Carter v. Joseph Bancroft & Sons Co., Civ. A. No. 69-1758.

• Decision Date: 12 July 1973
• Docket Number: Civ. A. No. 69-1758.
• Citation: 360 F. Supp. 1103
• Parties: Margaretta Conderman CARTER v. JOSEPH BANCROFT & SONS CO. and Indian Head, Inc.
• Court: U.S. District Court — Eastern District of Pennsylvania

360 F. Supp. 1103

Margaretta Conderman CARTER v. JOSEPH BANCROFT & SONS CO. and Indian Head, Inc.

Civ. A. No. 69-1758.

United States District Court, E. D. Pennsylvania.

July 12, 1973.

COPYRIGHT MATERIAL OMITTED

Henry T. Reath, of Duane, Morris & Heckscher, Philadelphia, Pa., for plaintiff.

Peter P. Liebert, 3rd, of Liebert, Short, Fitzpatrick & Lavin, Philadelphia, Pa., for defendants.

MEMORANDUM AND ORDER

CLIFFORD SCOTT GREEN, District Judge.

This is a personal injury action arising from an accident in which the dress of plaintiff, Margaretta Conderman Carter, allegedly caught fire, causing her serious injuries. Plaintiff has brought this action against defendant, Indian Head, Inc., and defendant, Joseph Bancroft & Sons Co., a division of Indian Head, Inc., and alleges that defendants are liable to plaintiff under the laws of Pennsylvania on theories of strict liability, breach of warranty, and negligence. The legal positions of both defendants are identical. Jurisdiction of this Court is founded on diversity of citizenship, and the parties agree that the law of Pennsylvania governs this case. This case was tried before the late Judge Harold Wood and a jury. The trial was bifurcated and the jury returned a verdict in favor of plaintiff against defendants in the liability phase, and thereafter awarded plaintiff the sum of $75,000 as damages.

Presently before the Court are defendants' motion for judgment notwithstanding the verdict and plaintiff's motion for a new trial limited to damages. For reasons appearing hereinafter, we deny the respective motions of defendants and plaintiff.

I Liability as a Manufacturer and Seller Under the Restatement of Torts, Second, §§ 400, 402A

In support of their motion for judgment notwithstanding the verdict pursuant to Rule 50 of the Federal Rules of Civil Procedure, defendants forcefully assert that they are not liable to plaintiff even on the strict liability theory of the Restatement of Torts, Second, § 402A (1965). Since the verdict returned by the jury was in favor of plaintiff, we must review the evidence in the light most favorable to plaintiff. Thus, viewed the evidence establishes that sometime prior to September 3, 1967, plaintiff purchased a dress which had affixed to it a tag or label containing the following printed material:

"BAN-LON Fashion

This BAN-LON fashion is beautifully different, outstandingly easy-care.

You will find it wearable, versatile, packable. Its equal in performance is not to be found, because of the unique, exclusive crimp in the Textralized yarn from which it is made.

"BAN-LON is a trademark identifying garment, fabrics, and articles made according to specification and quality standards prescribed and controlled by Joseph Bancroft & Sons Co., a division of Indian Head, Inc.

"Unauthorized use of this tag is prohibited. 18-65-10 J. B. & S. Co. 1966 Printed in USA".

And on the reverse side:

"A Beautiful BAN-LON Fashion Anika New York."

The evidence is undisputed that plaintiff purchased the dress from a retail shop owned and operated by plaintiff's mother and there is evidence that the plaintiff was aware of the aforesaid tag on which was imprinted on the reverse side thereof, the word "Anika."

Prior to the evening of the accident, September 3, 1967, plaintiff had worn the dress several times but had not had it washed or dry cleaned. On the evening of September 3, 1967, plaintiff attended a dinner party and was seated with seven other persons at a rectangular dinner table in the home of her host. As the host prepared a second round of crepe suzettes, there occurred, from an unknown source, a sudden fire which engulfed all of the guests in flame. A witness testified that just as quickly as the fire occurred, it was over. The top of Mrs. Carter's dress "flamed, burned, and vanished." Mrs. Carter suffered severe burns of her upper body. Although the flames from the sudden fire engulfed all of the guests, only Mrs. Carter's clothes were ignited in flames and only Mrs. Carter and another guest, Dr. Creatore, suffered any burns. There is testimony that after the fire Dr. Creatore had a "hole in the back of his coat, like a scorch mark, but it hadn't burned all the way through." The clothing of the other six persons present in the room did not burn. The testimony further reveals that other guests wore clothing made of flannel and cotton, and the table cloth was linen; none of the aforesaid fabrics burned. Immediately before the sudden fire, items such as sterno, alcohol, liquor and candles were present in the room; however, no flammable liquids had been spilled on plaintiff.

Defendants resourcefully contend that, under the evidence, they cannot be liable under Section 402A of the Restatement of Torts, Second, because they were not the "seller" within the meaning of the section.¹ As defendants recognize and as the Court notes, one who manufactures a product is a "seller" under Comment "f" to Section 402A. It is apparently the position of defendants that they are not the "manufacturer" but only a licensor who permits articles made according to specification and quality standards prescribed and controlled by them to be identified by defendants trademark, "BAN-LON." As support for this thesis, defendants maintain that there is no authority in Pennsylvania, or elsewhere, holding a licensor liable as a seller. However, it is clear that defendants were sufficiently involved in the manufacturing process to be a "seller" under the law of Pennsylvania. Under Pennsylvania law, one who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer. This results from Pennsylvania's adoption of Section 400 of Restatement of Torts, Second. Comment "d" to Section 400 provides in pertinent part:

"Thus, one puts out a chattel as his own product when he puts it out under his name or affixes to it his trade name or trademark. When such identification is referred to on the label as an indication of the quality or wholesomeness of the chattel, there is an added emphasis that the user can rely upon the reputation of the person so identified. . . ."

Thus, by its authorized label, defendants have stated that "Ban-Lon" is a trademark identifying garments, fabrics and articles made according to specification and quality standards prescribed and controlled by defendants. The Court notes that Pennsylvania has adopted Section 400 of the Restatement in the case of Forry v. Gulf Oil Corporation, 428 Pa. 334, 237 A.2d 593 (1968). In Forry v. Gulf Oil Corporation, supra, the Pennsylvania Supreme Court declared that Gulf could be held liable as a manufacturer of a tire which bore Gulf's name, notwithstanding, the fact that B. F. Goodrich had actually manufactured the tire. In a futile endeavor to distinguish the instant case from Forry, defendants forcefully maintain that in Forry, the real manufacturer was not disclosed and that in the case at bar, the tag identified, at least by inference, Anika as the manufacturer. Defendants further assert that plaintiff knew Anika manufactured the dress. Certainly, the evidence does not establish Anika as the manufacturer of the fabric or the dress; indeed, the jury returned a verdict in favor of Anika. However, even if Anika is considered the manufacturer, defendants would nevertheless remain liable under Section 400 of the Restatement of Torts, Second.

In urging that they should be relieved of liability as a "manufacturer," defendants rely on the following part of Comment "d" to Section 400:

"However, where the real manufacturer or packer is clearly and accurately identified on the label or other markings on the goods, and it is also clearly stated that another who is also named has nothing to do with the goods except to distribute or sell them, the latter does not put out such goods as his own."

It is obvious that defendants are not relieved of liability by the Comment relied upon because the tag does not clearly state that defendants had nothing to do with the goods except to distribute or sell them. Indeed, defendants clearly state on their label that the article was made according to specifications and quality standards prescribed and controlled by defendants. Thus, under Section 400, supra, the jury could have found defendants to be liable as a manufacturer and manufacturers are deemed sellers under Section 402A.²

Defendants next vigorously contend that even if they are deemed a "seller", under Section 402A, the evidence was insufficient to permit the jury to find by a preponderance of the evidence that the product was in a defective condition when sold. As support for this contention, defendants maintain that in a room "having combustible material such as alcohol, sterno, and Grand Marnier liquor in it, with possible ignition materials as candelabra, a match, or a cigarette lighter present," the evidence could not support a jury finding that the accident was caused by the defective condition of the dress fabric or that the burns were caused by the burning of the dress as distinguished from the flames of the original fire. We are unpersuaded by this contention of defendants who mistakenly view the evidence in the light most favorable to themselves instead of in the light most favorable to plaintiff; who won the verdict. Properly viewed, the evidence is clearly sufficient to support the verdict. The evidence, thus, reveals that plaintiff was in a room with seven other persons, all equally exposed and subjected to a sudden fire that was over so quickly that a witness could not "feel that it had really happened." Only the Ban-Lon fabric worn by plaintiff ignited and burned. Fabrics identified as cotton, linen and flannel did not burn, nor did other unidentified fabrics burn, although all were subjected to the same sudden fire. A witness testified that very vivid multi-colored flames, green, red, yellow and blue engulfed plaintiff from her shoulders to...