Moore v. HECHT COMPANY

• Citation: 298 F.2d 892
• Decision Date: 10 January 1962
• Docket Number: No. 8372.,8372.
• Parties: Regina K. MOORE, Appellant, v. The HECHT COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

298 F.2d 892 (1962)

Regina K. MOORE, Appellant, v. The HECHT COMPANY, a corporation, Appellee.

No. 8372.

United States Court of Appeals Fourth Circuit.

Argued October 13, 1961.

Decided January 10, 1962.

Cornelius H. Doherty, Washington, D. C. (Cornelius H. Doherty, Jr., Washington, D. C., on brief), for appellant.

Henry B. Crockett, Alexandria, Va. (Robert L. Watt, Alexandria, Va., on brief), for appellee.

Before SOPER, BOREMAN and BELL, Circuit Judges.

J. SPENCER BELL, Circuit Judge.

This is an appeal from a judgment of the District Court tried without a jury in which the Court found for the defendant.

The plaintiff purchased from the defendant, a retail merchant, a pair of bedroom slippers. The slippers were a trademarked item of merchandise packaged in a transparent cellophane wrapper and sold under the trade name "Angel Treads". Although the plaintiff did not open the package containing the shoes she purchased, she did examine similar ones which were lying on the counter. The shoes she purchased were so packaged that the soles were visible through the wrapper and it was, therefore, possible to see that they were of the same texture as those displayed on the counter. The plaintiff testified that she took the slippers home, put them on, and as she stepped from the bedroom into the hall her foot slipped on the hardwood floor and she fell, injuring herself seriously.

The plaintiff's case is bottomed upon the theory that there was an implied warranty from the retailer to the purchaser that the trademarked merchandise in question was fit for the purpose for which it was designed. She relies principally upon the case of Smith v. Hensley, 202 Va. 700, 119 S.E.2d 332 (1961), and we are agreed that this reliance is well founded. In that case, the buyer purchased a trademarked material known as "Cool Roofing" from a dealer. He clearly did not rely upon the representations of the dealer but upon his own knowledge and skill. He used the materials on a number of jobs which he performed for his customers. It proved defective and suits resulted. He was permitted to recover from the seller-dealer, who was not the manufacturer of the product. In its opinion the Virginia Court said: "He (the buyer) contends that the principle applicable under the evidence in this case is that where an article is purchased by its trade or brand name, an implied warranty of * * * fitness of use arises whether or not the buyer relies on the judgment of the seller. We agree with the contentions of the Appellee (buyer)". (At...