to examine the appellee’s agree Although we with boiler and to restore it and war- to service prior that evidence of contention ranted that do safe would so admissible negligent maintenance was 16 Appellant spec- workman-like manner.” damage to the issues relevant error, give ifies as trial court’s refusal to case, negate not the neces this fact did requested encompassed instruction which sity drawing distinction court implied warranty of an cause of this breach purpose assisting the for the mentioned This action. instruction read: contributory in its consideration When defendant contracted possess evidence negligence issue.13 When plaintiff remedy undertook with in multiple relevancy "leading to distinct es problem, plaintiff’s boiler the defendant bearing upon is different ferences .or job repairing warranted to do competent toas sues” such evidence is you boiler in a manner. If workmanlike others, incompetent as to some issues but find that the defendant did request, judge, upon should instruct trial manner and this workmanlike imper permissible and damage boiler, resulted agree We evidence.14 missible uses of such defendant is liable to the for the timing judge’s that the with trial view plaintiff’s damages. instructions, instruction, such judge, concluding not to *6 judge’s discretion and left to the should be instruction, proposed appellant’s reasoned every given need be that an instruction not requested the the that substance of instruc- during trial.15 arises the time an occasion sufficiently tion was covered the text of never in But case at bar the was in the another instruction which set the forth permissible uses required as to appel- structed standard of and skill care prior to employees which related evidence lee’s to the services relation negligence. they perform. to in- Rexford, appellant’s employees P.2d 11. v. 43 not In Saslow 395 did the boiler type 1964), (Alaska prior p.m. instructions of the that the boiler to 4 check “could have confused the it was discovered that the when afternoon they firing issues were re the true clouded without water. boiler was quired to decide” were held erroneous. McCormick, 135-136 14. Evidence § Newlin, Inc., P.2d 156 In Veal 367 Accord, Wigmore, (1954); 1 Evidence (Alaska 1961), was made to reference 1940). (3d ed. requirement an instruction must given jury. fairly present set 15. comments forth trial court’s a issue to the See supra. note following 12. authorities distin See allegations prejudicial Appellant’s warranty guishing fur- 16. harmless error from McCoy, appellee assert error: Alaska Brick Co. v. ther examination, perform 1965); (Alaska re- to Zerbinos failed P.2d (Alaska refiring Lewis, pair boiler in a P.2d Knight, it to manner in that workmanlike failed Mitchell v. 1964). (Alaska was not re- boiler ascertain ceiving proper a flow water and that pointed supra, the defendant’s failure to as a result of perform As we out argues in workman-like its contract also this evidence plaintiff’s proof manner, boiler and safe was admissible destroyed negligent customary overheated and was became habitual and/or * ** plaintiff We need not suffered maintenance of the boiler. consequential damages undisputed it is direct this issue because decide * * appellee’s employees refired that after
gg9
upon
judge
separate
considered
cause
action for
struction which the
warranty
implied
repair
breach
to
sufficient
reads as follows:
manner,
a workmanlike
in addition
itself
The defendant held
out to
'
tort cause of action.17 This is an area of
qualified
public generally
burner and
aas
engendered
law which has
considerable
repair
The defendant was
boiler
service.
confusion.18
degree
required
.that
of care
to exercise
job for which it
handling
and skill in
appropriate starting point,
An
we
plaintiff
was called
rea-
believe, is to isolate
factors which are
those
sonably prudent,
qualified
skilled
pertinent
not
of this issue.
resolution
exercise
man
under
would
indicated,
As we have
are not
we
concerned
If
the defendant
the circumstances.
purported
here with a
express
of an
breach
degree
and skill
failed to use that
of care
Nor are
or contract condition.19
task,
performing
implied
any statutory
concerned with
and is
plaintiff
toward the
liable to
warranties such
are found in our
Uni
damages,
plaintiff’s
for the
provisions relating
form Commercial Code
proximate
such
Further,
goods.20
sale of
in this area
plaintiff’s damage.
liability
law strict
has not been im
posed upon
agreed
those
to- fur
who
whether,
upon to decide
We are called
nish labor
consider
record,
or services.21 We also
light of the
of this
circumstances
appropriate
mention
appellant, under
service contract
its oral
right
un
to maintain a tort cause
action
appellee,
right
go
with
had the
18. See
19.
Dunnavan,
in which few courts have made
we were asked to resolve whether
applicable.
Products,
697,
paying guest
cial Code
tract and tort
field,
tempt
where the author writes:
1964), relationship between
impression
cable statute of limitations
tort or
case involved
entrance of the defendant’s
(1946).
AS
in
is a merchant with
Compare
that kind. Under this section the serv-
goods
This
usage
Marler,
Implied warranty: merchantability;-
a
dispositive
modified
377
45.05.096 of
still in the
Prosser,
contract for their sale if
to chart a
contract statute
shall be merchantable is
provides:
Inc.,
P.2d
26 Wash.2d
tioned and effect care can be found to standard of Precedent Whether tort per imposed to render considered, duty of care person undertakes where is duty perform warranty implied has the he workmanlike sonal services applicable manner. in a workmanlike performance is taken as such services in standard, a workmanlike duty perform resultant standard our view This provision of the implied required appellee’s employees is manner care an ex party’s the absence identical. agreement circumstances of this case is There effect.23 is press agreement to that care the standard of In both instances party theory holding that a imposed also authorities under either law and are duty contractor’s a breach of a who asserts no difference in standard there is customary relationship discussing between tlie which is 22. In character be of the action, performing it is stated contract contracts the kind tort 18, Prosser, op. supra question. 639 cit. Harzfeld’s, Inc. Elevator that: v. Otis See principle Co., F.Supp. (W.D.Mo. 480, seems to 484 114 emerged 1953) ; Estate, Unit- from the Kan. decisions In re Talbott’s 184 liability 501, (1959). there will States . P.2d ed 337 986 misperformance of a in tort for Productions, Aegis Arriflex 24. In Inc. v. liability there would be tract whenever 639, Corp. America, N. 25 A.D.2d 268 gratutious performance without 185, (1966), said: Y.S.24 187 the court say, whenever contract —which is to sales of are limited Warranties misperformance a forsee- involves such able, goods. attaches No harm to the risk of unreasonable * * performance of *. If a service plaintiff. interests performed negligently, the service (Second) of Torts § See Restatement neg accruing cause of action is for that (1965) which 404 reads: ligence. independent contractor as an One who Accord, Builders Audlane Lumber & makes, repairs rebuilds, negligently Associates, Supply, v. D. E. Britt Inc. subject for another is a chattel Inc., 333, (Fla.App.1964); 335 168 So.2d imposed upon liability as that same Quitmeyer Theroux, 302, 144 Mont. v. chattels. manufacturers of 965, (1964); P.2d Firemen’s 395 969 92, (Ky. Dell, 284 S.W.2d 96 Jewell High Sprinkler Point Mut. Ins. Co. v. Lines, Truck & Southern Central 134, 53, S.E.2d 266 N.C. 146 60 Truck, Inc., 317 Inc. v. Westfall GMC (1966); Hartsell, N.C. Peele v. 258 (Mo.App.1958); 841, 844-846 S.W.2d Similarly, (1963). 129 war S.E.2d 97 N.J.Super. 130, Daniels, 122 Zierer v. 40 ranties will not be where the (1956). A.2d 378-379 pro services in are those of Goldman, George Gagne 333 Mass. fessional or consultant character. Miller, (1956); Bertran, Brush v. N.E.2d 43 Cal.2d (Mo.App.1948); (1954); R. Lipshie, Carr v. A.D.2d 208 S.W.2d N.J.Super. Brown, aff’d, (1959), & Co. v. N. Krevolin 85, N.Y.S.2d 564 *8 255, (1952); 983, 62, Gore v. 89 A.2d 257 Y.2d 218 N.Y.S.2d 176 N.E.2d 317, Sindelar, (1961). N.B. Ohio Law Abst. 48 74 512 App.1947); following 414, (Ohio v. 416 Brown 2d See the authorities which dis 1116, 122, Bakins, 220 Or. 348 P.2d both and contract National cuss tort actions: Williston, (1960) and 4 Con- 1117-1120 Fi re Ins. of Co. Hartford West (rev. 1936), gate E.Supp. 835, ed. tracts at 2792 Constr. 227 837- (D.Del.1964); where it is stated: Fire of Phila 838 Ass’n emjjloyee’s promise service, delphia Mfg. Co., of v. Allis Chalmers implied, express F.Supp. 335, (N.D.Iowa or whether includes 348-349 obligation Marks, do which he the work for Eads v. 257, 39 Cal.2d employed (1952); City diligently in a reason and Garden Eloral Co. ably way, equally Hunt, skillful and this is 126 Mont. 255 P.2d independent (1953). true of an contractor. n ** employ of [I]n contract implied ment it is shall the services already rendering the We have alluded to our conclu party required of the care sion that under either the tort or contract services. personal theory required ap- care standard of grava gist, Characterization theory pellee same. either is the Under men, appellant’s cause action imposed care is standard of one is not free of of this case context factual parties’ term law not is one an action Whether difficulties.25 agreement.27 In such a situation we be significant tort or contract gravamen lieve that the law ramifications.26 procedural and substantive negligence. suit is tort for Jackson argu appellant’s central case at bar In the Torpedo Central Co.28the said: court support its contention that was ment in a tort ‘If the go complained on both transaction entitled to of had breach-of-an-implied- origin in a placed action and contract which cause of parties that, in such warranty-of-workmanlike-quality attempt- a relation perform service, would promised action is that committed, recovery under the latter. tort was be a bar to then the breach not gravamen the contract is not that under are of We suit. The contract in such case is mere the trial did not the facts of this case court inducement, creating things the state of refusing err in to instruct on tort, which furnishes the occasion of the cause of action. We are remedy all such cases is an ac- persuaded that in these circumstances illustration, tion on the case. For take independent there exists an cause of action carpenter the contract of implied warranty, for breach of an or house, implication of his contract contributory reliance bring that he will to the service reason- negligence distinction is determinative. faith, skill, good diligence. able Prosser, op. supra 25. In cit. note professional, any other so-called does 642 the author states: tangible his not ‘warrant’ service Frequently, where either tort or con- evidence of his skill to be ‘merchant- tract will lie and inconsistent rules able’ or use.’ ‘fit an intended These apply ques- actions, law to the two uniquely applicable goods. are terms plaintiff may tion arises whether design Bather, preparation freely bring, elect which he will specifications and struction, as the basis of con- whether court must itself decide engineer or architect pleaded proved that on the facts ‘warrants’ that he will or has exercised ‘gist’ ‘gravamen’ according of his cause of skill to a certain standard his action is one or the care, other. As reasonably acted the decisions are in neglect. considerable con- without Breach ‘war- of this fusion, generalize. and it ranty’ negligent. is difficult to occurs if he Ac- cordingly, the elements of an action for Prosser, op. supra 26. See cit. the ‘im- and for breach of 639-643 where the author dif- alludes to plied warranty’ are the same. The use applicable ferences in statutes limita- ‘implied warranty’ in of the term these damages tions and recoverable between merely introduces circumstances types the two of actions. confusion into an area of law where confusion abounds. Supply, 27. In Audlane Lumber & Builders Jenkins, Moss See Boscoe Co. v. 55 Cal. Associates, Inc., Inc. v. D. E. Britt App.2d 369, (1942); 130 P.2d (Fla.App.1964), court So.2d Distributing Co., Garcia v. Color Tile stated: *9 (1965); 570, 145, N.M. 408 P.2d 148 respect alleged ‘implied With Scott, 851, Lewis v. 54 P.2d Wash.2d 341 warranty fitness,’ of we see no reason 488, (1959); Peterson v. Sinclair 492-493 application theory for of this in cir- ining Co., 576, Ref 20 Wis.2d 123 N.W involving professional cumstances liabil- 479, (1963). .2d 482-484 ity. however, court, Unlike the lower 245, 426, 428, we do nar- not base our decision on the 46 28. 117 Okl. 246 P. A.L. ground engineer, privity. (1926). row An or R. 338 842 *
* *
lie, by
of care
in the
[S]uppose
want
decisions
warranties
area
skill,
material,
destroys
quality
personal
or
or
workmanlike
wastes
service
unskillfully
repairs
so
as
contracts discuss what defenses are avail-
makes the
house;
damage
portions
type
able to
of cause of
As-
other
action.31
tort,
only
suming
agree
posi-
fur-
is
contract
we
with
for
separate warranty
that a
of ac-
nished
occasion.29
tion
subsists,
think that the defense of
we
there
decisions
Although
are
contributory neligence,
de-
or the related
im
a
of an
have characterized
breach
risk,
ap-
assumption
fense of
be
would
quality as a
plied warranty of workmanlike
analyze
plicable.32
As we
the facts
action,
persuaded that
are not
contract
a
(still assuming
case
existence
warranty
action),
also
gist
in this case the
lawsuit
cause of
had
it a
pertaining
available to
defense
any,
Few,
if
is other than for tort.30
Quitmeyer
bar to
action for
of war-
breach
Theroux,
Mont.
v.
144
29. See
candy
ranty.
wormy
(1964);
if he eats a
Thus
302,
965,
395 P.2d
969-970
bar,
negligently
defec-
680,
or drives
on a
Hartsell,
S.E.
v.
258 N.C.
129
Peele
tire,
being
tive
defect,
without
aware of
97,
Barton,
(1963);
200
2d
99
Morriss v.
recovery
barred,
is not
even
4,
451,
(1948);
his
Mur
Old.
190 P.2d
457
though
ought
it.
he
entirely
to have
ray
Co.,
discovered
& Sur.
Wash.
v. Aetna Cas.
61
This is
consistent
the rule
(1963)
with
618,
731,
2d
P.2d
733
379
.
involving
applied
liability
to other strict
Note,
Implied
Warranties
Service
animals,
abnormally dangerous activ-
Contracts,
680
Dame Law.
39 Notre
defect,
he
ities. But
discovers the
(1964).
it,
danger arising
or knows the
from
liability
products
distinguish the
We
deliberately
proceeds
nevertheless
e.,
liability
case)
(i.
line of
involv
strict
by making
to encounter it
product,
use of
ing
goods.
See Vandermark
defective
is
his conduct
the kind of
Co.,
256,
Cal.
61 Cal.2d
37
Ford Motor
tributory negligence
overlaps
as-
(1964);
168,
Rptr. 896,
P.2d
170-172
391
theory
sumption
risk;
either
Inc.,
Products,
Yuba Power
Greenman v.
recovery
his
is barred.
is con-
This too
Cal.Rptr.
57,
697,
P.2d
377
Cal.2d
59
897,
27
sistent with the law
to other strict
(1962);
Hobbs-Se
Aced
900-901
liability.
yet no
has
There
been
573,
Co.,
Plumbing
12
sack
55 Cal.2d
involving
liability
the strict
in tort
case
(1961);
Cal.Rptr. 257,
897,
P.2d
902
360
appears
warranty,
which discards
but it
Perfecting
Devel
Co. v. Product
Service
quite
will
certain
same rules
Co.,
660,
opment
S.E.
136
261 N.C.
Sales
apply.
(1964).
Prosser
also note as
2d 56
points
We
always possible
plain-
It
Fall of the Citadel
out
in The
may
ab-
tiff’s
of an
consist
Consumer),
Liability
(Strict
50
product,
whether
normal use of
791,
(1966),
800-805
Minn.L.Rev.
not,
discovery
danger
there
out
courts
worked
essence the
recovery
be barred on
concept
prod
liability
in the
tort-strict
ground.
liability
than
contract-
rather
ucts
warranty
area
Leasing
See
v. Hertz
&
Cintrone
Truck
liability.
basis
Service,
434,
Rental
A.2d
45 N.J.
212
point
deal
are those cases
Also not in
769,
(1965).
products-lia
782
There are
fitness
with
bility
cases where the defense
con
purpose.
Cov
See Kuitems v.
intended
tributory negligence
inap
to be
said
ell,
Cal.App.2d 482, 231
plicable.
Chapman,
304 F.2d
Brown
(1951).
149, 153,
(9th
1962);
We, therefore, superior hold that the trial court For foregoing reasons the correctly ap- to instruct the on court’s refusal refused to instruct the breach n pellant’s implied warranty implied warranty theory cause of action. is affirmed. We believe that the standard care in- superior We reverse as to the fail- court’s struction, gave give any trial court ure limiting instruction in re- jury, adequately presented appellant’s gard contributory negligence case issue. jury. conclusion, In reaching The case is remanded for new trial. reiterate our that under the facts NESBETT, Chief case, (concurring). asserted war- Justice ranty-contract cause of action in sub- I ority maj concur in the result. stance a tort cause of action to which nor- reaches, although I in am not accord with warranty issues. wise it was unsafe to omitted to follow which, feat half hour burning up; structions boiler must be appellant sity operated safely cleaned; (1965), has been which his attention was its defective from failure to follow use directions to liability eases based on knowledge, mishap use and the like. bar about his The various texts and cases referred to continued to tion with therein Compare press Appellee’s position authorities As we repairs assumption to blow down contributory confusion any recovery subject or abuse plaintiff’s recovery if believed warned of the which involved points action. N.J. reveal during that pointed implied warranty Maiorino expressed personal injury, were defect that it warned of the neces- actual or consequent injury out that it advised condition, availability the boiler various use the watched only temporary There the court said: negligence it were not risk, in the out 214 A.2d under operation seeming product was that followed. v. Weco Products lines operate most defensive of its instructions products liability- that a danger jurisdictions constructive, jury, where times in terms product, brings or where the breach of plainly of the defense product hourly, Cintrone, could not jurisdictions least conflict on of fitness. party thoroughly would de- where if its combina- products Appellee his resulted concept prevent advised called; boiler; totally other- every with mis- can- are ex- in- be hap of the consumer should not be extended: with the defect in the defendant’s so as to trine of strict of reasonable care seller is entitled to duct as a of his well known all the variant notions cited eases as a basis for ficiently comprehensive not cover. liability fails to act as a lessness cannot be fect of warranty gives man in connection with contributes to his strict sequences his hands under circumstances tial the view that where a plaintiff ranted the defendant came cases there is er for his consequences of defendant’s breach of care, [*] contributory carelessness. When lessor, [*] damages. Simply and his recover for a loss that convinced that averted rise to strict liability [*] product. product plaintiff’s in negate considering cannot be and such conduct or breach of the proximate recovery personal in its broad sense is suf- by contributory negligence. short, warranty injury. principle plaintiff’s nothing on the maker or vendor liability responsible or one The reach of in our injury, own conduct we be- expect joined permitted separated reasonably when his own lack A manufacturer or injury liability, expectation. cause of the mis- in or strict stated, expressed exercise of due plaintiff own problem use justify holding he cannot re- tort judgment a normal use or concurred If such care- contributory proximately duty concept encompass comes proximate we are of to recov- from the imposing he the in refusing prudent sequen- liability acts or a war- justice in the of ef- favor prod- could doc- into’ *11 The portion 51(a). Rule court has of Civil disposing the method of limiting instruction found that a sim- also instruction. limiting should ilar to the instruction have majority understanding that the my It is requirements given of that been under por- modify that opinion is not intended portion 51(b) Rule which states: of Civil 51(a) Rule which states: of Civil on all The shall instruct court giving assign as error party No it considers matters law which neces- give un- an instruction failure to or the sary giving for their information their objects thereto before the less verdict. verdict, stating dis- its retires consider foregoing my opinion, would be objects tinctly the matter to which he on the issue. am- all need be said The objection. grounds of his and the pres- biguity majority inapplicability ent objection registered by appellant to form and the factual many re- of the authorities cited footnotes failure of the court require
quested by this 8 and'9 will clarification instruction has been found fu- quoted ture.1 to have satisfied above court 1958); (8th decisions con federal 259 F.2d Nesbit Cir. Numerous Everette, (5th 51 of the Federal Rules of F.2d 59 Cir. strued Rule Felgenhau Procedure, R. which is similar & O. Baltimore Civil 1945). quoted provisions er, (8th Civil Cir. Alaska’s F.2d above e.g., Cherry Stedman, 51(a). Rule See