391 F.2d 97 (5th Cir. 1968), 22435, Green v. American Tobacco Co.

Docket Nº:22435.
Citation:391 F.2d 97
Party Name:Mary GREEN and Edwin Green, Jr., Appellants, v. AMERICAN TOBACCO COMPANY, Appellee.
Case Date:January 24, 1968
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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391 F.2d 97 (5th Cir. 1968)

Mary GREEN and Edwin Green, Jr., Appellants,



No. 22435.

United States Court of Appeals, Fifth Circuit.

January 24, 1968

Rehearing En Banc Granted March 25, 1968.

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Lawrence V. Hastings, Irma Robbins Feder, Miami, Fla., for appellants.

A. Lee Bradford, Miami, Fla., Edward R. Neaher, New York City, for appellee.

Before PHILLIPS, [*] COLEMAN and SIMPSON, Circuit Judges.

COLEMAN, Circuit Judge:

This is an appeal from a jury verdict and judgment for the defendant in the second trial of a suit on implied warranty, grounded on a prior jury finding in the same case that plaintiff's decedent died of cancer and that smoking cigarettes was a cause thereof. For the second time, we reverse and remand for a new trial.

Nearly ten years ago, in December, 1957, Edwin Green, Sr. brought suit against the American Tobacco Company, claiming that he had incurred lung cancer as a result of smoking the defendant's product, Lucky Strike cigarettes.

About two months after filing the suit, on February 25, 1958, Mr. Green died. His administrator was substituted as plaintiff and his widow also filed suit under the Florida Wrongful Death Statute. On two theories of liability, breach of implied warranty and negligence, the cases after consolidation were tried to a jury, which returned general verdicts for the defendant. In answer, however, to certain interrogatories submitted under Rule 49(b), Federal Rules of Civil Procedure, 28 U.S.C.A., the jury in this first trial found that Mr. Green had primary cancer of the lung, that this was the cause or one of the causes of his death, and that smoking Lucky Strike cigarettes was a proximate cause or one of the proximate causes of the cancer. Notwithstanding this finding, the verdict went to the defendant because, in response to another interrogatory, the jury further found that on or prior to February 1, 1956, the defendant Tobacco Company by the reasonable application of human skill and foresight could not have known that users of Lucky Strike cigarettes, such as Mr. Green, would thereby be put in danger of contracting lung cancer.

Of course, the plaintiffs appealed. On May 2, 1962, 5 Cir., 304 F.2d 70, a panel of this Court composed of Judges Rives, Cameron, and Griffin Bell 1 affirmed the judgment in favor of the cigarette manufacturer. In that opinion the result turned on the jury finding that there was no developed human skill or foresight which could have afforded the manufacturer a knowledge of the harmful effects. Judge Cameron dissented, quite cogently pointing out that even for breach of implied warranty the decision amounted to a holding that the exercise of reasonable care on the part of the Tobacco Company would exonerate it from liability.

On petition for rehearing, decided June 20, 1962, 304 F.2d at page 85, rehearing was granted to the extent of certifying to the Supreme Court of Florida 2 the following question:

'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

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stream smoke from such cigarettes of contracting cancer of the lung?'

(154 S.2d at 170).

It is to be noted that the question begins 'Does the law of Florida impose on a manufacturer and distributor of cigarettes absolute liability, as for breach of implied warranty(?)'. It was nearly a year before the Supreme Court of Florida responded in a 5-2 decision (154 So.2d 169, June 5, 1963). The Court concluded:

'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 circumstance 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'.'

The Florida Supreme Court proceeded to state in clear and unmistakable language:

'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 the 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.' The Court went on to say, however,

'The contention that the wholesomeness of a product should be determined on any standard other than its actual safety for human consumption, when supplied for that purpose, * * * (is) one which we are persuaded has no foundation in the decided cases.'

Six months later, again with Judge Cameron dissenting, this Court held that it could not enter judgment for the plaintiffs on the issue of liability, 325 F.2d 673, for the reason 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'.'

With deference, we feel that this view overlooked the language italicized immediately above but the views of the prior panel would be binding upon us, of course, were it not for developments later to be discussed.

The Court of Appeals further pointed out that on the first trial of the case in the District Court the jury, at the request of the plaintiffs, had been charged that '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 * * *.' The adverb 'reasonably' to modify 'wholesome or fit' had been inserted in the instruction at the consent of the plaintiffs. The original Panel then said, 'As a part of the law of this case the parties are, therefore, bound by the scope of the implied warranty as so defined by the District Court'.

This was followed by the crucial determination, 325 F.2d at page 677, that the jury had not made any sufficient finding on the question of reasonableness, that is, as to whether or not the cigarettes were 'reasonably fit and wholesome' and therefore the defendant was not foreclosed from developing that issue on another trial.

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We then directed:

'The parties are nonetheless bound by the jury's answers to the written interrogatories (and) may not relitigate the issues thus already decided (that smoking Lucky Strike cigarettes was one of the causes of the cancer and that the cancer was one of the causes of the death) under the guise of presenting evidence on the issue of reasonableness, that is, as to whether the cigarettes were reasonably fit and wholesome.'

Judge Cameron, concurring in part and dissenting in part, was of the view that the warranty 'Was that the cigarettes purchased by (Green) would not do him harm' and that the plaintiffs should not be required to show 'that the cigarettes were not reasonably fit and wholesome for use by the general public.'

As far as we can tell, the parties made no further effort to obtain the direct, positive answer of the Supreme Court of Florida to that part of the original question which had propounded the inquiry, 'Does the law of Florida impose on a manufacturer and distributor of cigarettes absolute liability, as for breach of implied warranty * * * (?)'.

The plaintiffs might well have been encouraged to do so in view of the language which the Florida Court had added to the effect that actual safety for human consumption was the standard for the determination of the wholesomeness of a product.

The result of the foregoing was that the case went to a second jury trial in which, pursuant to the opinion of 325 F.2d 673 the sole issue (and any factor not inconsistent therewith) was whether the cigarettes used by Mr. Green were reasonably fit and wholesome for human use, the parties being expressly commanded not to attempt to relitigate the already established facts that Green died of lung cancer and that the cigarettes were a cause of that cancer.

The jury verdict again was for the Tobacco Company. The judgment thereon was dated November 27, 1964.

The date is significant for, thereafter, on May 5, 1965, in the case of McLeod v. W. S. Merrell Company, Division of Richardson-Merrell, Inc., 174 So.2d 736, the Supreme Court of Florida stated that Green v. American Tobacco Company, Fla., 154 So.2d 169, was:

'A suit against a manufacturer. It involved a commodity which was available indiscriminately to the public generally. Green can be summarized as a case which applied a rule of absolute or strict liability to the manufacturer of a commodity who had placed it...

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