Frank R. Jelleff, Inc. v. Braden

• Citation: 233 F.2d 671
• Decision Date: 20 April 1956
• Docket Number: No. 12768.,12768.
• Parties: FRANK R. JELLEFF, Inc., Appellant, v. Blanche K. BRADEN, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

233 F.2d 671 (1956)

FRANK R. JELLEFF, Inc., Appellant, v. Blanche K. BRADEN, Appellee.

No. 12768.

United States Court of Appeals District of Columbia Circuit.

Argued December 7, 1955.

Decided April 20, 1956.

Mr. Paul R. Connolly, Washington, D. C., with whom Mr. Francis L. Casey, Jr., Washington, D. C., was on the brief, for appellant.

Mr. Joseph S. McCarthy, Washington, D. C., with whom Mr. Wilbert McInerney, Washington, D. C., was on the brief, for appellee.

Before PRETTYMAN, BAZELON and DANAHER, Circuit Judges.

DANAHER, Circuit Judge.

This appeal follows a judgment entered pursuant to a jury verdict for $65,000 damages against a retail dealer in women's clothing. The action was based upon an alleged breach of warranty of fitness.¹ The appellee on January 6, 1952, had purchased a finger-tip or hip length "brunch" coat or smock from the appellant. She wore the garment only two or three times since it bore a "metallic" odor which she found "objectionable." On March 6, 1952, she had remained home due to a minor illness and while preparing a meal, the smock came in contact with the outer ring or rings of the burner on her electric stove. The smock was buttoned down the front but hung in a flaring fashion. The jury could have found that the garment was in a vertical position above the burner when it became ignited while appellee was reaching for a can of sugar on a shelf above the stove. She first noticed the smock was afire when the flames reached her chest. The jury could have found that "it would take somewhere between 1 and 2 seconds, maybe more" for appellee, standing before the stove, to reach to the shelf above. Whatever the exact time for the fabric to become ignited and thereafter to burn some ten or twelve inches to where flames were first noticed was not shown. The jury could have found that a fabric in a vertical position burns three times as rapidly as the same fabric at an angle of forty-five degrees. The jury could have found that a fabric which is preheated will ignite more rapidly than one which has not been so "conditioned."

Apparently, the garment here in question was multicolored, with an overlay of gold, probably a bronze metallic pigment. The metallic pigment when heated could have the effect of drying the fabric by dispersing heat, taking it up faster than the textile part of the material, thus achieving a more widespread dryness than otherwise might be found. The flames spread rapidly throughout the right half of the garment, front and back, and the right sleeve, and as appellee ran from the kitchen to her bathtub, various charred portions of the garment fell to the floor and burned several spots into the rug. At the tub, the left portion of the garment fell into the tub and was later thrown out by the janitor. The flaming garment not only burned appellee severely, in places causing third degree burns, but it melted or fused a buckle and the strap on the woman's nylon brassiere and burned the imprint of the strap into her back. "It went up so fast that I couldn't get the canister down in time to bring down my arm to protect myself," appellee testified. Various witnesses upon entering the apartment after the fire discerned a strong burned metallic odor which they described to the jury. One witness picked up and saved a few of the charred fragments of the burned garment, from one of which a pattern could be perceived with the outline of the gold or bronze metallic overlay still visible.

After the first trial, the jury disagreed. While a second trial, which resulted in disagreement, was in progress, appellant's counsel became fearful that the statute of limitations might bar an indemnity suit against the manufacturer. He caused his partner to call up attorneys in Indiana and ask that a suit be filed in the United States District Court for the Northern District of Indiana in which the present appellant was the plaintiff and the manufacturers of the garment were named as defendants. The complaint alleged that the Indiana defendants had manufactured and sold to the appellant Jelleff a quantity of garments which had been warranted as properly manufactured, of suitable materials, of merchantable quality, "not flammable, and that said smocks would be safe to be worn by the plaintiff's customers." The Indiana complaint further set up that Blanche K. Braden, while wearing a smock of defendant's manufacture, had suffered severe burns, had instituted suit against this appellant, that because of the first trial and the second then in progress, Jelleff had been compelled to expend large sums of money in the preparation and defense of the suit and might further become liable to respond in damages to Blanche K. Braden. The action sought to recover not only the expenses of the litigation but the amount of any judgment which Miss Braden might recover. In particular, the complaint alleged:

"3. Plaintiff further avers that the defendants were guilty of carelessness and negligence in the manufacture of said smocks in this to wit: That said smocks were made and manufactured of flammable materials; that the defendants and each of them knew or in the exercise of ordinary care should have known that said smocks were dangerous and not suitable for wear by the purchaser thereof in that the flammable material of said smocks would in all probability result in injury to the purchasers thereof."

Over Jelleff's objection the Indiana complaint was received in evidence.

At the close of the plaintiff's case Jelleff's motion for directed verdict was denied, but was not later renewed. The defendant called as a witness an officer of the defendant corporation who testified that Jelleff's had made no flammability tests of the garments received from the Indiana manufacturers. He was asked:

"Has Jelleff\'s had any complaints other than Miss Braden\'s with respect to the flammability of the fifteen dozen brunch coats that were delivered to the store from Pollock Brothers? A. No, this was the only one."

Thereupon plaintiff's counsel objected and the objection was sustained, but the reply was not stricken and the trial judge gave no instruction to the jury that the answer was to be disregarded. Before an officer of the manufacturing corporation was called as a witness, the plaintiff's counsel in a bench conference informed the judge that in the previous trials the officer had been asked as to the number of similar garments which had been sold and as to how many other complaints had been received. Defense counsel made a proffer to the judge of what testimony he expected to elicit along that line, and the trial judge advised that such testimony would be inadmissible. When the manufacturers' officer was on the witness stand the question was not renewed. The officer testified "We did not run any flammability tests on any of these goods."

We have stated enough of the case to supply background for the three questions raised on appeal. First, the defendant retailer urged that the garment had been made of a "conventional" fabric, extensively used for wearing apparel purposes, and not shown to possess characteristics of combustion different from those which are normal and natural to the fabric as a type. Therefore, the retailer could not be liable to a customer for breach of warranty "under the language of this Court in Deffebach v. Lansburgh & Bro., 1945, 80 U.S.App. D.C. 185, 150 F.2d 591, 168 A.L.R. 1052."^* Next, appellant challenged the ruling by which appellant's Indiana complaint against the manufacturers had been admitted "when the complaint was not seen or verified by the retailer and when the circumstances indicated that there was no intention on the part of the retailer to concede the unfitness of the article sold to the customer." The third question raised is "whether the absence of complaints growing out of the sale of a large quantity of garments made of the same cloth is a relative circumstance to prove the fitness of one of such garments for normal use." (Emphasis supplied.)

In the Deffebach case, supra, a verdict had been directed for the defendant at the close of the plaintiff's case. Brought under the same statute as the instant action, the District Court's judgment was reversed. There, as here, the purpose of the garment was obvious and was known to the seller. There, as here, the buyer was clearly intended to rely on the seller's judgment that it was fit for use. Miss Braden was alone and had to fight the fire by herself. In Deffebach, as the flames spread through the robe, several persons made immediate and vigorous efforts to extinguish the fire. We said the only "question in the case was whether or not the robe was reasonably fit for use as a robe." In resolving that question, we were dealing with the facts in that case. We noted that outer garments intended for domestic wear are not unlikely to come into momentary contact with lighted matches, tobacco, or stoves. It was not simply a question of "instantly" or any other less or more prolonged period of time. Rather, we concluded, if the jury should find the particular facts to be as submitted to us, it should have been instructed that a breach of implied warranty of fitness had occurred.

Appellant seems to argue that the Deffebach case had established a rule of such rigidity and controlling application that no injured person may recover unless the fire acted "like the Deffebach fire." Not at all; we were saying that the Deffebach facts established a breach, without more. There may still be a question of fact in yet other situations, as here, as Jelleff seemed to realize. Appellant offered the testimony of various experts with reference to the burning rate of various types of "conventional" fabrics. Appellant sought to establish that the destroyed garment was "like" the conventional fabrics, tests as to the burning of which were conducted in the presence of the jury. But the jury could have found that the fabric in the plaintiff's brunch coat was not ...