Carney v. Sears, Roebuck and Co.

• Citation: 309 F.2d 300
• Decision Date: 27 September 1962
• Docket Number: No. 8602.,8602.
• Parties: Alfonso Linwood CARNEY, Appellant, v. SEARS, ROEBUCK AND CO., Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

309 F.2d 300 (1962)

Alfonso Linwood CARNEY, Appellant, v. SEARS, ROEBUCK AND CO., Appellee.

No. 8602.

United States Court of Appeals Fourth Circuit.

Argued June 8, 1962.

Decided September 27, 1962.

COPYRIGHT MATERIAL OMITTED

Louis B. Fine, Norfolk, Va. (Howard I. Legum, Norfolk, Va., on brief), for appellant.

Robert M. Furniss, Jr., Norfolk, Va. (Taylor, Gustin, Harris & Furniss, Norfolk, Va., on brief), for appellee.

Before SOBELOFF, Chief Judge, and BRYAN and BELL, Circuit Judges.

J. SPENCER BELL, Circuit Judge.

This is an appeal from a judgment for the defendant in the District Court for the Eastern District of Virginia sitting without a jury. Plaintiff is a barber who lives in Norfolk, Virginia, and operates a barber shop and beauty shop there. On June 5, 1959, he purchased a six foot wooden stepladder from Sears, Roebuck & Company, for which he paid $8.98. Plaintiff contended that sixteen months later the ladder collapsed while he was using it, causing him to suffer a comminuted fracture of one wrist and certain back injuries. This action was brought to recover for these injuries. The plaintiff testified that prior to the purchase of the ladder in question he had used in his shops a five foot wooden step-ladder of the same type and design as the one he subsequently purchased. This, too, he had bought sometime previously from Sears Roebuck. This five foot ladder was used by the plaintiff and by a shoe shine boy to clean and wash fixtures in his barber shop, dust cobwebs from the ceiling, and for various other purposes. He decided that in order safely to reach the ceiling in the beauty shop, which was ten feet from the floor, he needed a taller ladder. He also testified that one reason he bought the new ladder was because other people often borrowed the one he had.

The evidence shows that the defendant had been advertising this ladder in the morning and evening newspapers in the City of Norfolk, Virginia, about three times a year for the past twelve years. Mr. Carney testified that he had read these advertisements and that because of them he went to Sears Roebuck to purchase the new ladder. The evidence in the record shows only that these advertisements referred to this ladder as a "Workmaster" (a standard trade-mark of the defendant) and that it was "a good quality ladder".

The plaintiff testified that he went to the defendant's store and looked at all of the many types of ladders there displayed. He said that he told the salesman that he had a ten foot ceiling and wanted a ladder tall enough so "* * * that I myself wouldn't have to reach too high to fix lights". He said the salesman "recommended' the ladder he ultimately purchased. The label placed upon the ladder contains the following printed matter:

"This fine ladder was thoroughly inspected and shipped to you in first class condition; damage may occur in shipping or handling * * *

"1. Inspect carefully both on receipt and before each use. * * *"

There followed a long list of instructions for the safe use of ladders generally.

The undisputed evidence in the record shows that the defendant was not the manufacturer of the ladder. The ladder was manufactured by the J. R. Clark company of Minnesota, but the name of the manufacturer does not appear at any place on the ladder and the defendant's name appears on the label attached to the ladder. There was no indication either about the merchandise or in the newspaper that anyone other than the defendant had anything to do with this product.

The plaintiff produced Mr. Thomas B. McDow, a chemist and chemical engineer employed by the McCallum Inspection Company. He testified that he had been engaged in the examination of timber and the products manufactured therefrom and that he had inspected hundreds of ladders. He testified that as to this ladder he found nothing whatever defective in the timber. He said, however, that in his opinion the collapse of the ladder was due to a defectively headed rivet which connected a folding cross brace between two legs. He said that upon the failure of this rivet there was nothing to prevent the ladder from collapsing since the brace was all that kept the legs from spreading all the way apart. He said that in his opinion the rivet had not been squarely struck by the heading tool and that as a result had an extremely small head, one so small in fact that it would not withstand continued strain. He stated that in his opinion the ladder was not properly constructed because of this defect and that when plaintiff put his weight upon the ladder, in his opinion, the head pulled through the wood, releasing the brace from one leg and causing the collapse.

The Court found that plaintiff was standing on the fourth step from the bottom. The plaintiff testified that the ladder did not fall sideways or forward or backward, but simply opened up, letting him fall to the floor on top of it. He further said that he had never had any trouble with the ladder since he bought it. He said that he had read the label on the ladder and that he had inspected it. He said that the ladder was used mostly by the shop boy for cleaning the light fixtures and dusting cobwebs on the walls and ceiling, and that as a general rule it was used two or three times a month. On cross examination he said that the ladder was not used very frequently and that thirty days might elapse before there was any reason to use it. He conceded that there might be an occasional week when it would be used three or four times, but that these were "very, very seldom".

The plaintiff based his claim for recovery upon breach of an express warranty, breach of implied warranty, and negligence of the defendant as a distributor of a defectively made product which it had led the plaintiff to believe was manufactured by it. The Court below ruled that there was no basis for an express warranty, or an implied warranty of fitness for a particular purpose. The Court found no breach of the implied warranty of merchantability nor any breach of duty amounting to negligence in the course of manufacture, because the ladder, "* * * had been in normal use, without apparent defect, for more than fifteen months and this is cogent evidence that it was reasonably adapted to the purposes for which it was sold." In these latter conclusions we think the District Court committed error.

We are here concerned with the two types of warranty: Express and Implied. An express warranty is any affirmation concerning the character, quality or condition of goods, having the effect of inducing a sale, if the buyer purchases the goods relying thereon. Herron v. Dibrell, 87 Va. 289, 12 S.E. 674 (1891); Milburn Wagon Co. v. Nisewarner, 90 Va. 714, 19 S.E. 846 (1894); McNeir v. Greer-Hale Chinchilla Ranch, 194 Va. 623, 74 S.E.2d 165 (1953).

On the other hand, implied warranties arise by operation of law without regard to the expressed intention of the parties. They are of two kinds: an implied warranty of merchantability or fitness for the general purpose for which the goods are sold, and an implied warranty of fitness for a particular purpose. The term merchantability applies when goods are purchased for resale and means simply that they are of a quality or character which will qualify them to be bought and sold in the ordinary course of business, and is for our purposes interchangeable with the term fitness for the general purpose for which the goods are sold — which latter term is ordinarily used in discussing a sale to a consumer.

Where a buyer orders goods to be supplied for a particular purpose communicated to the seller and trusts to or relies upon the judgment or experience of the seller to select the goods which shall be applicable to and suitable for that purpose, there is an implied warranty that they shall be reasonably fit therefor. Gerst v. Jones, 32 Grat. (Va.) 518; Greenland Develop. Corp. v. Allied Heat. Prod. Co., 184 Va. 588, 35 S.E.2d 801, 164 A.L.R. 1312 (1945); E. I. Du Pont De Nemours & Co. v. Universal M. P. Corp., 191 Va. 525, 62 S.E.2d 233 (1951).

We have in this case no difficulty with the question of privity upon the theory of breach of an implied warranty of merchantability. It is undisputed that the ladder was bought by the plaintiff from the defendant. Therefore, there was a contractual duty running from the defendant to the plaintiff to use reasonable care in providing to him a saleable product. Likewise, there is no difficulty with privity of contract on the theory of negligence for the contractual duty raised by the purchase is one which if breached negligently by the defendant is a basis for liability in tort.^*

However, since the defect in this ladder arose in the course of manufacture, the plaintiff in an action for negligence must fasten upon the defendant the duty of a manufacturer. This he has attempted to do by showing that the defendant sold the product to him as its own without indicating that it had been...