350 F.2d 479 (3rd Cir. 1965), 14802, Pritchard v. Liggett & Myers Tobacco Co.

Docket Nº:14802.
Citation:350 F.2d 479
Party Name:Anita PRITCHARD, Administratrix of the Estate of Otto E. Pritchard, Deceased, Appellant, v. LIGGETT & MYERS TOBACCO COMPANY, a Corporation, Appellee.
Case Date:July 26, 1965
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 479

350 F.2d 479 (3rd Cir. 1965)

Anita PRITCHARD, Administratrix of the Estate of Otto E. Pritchard, Deceased, Appellant,

v.

LIGGETT & MYERS TOBACCO COMPANY, a Corporation, Appellee.

No. 14802.

United States Court of Appeals, Third Circuit.

July 26, 1965

         Argued Dec. 8, 1964.

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[Copyrighted Material Omitted]

Page 481

         James E. McLaughlin, McArdle, Harrington, Feeney & McLaughlin, Pittsburgh, Pa. (James P. McArdle, Pittsburgh, Pa., on the brief), for appellant.

         William H. Eckert, Eckert, Seameans & Cherin, Pittsburgh, Pa. (John H. Morgan, William B. Mallin, C. Arthur Wilson, Jr., Pittsburgh, Pa., Bethuel M. Webster, Frederick P. Haas, Webster, Sheffield, Fleischmann, Hitchcock & Chrystie, New York City, on the brief), for appellee.

         Before GANEY, SMITH and FREEDMAN, Circuit Judges.

         WILLIAM F. SMITH, Circuit Judge.

         The plaintiff brought this action for personal injury alleging that he contracted lung cancer as a result of having smoked Chesterfield cigarettes for many years. The claims for relief, stated in separate counts of the complaint, alleged negligence and breach of warranty as the bases of liability. The defendant, admittedly the manufacturer of the cigarettes, denied the allegations of the complaint and pleaded assumption of risk as an affirmative defense to each of the claims. The jurisdiction of the court below was invoked on the ground of diversity of citizenship and therefore under the facts of the case the law of Pennsylvania was applicable.

         The action was heretofore before this Court on an appeal from a judgment entered on a directed verdict in favor of the defendant, 3 Cir., 295 F.2d 292. The judgment was reversed and a new trial was granted pursuant to the mandate. The present appeal is from a judgment entered on a jury verdict in favor of the defendant. The earlier opinion of this Court contains a comprehensive summary

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of the pertinent evidence offered in the first trial. Since the evidence offered at the second trial did not differ substantially, we find it necessary to set forth herein only such additional facts as may be relevant to the narrow issues raised on this appeal.

         The plaintiff, who was 63 years old at the time of the second trial, admittedly smoked cigarettes since he was 15 years of age. He was an habitual cigarette smoker for several years prior to 1924, when he began smoking Chesterfields for the first time. Thereafter, and during the critical period, between sometime in 1924 and the latter part of 1953, he smoked Chesterfields regularly, consuming 'at least a carton' per week. There was ample evidence in the record from which the jury could have found, as it did, that the smoking of Chesterfields was a cause of the lung cancer, which was diagnosed and removed in 1953. This finding is not an issue on this appeal.

         The alleged warranties were contained in a series of advertisements published periodically in both newspapers and magazines. These advertisements featured in bold type such factual affirmations as the following: 'Chesterfields Are Best For You'; 'Chesterfields Are As Pure As The Water You Drink And The Food You Eat'; 'A Good Cigarette Can Cause No Ills'; 'Nose, Throat And Accessory Organs Not Adversely Affected By Smoking Chesterfields'; 'Play Safe Smoke Chesterfields.' (See also the earlier opinion of this Court). Many of the advertisements contained assurances that the affirmations were based upon extensive research and the opinions of medical specialists. There was implicit in these assurances a strong suggestion that while other brands of cigarettes might be harmful, Chesterfields were not.

         This Court stated in its earlier opinion: 'The evidence compellingly points to an express warranty, for the defendant, by means of various advertising media, not only repeatedly assured plaintiff that smoking Chesterfields was absolutely harmless, but in addition the jury could very well have concluded that there were express assurances of no harmful effect on the lungs.'

         The issues were submitted to the jury on a series of special interrogatories, Fed.Rules Civ.Proc., rule 49(a), 28 U.S.C.A., all of which, except one, were answered adversely to the plaintiff. The jury found: (1) the smoking of Chesterfield cigarettes by the plaintiff was 'the cause, or one of the causes,' of the cancer; (2) the defendant was not chargeable with negligence; (3) the defendant made no 'express warranties upon which the plaintiff relied and by which he was induced to purchase' the cigarettes; and (4) the plaintiff assumed the risk of injury by his smoking the cigarettes. A judgment for the defendant in accord with the special findings was entered.

         The plaintiff moved for a new trial on the grounds, among others, that the verdict on the breach of warranty issue was against the weight of the evidence, and the Court's instructions to the jury on the same issue were erroneous. The motion was denied. The only grounds here urged as a basis for reversal are those relating to the breach of warranty issue; the others have been abandoned.

         DENIAL OF MOTION FOR NEW TRIAL.

          The plaintiff argues that the verdict was against the weight of the evidence and that the denial of his motion for a new trial, based on this ground, was error. It is well settled that a motion for a new trial on the ground herein urged is addressed to the sound discretion of the trial judge and its denial is not ordinarily reviewable on appeal. Silverii v. Kramer, 314 F.2d 407, 413 (3rd Cir. 1963); Lind v. Schenley Industries, Inc., 278 F.2d 79, 89 (3rd Cir. 1960), cert. den. 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed.2d 60; Magee v. General Motors Corp., 213 F.2d 899 (3rd Cir. 1954). Since the judgment must be reversed on other grounds, we see no need to discuss the merits of the argument.

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         RELIANCE AS REQUISITE TO RIGHT OF ACTION

         The breach of warranty issue was tried on the assumption that reliance of the purchaser was an essential element of an express warranty as defined by statute, infra, and therefore requisite to a cause of action for its breach. The plaintiff endeavored to prove by his own testimony that the advertisements were an inducement and that in reliance thereon he regularly purchased and smoked Chesterfields. This testimony, when subjected to the test of cross-examination, fell far short of the mark and apparently failed to impress the jury.

         The Court instructed the jury, consistently with the forgeoing assumption, as follows: 'The law of Pennsylvania provides that any affirmation of fact, or any promise by the seller relating to the goods, is an express warranty if the natural tendency of such an affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases relying thereon.'

         These instructions were undoubtedly consonant with the majority rule which is predicated on a construction of Section 12 of the Uniform Sales Act, 1 as adopted by many of the States. Pedroli v. Russell, 157 Cal.App.2d 281, 320 P.2d 873 (Cal.1958); Rogers v. Toni Home Permanent Co., 167 Ohio St. 244, 147 N.E.2d 612 (1958); Frank v. Salomon, 376 Ill. 439, 34 N.E.2d 424 (1941); see also text and Annotations, Frumer and Friedman, Products Liability, Vol. 1, § 16.04(4). However, under the law of Pennsylvania the rule is not applicable where the factual affirmations run to the public and their natural tendency is to induce a purchase.

         The applicable section of The Sales Act of Pennsylvania, 69 P.S. § 121, reads as follows: 2

         'Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon no affirmation of the value of the goods, nor any statement purporting to be a statement of the seller's opinion only, shall be construed as a warranty.'

         The quoted version differs from that which appears in The Uniform Sales Act.

         It will be noted that in Section 12 of The Uniform Sales Act the conditional phrase 'and if the buyer purchases the goods relying thereon,' at the end of which a period appears, modifies the antecedent clause. In the version hereinabove quoted the same phrase, at the end of which no punctuation appears, introduces a proviso creating an exception to the general definition appearing in the first clause. While punctuation is seldom a reliable guide to statutory construction it is a relevant factor where, as here, its effect is to change the import of the statute. The materiality of the change is a significant indication that it was the intent of the Pennsylvania legislature not to follow Section 12 of The Uniform Sales Act as written.

         An express warranty, within the meaning of the Pennsylvania statute, as we construe it, is any factual affirmation or promise, the natural tendency of which 'is to induce the buyer to purchase the goods.' Reliance of the buyer is not a requisite of either the warranty or a right of action for its breach. It

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follows that the instructions given were erroneous, as was the submission to the jury of the issue of reliance. Under the facts of this case the issue of reliance was wholly irrelevant; the only issue was whether the factual affirmations contained in the many advertisements were such as would naturally tend 'to induce the buyer to purchase the goods.'

         This Court was called upon to construe the statute in the case of Mannsz v. Macwhyte Co., 155 F.2d 445 (1946). Therein the respective claims for damages, one for wrongful death and another for personal injury,...

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