325 F.2d 673 (5th Cir. 1963), 190003, Green v. American Tobacco Co.

Docket Nº:190003.
Citation:325 F.2d 673
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:December 11, 1963
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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325 F.2d 673 (5th Cir. 1963)

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



No. 190003.

United States Court of Appeals, Fifth Circuit.

December 11, 1963

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Lawrence V. Hastings, Neal P. Rutledge, Rutledge & Milledge, and Green & Hastings, Miami, Fla., for appellants, Irma Feder, Miami Beach, Fla., of counsel.

Samuel A. Brodnax, Jr., Hervey Yancey, Miami, Fla., Melvin D. Goodman, New York City, Smathers & Thompson, Miami, Fla., Ralph D. Ray, Chadbourne, Parke, Whiteside & Wolff, New York City, for appellee, Janet C. Brown, New York City, of counsel.

Before RIVES, CAMERON and BELL, Circuit Judges.

RIVES, Circuit Judge.

First, to the Justices of the Supreme Court of Florida we wish to express publicly and with deep sincerity our appreciation for their answer to the question which we certified to that Court. See Green v. American Tobacco Co., Fla.1963, 154 So.2d 169; Green v. American Tobacco Co., 5 Cir. 1962, 304 F.2d 70, 86. That answer has saved this Court, through the writer as its organ, from committing a serious error as to the law of Florida which might have resulted in a grave miscarriage of justice. The Supreme Court of Florida has been a very real help in the administration of justice.

Since the opinion of the Supreme Court of Florida, the parties have submitted to this Court additional briefs and oral argument. The appellants, plaintiffs below, would have us enter judgment for plaintiffs on the issue of liability and remand the case to the district court solely for the ascertainment of damages. The appellee, defendant below, insists that the judgments for defendant should be affirmed on grounds other than that decided by the Supreme Court of Florida, or, if the judgments for defendant are not now affirmed, that the case should be remanded for a full new trial.

The Supreme Court of Florida answered in the affirmative the following question certified to it by 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?" 154 So.2d at 170.

The gist of the opinion of the Supreme Court of Florida is contained in the following response:

'Upon the critical point, our decisions conclusively establish the

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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.' 154 So.2d at 170, 171.

The Florida Court was careful to limit its decision to that single response, saying:

'We note at the outset that all question 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 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.' * * *

'* * * 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.' 154 So.2d at 170, 171. What issues then remain in the case?

Clearly, the only issues as to defendant's liability are those relating to implied warranty. As shown in our original opinion, Green v. American Tobacco Company, supra, 304 F.2d at p. 71, the plaintiffs asserted in separate counts six theories of liability, four of which were decided by the district court as matters of law against the plaintiff. On appeal, no error was claimed as to those rulings. The district court submitted the case to the jury upon only two theories of liability, breach of implied warranty and negligence. On appeal the plaintiffs accepted the jury's finding that the defendant was not liable for negligence. The only theory of liability remaining in the case is that of implied warranty.

On Count 1 charging a breach of implied warranty, the jury returned general verdicts for the defendant and also answered the four written interrogatories submitted under Rule 49(b), Fed.R.Civ.P., which were quoted in our original opinion, 304 F.2d at 71, 72.

The defendant insists that the scope of its implied warranty was so limited that there was a total lack of evidence to support plaintiffs' claim of breach and, hence, that the judgments for the defendant must be affirmed notwithstanding the opinion of the Supreme Court of Florida. In varying ways the defendant describes what it claims to be the limited scope of its implied warranty; e.g., (a) 'that the article must be of the same quality, material, workmanship and availability for use as other sold under the same trade name'; (b) that 'there was (no) foreign substance or * * * spoiled, contaminated or other substandard ingredient which caused the injury, and such substance or ingredient reflected a material difference between the article which caused the injury and the usual article sold under the same trade name'; (c) that 'the Florida Supreme Court's rule is only that a product must be 'reasonably fit and wholesome' and have a 'reasonable fitness for human use or consumption'.'

We need not review the Florida decisions as to the defendant's claimed limitations,

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such as those lettered (a) and (b), supra; for, whatever may be the general rule, very clearly the law of this case has established the scope of the implied warranty substantially as that lettered (c), supra.

There has never been presented by the evidence any contention that Lucky Strike cigarettes were more dangerous or had a greater propensity to cause lung cancer than cigarettes bearing other brand names. Nor has there been any contention that the cigarettes which Mr. Green smoked contained any foreign substance, or any spoiled, contaminated or other substandard ingredient which caused his injury and death. Instead, plaintiffs' contention from the beginning has been that cigarettes-- not Lucky Strike cigarettes alone-- cause lung cancer. If...

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