Horton v. American Tobacco Co.

Decision Date09 November 1995
Docket NumberNo. 91-CA-00006-SCT,91-CA-00006-SCT
Citation667 So.2d 1289
PartiesProd.Liab.Rep. (CCH) P 14,496 Ella Mae Howard HORTON and Nathan Randall Horton, Widow and Son of Nathan Henry Horton, Deceased, Individually and on Behalf of All Wrongful Death Beneficiaries and the Estate of the Deceased v. The AMERICAN TOBACCO COMPANY and New Deal Tobacco and Candy Company, Inc.
CourtMississippi Supreme Court

Charles Victor McTeer, McTeer & Associates, Greenville, Don Barrett, Barrett Law Office, Lexington, Frederick B. Clark, Greenwood, Shirley Byers, Greenville, for appellant.

James E. Upshaw, Upshaw Williams Biggers Page & Kruger, Lonnie D. Bailey, Upshaw Williams Firm, Greenwood, Edward Blackmon, Blackmon Blackmon & Evans, Canton, Shelby D. Goza, Hickman Sumners Goza & Gore, Oxford, Calvin R. King, Anna Maria, FL, Thomas E. Bezanson, Chadbourne & Parke, New York City, Mary T. Yelenick, Chadbourne & Parke, New York City, for appellee.

En Banc.

BANKS, Justice, for the Court:

This matter deals with the liability vel non of a tobacco product manufacturer and distributors with respect to the cancer contracted by the plaintiffs' decedent. The matter went to a jury which rendered a verdict for the plaintiffs but assessed zero damages. The plaintiffs appeal that result and the defendants cross-appeal asserting an entitlement to a directed verdict in its favor. A majority of this Court concludes that the court erred in failing to instruct the jury that the "risk-utility" standard applies in determining liability and that the court erred in granting an assumption of the risk instruction. A plurality concludes that these errors are of no moment because, despite the assumption of the risk instruction and the failure to give the risk utility instruction, the jury found for the plaintiffs. We conclude that such a verdict is consistent with both the instructions given and the evidence. It evinces a finding that the product is unreasonably dangerous, that the decedent did not assume the risk, but that, upon application of our doctrine of comparative fault, no damages should be assessed against the defendant. Accordingly, a plurality would affirm the judgment of the circuit court rejecting both the plaintiffs' appeal and the defendants' cross-appeal. Joining the plurality as to result on the direct appeal are those who would reverse the trial court on defendant's cross-appeal on the basis of the view that a proper application of the law of products liability would render a directed verdict in favor of the defendant. Those who would reverse the judgment on the direct appeal on the basis that the errors in instructing the jury impermissibly affected its verdict, join the plurality in rejecting the cross-appeal. In sum, we affirm as to the direct appeal and as to the cross-appeal.


This is an appeal from a judgment entered on a jury verdict in the Circuit Court of Lafayette County. This action was commenced by the decedent, Nathan Henry Horton ("Horton"), on May 14, 1986, against the appellees/cross-appellants, the American Tobacco Company and New Deal Tobacco and Candy, Inc. ("the defendants"). Upon his death on January 27, 1987, his widow, Ella Mae Howard Horton, and his son, Nathan Randall Horton ("the plaintiffs"), were substituted as wrongful death beneficiaries. The plaintiffs filed their Fourth Amended Complaint on September 14, 1989. Prior to trial, the plaintiffs withdrew their implied warranty, failure-to-warn, and misrepresentations claims.

The trial began on September 4, 1990, in Oxford, Mississippi, with the plaintiffs pursuing two theories of tort liability: negligence and strict liability. Upon completion of the presentation of the plaintiffs' case-in-chief, the trial court granted, in part, the defendants' motion for a directed verdict, dismissing the plaintiffs' claims of negligence predicated on their "failure to test" and "contaminants" allegations. The court subsequently dismissed the plaintiffs' negligence claim in toto.

Following a three-week trial, the case was submitted to the jury on a strict liability theory, with instructions also given on assumption of the risk and comparative negligence. The jury returned a verdict in favor of the plaintiffs but awarded zero damages.


Horton was born on July 7, 1936, in Holmes County, Mississippi. He began smoking Pall Mall unfiltered cigarettes in 1955. Prior to that, according to Horton's deposition testimony, he smoked cigarettes rolled with tobacco he obtained from cans of his father's Prince Albert tobacco. When he began buying his own cigarettes, Horton bought Pall Malls because they were long, unfiltered cigarettes that he felt gave him more for his money. Additionally, Horton testified that he considered Pall Malls to be "a good buy."

During the course of his deposition, Horton admitted that from childhood, he had been told that smoking was bad for him. He had been aware, over the years, of purported links between smoking and disease. Horton testified that he had been warned by many, many people of the dangers of smoking. Horton admitted that his doctor had told him not to smoke. Moreover, Horton had known specifically of the risk of cancer associated with smoking. Horton also admitted that he had heard others describe, and had himself referred to, cigarettes as "coffin sticks" and "cancer sticks" through the years.

Beginning in 1966, Horton was further warned of the reported risks of smoking by a warning label contained on each package of cigarettes he smoked. Horton acknowledged that he had heard about the Surgeon General's Report concerning smoking and lung cancer. He also admitted that he had read the federally-mandated warnings, and that he had been aware of the warnings for many years. Despite these repeated warnings, Nathan Horton continued smoking.

Horton sought medical help in the fall of 1985 for chest and arm pain. He was diagnosed as having mild emphysema in October of that year. In February, 1986, doctors at the Veteran's Administration Hospital in Jackson concluded that he had lung cancer. Horton died of pulmonary hemorrhage secondary to lung cancer on January 27, 1987.

At trial, the plaintiffs presented the testimony of several medical experts. These experts testified to the effects of cigarette smoking, the components of cigarettes and cigarette smoke, and the human carcinogens found in smoke. Dr. David Burns, the first expert called by the plaintiffs, testified that the 1964 Surgeon General's Report on smoking conclusively found that cigarette smoking caused lung cancer in men. He further testified that every Surgeon General's Report since that time had reached the same conclusion. Dr. Burns testified that 95-97% of all lung cancers occur in smokers. Additionally, Dr. Burns testified that the advertising efforts of the tobacco industry had caused a false sense of security in the general public and that the general public was not aware of the magnitude of the risk associated with smoking.

Dr. Heinz Ginzel testified that cigarette smoking is highly addictive and that the addictive component is nicotine. He further testified that not only is nicotine addictive, but that it also increases the risk of lung cancer. Additionally, Dr. Ginzel testified that tobacco smoke is the number one human carcinogen according to the International Agency for Research on Cancer. Finally, Dr. Ginzel testified that Horton was addicted to cigarettes.

The plaintiffs next introduced the video deposition of Robert K. Heimann, former president and chief executive officer of the American Tobacco Company. Heimann testified that he took the position that cigarettes are not injurious to health. He further testified that it was the American Tobacco Company's position from 1954-1980 that cigarettes were not injurious to health. Heimann testified that he and the American Tobacco Company were well aware of scientific reports that linked smoking to lung disease. Heimann even admitted that some of these reports were commissioned by the tobacco industry itself. Heimann also testified that the American Tobacco Company wanted the public to believe that cigarette smoking was not dangerous to their health and that they wanted the public smoking their brands of cigarettes. Finally, Heimann testified that Congress was wrong in requiring warnings on cigarettes. Moreover, Heimann stated that World Health Organization, the Canadian Ministry of National Health and Welfare, the American Medical Association, the American Heart Association, the American Cancer Society, the American College of Chest Physicians, the American Association for Thoracic Surgery, the American Public Health Association, the U.S. Veterans Administration, and the British Ministry of Health were all wrong in concluding that cigarettes are hazardous to the health of the general public.

Dr. Richard Pollay testified that during the 1950's when Horton began smoking, there was very little belief among the public that smoking caused lung disease. Dr. Pollay testified that the public is still largely unaware of the dangers associated with smoking. Dr. Kenneth Warner testified that cigarettes are unreasonably dangerous and are the only product that causes death if used exactly as intended.

The doctors that performed the autopsy on Horton, Dr. George Smith and Dr. Robert O'Neal, testified that smoking Pall Mall cigarettes was the cause of Horton's emphysema, lung cancer, and subsequent death.

Based on this evidence, the jury returned a verdict against the defendants and in favor of the plaintiffs but awarded zero damages. This appeal followed.


Plaintiffs contend that this case should be reversed because the trial court instructed the jury in accordance with the "consumer expectations" rather than the "risk-utility" standard for products liability. It is clear that this Court has adopted the latter standard. Sperry-New Holland v. Prestage, 617 So.2d 248 (Miss.1993). They also...

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