S.H. Kress & Co. v. Lindsey

• Decision Date: 16 December 1919
• Docket Number: 3397.
• Citation: 262 F. 331
• Parties: S. H. KRESS & CO. v. LINDSEY et al.
• Court: U.S. Court of Appeals — Fifth Circuit

262 F. 331

S. H. KRESS & CO. v. LINDSEY et al.

No. 3397.

United States Court of Appeals, Fifth Circuit.

December 16, 1919

Charles Rosen, of New Orleans, La., Carl Marshall, of Bay St. Louis Miss., and S. E. Travis, of Harrisburg, Miss., for plaintiff in error.

V. A Griffith and William Lyon Wallace, both of Gulfport, Miss and M. M. Boatner, of New Orleans, La., for defendants in error.

Before WALKER, Circuit Judge, and GRUBB and ERVIN, District Judges.

ERVIN District Judge.

This was a suit instituted in the circuit court of Forrest county Miss., by appellees against appellant, and removed to the federal court for the Southern district of Mississippi.

The suit was based upon the breach of an alleged warranty contained in a catalogue issued by Kress & Co., who were doing a mail order business in New Orleans, La., which catalogue contained, among others, the following statements:

After stating that there would be an increase in the price of the articles shown by the catalogue over prices previously charged, the catalogue offered what it termed 'an adequate supply of dependable bargains. ' It further stated:

'Any lowering of quality from the Kress high standard would not be in keeping with our recognized policy of quality first.'

Again:

'This information for you. Our guaranty: We guarantee that the merchandise shown in this catalogue is exactly as illustrated. We also guarantee, when you purchase from us, that the merchandise sold you will represent full value and a saving to you; that it will give you the service and satisfaction you have a right to expect for the money paid. If for any reason you are not satisfied with any article purchased from us, return it to us at our expense, and we will either exchange it, if you wish, or return your money, together with any shipping charges you may have paid;'

And on page 70 of said catalogue it states as follows:

'Notions, merchandise of merit, at low prices. In buying these dependable notions from the pages,' etc.

Among said notions on page 76, which is headed in large printed words 'Brushes of Value at a Very Small Cost,' is found advertised and offered a shaving brush, the same being illustrated, and under same is printed the number 'D 8732,' and name 'Lather Brush,' and at various and divers places throughout said catalogue the said goods therein are represented to be of 'dependable quality,' of 'high quality,' of 'wonderful values,' of 'serviceable quality,' of 'quality standard.' And:

'We make and keep customers by saving them money, giving them the best goods their money will buy, and protecting them with our binding guaranty of satisfaction or money returned.'

The suit is brought by the widow and minor children of one C. H. Lindsey, who was a resident of Mississippi. The complaint shows that Kress' catalogue further suggested that, where several neighbors wished certain articles from Kress, they might save shipping costs by combining their orders into one; that one Maud Dale, who was a neighbor of C. H. Lindsey, intending to order certain goods, communicated this intent to the wife of C. H. Lindsey; that C. H. Lindsey had previously informed his wife that he needed a shaving brush, and requested her to procure one for him; that his wife communicated this request to said Maud Dale, who, in making the order for her own goods, included the order for the shaving brush for said C. H. Lindsey.

It avers that defendant selected, sold, and delivered unto said C. H. Lindsey, contrary to the representations, guaranties and warranties aforesaid, a shaving brush charged with the bacilli of anthrax, and that, when C. H. Lindsey undertook to shave himself in using said brush, he accidently cut himself slightly with his razor, and by reason of the use of the brush became inoculated with the germs of anthrax, and died from the effects thereof. The plaintiffs conclude with the statement that the plaintiffs, the wife and minor children of said Lindsey, are by reason and in consequence of the aforesaid wrong of the said defendant bereft of the husband's and father's care, protection, and companionship, and are left without support, except by their own exertions. The damages claimed were $30,000.

There were no allegations of negligence on the part of Kress & Co., or that they were informed or had reason to believe that the brush sold and delivered by them to C. H. Lindsey was charged with anthrax germs, nor was it alleged that Kress & Co. were the makers of said brush, but the facts averred show that they were mere dealers, who were selling commodities manufactured by other parties.

The defendant filed a general demurrer, under the practice of Mississippi, to this complaint, and now urges that the court below erred in that, while the suit is brought for breach of an alleged warranty, under a sale to C. H. Lindsey, that the plaintiffs, as the widow and children of said Lindsey, have no privity with the contract containing said alleged warranty, and hence no right of action. We think this assignment of error is correct, as there is no survivorship to the wife and children of Lindsey under a breach of warranty directly to Lindsey himself.

It is manifest from the allegations of the complaint, and also from the rulings of the court below, that both plaintiffs' attorneys and the trial court confused the right of action alleged, namely, a breach of warranty in the sale made by Kress to C. H. Lindsey with the right of action conferred by the 'Death by Wrongful Act' statute of Mississippi. The conclusion of the complaint, which we have copied, tends to show this fact, and so does the charge of the court, which begins on page 39 of the record. On page 40 of the record the court says to the jury:

'This is not a suit for negligence. It is not a suit for tort. This is a suit by the plaintiffs for the alleged

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