# Pepsi Cola Bottling Co. of Anchorage, Inc. v. Superior Burner Service Co.

> Alaska Supreme Court · May 19, 1967 · 427 P.2d 833

URL: https://www.frixlaw.com/law-library/cases/9567229

## Case

- **Full name:** PEPSI COLA BOTTLING CO. OF ANCHORAGE, Inc., Appellant, v. SUPERIOR BURNER SERVICE CO., Inc., Appellee
- **Court:** Alaska Supreme Court
- **Decided:** May 19, 1967
- **Citations:** 427 P.2d 833; 1967 Alas. LEXIS 169
- **Precedential status:** Published
- **Opinion:** Concurrence by Nesbett
- **Judges:** Dimond, Nesbett, Rabino, Rabinowitz, Witz
- **Cited by:** 44 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Disapproved — as noted by a later court.
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9567229

## How later opinions describe it (automated extraction)

- holding that a claim for breach of an implied warranty did not lie in a contract for personal services
- recognizing strict products liability but declining to impose strict liability upon those who have agreed to furnish labor or services

## Opinion text

NESBETT, Chief Justice
(concurring).
I concur in the result. the maj ority reaches, although I am not in accord with *844 the method of disposing of the question of the limiting instruction.
It is my understanding that the majority opinion is not intended to modify that portion of Civil Rule 51(a) which states:
No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.
The objection registered by appellant to the failure of the court to give the requested instruction has been found by this court to have satisfied the above quoted portion of Civil Rule 51(a). The court has also found that a limiting instruction similar to the requested instruction should have been given under the requirements of that portion of Civil Rule 51(b) which states:
The court shall instruct the jury on all matters of law which it considers necessary for their information in giving their verdict.
In my opinion, the foregoing would be all that need be said on the issue. The ambiguity of the majority opinion in its present form and the factual inapplicability of many of the authorities cited in footnotes 8 and'9 will require clarification in the future. 1
. Numerous federal decisions have construed Rule 51 of the Federal Rules of Civil Procedure, which is similar to the above quoted provisions of Alaska’s Civil Rule 51(a). See e.g., Cherry v. Stedman, 259 F.2d 774, 777-778 (8th Cir. 1958); Nesbit v. Everette, 243 F.2d 59 (5th Cir. 1957); Baltimore & O. R. v. Felgenhauer, 168 F.2d 12, 18 (8th Cir. 1945).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9567229. Public record. Not legal advice.