Lindsey v. International Shoe Co.

• Decision Date: 25 March 1970
• Docket Number: 8 Div. 1
• Citation: 233 So.2d 507,45 Ala.App. 566
• Parties: William Vernon LINDSEY v. INTERNATIONAL SHOE COMPANY, a Corporation, Liberty Mutual Insurance Company, a Corporation and Aaron Davis, d/b/a Davis Dry Goods Store.
• Court: Alabama Court of Civil Appeals

Page 507

233 So.2d 507

45 Ala.App. 566

William Vernon LINDSEY v. INTERNATIONAL SHOE COMPANY, a Corporation, Liberty Mutual Insurance Company, a Corporation and Aaron Davis, d/b/a Davis Dry Goods Store.

8 Div. 1.

Court of Civil Appeals of Alabama.

March 25, 1970.

Charles D. Rosser, Tuscumbia, for appellant.

McDonnell & Jones, Sheffield, for appellee.

BRADLEY, Judge.

Plaintiff filed his complaint under the Uniform Sales Act in 1964 for breach of warranty and negligence in the inspection and sale of a shoe. After four years of pleadings (four amended complaints with demurrers sustained to each) appellant took a voluntary non-suit on February 7, 1968, and appealed to the Supreme Court. The case was subsequently transferred to this court.

Appellant's complaints, considered together, alleged that he purchased a shoe with a tack protruding through, or imbedded in, the sole. As a result, he was injured and seeks damages therefor.

There were five assignments of error filed with the record on appeal--all of them contending the commission of error in the sustaining of the demurrers to the complaints as amended.

Appellee has on file a motion asking the court to strike the transcript and appellant's brief, and to affirm the case. The motion points out many areas in the transcript and appellant's brief that do not meet the standards prescribed by the Rules of the Supreme Court; but, although we do not condone such omissions, we believe justice would be better served if we exercised our discretion and decided this appeal on its merits.

Appellant's assignments of error one through four are not argued in his brief, and are therefore considered by us to be waived. Supreme Court Rule 9.

Appellant assigns as error-assignment number five--the sustaining of appellee's demurrer to the complaint as last amended on August 21, 1967 and January 23, 1968.

To clarify the issues involved, we would set out the substance of the complaint as follows:

1. Count one sounds in negligence;

2. Count two sounds in breach of implied warranty, although the averment of notice is insufficient;

3. Counts A--F sound in negligence; and

4. Count G sounds in breach of implied warranty.

We have been unable to determine from appellant's negligence counts whether he complains of an obvious or a latent defect. Apparently, however, he complains of a latent defect for which no action for a retailer's negligence will lie. See 46 Am.Jur., Sales, Section 345, p. 528. Therefore, there was no error in the trial court's sustaining appellee's demurrers to count one and counts A--F.

Count two alleges a breach of implied warranty, but we believe the averment of notice to be insufficient. The giving of notice, within a reasonable time, is a condition precedent to maintaining an action of this nature against the retailer; and the giving of notice must be affirmatively pleaded in the complaint. Smith v. Pizitz of Bessemer, Inc., 271 Ala. 101, 122 So.2d 591; and Title 57, Section 55, Code of Alabama 1940, as Recompiled 1958.

Furthermore, the giving of notice within a reasonable time must be pled with some degree of specificity. See Nashua River Paper Co. v. Lindsay, 249 Mass. 365, 144 N.E. 224, and Idzykowski v. Jordan Marsh Co., 279 Mass. 163, 181 N.E. 172, for the essentials to be set forth in the notice and pled in the complaint.

Having eliminated all of the counts of the complaint but count G, we will now consider it.

Count G is as follows:

'The Plaintiff claims of the Defendant the sum of Nine Thousand Nine Hundred Ninety-nine and NO/100 Dollars ($9,999.00) damages for that on, to-wit: the 29th day of June, 1963, the Defendant was engaged in the business of selling a pair of leather dress shoes manufactured by International Shoe Company and bearing number 4120--1670--12--12 M3578 121, which pair of shoes the Defendant advised the Plaintiff was made and sold for the purpose of wearing on one's feet and Plaintiff avers that on, to-wit: the 29th day of June, 1963, the Plaintiff purchased from the Defendant such aforesaid pair of shoes for his use in wearing on his feet and Plaintiff avers that the said intended use was made known to the Defendant and that there was an implied warranty of the Defendant to the Plaintiff that said shoes were reasonably fit for said use for which they were made and...