Green v. American Tobacco Co.

• Decision Date: 05 June 1963
• Docket Number: No. 31960,31960
• Citation: 154 So.2d 169
• Parties: Edwin GREEN, Jr., as Administrator of the Estate of Edwin Green, Deceased, and Mary Green, Appellants, v. The AMERICAN TOBACCO COMPANY, Appellee.
• Court: Florida Supreme Court

Page 169

154 So.2d 169

Edwin GREEN, Jr., as Administrator of the Estate of Edwin Green, Deceased, and Mary Green, Appellants, v. The AMERICAN TOBACCO COMPANY, Appellee.

No. 31960.

Supreme Court of Florida.

June 5, 1963.

Neal Rutledge, Milledge, Rutledge & Milledge, Lawrence V. Hastings, Miami, Irma Feder, Miami Beach, for appellants.

Hervey Yancey, Samuel A. Brodnax, Jr., Smathers & Thompson, Miami, Ralph D. Ray, Melvin D. Goodman, Janet C. Brown, New York City, for appellee.

DREW, Justice.

Pursuant to statutory certification procedure ¹ the United States Court of Appeals for the Fifth Circuit has presented to this Court a question concerning implied warranty liability for lack of merchantability or fitness under Florida law, arising in an action for wrongful death consolidated with a suit instituted by the decedent Green prior to his death from lung cancer in 1958. The trial of the cause resulted in a general verdict for defendant, and the jury also answered a number of special interrogatories hereinafter detailed. Upon appeal the Court of Appeals affirmed, 304 F.2d 70, one judge dissenting, but in recognition of the controlling effect of Florida law in a diversity action a petition for rehearing was granted 'to the extent necessary to certify [the following] question or proposition of the laws of Florida' to this Court:

'Does the law of Florida impose on a manufacturer and distributor of cigarettes absolute liability, as for breach of implied warranty, for death caused by using such cigarettes from 1924 or 1925 until February 1, 1956, the cancer having developed prior to February 1, 1956, and the death occurring February 25, 1958, when the defendant manufacturer and distributor could not on, or prior to, February 1, 1956, by the reasonable application of human skill and foresight, have known that users of such cigarettes would be endangered, by the inhalation of the main stream smoke from such cigarettes, of contracting cancer of the lung?'

We note at the outset that all questions of causation and privity are foreclosed by the terms of the question certified, which expressly assumes, as found by the jury's response to interrogatories in the trial of the cause, that defendant's cigarettes caused plaintiff's fatal cancer. We conclude also that the question thus framed does not present for our consideration the issue of whether the cigarettes which caused a cancer in this particular instance were as a matter of law unmerchantable ² in Florida under the stated conditions, nor does it request a statement of the scope of warranty implied in the circumstances of this case. The inquiry before us is, instead, limited to the status of Florida law upon imposition of liability 'as for breach of implied warranty' when the manufacturer or warrantor 'could not, by the reasonable application of human skill and foresight, have known of the danger.' 2(a) By response to a specific interrogatory the jury in this case found that the defendant, by this standard, could not at the pertinent time have known of the dnager involved. The general verdict for defendnat was responsive to the trial court's instruction that 'implied warranty does not cover substances in the manufactured product the harmful effects of which no developed human skill or foresight can afford knowledge.'

Upon the critical point, our decisions conclusively establish the principle that a manufacturer's or seller's actual knowledge or opportunity for knowledge of a defective or unwholesome condition is wholly irrelevant to his liability on the theory of implied warranty, and the question certified must therefore be answered in the affirmative. As already indicated, we do not feel that the inquiry in terms either requests a response on the ultimate issue of liability in this case or requires any comment on the disposition of issues between the court and jury under the law relating to scope and breach of the implied warranty that a product supplied for human consumption shall be reasonably fit and wholesome for that general purpose.

Our conclusion on the point presented rests not only upon a determination, acknowledged in the opinion of the Court of Appeals herein, that there is no direct and affirmative precedent in our law for the 'human skill and foresight' limitation on warranty liability, but also upon what seem to us clear and definitive pronouncements in our case law negativing this limitation. One of the more recent and exhaustive opinions is that in Carter v. Hector Supply Co. ³ This Court in that case expressly overruled the holding of the court of appeal 'that proof of actual or implied knowledge of a defect on the part of a [defendant] is essential to his liability on an implied warranty.' ⁴ 'Implied knowledge' refers clearly to the situation where a defendant could, with reasonable diligence or 'application of human skill and foresight,' have had knowledge. The decision in Carter on this point of law therefore effectively negates any idea that proof of lack of opportunity for knowledge of a harmful condition might prevent implied warranty liability.

No reasonable distinction can, in our opinion, be made between the physical or practical impossibility of obtaining knowledge of a dangerous condition, and scientific inability resulting from a current lack of human knowledge and skill. Sencer v. Carl's Markets ⁵ imposed upon a dealer liability for sale of a can of sardines which he could not have known was dangerous without opening a sealed container and thereby destroying the product's salability. The opinion quotes with approval from text authorities ⁶ explaining the prevailing rule that the fact that a defect could not possibly have been known or discovered by a defendant does not prevent liability, because 'the same argument * * * may be made in regard to any implied warranty, not only of food * * * where the buyer must have been aware that the sller could not discover a defect if it existed.' This case illustrates, we think, that whatever may be the scope of an implied warranty in a given case, the basis of such liability is the undertaking or agreement, attributed by law, to be responsible in the event the thing sold is not in fact merchantable or fit for its ordinary use or purposes. The assumption of responsibility, even implied assumption, is not, of course, necessarily co-equivalent with skill and knowledge. To the extent that our cases take note of a defendant's opportunity for knowledge, ⁷ it is merely in recognition of a supplier's superior position, relative to the purchasing public, as a factor affecting policy considerations rather than determining the limits of implied warranty liability in a particular situation.

The Florida decisions ⁸ recognize a distinction between the ordinary merchantability warranty involved in the instant case and a warranty of fitness for a particular purpose which 'must and necessarily does depend upon whether or not the buyer relied upon his own judgment at the time of the purchase or relied on the skill or judgment of the seller.' The opinions refer to the classical statement of implied warranty law in Benjamin on Sales, ⁹ containing a full discussion of the derivation of these principles governing implied warranties in the common law. The decision in Lambert v. Sistrunk, ¹⁰ denying a merchant's liability for sale of a defective stepladder, is an application of one of the limiting principles discussed by Benjamin and incorporated in statutes on this subject: If the defect is discoverable by simple observation then the law will imply no warranty against its existence. The opinion in that case...