Chapman v. Brown

• Decision Date: 18 September 1961
• Docket Number: Civ. No. 1837.
• Citation: 198 F. Supp. 78
• Parties: Carol Lee CHAPMAN, by Ruby Chapman, her Guardian ad Litem, and Cecil H. Chapman and Ruby Chapman, his wife, Plaintiffs, v. 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, Defendants.
• Court: U.S. District Court — District of Hawaii

198 F. Supp. 78

Carol Lee CHAPMAN, by Ruby Chapman, her Guardian ad Litem, and Cecil H. Chapman and Ruby Chapman, his wife, Plaintiffs, v. 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, Defendants.

Civ. No. 1837.

United States District Court D. Hawaii.

September 18, 1961.

COPYRIGHT MATERIAL OMITTED

John A. Roberts, Jr., of Hullin, Ehrlichman, Carrol & Roberts, Seattle, Wash., Martin Anderson, Tobias T. Tolzman, Honolulu, Hawaii, Anderson, Wrenn & Jenks, Honolulu, Hawaii, of counsel, for plaintiffs.

Joseph L. Hughes, Hughes & Jeffers, Wenatchee, Wash., Graves, Kizer & Gaiser, John G. Layman, Spokane, Wash., for defendants Edith L. Brown and Charles E. Brown, appearing separately.

Harold T. Kay, Honolulu, Hawaii, John G. Layman, Graves, Kizer & Gaiser, Spokane, Wash., for defendants Edith L. Brown, Helen Chase, Charles E. Brown and Merle D. Chase.

Roy A. Vitousek, Jr., Alan C. Kay, Harold T. Kay, Honolulu, Hawaii, John G. Layman, of Kizer, Gaiser, Stoeve, Layman & Powell, Spokane, Wash., Pratt, Moore, Bortz & Vitousek, Honolulu, Hawaii, of counsel, for defendants.

TAVARES, Chief Judge.

In this action plaintiff, Carol Lee Chapman, a then minor, by her mother, Ruby Chapman, as her guardian ad litem, joined with her parents, Cecil H. Chapman and Ruby Chapman, in suing the defendants, Charles E. Brown and Edith L. Brown, husband and wife, and Merle D. Chase and Helen Chase, husband and wife, for damages for injuries suffered by Carol caused by the burning of a hula skirt while Carol was wearing the same. It was claimed by plaintiffs that the hula skirt had been purchased by Mrs. Frances Leppard, an aunt by marriage of Carol, at a gift shop in Honolulu, Hawaii, known as the "Around the World Gift Shop", owned and operated by the defendants, or some of them. Mrs. Leppard, a resident of British Columbia, Canada, took the skirt back to her home. Somewhat over a year later Mrs. Leppard loaned the hula skirt to the plaintiff Carol Chapman, then a minor, to wear at a masquerade party held in a large hall in British Columbia, attended by several hundred people, at which function intoxicating liquors were consumed and there was much smoking and dancing, with cigarette butts left on the floor. 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 hula skirt was what was known as a Tahitian or Ponape type of skirt, made from fine fibers of the bark of the hau tree, these fibers being unwoven except for being tied or bound together in a band at the waist. Before the trial Carol attained the age of majority, the guardianship ceased, and she became plaintiff in her own right. While Carol's parents were not dismissed as co-plaintiffs, Carol has assumed all obligations and expenses paid or incurred as a result of the accident, including amounts paid or incurred by her parents who are her co-plaintiffs in the action. It was agreed during the trial that no apportionment of damages need be made by the jury among any of the plaintiffs, this being left to the court in the event the question should be raised after the verdict, if a verdict favorable to plaintiffs was received. Under the circumstances, it being obvious to the court that the joinder or non-joinder of Carol's parents as co-plaintiffs would not affect the total amount of the damages, this decision will refer generally to Carol as though she were the sole plaintiff, it being understood that where the context so indicates, the other co-plaintiffs are included.

The defendants denied that the skirt had been purchased at the Around the World Gift Shop, hereinafter sometimes called the "Gift Shop" but, upon a special interrogatory, the jury found that it had been purchasd at that shop by Mrs. Leppard. At the time of the purchase, the business of the shop was being operated in the joint names of two of the defendants, Edith L. Brown, and Helen Chase, doing business as a general partnership duly registered as such under the laws of the State of Hawaii. Although the defendant husbands were not registered as partners, plaintiff claimed that they were in fact partners or principals or joint venturers in this enterprise, and the jury found on the evidence that Charles E. Brown was in fact a general partner or joint venturer along with Mrs. Brown and Mrs. Chase, but that Mr. Chase was not such a general partner or joint venturer. The plaintiff's case ultimately went to the jury on two general theories (1) alleged negligence of defendants in selling an alleged dangerously flammable hula skirt without warning as to such dangerous flammability, and (2) alleged breach of an implied warranty of fitness of the hula skirt for use as an article of clothing. The jury found (a) in favor of the defendant Merle D. Chase on the ground that he was not a partner, or joint venturer, (b) in favor of all the defendants and against the plaintiff on the negligence claim, and (c) in favor of plaintiff and against defendants, Mr. and Mrs. Brown and Mrs. Chase, on the claim of breach of implied warranty.

The principal defenses set up by defendants, besides denial of any negligence or implied warranty, or breach thereof, were lack of privity between plaintiff Carol and any of the defendants, contributory negligence, assumption of risk, and failure to give notice of breach of implied warranty within a reasonable time.

At the close of the plaintiff's case, i. e., when plaintiff rested, and before defendants commenced to put on their defense, the defendants moved in effect for a directed verdict—to dismiss the plaintiff's complaint without recovery and with prejudice on various grounds, which will hereinafter be more particularly noted. After argument on this motion the court in effect reserved its decision on most points until the close of all the evidence. After both parties had rested, the defendants renewed their motion for a directed verdict, which motion was taken under advisement by the court. The jury brought in its verdict on April 29, 1961. Judgment was entered and noted on the docket by the clerk, pursuant to Rules 58 and 79(a) F.R.Civ.P., 28 U.S.C.A. on April 29, 1961, and a written judgment was filed on May 2, 1961. Motions (a) for judgment notwithstanding the verdict, and (b) in the alternative for a new trial, were filed by the defendants on May 5, 1961, well within the period required by Rules 50(b) and 59(b).

The motion for a directed verdict after both parties had rested was based upon, and incorporated by reference, the same grounds as the earlier motion of defendants made at the close of plaintiff's evidence, and the motion for judgment notwithstanding the verdict incorporated by reference all of such previously stated grounds for the preceding two motions. Accordingly, these grounds will now be considered specifically, bearing in mind the rule requiring this court to adopt every favorable fact and inference fairly deducible from the testimony, and accept the evidence tending to support the verdict as true.¹

I. The defendants contended that the evidence was insufficient to prove any or all of the plaintiff's contentions or causes of action as against any of the defendants. For reasons more particularly stated elsewhere in this decision, the court finds that there was sufficient evidence which, if believed by the jury, would justify the verdict found by the jury on the implied warranty cause of action.

II. It was claimed that plaintiff had failed to (a) allege and (b) prove the giving of reasonable notice to the defendants of her claim in the manner and within the reasonable time required by law.

As to ground (a) it is clear that, although the complaint and amendments do not in terms clearly allege the giving of notice and the giving thereof within a reasonable time, the case was tried without objection on the theory that the question of notice was involved, and went to the jury based on that theory. See Pre-Trial Order entered April 11, 1961, pages 8 to 9, paragraph 12 of Defendants' Contentions of Fact; pages 12 to 13, paragraph 6 of Defendants' Contentions of Law; page 6, paragraph 13 of Plaintiffs' Contentions of Fact. This ground, therefore, is not well taken.²

As to ground (b) of the last mentioned contentions—alleged failure to prove that notice was given within a reasonable time—there was sufficient evidence in the court's opinion to go to the jury and from which the jury could have found, if it believed such evidence, that the notice was given within a reasonable time. Counsel for defendants has cited many strong and persuasive authorities in which, in various types of cases, the courts have held, as a matter of law, that notice given or not given for or within a specified period, ranging from a few days to some years after the injury, was insufficient as a matter of law as not having been given in a reasonable time. However, in this particular case, the facts are, or the jury could have found from the evidence, as follows:

The hula skirt was sold on March 10, 1956, and the injury from burning of the skirt occurred on November 2, 1957. The injuries were so severe—about 75% of the skin on plaintiff's body having been severely burned, plaintiff's very life being in jeopardy for a considerable time after the injury, plaintiff being required to be isolated for a considerable period to avoid infection, and being hospitalized 17 to 18 months with numerous skin grafting and other operations—that Mrs. Leppard...