Ross v. Philip Morris & Company, 17202.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtVAN OOSTERHOUT, MATTHES and MEHAFFY, Circuit
Citation328 F.2d 3
PartiesJohn T. ROSS, Appellant, v. PHILIP MORRIS & COMPANY, Ltd., a Corporation, Appellee.
Docket NumberNo. 17202.,17202.
Decision Date20 March 1964

328 F.2d 3 (1964)

John T. ROSS, Appellant,
PHILIP MORRIS & COMPANY, Ltd., a Corporation, Appellee.

No. 17202.

United States Court of Appeals Eighth Circuit.

February 26, 1964.

Rehearing Denied March 20, 1964.

328 F.2d 4

Charles L. Carr, Kansas City, Mo., Clay C. Rogers and Lyman Field, Rogers, Field & Gentry, Kansas City, Mo., of counsel, for appellant.

David R. Hardy, Kansas City, Mo., William W. Shinn, Kansas City, Mo., John Vance Hewitt and Alexander Holtzman, New York City, Carl E. Enggas, Kansas City, Mo., Conboy, Hewitt, O'Brien & Boardman, New York City, and Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, Mo., for appellees.


MATTHES, Circuit Judge.

This so-called cigarette-cancer case originated in the Circuit Court of Jackson County, Missouri, on November 23, 1954, was removed to the United States District Court for the Western District of Missouri on the ground of diversity of citizenship and the requisite amount in controversy, and was tried in that court before a jury in June and July, 1962. From a judgment entered pursuant to a verdict for defendant-appellee (hereinafter referred to as defendant), plaintiff-appellant

328 F.2d 5
(hereinafter referred to as plaintiff) has perfected this appeal

Count I of the complaint upon which the action was tried was for breach of an implied warranty; Count II sounded in negligence; and Count III for fraud and deceit by false advertising. Defendant's motion for summary judgment on Count III was sustained before trial, thus eliminating that count from jury consideration. In addition to answers which essentially amounted to a general denial, defendant also interposed as defenses: (1) the statute of limitations, (2) assumption of risk, and (3) contributory negligence. (1) was determined adversely to defendant in a pre-trial conference, and (2) and (3) were not submitted to the jury and are not in issue on appeal. The implied warranty and negligence counts were submitted, and by general verdict, both were resolved adversely to plaintiff. On this appeal plaintiff has abandoned the fraud and deceit issue, and — except as to the court's refusal to admit certain evidence, seeks no review of the disposition of the negligence count.

The nature of the points relied upon as grounds for reversal does not necessitate a detailed recitation of the evidence. For purposes of this opinion, the following factual resume will suffice.

Plaintiff was born on November 20, 1899, and began smoking cigarettes when he was 28 or 29 years old. He became a confirmed smoker in 1934, and from that time until his cancer operation in 1952, he smoked Philip Morris brand cigarettes almost exclusively. Plaintiff increased his consumption of smoking cigarettes from the early 1930s and within four or five years was smoking two packages a day. Again, he increased to the point where in 1939 and 1940 he smoked as many as three and sometimes four packages a day. He did not reduce his smoking until he went to Mayo Clinic for the cancer operation in 1952.

In 1951 plaintiff first experienced a throat irritation. As a result of a medical examination and biopsy performed upon him in January or February, 1952, plaintiff was informed that he had cancer of the throat. He immediately went to Mayo Clinic at Rochester, Minnesota, for a complete examination. There, on February 16, 1952, upon the basis of medical advice, he submitted to an operation which included a laryngectomy, a neck dissection, and a tracheotomy. Since the operation plaintiff has had to breathe through an opening in his neck, and can speak only with the aid of an electric device attached to his throat.

Plaintiff's own testimony reveals a history of indulgence, heavy at times, in alcoholic liquor. He is a former member of Alcoholics Anonymous, was arrested several times on charges involving intoxication, and with the exception of the year when he was a member of Alcoholics Anonymous, indulged — in varying degrees — in the consumption of liquor.1

Plaintiff's contentions here bring into question (1) the nature and scope of defendants warranty of Philip Morris cigarettes, and (2) the propriety of the trial court's action in excluding certain proffered evidence. More precisely, on the crucial implied warranty issue, plaintiff challenges the validity of the court's charge to the jury. Plaintiff contends that his offered instruction properly declared the applicable Missouri law of implied warranty and that prejudicial error resulted in the court's refusal to give such instruction. In pertinent part, this refused instruction declared:

"the law to be that one who manufactures, processes and markets cigarettes for consumption and smoking by the general public, such as the defendant Philip Morris Company, Ltd. * * * owes to consumers of its product the duty to provide cigarettes which, including the smoke therefrom, do not contain any
328 F.2d 6
harmful, dangerous or deleterious substances to human health when smoked and used by consumers, that is to say, cigarettes that are fit and wholesome for human consumption. In this respect, the law implies a warranty of fitness for human consumption to the smoker of such product irrespective of whether the manufacturer did not know, or even could not have known in the exercise of the ultimate in care, skill and foresight, that the product may have contained any harmful, dangerous and deleterious substances or ingredients." (Emphasis supplied).

The refused instruction authorized a verdict for plaintiff on the implied warranty count if the jury found —

"on the basis of reasonable probability, there were harmful, dangerous and carcinogenic substances in the tobacco smoke of defendant\'s cigarettes, * * * and that such smoking of defendant\'s cigarettes, on the basis of reasonable probability, directly caused plaintiff\'s cancer * * *.
"And this is true, and is the law, * * * irrespective of whether the defendant did not know, nor in any way could have known, that its product contained any such harmful, dangerous and carcinogenic substances and ingredients. * * *."

Instead of giving plaintiff's offered instruction, the court submitted the issue of alleged breach of implied warranty to the jury by an instruction which stated, inter alia:

"A manufacturer of products, such as cigarettes, which are offered for sale to the public in their original package for human use or consumption, implied warrants that its products are reasonably wholesome or fit for the purpose for which they are sold, but such implied warranty does not cover substances in the manufactured product the harmful effects of which no developed human skill or foresight can afford knowledge." (Emphasis supplied).

The given instruction then authorized a verdict for plaintiff upon a finding that there were harmful, dangerous, carcinogenic substances in the tobacco smoke of defendant's cigarettes that caused or contributed to cause cancer in the plaintiff.

"Provided, however, that if you find and believe from the evidence that there were cancer causing substances in defendant\'s cigarettes, and that the harmful effects of such substances could not have been anticipated by the use of any developed human skill or foresight before the commencement of plaintiff\'s cancer, then your verdict should be for the defendant on Count I, dealing with the alleged breach of implied warranty." (Emphasis supplied).

It should be observed that plaintiff, in objecting to the instruction that was given, did not in the trial court and does not here seriously challenge the sufficiency of the evidence to support the instruction. The principal objection to the italicized portion of the instruction made in the trial court was that it —

"misstates the law of implied warranty in Missouri in that it permits the defendant to escape, if the jury found and believed from the evidence that harmful effects and substances in the defendant\'s product could not have been anticipated by the use of any developed human skill or foresight, because under the law of Missouri, * * * the defendant is under a duty of absolute liability under implied warranty once it is shown that the product for human consumption contained harmful, dangerous or carcinogenic substances, and it would make no difference whether the defendant knew or could have known of such substances in its product, * * *."

Plaintiff also objected to that portion of the instruction submitting the issue of "reasonableness," asserting that under

328 F.2d 7
the law of Missouri "the defendant is not permitted to escape under implied warranty on the reasonableness of its product being wholesome or fit, but it is again a question of absolute liability whether it is wholesome or is fit." (Emphasis supplied.)

Defendant asserts that the given instruction on implied warranty submitting the elements of "reasonableness" and "developed human skill or foresight" was a proper one, and also claims that the court properly refused to permit introduction of the questioned evidence. Additionally, however, defendant argues that: (A) under Missouri law, a cigarette manufacturer does not impliedly warrant its product to an ultimate consumer and that, consequently, the breach of implied warranty issue should not even have been submitted to the jury, and (B) the evidence was insufficient as a matter of law to make a submissible case on the essential question whether the smoking of defendant's cigarettes caused plaintiff's cancer.

Of course, in this diversity action, our function is limited to ascertaining and applying the law of Missouri — not in formulating it. Explicitly, we are required to determine what the Supreme Court of Missouri would declare the law to be if this case were before it.

Turning to the Missouri cases with this function in mind, we find that issue (A) above was authoritatively resolved against defendant by the Missouri Supreme Court in Morrow v. Caloric...

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