Owen v. Sears, Roebuck and Company
Decision Date | 01 December 1959 |
Docket Number | No. 16366.,16366. |
Citation | 273 F.2d 140 |
Parties | John L. OWEN, Appellant, v. SEARS, ROEBUCK AND COMPANY, a corporation, Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
Nicholas Granet, Portland, Or., for appellant.
Koerner, Young, McColloch & Dezendorf, John Gordon Gearin, Portland, Or., for appellee.
Before BONE and HAMLEY, Circuit Judges, and BOWEN, District Judge.
This is an appeal from the Trial Court's order directing a jury verdict for appellee (defendant below) at the close of appellant's (plaintiff's) case in chief in the trial of appellant's action against appellee for alleged breach of warranty of fitness to recover damages sustained by appellant when he was burned by a cigarette-lighted fire in a shirt he was wearing some time after it was purchased by his wife for him at appellee's Portland, Oregon store.
In the pretrial order which superseded the pleadings, appellee admitted as appellant contended that there is a diversity of citizenship between the parties and that more than $3,000.00, exclusive of interest and cost, is involved in this action. All other allegations and contentions of appellant were denied by appellee in the pretrial order. The Trial Court had and this Court has jurisdiction. 28 U.S.C.A. § 1332, and 28 U.S.C.A. §§ 1291 and 1294.
Appellee did not before the trial plead in its answer or contend as a defense in the pretrial order, as during and after the trial it has contended and does now contend, that appellant failed to give appellee notice of appellant's claim against appellee as required by the Oregon Uniform Sales Act (ORS 75.490). As to that, appellant argues that, by such failure of appellee to so plead and contend, appellee waived its right to have received such statutory notice and to now claim lack of such notice as a defense, but that anyway commencement of appellant's suit in this case constituted the statutorily required reasonable notice to appellee.
Appellee, however, at the trial contended and now contends that the giving of such statutorily required notice by appellant was an indispensable condition to the existence of appellant's claim and of his presently asserted cause of action, and that the commencement of appellant's suit did not constitute reasonable notice to appellee within the meaning of the Oregon Uniform Sales Act, supra. There is no contention that appellant gave to appellee any notice by any other means than by such suit commencement.
This case is based upon alleged breach by appellee of implied warranty of fitness of the shirt for use as an item of suitable wearing apparel for appellant at the time of the alleged fire.
Appellant's alleged cause of action for such breach of warranty arose in Oregon. This diversity of citizenship case involving such cause of action is based upon the law of that, not any other, state and not upon a federal law, and the rule of Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, and Guaranty Trust Co. of New York v. York, 1945, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, makes of primary and paramount concern the applicable statutory and case law of Oregon. In pertinent part the Oregon Uniform Sales Act, supra, provides:
(Emphasis supplied.)
The Supreme Court of Oregon, in Tripp v. Renhard, 1948, 184 Or. 622, 200 P.2d 644, 653, interpreted the notice requirement of the above quoted Oregon statute as follows:
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