Brown v. Chapman

• Decision Date: 26 June 1962
• Docket Number: No. 17720.,17720.
• Citation: 304 F.2d 149
• Parties: Charles E. BROWN, and Edith L. Brown, his wife, and Merle D. Chase and Helen Chase his wife, d/b/a Around the World Gift Shop, a copartnership, Appellants, v. Carol Lee CHAPMAN, Cecil H. Chapman and Ruby Chapman, his wife, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

304 F.2d 149 (1962)

Charles E. BROWN, and Edith L. Brown, his wife, and Merle D. Chase and Helen Chase his wife, d/b/a Around the World Gift Shop, a copartnership, Appellants, v. Carol Lee CHAPMAN, Cecil H. Chapman and Ruby Chapman, his wife, Appellees.

No. 17720.

United States Court of Appeals Ninth Circuit.

May 24, 1962.

Rehearing Denied June 26, 1962.

Kizer, Gaiser, Stoeve, Layman & Powell and John Layman, Spokane, Wash., Pratt, Moore, Bortz & Vitousek, Harold T. Kay and Alan C. Kay, Honolulu, Hawaii, for appellants.

Hullin, Ehrlichman, Carroll & Roberts and John A. Roberts, Seattle, Wash., Anderson, Wrenn, & Jenks, Martin Anderson and Dale Reid, Honolulu, Hawaii, for appellees.

Before BARNES, JERTBERG and MERRILL, Circuit Judges.

MERRILL, Circuit Judge.

This diversity action was brought to recover damages for personal injuries suffered by Carol Lee Chapman as the result of the burning of a hula skirt which she was wearing.¹ Suit was brought against the owners of the shop which had sold the skirt. The complaint charged negligence and breach of warranty.

Following trial to a jury, a verdict in favor of Carol in the sum of $125,000.00 was rendered, the jury finding defendants free from negligence but liable for breach of implied warranty. Defendants moved for judgment notwithstanding the verdict and for new trial. These motions were denied, the opinion of the district court appearing, as Chapman v. Brown, in 198 F.Supp. 78.

This appeal is taken from judgment and from the order denying the post-judgment motions of the defendants. The principal issues are presented by appellants' contentions that the record establishes lack of privity, lack of notice of Carol's claim of breach of warranty and that Carol had been contributorily negligent.

The hula skirt had been purchased in Honolulu, Hawaii, in March, 1956, by Carol's aunt, Frances Leppard of New Westminster, British Columbia, Canada. On November 2, 1957, Carol, a resident of Kamloops, British Columbia, was in New Westminster visiting her sister. She borrowed the skirt from her aunt in order to attend a costume party. The accident occurred at about one o'clock a. m. The incident is described by the district court as follows, 198 F.Supp. 81:

"At the end of the dance, while Carol and her party were sitting at a table waiting for the clean-up crew to clean the hall, the hula skirt worn by Carol caught fire from an unknown source, inferred to have been from a glowing cigarette butt on the floor, and the resultant fire was allegedly so explosive and intense that the parties were unable to smother the same or remove the skirt from her until it was practically all consumed, except the waist band, and Carol had suffered burns to about 75% of the skin on her body."

The first issue presented by the appeal is whether, under the law of Hawaii, a plaintiff must be in privity with the seller in order to be able to recover from the seller for personal injuries sustained as a result of a breach of implied warranty. There is no Hawaii case law upon the question. Hawaii statute law is confined to the Uniform Sales Act.² Appellants contend that the provisions of this act limit the remedy of an action for breach of warranty to the buyer of the goods.

The district court discussed this question at length, subdivision XVIII of its opinion, 198 F.Supp. 98 through 119. It reached the conclusion that the Supreme Court of Hawaii would rule that privity is not required when the goods sold constitute a dangerous instrumentality and that a hula skirt consisting of fabric as flammable as the facts demonstrate the fabric in this case to have been, constitutes a dangerous instrumentality.

For the reasons set forth by the district court in its opinion, we agree that such is the law of Hawaii.

Appellants contend that there was not sufficient evidence to take to the jury the question of whether the skirt was reasonably fit for the purposes for which it was sold. They point to testimony of Mrs. Leppard that the skirt was bought as a souvenir, that it was used by her at a costume party and thereafter was hung on the wall of her "rumpus room" as a decoration. They assert that this demonstrates that the skirt "was fit for and fulfilled the purpose for which it was purchased."

The district court disposes of this contention in the following language, 198 F.Supp. 88, 89:

"The evidence, including the jury\'s observation of Carol and Mrs. Leppard in court, would support a finding by the jury: (1) that it was or must have been known to defendants at the time of sale (a) that this hula skirt was intended to be used as an article of clothing, (b) that Mrs. Leppard would probably lend it to others, and (c) that it would probably be used as an article of clothing at dances, costume parties or other social gatherings, large or small, where people drank or smoked, which is a very common modern condition; and (2) considering the relative size, height, etc. of Carol and Mrs. Leppard and the length of the skirt and how it was pinned on Carol, that the wearing of the skirt by plaintiff would not constitute a different use or purpose from that contemplated at the time of sale."

We agree.

Appellants protest that the Uniform Sales Act (§ 202-15, ch. 202, Revised Laws of Hawaii, 1955) provides that implied warranties are limited in scope to those purposes made known to the seller. They assert that the district court erroneously instructed the jury that the scope of such warranties is such as to include uses "which the seller should reasonably have anticipated at the time of sale."

The language of the statute (see footnote 2 of this opinion) provides a warranty "where the buyer expressly or by implication, makes known to the seller the particular purpose for which the goods are required." The question is as to the extent of the purposes made known to the seller by the buyer expressly or by implication.

The very fact that a useful article is purchased would seem to carry with it an implication that it is to be put to use. The extent of that implication would depend upon the extent of use which should reasonably have been anticipated by the seller.

We find no inconsistency between the instruction given and the language of the statute and no error in the giving of the instruction.

Appellants next contend that it was error for the district court to give to the jury the question of whether sufficient notice was given by Carol to appellants of the claimed defect and of her intent to enforce a claim of breach of warranty.³ They contend that as a matter of law sufficient notice was not given.

The skirt was sold March 10, 1956. The accident occurred November 2, 1957. The then owners of the store (successors of appellants) were advised of the fact of the accident in November, 1958, and they in turn advised appellants around Christmas of that year. On January 12, 1959, counsel for Carol called on one of the appellants to discuss the accident. On June 25, 1959, by letter, Carol's intention of suing was clearly made known.

The district court discusses the question of notice in subdivision II of its opinion, 198 F.Supp. 82-85, and there recites the facts which it regards as bearing on the reasonableness of the notice and justification for delay. It concludes (page 84):

"Under all the foregoing circumstances, the Court rules that it cannot be said that, as a matter of law, proper notice was not given within a reasonable time, but that it was a question for the jury to decide under all the circumstances."

We agree.

Appellants next contend that the district court erred in refusing to instruct the jury that in an action based on breach of implied warranty, contributory negligence of the plaintiff is a good defense insofar as the right to recover consequential damages is concerned. Many authorities are cited to us in support of this proposition. Again, however, Hawaii case law is lacking.

The facts upon which appellants rely to constitute contributory negligence are: that the skirt was too large and too long for Carol and had to be pinned in place and, when she was seated, draped upon the floor; that she had worn it to a party where over two hundred persons, including Carol and her escort, were dancing, drinking and smoking, where ashtrays had not been provided and cigarette butts lay strewn about the floor, including the area where Carol was seated.

In our...