317 F.2d 19 (5th Cir. 1963), 18903, Lartigue v. R. J. Reynolds Tobacco Co.

Docket Nº:18903.
Citation:317 F.2d 19
Party Name:Victoria St. Pierre LARTIGUE, Appellant, v. R. J. REYNOLDS TOBACCO COMPANY and Liggett and Myers Tobacco Company,Appellees.
Case Date:April 19, 1963
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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317 F.2d 19 (5th Cir. 1963)

Victoria St. Pierre LARTIGUE, Appellant,

v.

R. J. REYNOLDS TOBACCO COMPANY and Liggett and Myers Tobacco Company,Appellees.

No. 18903.

United States Court of Appeals, Fifth Circuit.

April 19, 1963

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[Copyrighted Material Omitted]

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         H. Alva Brumfield, Baton Rouge, La., Melvin M. Belli, Sr., San Francisco, Cal., Sylvia Roberts, Baton Rouge, La., for appellant.

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         Harry B. Kelleher, Harry McCall, Jr., New Orleans, La., Frederick P. Haas, Theodore Kiendl, Porter R. Chandler, Edwin J. Jacob, New York City, for appellees.

         Before HUTCHESON, RIVES, and WISDOM, Circuit Judges.

         WISDOM, Circuit Judge.

          The Court's decision on this appeal turns on the nature and scope of a cigarette manufacturer's warranty of its product. The plaintiff's husband, Frank J. Lartigue, died of cancer. The complaint alleges that the cancer came from smoking the defendants' tobacco products, Picayune cigarettes and King Bee tobacco, manufactured by Liggett & Myers, and Camel cigarettes, manufactured by Reynolds. 1 The plaintiff bases her claim on breach of warranty and negligence. The defendants pleaded a general denial, contributory negligence, and assumption of risk. After a long trial, the jury gave a general verdict for the tobacco companies. The plaintiff appeals, mainly on the ground that the trial judge erred in not instructing the jury properly on the defendants' implied warranty of wholesomeness, a warranty distinct from the warranty against hidden vices implied in every sale as provided in the Louisiana Civil Code. This is a diversity suit; Louisiana law controls the case. We affirm.

         I.

         Frank J. Lartigue, a resident of New Orleans, started smoking Picayunes in 1899 when he was nine years old. He continued to smoke Picayunes and also King Bee tobacco for 55 years until October 5, 1954, when he was operated on for cancer of the larynx. In 1944 he began smoking Camels, along with King Bee and Picayunes. His wife, who married him in 1917, testified that he was a 'cigarette fiend.' As long as she knew him he smoked at least two packs a day, lit one cigarette from another, and smoked them down to small butts. As early as 1934, 'all the doctors' had advised him not to smoke. October 5, 1954, Lartigue was operated for cancer of the larynx. The larynx, all of the right vocal card, and part of the left vocal cord were removed. Medical reports showed that he had a squamous cell cancer and evidence of leukosplahia. He was discharged from the hospital October 12, 1954. December 12 he returned to the hospital; he had lung cancer. He remained in the Ochsner Clinic Foundation Hospital in New Orleans until February 25, 1955, and then entered the Veterans Hospital in Houston, June 21. There he died July 13, 1955, in his sixty-fifth year. An autopsy showed that the cause of death was carcinoma of the tight lung, with extension to chest wall and suppression of superior vena cava.

         Lartigue's long medical history shows that for over thirty-five years he was physically weak, racked by coughing and a sore throat. His army records reflect that he had measles, pertussis, and diptheria as a child; malaria in 1917; influenza in 1918; chronic tonsilitis, pyorrhea, and muscular pain; gonorrhea in 1910 and tertiary syphilis in 1918. Later, he had tuberculosis. Lartigue had rheumatism as early as 1934. He had all of his teeth pulled. The plaintiff offered evidence that none of these ills cause or aggravate cancer; the defendant countered with evidence that, except for rheumatism, all of these ills aggravate and are suspected causes of cancer.

          The plaintiff contends that the jury's verdict was contrary to the manifest weight of the evidence. The record consists of twenty volumes, not to speak of exhibits, most of it devoted to medical opinion. The jury had the benefit of chemical studies, epidemiological studies, reports of animal experiments, pathological evidence, reports of clinical observations, and the testimony of renowned

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doctors. The plaintiff made a convincing case, in general, for the causal connection between tobacco and cancer and, in particular, for the causal connection between Lartigue's smoking and his cancer. The defendants made a convincing case for the lack of any causal connection. The district judge, in the course of the hearing on the plaintiff's motion for a new trial, expressed the view:

         'I regret now I did not propound the interrogatory with respect to the connection between the smoking and his lung cancer because I'm satisfied the jury never got beyond that question and I know-- I'm sure at least that they simply decided the plaintiff had failed to prove the causal connection between his smoking and his lung cancer but that is water under the bridge now.'

         We consider it unnecessary in this opinion to summarize the evidence. We find substantial evidence in the record to support the verdict.

         II.

         The appellant's central attack on the trial judge's charge is that the instructions on the nature of implied warranty were contrary to Louisiana law. The appellant's flank attack is that the instructions on warranty were so interspersed with principles of negligence as to be misleading.

         The appellant relies on the following extract from the charge, quoting the underscored language to support her main attack:

         'I will give this special charge, 30: Plaintiff also claims that the Defendants are liable to her for the death of her husband because, as she contends, their products caused or contributed to the causing of cancer from which he died, and thereby, breached the warranty of general quality which is implied by Louisiana law in every sale. The warranty of general quality which is implied by Louisiana law is only as to those qualities of which a manufacturer can have knowledge in the exercise of reasonable diligence, the absence of which causes damage that is reasonably foreseeable.

         'The manufacturer of products which are offered for sale to the public in their original package for human consumption or use, impliedly warrants that its products are reasonably wholesome or fit for the purpose for which they are sold. But such implied warranty does not cover substances in the manufactured products, the harmful effects of which no developed human skill or foresight can afford.

         'You are instructed that the manufacturer who makes a product is under a duty first to exercise reasonable care in testing and inspecting its finished product to determine whether such products are reasonably safe for their intended use. And if he fails to do so and injury proximately results, he in such instance would be liable for the injury. A party is liable for all the consequences which reasonably flow from or follow the wrongful act, of they be established. Whether actually contemplated or not, and the wrongful act being established, the liability extends to all the consequences that naturally and proximately flow from such act.

         'If you find that at the time Mr. Lartigue's cancer started, the cigarettes manufactured by the defendants were usable as such, and that the state of medical knowledge was then such that the defendants could not have anticipated in the exercise on reasonable care that their products would cause cancer, then your verdict on the issue of implied warranty, would be in favor of the defendants.

         'Now, in weighing the actions of the defendants and plaintiff's deceased husband, Frank Lartigue in this case, in so far as negligence on the part of the defendants and contributory negligence and assumption

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of the risk on the part of the plaintiff is concerned, you should consider that even if defendants did not know of the dangerous substances in their products, you should consider from the evidence whether they should have taken steps to ascertain the effects of their products when used for human use, especially as to whether their products would cause or be a contributing cause in the development of cancer of the lung and larynx.'

         Considering the charge as a whole, we find that the trial judge explained to the jury that the action was based both on negligence and on breach of warranty and that he correctly differentiated between the two claims. After the usual general instructions, the trial judge, in three pages of printed text, instructed the jury on the elements of negligence. In about a page of printed text he explained contributory negligence. In these instructions the trial judge made no reference to warranty. Next he made it clear to the jury that having completed the instructions on negligence he would then instruct on breach of warranty. At this point he gave the instructions we have quoted.

          It is true that such terms as 'knowledge', 'reasonable diligence', 'reasonably foreseeable', 'reasonably fit' and 'reasonable care', which the trial judge employed in his instruction on warranty, are ordinarily associated with negligence. But they are also properly used when recovery is sought against a manufacturer on the ground of breach of warranty. These terms define the nature and scope of a manufacturer's so-called 'warranty' (law-imposed duty) to consumers. The trial judge used them properly. 'Liability in warranty arises where damage is caused by the failure of a product to measure up to express or implied representations on the part of the manufacturer or other supplier. * * * (It) is strict if a breach thereof is proved.' 1 Frumer & Friedman § 16.01(1) (1961). The liability on warranty that a consumer invokes against a manufacturer, with whom he has no contract of sale, is delictual, a liability in tort; in Louisiana in the case of...

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