Richard v. H. P. Hood & Sons, Inc., 255-A
Citation | 243 A.2d 910,104 R.I. 267 |
Decision Date | 01 July 1968 |
Docket Number | No. 255-A,255-A |
Court | United States State Supreme Court of Rhode Island |
Parties | , 5 UCC Rep.Serv. 717 Henry L. RICHARD v. H. P. HOOD & SONS, INC. ppeal. |
Charles A. Hirsch, William G. Grande, Providence, for plaintiff.
Stephen F. Mullen, Providence, for defendant.
This case is before us on the plaintiff's appeal from a judgment entered by the superior court on a jury verdict in favor of the defendant on counts of negligence and breach of implied warranty respectively.
The pertinent facts are as follows. At approximately 7:30 a.m. on April 23, 1965, a deliveryman from defendant milk company delivered six half-gallon bottles of milk to plaintiff's home. Within a reasonable time thereafter, plaintiff placed these bottles on the top shelf of his refrigerator. At approximately 8 p.m. that evening, plaintiff, who lacked fingernails, took one of these full bottles from his refrigerator and attempted to open the same by twisting the paper cap which covered the bottle's top. As he did so, a piece of glass pierced the cap and cut the third finger of his left hand necessitating an operation on the same.
In his complaint plaintiff alleged in the alternative that his injury was caused by defendant's negligence or breach of its implied warranty under G.L.1956, § 6A-2-315, as amended, that such bottle of milk would be fit for human consumption. 1
In his charge to the jury, the trial justice stated:
'I believe you should again, even in this second count, as to the implied warranty, examine the evidence to determine if the plaintiff himself was in the exercise of due care as he took the bottle from the refrigerator and opened it, and whether or not his conduct was that of the ordinarily prudent person. And again, weigh all of the evidence to determine whether or not the plaintiff has satisfied you by the fair preponderance of the evidence that he was in the exercise of due care. That is, if the plaintiff was guilty of contributory negligence, he would not be permitted to recover in a case of this type where he is seeking to recover consequential damages as the result of a breach of an implied warranty.
Prior to reaching its verdict the jury returned for further instructions on the law as it was explained by the trial justice with regard to the alleged breach of warranty. The trial justice instructed the jury as follows:
'Now in addition to that, I said, as about the conduct of the plaintiff himself: It is one thing to say that the defendant is under an obligation, because of this implied warranty, to furnish the plaintiff with food products that are fit for human consumption in a container that is also reasonably fit for the purpose for which it is used, but the plaintiff himself must satisfy you, when he is seeking to recover consequential damages, that he was in the exercise of due care.
At approximately 3:50 p.m., the trial justice, without the knowledge of counsel, sent a note to the foreman of the jury asking him if he believed the jury to be anywhere near ready to report with a verdict. The foreman answered, 'Hopefully.' At approximately 5 p.m., the jury returned with its verdict for defendant on both of the aforesaid counts.
The plaintiff bases his appeal on the following three contentions. He maintains that the trial justice committed reversible error in charging the jury that a finding of contributory negligence would be a defense to his action for consequential damages under the theory of breach of implied warranty of fitness for a particular purpose; that the trial justice committed reversible error by sending, without the knowledge of counsel, a note to the jury foreman asking him if he believed the jury to be anywhere near ready to report with a verdict; and that the trial justice's instruction:
constituted reversible error. 2
We consider first the question of whether the trial justice erred in instructing the jury that a finding of contributory negligence would be a defense to plaintiff's claim under the theory of breach of implied warranty for a particular purpose. The plaintiff argues in the alternative that contributory negligence is not a defense to a claim based upon breach of warranty and that even if it were, there was not sufficient evidence to warrant the trial justice instructing the jury on it.
We will consider these alternative arguments in the order raised. In his brief plaintiff quotes the following portions of the trial justice's charge as constituting error.
'* * * That is, if the plaintiff was guilty of contributory negligence, he would not be permitted to recover in a case of this type where he is seeking to recover consequential damages as the result of a breach of an implied warranty.
'If you believe that he was not in the exercise of due care himself, you should return a verdict for the defendant. * * *
The plaintiff's counsel took specific objection to the aforesaid language stating that
'* * * Under the theory of implied warranty, I don't believe it is the obligation of the plaintiff to prove his freedom from contributory negligence. * * *
'* * * in a case of implied warranty no burden is upon the plaintiff to show freedom from contributory negligence, or to show that he acted in the exercise of due care * * *.'
As Prosser has stated in 50 Minn.L.Rev. 791, at 838:
We have examined those cases dealing with the question before us and are in accord with Prosser's conclusion at pages 838-840, as follows:
'Where the negligence of the plaintiff consists only in failure to discover the danger in the product, or to take precautions against its possible existence, it has uniformly been held that it is not a bar to an action for breach of warranty. 3 * * * But if he discovers the defect, or knows the danger arising from it, and proceeds nevertheless deliberately to encounter it by making use of the product, his conduct is the kind of contributory negligence which overlaps assumption of risk; and on either theory his recovery is barred. 4 * * *
'It is always possible that the plaintiff's negligence may consist of an abnormal use of the product, and whether there is discovery of the danger or not, the recovery may be barred on that ground.' 5
It is our opinion that there is merit in plaintiff's contention that the trial justice erred in charging the jury as he did. When the portions of the charge quoted by plaintiff in his brief are taken in the context of the entire charge it...
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