Fredendall v. Abraham & Straus, Inc.
| Decision Date | 29 November 1938 |
| Citation | 279 N.Y. 146,18 N.E.2d 11 |
| Parties | FREDENDALL et al. v. ABRAHAM & STRAUS, Inc. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by Louise M. Fredendall and another against Abraham & Straus, Inc., to recover damages for illness, caused by fumes of a dry cleaning fluid purchased from defendant, on the ground of breach of implied warranty of merchantability. From a judgment of the Appellate Division, 252 App.Div. 740, 300 N.Y.S. 377, modifying a judgment on a verdict for named plainiff by reducing the amount of recovery from $5,172.60 to $2,582.60 and affirming it as modified, defendant appeals.
Reversed, and complaint dismissed. Appeal from Supreme Court, Appellate Division, First department.
Walter G. Evans, H. Bradley Moore, and James F. Clarity, Jr., all of New York City, for appellant.
Myron Sulzberger, Jr., and David Fogel, both of New York City, for respondent.
Plaintiff bought from defendant a gallon container of ‘Globe Quick-Dry Fluid for Dry Cleaning.’ A ‘caution’ displayed thereon announced that ‘the fluid contains ingredients which produce vapors, which if inhaled in large amounts, may cause discomfort and distress' and that ‘with reasonable care it can be used with absolute safety.’ Among other ‘precautions' suggested were the following: Plaintiff read and understood these instructions.
She used nearly all the contents of the container in cleaning eight dresses. The cleaning was done in a small bathroom where the temperature was 83 degrees and there was no cross draft. As each dress was cleaned, it was hung up in the same room to dry. Plaintiff's husband, who was in an adjacent room, called out to her ‘that the odors were very strong and disagreeable.’ After she had been so engaged for forty-five minutes, plaintiff was made sick by the fumes of the fluid. A judgment against defendant for the consequent damages has been affirmed as modified. The action is in form one for breach of an implied warranty of merchantability.
We think the evidence conclusively shows that the plaintiff failed to use reasonable care in the use of the fluid and that this default was an essential cause of her illness. We do not pass upon any other question.
The judgments should be reversed and the...
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...a breach of warranty action, contributory negligence may be asserted as a defense to the breach of warranty action (Fredendall v. Abraham & Straus, 279 N.Y. 146, 18 N.E.2d 11; Coca-Cola Bottling Co. v. Barksdale, 17 Ala.App. 606, 88 So. 36; Kraft-Phenix Cheese Corp. v. Spelce, 195 Ark. 407,......
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...Co. (1959), 7 A.D.2d 282, 182 N.Y.S.2d 404; Rasmus v. A. O. Smith Corp., 158 F.Supp. 70 (D.C.Iowa 1958); Fredendall v. Abraham & Straus, Inc. (1938), 279 N.Y. 146, 18 N.E.2d 11; Young v. Aeroil Products Co., 248 F.2d 185 (9th Cir. 1957); Arnaud's Restaurant, Inc. v. Cotter, 212 F.2d 883 (5t......
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Tropea v. Shell Oil Company, 26981.
...Color Works, 284 App.Div. 376, 131 N. Y.S.2d 782 (1954), aff'd, 308 N.Y. 816, 125 N.E.2d 871 (1955); Fredendall v. Abraham & Straus, Inc., 279 N.Y. 146, 18 N.E.2d 11 (1938) (per curiam); Burnstein v. Haas, 272 App.Div. 1051, 75 N.Y. S.2d 293 (1947), aff'd, 298 N.Y. 596, 81 N.E.2d 328 (1948)......
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