304 F.2d 70 (5th Cir. 1962), 19003, Green v. American Tobacco Co.

Docket Nº:19003.
Citation:304 F.2d 70
Party Name:Edwin GREEN, Jr., as Administrator of the Estate of Edwin Green, Deceased, and Mary Green, Appellants, v. AMERICAN TOBACCO COMPANY, Appellee.
Case Date:May 02, 1962
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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304 F.2d 70 (5th Cir. 1962)

Edwin GREEN, Jr., as Administrator of the Estate of Edwin Green, Deceased, and Mary Green, Appellants,



No. 19003.

United States Court of Appeals, Fifth Circuit.

May 2, 1962

On Petition for Rehearing June 20, 1962.

Page 71

Lawrence V. Hastings, Neal P. Rutledge, Miami, Fla., for appellants.

Samuel A. Brodnax, Jr., Hervey Yancey, Miami, Fla., Ralph D. Ray, New York City, for appellee.

Before RIVES, CAMERON and BELL, Circuit Judges.

RIVES, Circuit Judge.

Edwin Green, Sr., brought suit against American Tobacco Company in December 1957, claiming that he had incurred lung cancer as a result of smoking defendant's product, Lucky Strike cigarettes. A few months later, on February 25, 1958, Mr. Green died. Under the Florida Survival Statute, 1 the claim survived, and Mr. Green's son, Edwin Green, Jr., appointed administrator of his estate, was substituted as plaintiff. 2 The widow, Mary Green, also filed suit under the Florida Wrongful Death Statute. 3 The two suits were consolidated by order of the district court, and came on for jury trial upon an amended complaint which asserted in separate counts six theories of liability: (1) Breach of Implied Warranty; (2) Breach of Express Warranty; (3) Negligence; (4) Misrepresentation; (5) Battery; and (6) Violation of the Federal Food, Drug and Cosmetic Act, the Federal Trade Commission Act, and the Florida Food, Drug and Cosmetic Act.

At the close of the plaintiffs' evidence, in a ruling not questioned on appeal, the district court sustained the defendant's motion for a directed verdict on all counts except Count 1, breach of implied warranty, and Count 3, negligence. At the close of all the evidence, the defendant renewed its motion for directed verdict on those two counts. The court reserved its ruling on that motion, and submitted the cases to the jury upon the two theories of liability, breach of implied warranty and negligence. The jury returned general verdicts for the defendant, and answered written interrogatories submitted under Rule 49(b), Federal Rules of Civil Procedure, 28 U.S.C.A., as follows:

'(1) Did the decedent Green have primary cancer in his left lung?

'Yes X

'No ----------

'If your answer is 'Yes,' then

'(2) Was the cancer in his left lung the cause or one of the causes of his death?

'Yes X

'No ----------

'If your answer to the above question is 'yes,' then

'(3) Was the smoking of Lucky Strike cigarettes on the part of the Decedent, green, a proximate cause or one of the proximate causes of

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the development of cancer in his left lung?

'Yes X

'No ----------

'If your answer to the above question is 'yes,' then

'(4) Could the defendant on, or prior to, February 1, 1956, by the reasonable application of human skill and foresight have known that users of Lucky Strike cigarettes, such as the decedent green would be endangered, by the inhalation of the main stream smoke from Lucky Strike cigarettes, of contracting cancer of the lung?

'Yes ----------

'No X'

Upon the jury's verdict, judgment in each case was entered for the defendant. A cost judgment against the plaintiffs was entered in the amount of $1,969.74, which included $900.00 for expert witness fees assessed at the rate of $100.00 each.

Upon appeal, the plaintiffs present no questions as to the rulings on Count 3, negligence, but restrict their contentions to the theory of Count 1, implied warranty. As stated in their brief:

'Three question only are presented by these appeals:

'(1) Under the Florida doctrine of implied warranty are not the plaintiffs entitled to judgment as a matter of law, as requested in their post-trial motions under Rule 49(b), based upon the jury's special findings that the smoking of defendant's Lucky Strike cigarettes proximately caused the plaintiffs' decedent to contract a fatal case of cancer of the lung?

'(2) Did not the trial Judge err in refusing to grant plaintiffs' requested charges on the issue of implied warranty and in charging instead that the implied warranty of fitness which a manufacturer under Florida law is held to make depends upon the ability of the manufacturer to know about the harmful substances in its product?

'(3) Did not the trial Judge err in taxing as costs against the plaintiffs a total of nine expert witness fees in the amount of $100.00 per expert, such sums being beyond the amount allowable and authorized by Federal statute?'

Edwin Green, Sr., began smoking Lucky strike cigarettes in 1924 or 1925 when he was about 16 years old. He smoked from one to three packages per day until early 1956, when his physician advised him that he had contracted cancer of the left lung. By the time of diagnosis the cancer was no longer operable or curable. Ameliorating treatment was given, but the cancer proceeded on its typical, fatal course, and resulted in Mr. Green's death on February 25, 1958.

The testimony at the trial was concerned principally with the issues of whether Mr. Green's death was caused by a cancer originating in the lung, that is, primary lung cancer, and whether that cancer was caused by his smoking of Lucky Strike cigarettes. Eight eminent medical doctors testified on each side. They were in sharp disagreement. The district court properly submitted to the jury the questions of medical causation. 4 Their testimony was also in conflict on whether by February 1, 1956, when it was first discovered that Mr. Green had lung cancer, scientific knowledge had progressed to such an extent that the defendant could, by reasonable foresight, have learned that the smoking of cigarettes was a probable cause of lung cancer.

Plaintiff-appellants state their main insistence as follows:

'The fundamental point upon which the plaintiffs rely on this appeal is that the Trial Court erred, as a matter of law, in ruling that the

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implied warranty of fitness which a manufacturer of products for human consumption is held by Florida law to make does not cover deleterious substances in its products, the harmful effects of which are unknown to the manufacturer and could not have been known by any developed human skill or foresight. Plaintiffs contend that the knowledge of the manufacturer is irrelevant and immaterial to the manufacturer's liability on an implied warranty under Florida law, and that a manufacturer's implied warranty is not limited to harmful substances of which the manufacturer either had knowledge, or should have had knowledge or could have had knowledge according to developed human skill and foresight.'

With that insistence we cannot agree. To the contrary, we are convinced that the doctrine of implied warranty by a manufacturer and seller of the qualities and fitness of the thing sold for the purpose for which it is intended or desired is founded on his superior opportunity to gain knowledge of the product and to form a judgment of its fitness. That principle can clearly be deduced from all of the Florida cases on implied warranty whether by the manufacturer or by the dealer.

In the comparatively early case of Berger v. E. Berger & Co., 1918, 76 Fla. 503, 80 So. 296, a dealer was held liable on an implied warranty that a lot of lumber was fit for the purposes for which the dealer knew that it was purchased. The court quoted at some length a passage from Benjamin on Sales (5th ed.) 595, beginning with the sentence: 'An implied warranty, or as it is called, a covenant in law as distinguished from an express contract or express warranty, really is in all cases founded on the presumed intention of the parties and upon reason.' 80 So. at 299. The court concluded:

'We think the rule is well established which embodies the principle above quoted that there a person contracts to supply an article in which he deals for a particular purpose, knowing the purpose for which he supplies it and that the purchaser has no opportunity to inspect the article, but relies upon the judgment of the seller, there is an implied condition or 'warranty,' as it is called, that the article is fit for the purpose to which it is to be applied.'

In Smith v. Burdine's Inc., 1940, 144 Fla. 500, 198 So. 223, 227, 229, 131 A.L.R. 115, a buyer requested of a saleslady at a cosmetic counter a good lipstick. The saleslady selected a certain lipstick and recommended it for its intended use. The lipstick contained a poisonous substance which allegedly injured the health of the buyer. In an action for breach of implied warranty of fitness the trial court directed a verdict for the defendant. The Florida Supreme Court reversed and held that whether the buyer relied on the judgment of the saleslady was for the jury, saying:

'The existence or non existence of an implied warranty of fitness for a particular purpose 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, and this is a question of fact to be determined by a jury under appropriate instructions.' (198 So. 229.)

In Blanton v. Cudahy Packing Co., 1944, 154 Fla. 872, 19 So.2d 313, a manufacturer or canner of a meat product, known as 'Tang,' sold to the retailer in sealed packages or cans was held liable to the ultimate consumer for breach of an implied warranty that such product is wholesome and fit for human consumption. The court said in part:

'The implied warranty theory of liability comports with the general trend of the best reasoned cases. The manufacturer knows the content and quality of...

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