Filler v. Rayex Corporation, 18049

• Decision Date: 03 November 1970
• Docket Number: 18050.,No. 18049,18049
• Citation: 435 F.2d 336
• Parties: Michael FILLER, by His Next Friend, Barbara Mitchell, and Barbara Mitchell, Plaintiffs-Appellees, v. RAYEX CORPORATION, a New York Corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

435 F.2d 336 (1970)

Michael FILLER, by His Next Friend, Barbara Mitchell, and Barbara Mitchell, Plaintiffs-Appellees, v. RAYEX CORPORATION, a New York Corporation, Defendant-Appellant.

Nos. 18049, 18050.

United States Court of Appeals, Seventh Circuit.

November 3, 1970.

William F. McNagny, J. A. Bruggeman, Robert L. Thompson, Jr., Fort Wayne, Ind., for defendant-appellant; Barrett, Barrett & McNagny, Fort Wayne, Ind., of counsel.

Robert A. Foust, Marion, Ind., David B. Keller, Edward L. Murphy, Jr., Fort Wayne, Ind., for plaintiffs-appellees; Livingston, Dildine, Haynie & Yoder, Fort Wayne, Ind., of counsel.

Before DUFFY, Senior Circuit Judge, CUMMINGS and KERNER, Circuit Judges.

CUMMINGS, Circuit Judge.

In this diversity action, Michael Filler sued to recover damages for the loss of his right eye, and his mother, Barbara Mitchell, sought to recover her expenses for his hospitalization, artificial eye, and physician's services.

When his injury occurred, Michael Filler was a 16-year-old student at Oak Hill High School, near Marion, Indiana. While he was practicing for a varsity baseball game in the late afternoon of June 10, 1966, fungoes were being lofted to him by a fellow player. Filler lost a fly ball in the sun, although he was wearing flipped-down "baseball sunglasses" manufactured by defendant. After tipping the top of his baseball glove, the ball struck the right side of the sunglasses, shattering the right lens into sharp splinters which pierced his right eye, necessitating its removal nine days later.

Filler's coach was Richard Beck, an experienced ballplayer whose first baseball season at Oak Hill was in 1965. During that season, Beck would not allow his players to use sunglasses, considering them too dangerous. However, before the 1966 season, he read the following advertisement of defendant in Sporting News:

"PLAY BALL and Flip for Instant Eye Protection with RAYEX Baseball SUNGLASSES Professional FLIP-SPECS"

The advertisement also stated:

"Scientific lenses protect your eyes with a flip from sun and glare anywhere * * * baseball, beach, boat, driving, golfing, fishing, just perfect for Active and Spectator Sports — World\'s finest sunglasses."

After seeing this material, Beck decided to buy six pairs of defendant's flip-type baseball sunglasses for use by his outfielders and second basemen. Each pair of sunglasses was in a cardboard box labeled "Baseball Sunglasses — Professional Flip-Specs," stating "Simply flip * * * for instant eye protection." The guarantee inside each box provided:

"Rayex lenses are guaranteed for life against breakage. If lens breakage occurs mail glasses and 50¢ (Postage Handling Charge) for complete repair service.

"Rayex Sunglasses are guaranteed to:

1. Eliminate 96% of harmful ultraviolet and infrared rays.

2. Protect your eyes against reflected glare from smooth surfaces, roads, water, snow, etc.

3. Retain clear, undistorted vision."

Except for the flip feature and elastic tape at the rear of the frame, the glasses resembled ordinary sunglasses. The thinness of the lenses was shielded by the frames and therefore not obvious to users.

These glasses were stored in the glove compartment of coach Beck's car, and in accordance with the custom of his teammates, Filler removed a pair of the sunglasses from the coach's car and was using them at the time of his injury. Neither Filler, nor Beck, nor indeed even defendant's president knew the lenses would shatter into sharp splinters when hit by a baseball.

After a bench trial, the district judge awarded Filler $101,000 damages and his mother $1,187.75 for her consequential damages. In an unreported memorandum opinion, the district judge supported this result on three independent grounds: implied warranty, strict liability, and negligence.^* Under any of those theories, privity between the manufacturer and plaintiff is not required by controlling Indiana law. Posey v. Clark Equipment Company, 409 F.2d 560, 563 (7th Cir. 1969); Dagley v. Armstrong Rubber Company, 344 F.2d 245, 252-254 (7th Cir. 1965); Greeno v. Clark Equipment Company, 237 F.Supp. 427 (N.D. Ind.1965).

We agree that defendant is liable for breach of an implied warranty of fitness for a particular purpose. Indiana has adopted the implied warranty provision of the Uniform Commercial Code dealing with fitness for a...