Petition for Writ of Certiorari — Liggett & Myers Tobacco Co. v. Pritchard
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SUPRE''s COURT, U. By
~
IN THE
| Office-Supreme Court, U.S.
esix ity FILED
JOHN F. DAVIS, CLERK
Supreme Court of the United States
Octoser Term, 1965
No. 69]
LIGGETT & MYERS TOBACCO COMPANY,
' Petitioner,
Vv.
ANITA PRITCHARD, ADMINISTRATRIX OF THE
ESTATE OF OTTO E. PRITCHARD, Deceased,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
THIRD CIRCUIT
BEeTHUEL M. WEBSTER
Donap J. CoHN
‘One Rockefeller Plaza
New York, New York 10020
Wixtiam H. EcKert
1000 Porter Building
Pittsburgh, Pennsylvania 15219
a Counsel for Petitioner
Francis K. DEcKER, JR.
WEBSTER SHEFFIELD FLEISCHMANN
Hitrcucock & CuHRYSTIE
One Rockefeller Plaza
New York, New York 10020.
Joun H. Morcan
Eckert, SEAMANS & CHERIN
1000 Porter Building
Pittsburgh, Pennsylvania 15219
Of Counsel
October 22, 1965
Opinions below ~---------
Jurisdiction ~------
Questions presented er aes
Federal Rule of Civil Procedure and Constitutional
Provision involved __-- eae
I vcceccichneiiitiesindaicesiniitiosicininninie
Reasons for granting the writ ____
I The Decision of The Court of Appeals Below
II
III
Conclusion ______-___
is Contrary to the Holdings of This Court in °
Similar Situations and is Directly in Conflict
With Decisions of The Ninth Circuit Court
of Appeals
The Questions Raise Important Issues in the
Interpretation and Application of Rule 51 of
the Federal Rules of Civil Procedure Which
Require Determination By This Court ____-
The Holding of the Third Circuit That There
was Insufficient Evidence to Submit the Issue
of Assumption of Risk to the Jury Violates
the Seventh Amendment
Appendix A—Opinions and judgment below _____-
B—Recent Decisions Reported involving
SU IIE -wiscenbssescosccchsedensasis a aeesisgeini sedi
PAGE
11
PAGE
TasLeE oF AuTHORITIES CITED
Cases:
Anderson v. Yungkau, 329 U. S. 482 (1947) ------ 13n.
Atlantic Coast Line R. R. Co. v. Bennett, 251 F. 2d
S06 (40m Cir. 1906) =. sn panies 11n.
Bellak v. United Home Life Ins. Co., 244 F. 2d 623
I sect eheadiseciceicicobensbnlibetioeniieainmmcenies 11n.
Bertrand v. Southern Pac. Co., 282 F.2d 569 (9th
~ Cir. 1960), cert. denied 365 U.S. 816 (1961) ___- 10
Burns v. Yanos, 17 F. R. D. 391 (E. D. Pa. 1955),
aff ’d, 232 F’. 2d 929 (3d Cir. 1956) ___-_-_-____-__ 14
Callwood v. Callwood, 233 F. 2d 784 (3d Cir. 1956) 14,15
Cone v. Virginia Pulp & Paper Co., 330 U. S. 212
(1947) _ 14
Crespo v. Fireman’s Fund Indem. Co., 318 F.2d
I ID siccersceiinittnninas iced incaissenenninianinmiie 10
Dowell Inc. v. Jowers, 166 F.2d 214 (5th Cir.),
cert. demied, 334 U.S. 832 (1948) _____________ 15
Ferrara v. Sheraton McAlpin Corp., 311 F. 2d 294
Ne: MURINE seesesinivcntechbsistta nha inieistvcetbinchsinsaconaa 1in., 15
Fratto v. Northern Ins. Co. of N. Y., 242 F. Supp.
BOs ie Ne UD ecrneincnpentcniccenpecricnenenencncieanien 17n.
Gebhart v. Wilson F. F. Co., 348 F.2d 129 (3d
I iciohisdnlinsestcnnsigarintndcoesiactaok tiviistserintasdpeneeiniec tide 14
Gtacalone v. Raytheon Mfg. Co., 222 F. 2d 249 (1st
RN I cn agente ses nice tc tenner termine 11, 14
Gibson v. Lockheed Aircraft Serv., Inc., 350 U. S.
Se I devices cerhie tsaaseiih cident de odiiasuibesanacdaletsin 20
lobe Liquor Co. v. San Roman, 332 U. S. 571
a ae 14
Hargrave v. Wellman, 276 F. 2d 948 (9th Cir. 1960) 10
Haugh v. Curlee, 265 F. 2d 130 (5th Cir. 1959) ___ 14,15
Hite v. Western Md. Ry., 217 F.2d 781 (4th Cir.
1954), cert. denied, 349 U. S. 960 (1955) _____- ” 14
Lamd v. Dollar, 330 U. S. 731 (1947) __-----__--_-__ 22
Larson v. Domestic & Foreign Commerce Corp.,
a Oe I ilebcrtinatelstideciseciciictctennicntnsenteniccies 22
Massachusetts Bonding & Ins. Co. v. Ray Dil-
schneider, Inc., 203 F’. 2d 556 (8th Cir. 1953) ___ 11,15
M’Farland v. Newman, 9 Watts 55, 34 Am. Dee.
EE en a ED 18
McNamara v. Dionne, 298 F;2d 352 (2d Cir. 1962) 15
Michelin Tire Co. v. Schulz, 295 Pa. 140, 145 Atl.
67 (1929) ___ ea 18
Miller v. Ned York Central R. R. Co., 239 F. 2d 10
(7th Cir. 1956) wT
Mondshine v. Short, 196 F. 2d 606 (5th Cir. 1952) 15
Montgomery v. Virginia Stage Lines, | 191 F'. 2d 770
(D. C. Cir. 1951) ~-------_-_- —:
Palmer v. Hoffman, 318 U. S. 109, 119 (1943) ____ 9, 10, 12
Persons v. Gerlinger Carrier Co., 227 F.2d 337
(Sth Cat 1898) 10
Dridpiev. Wilkinson, 296 F. 2d 74 (10th Cir.1961) 11n.
Pruitt v. Marshall, 283 F. 2d 436 (5th Cir. 1960) __ 12
Rothermel v. Phillips, 292 Pa. 371, 141 Atl. 241
(1928) ~_- 18
Rudick v. Prineville Memorial Hosp., 319 F.. 2d 764
(9th Cir. 1963) 10
_ Schabo v. County of Mercer, 333 F. 2d 971 (3d Cir.
1964) 14, 15
iv
PAGE
Schentzel v. Philadelphia Nat’l League Club, 173 ~
"Pa, Super. 179, 96 A. 2d 181 (1953) ___________ 19
Siebrand v. Gossnell, 234 F. 2d 81 (9th Cir. 1956) 10
Standard Oil Co. of Calif. v. Perkins, 347 F. 24 379
Be OR SI rice oeincaitaniacawtenee 10n.
Trent v. Atlantic City Elec. Co., 334 F. 2d 847 (3d
Cir. 1964) sitisneneamaaiiendabaabanaantaas 14, 15, 20
Troupe v. Chicago D. & G. Bay Transit Co., 234
FP. 2a 363 (3d Oir. 1966) ~~... .___. 12,15
United States v. Atkinson, 297 U.S. 157 (1936) __ 12,13
United States v.’Garguilo, 324 F.2d 795 (2d Cir.
BE tinea Smeniiaebidinctacneimalakn agiad 17
United States v. General Motors Corp., 323 U. S.
Be CD shitcerentinneiinn AE I SO sR 22
Walker v. Kirk, 72 Pa. Super. 534 (1919) ________ 18
Weade v. Dichmann, Wright & Pugh Inc., 337 U.S.
ne I I seticestactieciees Ander nninecaneeemnaaaneilics 10
Wirtz v. International Harvester Co., 331 F. 2d 462
(5th Cir.), cert. denied, 379 U. S. 845 (1964) ___ _ 11n.
Woodworkers Tool Works v. Byrne, 191 F. 2d 667
(9th Cir. 1951) _ 10
Constitution:
United States Constitution
Seventh Amendment ____/_______s_________ 2, 3, 21, 22
Federal Rules of Civil Procedure:
I at nana aia a a 13, 14, 21
EERO 2, 3, 5, 9, 10, 11, 12, 13, 14, 15
Rule 61 ___ a A 13
Vv
| PAGE
_[ Federal Rules of Criminal.Procedure: °
Rule 52(b) 13
Miscellaneous: .
2B Barron & Holtzoff, Federal Practice and Pro-
cedure, § 1106, pp. 474-475 (Rules Ed. 1961) __- 15
Pittsburgh Press, Jan. 10, 1965 17n.
. Pittsburgh Press, June 23, 1965 17n.
1 Williston on Sales §§ 198-200 (Rev. Ed. 1948) ___ 18
Wright, Federal Courts, § 94, p. 363 (1963) ______ 15
"a
IN THE
Supreme Court of the United States
October Term, 1965
Liccett & Myers Tosacco Company,
Petitioner,
v.
Anita Parircuarp, Administratrix of the Estate of
Orro E. Parrcnarp, Deceased,
Respondent.
PETITION FOR A WRIT OF RARI TO THE
UNITED STATES COURT OF FOR THE
Petitioner, Liggett & Myers Tobacco Company, prays
that a writ of certiorari issue to review the judgment of
the United States Court of Appeals for the Third Circuit,
entered in this cause on July 26, 1965.
Pal
Opinions Below
The opinion of the Court of Appeals is not yet oficially
reported. It is reproduced in the appendix to this petition
(A-1).* The opinion of the District Court is set forth in
petitioner’s appendix in the Court of Appeals (114b-127b).°*
* The abbreviation “A” refers to the appendix to this petition.
** Petitioner's appendix in the Court of Appeals will be cited by
page numbers followed by a “b.”
fae 2 Ms oN om
2 ‘
A prior opinion of the Court of Appeals for the Third
Circuit which ordered the retrial out of which this cause
now arises is officially reported at 295 F. 2d 292 and repro-
duced in respondent’s appendix in the Court of Appeals
(26a-48a).*
Jurisdiction
Jurisdiction to review by writ of certiorari the judgment
of said Court of Appeals entered July 26, 1965 is invoked
under the provisions of 28 U.S.C. A. § 1254(1).
son Questions Presented
1. Where no objection was made to the Trial Court’s
instructions to the jury nor to the special interrogatories
on which the issues were submitted fo the jury; and no
~additional instructions on the points in issue were re-
quested, can the Court of Appeals reverse a jury verdict
and order a new trial on alleged errors in the instructions
in the face of the clear and explicit language of Rule 51
of the Federal Rules of Civil Procedure which bars con-
sideration on appeal of alleged errors in instructions unless
specific objections with the grounds distinctly stated are
‘made at the trial?
2. If a ‘‘plain error’’ exception is to be engrafted on
Rule 51 despite its unambiguous and mandatory language,
what are the criteria for the application of such an excep-
tion, and is this a proper case for its application?
3. Was there sufficient evidence in the record to require
the issue of assumption of risk to be submitted to the jury
pursuant to the Seventh Amendment tothe Constitution of
the United States?
* Respondent’s appendix in the Court of Appeals will be cited
herein by page references followed by an “a.”
io
3
Federal Rule of Civil Procedure and
Constitutional Provision Involved
1. Rule 51 of the Federal Rules of Civil Procedure
provides in part:
‘*. .. 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. .. .’’
2. The Seventh Amendment to the Constitution of the
United States provides:
*
‘*In Suits at common law, where the value in contro-
versy shall exceed twenty dollars, the right of trial by
jury shall be preserved, and no fact tried by a jury,
shall be otherwise reexamined in any Court of the
United States, than according to the rules of the com-
mon law.’’
Statement of the Case
Federal jurisdiction is based on diversity of citizenship.
This is an action to recover damages for cancer in one
lung of the plaintiff (respondent) * allegedly caused by
smoking 30 or more Chesterfield cigarettes daily from 1924
until December 11, 1953, when the affected lung was re-
moved, In his complaint (6a-12a), plaintiff sought recovery
on the grounds of negligence (First Count) and of breaches
of express and implied warranties (Second Count). The
case has been tried twiee. The first trial, lasting from
* To avoid confusion, the parties will be referred to in this petition
in the same manner as they were designated in the Trial Court and in
the Court of Appeals, i. e., respondent will be referred to as plaintiff
and petitioner as defendant. —
The plaintiff died March 2, 1963. His death did not result from.
cancer, and no vestige of cancer was found in him at his death. His
wife, as administratrix of his estate, was substituted for him as a party
to this cause. %
+
April 1, 1960 to May 4, 1960 (3a), resulted in a directed
verdict for the defendant (petitioner). The plaintiff ap-
pealed and the Court of Appeals reversed on the ground
that the case should be decided by the jury and it directed
that the case be submitted on special interrogatories. 295
F’. 2d 292, 301 (26a, 46a).
At the second trial, lasting from October 1, 1962 (Tr. 3)*
until November 9, 1962 (183a), all issues were submitted
to the jury on special interrogatories (176a-177a). Counsel
for the plaintiff made no objection to ang of them. The
special interrogatories and the jury’s answers involved
here were as follows (184a) :**
5. ‘‘Did the defendant make any express warranties
upon which the plaintiff relied and by which he was
induced to purchase Chesterfield cigarettes?’’
AnsweeE: No.
7. ‘‘Did the plaintiff assume the risk of injury by
his smoking of Chesterfield cigarettes?’
Answer: Yes. :
Pursuant to the jury’s answers to the interrogatories
judgment was entered for the defendant (5a).
Prior to the first trial, both parties éngaged in extensive
discovery. In addition, prior to both trials, extensive pre-
trial proceedings took place. There were numerous pre-
trial conferences among counsel and the Trial Court, and
pretrial memoranda were filed before both trials (1a-4a).
* Transcript of second trial filed with this Court will be cited by
page numbers preceded by “Tr.”.
** The other interrogatories were as follows: (1) “Was the smok-
ing of Chesterfield cigarettes by this plaintiff the cause or one of the
causes of cancer in his right lung?’ Answer: Yes; (2) “Is the
defendant chargeable with negligence which was a proximate cause
of the plaintiff’s injury?” Answer: No; (3) “Is the plaintiff charge-
able with negligence which contributed in any degree to his injury ?”
ANSWER: ....; (4) “Did the plaintiff give notice of a breach of
warranty within’a reasonable time as required by the Sales Act?”
Answer: Yes; (5) ....; (5a) “If so, did the defendant breach the
said warranty?” ANSWER: ....; (6) “Was there a breach of the war-
ranty implied by law as defined in the charge?” ANswer: No; (7)
....; (8) “If the defendant is liable, what is the total amount of ‘the
damages?” ANswer: $ None. (183a-194a)
a4
‘
5
The case was carefully and thoroughly prepared by counsel
and the Trial Court.
Following the denial of his post-trial motions to amend
judgment and for a partial new trial, plaintiff abandoned
on appeal all grounds urged in those motions except those
relating: to liability based on breach of express warranty
(A-3). On appeal plaintiff urged only two grounds for
reversal: (1) the Trial Court had abused its discretion in
failing to grant a new trial on the ground that the verdict
on the issue of breach of express warranty was against
the weight of the evidence; and (Z) it had been error for
the Trial Court to submit the issue of assumption of risk
to the jury. Plaintiff had not moved for a directed verdict
on the issue of assumption of risk nor had he objected to
the instructions or interrogatory concerning it.
The Court of Appeals reversed and remanded. The
decision below contains two opinions. The majority held
that reliance was a necessary element of express warranty
despite the curious manner in which the Pennsylvania legis-
lature punctuates its statutes. The Court also held despite
Rule 51 that the instructions on express warranty and
assumption of risk, to which no objections were made, were
plainly erroneous. The charge on express warranty was
considered deficient by the majority because it inadequately
related the facts to the law with regard to reliance as an
element of express warranty (A-12, A-22). The majority
also stated it was error for the Trial Court to charge that
the jury must find the defendant intended to be bound by
its statements in order to find an express warranty (A-12).
The entire court held that, while assumption of the risk is
a defense to both negligence and express warranty, con-
tributory negligence was a defense only to negligence. The
charge on assumption of risk was found deficient because
it failed adequately to distinguish the two concepts as they
applied to the case (A-10). The entire court also held the
Trial Court erred in even submitting the issue of assump-
tion of risk to the jury on the ground that there was insuffi-
cient evidence.
6
The facts relevant to the issues sought to be raised by
this petition are briefly as follows:
Express Warranty
The case was brought and tried throughout on the
theory that to recover for breach of an express warranty
plaintiff had to prove that he had relied on a warranty in
purchasing and smoking the defendant’s cigarettes (23a,
Tr. 3027). Plaintiff shifted ground on the second appeal
and argued reliance was not a necessary element of his
case on express warranty. A majority of the Court of
Appeals held it was (A-13-22).
Although this was a long trial, most of the evidence
dealt with whether or not cigarette smoking was a cause
of plaintiff’s cancer. The proof concerning express war-
ranty was brief, clear and easy to understand. The only
source of express warranty was the defendant’s advertising.
The plaintiff testified that he started to smoke cigarettes
in 1912; that he smoked cigarettes continuously from 1912
until December 11, 1953; that he was a confirmed smoker
before he began to smoke Chesterfields; and that he did
not start to smoke Chesterfields until the mid-twenties or
1924 (2b-6b, 8b-10b). The earliest ad introduced by the
plaintiff was published in 1928, 12 years after the plaintiff
started smoking cigarettes and three or four years after
he allegedly had started to smoke Chesterfields (Pl. Ex. 229,
58a). Plaintiff was shown 27 separate advertisements which
had been published by defendant in various newspapers
and periodicals. These ads bore publishing dates widely
interspersed ina period extending from August 7, 1928 to
April 14/1953. As to each of these ads plaintitt testified
that hé remembered the ad, that, he had read it and that he
had relied on it (56a-69a). Plaintiff also testified to watch-
ing Arthur Godfrey, on television; he remembered hearing
Godfrey make ake certain statements during ‘‘commercials’’
(78a), which commenced in September 1952 (Pl. Ex. 326,
72a).
7
Plaintiff testified that he was a confirmed smoker before
he started to smoke Chesterfields in 1924 (6b); that he did
not continue to smoke Chesterfields because of the ads that
he may have seen, but because he was a confirmed cigarette
smoker (10b) ; that at the first trial he testified that he had
read and relied on an ad which was not published until
after the date when he said he stopped smoking, and that
therefore he could not have relied upon that ad (10b-15b) ;
that although he testified on deposition that he had read
the complaint filed on his behalf, and that everything in the
complaint was true and correct, he admitted, when shown
the complaint, that the ads attached as exhibits thereto were
all published after the date he testified he had stopped
smoking and therefore he could not have relied upon these
ads as alleged in the complaint (15b-20b) ; that he-smoked
Chesterfield cigarettes, rather than some other brand, most
of the time after 1924 because he liked their taste (21b) ;
that he did not study any Chesterfield ads but glanced at
them only in passing while leafing through a magazine on
occasions such as when he was waiting his turn in a barber
shop (21b-22b) ; and that he remenfberéd seeing those ads
and he had relied on each of them, even though he only
examined them cursorily in the first place and had not
seen some of them for as long as 32 years (23b-25b).” .
Judge Smith of the Court of Appeals stated:
‘‘, .. The plaintiff endeavored to prove by his own
testimony that the advertisements were an inducement
and that in reliance thereon he regularly purchased and
smoked Chesterfields. This testimony, when subjected
to the test of cross-examination, fell far short of the
mark and apparently failed to impress the jury.’’
(A-4).
Assumption of Risk
The defendant’s answer specifically pleaded assump-
tion of risk as an affirmative defense to both counts of the
plaintiff’s complaint as follows (49a): ‘‘If there was any
8
such risk and danger from smoking cigarettes as plaintiff
alleges, plaintiff assumed that risk and danger.’’ The plain-
tiff did not object to the Trial Judge’s instructions regard-
ing assumption of risk, or to the submission of any of the
interrogatories to the jury, and in his summation discussed
the issue (Tr. 2968, 3019).
The jury’s affirmative answer to Interrogatory No. 7—
that plaintiff had assumed the risk of injury by his smoking
of Chesterfield cigarettes (184a)—is amply supported by
plaintiff’s own testimony. Here, as with express warranty,
the evidence was clear. Plaintiff testified that he often
heard, beginning before 1915, that cigarettes were ‘‘coffin
nails,’’ and that when one smoked a cigarette he was, in
effect, driving a nail into his coffin; that his mother, who
died in 1928, repeatedly advised him to stop smoking be-
cause cigarettes were not good “for anybody;” that his
wife cautioned him in 1930 that he was smoking too much
and that he should reduce his smoking, which he tempo-
rarily did; that at various times thereafter when he smoked
Chesterfields heavily he would get a bad cough, whereupon
his wife would advise him to switch to some other form of
smoking, that he would then switch to some other brand of
cigarettes or to a pipe for a few days or a month, that his
cough would then “ease off,” but that he would resume
smoking Chesterfields and would repeat the same cycle;
that at some unspecified time he heard that smoking
cigarettes was bad for the heart; and that about 1945 he
heard that inhaling cigarette smoke might or would injure
the lungs (6b-8b, 10b, 26b-30b).
Notwithstanding, the plaintiff admittedly always re-
sumed smoking Chesterfields after his cough improved or
went away, and continued to smoke Chesterfields until
December 11, 1953, the very day that his lung was removed
(3b, 10b, 28b-30b). In addition, the history which the plain-
tiff gave to Dr. Colwell when he first went to see that doctor
on October 15, 1953, was that he had been, coughing con-
9
tinually for the past 6 to 8 months, following the ‘‘re-
sumption”’ of smoking cigarettes (Def. Ex. 5, 51b-52b). The
implication from this history is that the plaintiff had
stopped smoking some time prior to February or April 1953
—because he could not have resumed smoking cigarettes
. unless he had previously stopped smoking them. There is
only one logical reason why this plaintiff would have
stopped smoking cigarettes, and that was that he believed
they were injurious to him.
. Reasons for Granting the Writ
The Decision of the Court of Appeals Below is Con-
trary to Holdings of This Court in Similar Situations and
is Directly in Conflict With Decisions of the Ninth Cir-
cuit Court of Appeals.
Rule 51 of the Federal Rules of Civil Procedure bars
consideration on appeal of alleged errors in instructions
unless at the trial a party states distinctly the matter to
which he objects and the grounds of his objection. Imposing
a plain error exception on Rule 51, the Third Circuit Court
of Appeals reversed the jury’s verdict below for alleged
#rrors in instructions to which the plaintiff made absolutely
mo objection and which he did not even raise on appeal.
Although this Court has not d directly with the
question of whether or not there should be a plain error
exception to Rule 51, decisions have re to consider
alleged errors in instructions to which no specific objections
were made below. This Court has held:
‘*. . . Where a party might have obtained the correct
charge by specifically calling the attention of the trial
cours to the error and where part of the charge is cor-
rect, he may not through a general exception obtain a
new trial.’”” Palmer v. Hoffman, 318 U.S. 109, 119
(1943)
PAPO MNT GORI Ahk Wi rhe ad he eae
—~_/
10
In the instant case there was not even a general exception to
the charge. Hence, in accord with the Palmer case and
Weade v. Dichmann, Wright & Pugh Inc., 337 U.S. 801, 808
(1949); there was no occasion for invoking any exception to
the clear language of Rule 51. This case presents no rea-
sons for departing from the holdings of these cases.
The Ninth Circuit Court of Appeals has consistently
refused to recognize any exception to Rule 51. Wood-
workers Tool Works v. Byrne, 191 F. 2d 667 (9th Cir. 1951).
Its position was very clearly stated in Bertrand v. Southern
Pac. Co. 282 F. 2d 569, 572 (9th Cir. 1960), certs denied,
365 U.S. 816 (1961).
‘“Whatever the rule may be elsewhere, in this Circuit
the ‘plain error’ rule may not be utilized in civil appeals
to obtain review of instructions given or refused, where
the ground asserted was not raised in the trial court.’’
See also, Rudick v. Prineville Memorial Hosp., 319 F. 2d
764, 770 (9th Cir. 1963) ; Crespo v. Fireman’s Fumd Indem.
Co., 318 F.2d 174, 175 (9th Cir. 1963) ; Hargrave v. Well-
man, 276 F. 2d 948, 950 (9th Cir. 1960) ; Siebrand v. Gossnell,
234 F’. 2d 81, 96, n. 8a (9th Cir. 1956) ; Persons v. Gerlinger
Carrier, Co., 227 F’. 2d 337, 342-343 (9th Cir. 1955).*
The Seventh Circuit does not appear to have made any
statement concerning the application of plain error when
there is a failure to comply with the requirements of Rule
51. The Courts’of Appeals for the First and Eighth Cir-
cuits have discussed a plain error exception which may,
under certain circumstances, mitigate the effect of Rule 51,
,
* The recent Ninth Circuit case of Standard Oil Co. of Calif. v.
Perkins, 347 F. 2d 379, 389 (9th Cir. 1965) mentions plain error
and Rule 51. However, it’ was a passing reference since the court
found no error. Surely, the Ninth Circuit would not depart from »
such a long held and well reasoned position in such a cavalier manner.
It appears from the opinion that the alleged error in the charge was of
little importance and the issue of plain error not seriously considered.
#
a la
e?
11
Gtacalone v. Raytheon Mfg. Co., 222 F.2d 249 (1st Cir.
1955); Massachusetts Bonding & Ins. Co. v. Ray Dil-
schneider, Inc., 203 F.2d 556 (8th Cir. 1953), but no case
has been found in which this exception was actually in-
voked by either of these courts. Other Circuits have in-
voked a plain error exception,* but the statement of it has
been inconsistent and confusing among and within Cir-
cuits.** :
-Oo
The Questions Raise Important Issues in the Inter-
pretation and Application of Rule 51 of the Federal
Rules of Civil Procedure Which Require Determination
by This Court.
The application of Rule 51 is of great_importance to
the administration of justice under the Federal Rules of
Civil Procedure. It affects every civil case tried before a
jury in a Federal court. Recently, the number of appeals
in which parties have attempted to raise errors in the
charge to which tio objections were made have increased:
substantially. The cases cited in this petition are repre-
sentative, not exhaustive. Since October 1964 eleven re-
ported decisions in addition to the opinion below have in-
volved attempts to raise on appeal alleged errors in a
charge to which no objection was made below. See Ap- °
pendix B. As discussed below, decisions recognizing a
plain error exception to Rule #1 are inconsistent and con-
fusing, not only from one circuit to another but also within
* E. g.: Ferrara v. Sheraton McAlpin Corp., 311 F. 2d 294 (2d
Cir. 1962) ; Atlantic Coast Line R.R. Co. v. Bennett, 25+ F. 2d 934
(4th Cir. 1958) ; Wirtz v. International Harvester Co., 331 F. 2d 462
(Sth Cir.), cert. denied, 379 U. S. 845 (1964) ; Bellak v. United
Home’ Life Ins. Co., 244 F. 2d 623 (6th Cir. 1957) ; Pridgin v.
Wilkinson, 296 F.2d 74 (10th Cir. 1961); Montgomery v. Virginia
- Stage Lines, 191 F. 2d 770 (D.C. Cir. 1951).
** See pages 14-15 infra.
12
some circuits. With no uniformity of application or result,
litigants have been denied equal treatment in Federal jury
trials. Uniform application of Rule 51 in accord with its
clear language is based on sound policy, is in accord with
decisions of this Court and of the Ninth Circuit and would
eliminate the problem of confused and conflicting decisions
regarding Rule 51.
A. The decision of the Court below conflicts with both the
‘clear language and the policy of Rule 51.
Rule 51 rests on a sound foundation of public policy:
fairness to the Trial Court and opposing counsel by requir-
ing objections to a charge so that any errors may be cor-
rected while there is still opportunity; the importance of
avoiding a new trial caused by the neglect or design of the
losing party; the public interest in bringing litigation to
anend. See Palmer v. Hoffman, 318 U. S. 109, 119 (1943) ;
Pruitt v. Marshall, 283 F. 2d 436, 441 (5th Cir. 1960) ; Miller
v. New York Central R. R. Co., 239 F.2d 10, 13 (7th Cir.
1956).
This Court’s decision in United States v. Atkinson, 297
U.S. 157 (1936), decided prior to the Federal Rules of
Civil Procedure, stated: :
“‘In exceptional circumstances, especially in crimt-
nal cases, appellate courts, in the public interest, may
of their own motion, notice errors to which no exception
has been taken, if the errors are obvious, or if they
otherwise seriously affect the fairness, integrity or
public reputation of judicial proceedings.’’ (At page
160) (Emphasis added)
Some cases which invoke a plain error exception to Rule 51
rely on this language. See e. g., Troupe v. Chicago D. & G.
Bay Transit Co., 234 F.2d 253 (2d Cir. 1956). However,
such a reliance completely ignores the fact that, subsequent
to Atkinson, this Court promulgated the Federal Rules of
13
Civil and Criminal Procedure, As suggested in Atkinson,
Rule 52(b) of the Criminal Rules explicitly states that
plain error affecting substantial rights may be considered
even if not brought to the attention of the trial court. By
contrast, the Civil Rules have no counterpart of Criminal
Rule 52(b) and Rule 51 of the Civil Rules explicitly states
that errors in instructions may not be considered without
distinct objections. Ifa plain error exception were intended
for Rule 51, it would have been explicitly stated.
Reading Rule 51 together with Rule 61 makes even more
apparent that the drafters intended to exclude a plain error
exception to instructions. Rule 61 provides that harmless
error must be disregarded. If a plain érror exception
applies to Rule 51, it is denuded of all meaning and signifi-
cance. Rule 51 would then mean only that harmless error
to which no objection was made carmot be raised on appeal.
Since Rule 61 requires harmless error to be disregarded,
Rule 51, if it is to mean anything, requires all errors,
harmless or plain, be disregarded in connection with the
limited area of instructions, unless objection was mad
below.* ,
. _
This Court and the drafters of the Federal Rules of
Civil and Criminal Procedure obviously considered the
doctrines of plain and harmless error and made specific
provisions concerning them. If those provisions are to
be changed, it should be done by changes in the rules, not
_ by decisions of Courts of Appeals.**
Decisions of this Court regarding the application of
Rule 50(b) of the Civil Rules buttress a strict application
of Rule 51. Rule 50(b) provides that, unless motions for
* We do not contend, of course, that the doctrine of plain error
does not apply to Federal Civil Trials. Our position is that in the
limited area of instructions, Rule 51 bars such application.
** See, e. g., Anderson v. Yungkau, 329 U.S. 482 (1947) and the
1963 Amendment to Rule 25(a), Federal Rules of Civil Procedure.
14
a directed verdict at trial and for judgment n. o. v. after the
verdict were made, the sufficiency of the evidence supporting
a jury’s verdict cannot be raised on appeal. This Court
has specifically refused to allow Rule 50(b) to be circum-
ventéd. Globe Liquor Co. v. San Roman, 332 U.S. 571 —
(1948) ; Cone v. Virginia Pulp and Paper Co., 330 U.S. 212
(1947). The Third Circuit has applied Rule 50(b) inex-
orably. Burns v. Yanos, 17 F. R. D. 391 (E. D..Pa. 1955),
aff’d, 232 F. 2d 929 (3d Cir. 1956) ; Gebhart v. Wilson F. F.
Co., 348 F.2d 129 (3d Cir. 1965). Rule 51 should be en-
forced according to its plain language as Rule 50(b) is.
B. Those decisions which do apply a plain error exception to
Rule 51 are inconsistent and confusing.
There exists no uniform or consistent application of a
plain error exception among and within the Circuits which
recognize it. Even assuming a plain error exception to
Rule 51 is justified, which we deny, it would still be import-
ant to grant this petition. This Court should then state
what the exception is and when it should be applied to
achieve uniformity in all Federal Courts.
Although classification is difficult and somewhat arbi-
trary, several categories emerge from the variety of opin-
“ions which apply a plain error exception to Rule 51.
First are the cases which hold that the exception should
be applied to Rule 5f sparingly and only in exceptional
circumstances where the error is fundamental and actually
resulted in a ‘‘gross’’ or ‘‘manifest’’ miscarriage of justice.
Trent v. Atlantic City Elec. Co., 334 F.2d 847 (3d Cir.
1964) ; Schabo v. County of Mercer, 333 F.2d: 971 (3d Cir.
1964); Haugh v. Curlee, 265 F.2d 130 (5th Cir. 1959);
Callwood v. Callwood, 233 F.2d 784 (3d Cir. 1958); Gia-
calone v. Raytheon Mfg. Co., 222 F.2d 249 (1st Cir. 1955) ;
Hite v. Western Md. Ry., 217 F. 2d 781 (4th Cir. 1954), cert.
denied 349 U.S. 960 (1955).
Secondly, a group of cases discusses a plain error excep-
tion when a miscarriage of justice or a probable injustice
a
15
may have occurred. The opinion of the Third Circuit below
falls into this category and is at odds with Callwood, Schabo
and Trent cited above. See also, McNamara v. Dionne,
298 F.2d 352 (2d Cir. 1962) ; Massachusetts Bonding and
Ins. Co. v. Dilschneider, Inc., 203 F. 2d 556, 560 (8th Cir.
1953) ; Montgomery v. Virginia Stage Lines, 191 F. 2a 770,
774 (D.C. Cir. 1951) ; Dowell Inc. v. Jowers, 166 F. 2d 214
(5th Cir.), cert. denied 334 U. S. 832 (1948), but compare
Haugh v. Curlee, supra.
Finally, some cases hold that where the nature of the
error is so fundamental and obvious, the effect of the error
is immaterial and a plain error exception may be invoked.
These cases either fail to discuss the effect of the error
or assume it caused a miscarriage of justice without further
consideration. See Ferrara v. Sheraton McAlpin Corp., 311
F. 2d 294 (2d Cir. 1962) ; concurring opinion in Troupe v.
Chicago D. & G. Bay Transit Co., 234 F.2d 253 (2d Cir.
1956) ; Mondshine v. Short, 196 F. 2d 606 (5th Cir. 1952).
If a plain error exception is to be made to Rule 51,
it should be in the terms of the decisions grouped in the
first category above—sparingly used and only when there
is a fundamental error which resulted in manifest injustice.
Otherwise, Rule 51 will be emasculated, the policy under-
lying it will be completely thwarted and the finality of
jury verdicts seriously threatened.*
C. The decision of the Third Circuit is a glaring example of
how an erosion of Rule 51 can cause a manifest miscar-
riage of justice rather than prevent one. 7
If there ever were a case in which Rule 51 should be
enforced, this is it. The complaint was originally filed on
* Some text writers seriously question the existence of a plain
error exception to Rule 51 and state, if one exists, it should be used
only in exceptional cases. Wright, Federal Courts, §94, p. 363
(1963); 2B Barron & Holtzoff, Federal Practice and Procedure,
§ 1106, pp. 474-475 (Rules Ed. 1961). ;
=~
16
October 30, 1954. Until the first trial started on April 30,
1960 nearly six years later, the parties engaged in extensive
discovery. Extensive pretrial procedures took place before
both trials (la-4a). The position of the parties and the
issues were carefully and thoroughly delineated. The first
trial lasted about five weeks, the second six. The case has
been before the Court of Appeals twice. The expenditure
of judicial time and effort, as well as the cost to the parties
and the courts, has been enormous.
Of paramount importance, plaintiff had his day in court
and was afforded a full and fair trial. At the conclusion
of the testimony the parties each submitted to the Trial
Court proposed special interrogatories for the jury (Tr.
3074-5,410b). After the Trial Court had charged the jury,
it met with counsel in chambers to discuss any objections
or additional instructions. Plaintiff not only had no objec-
tions,* he withdrew his proposed special interrogatories
previously submitted (110b). Plaintiff requested one addi-
tion to the instructions which was, readily given (177a-
178a).
By reversing due to alleged errors never raised by the
plaintiff, the Third Circuit completely nullified Rule 51
and its sound policy. It is grossly unfair to the Trial
Court and the defendant since they did not have a chance
to consider or cure any alleged error at trial. Plaintiff has
been able to take his chance on a jury verdict and, being
unsuccessful, can now try again because of alleged errors
he never raised below. This enormously protracted litiga-
tion will lumber on interminably.
The Third Circuit’s attempt to justify its decision ‘in
part on the ineptness of plaintiff’s counsel is a bootstrap
operation—erroneous in fact and principle. Plaintiff’s at-
torney has been described by members of the bench and
bar as highly experienced and one of the leading trial
* Since a record reference cannot be given to something that was
not done, we can refer only to all that. was said by plaintiff’s counsel
in criticism of the charge (109b, 112b-113b).
oe
17
lawyers in the country.* No jury verdict will ever be safe
if a tactical decision of trial counsel to remain silent and
go to the jury can be labelled ineptness and lay the basis
for a reversal. Any unsuccessful litigant with twenty-
twenty hindsight can point to instances where his counsel
might have handled things differently. If such hindsight
can be the grounds for reversal, the Courts of Appeals will
be required to conduct seminars in trial procedures. It is
not unreasonable to hold civil litigants to the same exacting
standards as criminal defendants who complain of inept
counsel—a showing of such woefully inadequate representa-
tion that the trial was “a farce and a mockery of justice.”
United States v. Garguilo, 324 F.2d 795 (2d Cir. 1963).
Furthermore, the Third Circuit’s holding that the charge
contained errors which were fundamental, highly prejudi-
cial and may have caused a miscarriage of justice is clearly
erroneous. It faulted the instructions on express warranty
and assumption of risk on the grounds: (1) they inade-
quately related the facts to the law and (2) portions of
these instructions were incorrect. We respectfully submit
that the Trial Court’s instructions adequately. related the
facts to the law and were entirely correct.
The evidence with regard to express warranty and
assumption of the risk was brief, simple and easy for the
jury to understand. As summarized above (pp. 6-9) it
consisted mainly of the plaintiff’s own testimony on direct
and cross. With regard to express warranty, the defend-
ant’s advertising was the only possible source of express
* As was observed by Judge Marsh of the Western District of
Pennsylvania in Fratto v. Northern Insurance Co. of N. Y., 242 F.
Supp. 262, 265 (1965): “Attorney [James P.] McArdle [plain-
tiff's attorney] is a lawyer of some 34 years experience and the
senior member of a large and prominent law firm in the City of Pitts-
burgh.” Mr. McArdle was named “Man of the Year in Law™by the
Pittsburgh Junior Chamber of Commerce in 1964 (Pittsburgh Press,
January 10, 1965). On June 23, 1965, the Western Pennsylvania
Chapter of the American Trial Lawyers Association named Mr.
McArdle “Distinguished Trial Lawyer of the Year.” In presenting
this award, Attorney Abraham Friedman, President of the Na-
tional Academy of Trial Lawyers, proclaimed Mr. McArdle as
“America’s No. 1 Trial Lawyer” (Pittsburgh Press, June 23, 1965).
/ 18
warranties. On direct, plaintiff testified he relied on them.
On cross, it became apparent he did not. With respect
to assumption of risk, the plaintiff himself testified he
knew smoking Chesterfield cigarettes was not good for him.
Counsel for both parties treated this evidence at length in
their summations (Tr. 2968, 3019; 103b-106b). Since both
parties relied heavily on different portions of the plaintiff’s
own testimony, it would have been almost impossible for
the Trial Court to discuss this evidence without prejudicing
one party or the other. The Trial Court commented on the
evidence and related it to the legal issues where necessary
(154a). In fact, plaintiff’s counsel resisted attempts by
» defendant to have the Trial Court further discuss the evi-
dence, asserting this to be the policy of the Circuit and
District Courts (Appendix C). Thus, not only was plaintiff
completely satisfied with these instructions, but according
to the opinion below, led the Trial Court into error.“
The Court of Appeals held the Trial Court erred when
it instructed the jury that, to find an express warranty, the
jury must also find the seller ‘‘actually intended to be
bound by his statement.’’ Its authority for this holding,
1 Williston on Sales §§ 198-200 (Rev. Ed. 1948) and Rother-
mel v. Phillips, 292 Pa. 371, 375-6, 141 Atl. 241 (1928), fail
to support it. Williston merely indicates the author’s con-
clusion that the words of the Sales Act’ should override
old decisions. Rothermel discusses this contention and then
states that a decision on the question was not necessary in
that case. Pennsylvania law, binding in this diversity case,
clearly supports the language in the charge that a seller
must intend to be bound by his statement for there to
exist an express warranty. Michelin Tire Co. v. Schulz, 295
Pa. 140, 145 Atl. 67 (1929); Walker v. Kirk, 72 Pa. Super.
534 (1919) ; M’Farland v. Newman, 9 Watts 55, 34 Am. Dec.
497 (Pa. 1839).
Even if this were error, it was not prejudicial to the plain-
tiff. After considerable deliberation on all interrogatories
the jury requested additional instructions on warranty. The
Trial Court set out, once again, the elements of express war-
ranty-(179a-180a). This time, however, the language the
19
Third Circuit found offensive was omitted. Thus, at a
time when the jury was actually considering express war-
ranty, the charge given was correct even under the holding
of the Third Circuit, which failed to recognize or comment
on this supplemental charge on express warranty. The
charge taken as a whole together with Interrogatory No. 5
clearly and fairly presented the issue of express warranty
to the jury without any prejudice to the plaintiff.
Similarly, there was no error in the charge on assump-
tion of risk. The opinion below states that the Trial Court
failed to distinguish between assumption of risk and con-
tributory negligence, the former applicable to express war-
ranty, the latter not. But, a reading of the instructions
shows that the Trial Court did distinguish between the con-
cepts of contributory negligence and assumption of risk,
carefully labelling each and discussing each separately
(168a-169a). And, the Trial Court had to charge on both
concepts since at'that time a negligence cause to which con-
tributory negligence was a complete defense wag being sub-
mitted to the jury.
The statement of assumption of risk in the charge is |
eminently correct under Pennsylvania Law. Schentzel v.
Philadelphia Nat’l League Club, 173 Pa. Super. 179, 96
A. 2d 181 (1953).
According to the Third Circuit the proper rule on as-
sumption of risk is:
‘*It is the law of Pennsylvania that a person who
voluntarily exposes himself to a danger of which he
has knowledge, or has had notice, assumes the attend-
ant risk. He may not recover for personal injuries
sustained as the result of the exposure because under
the circumstances the person responsible for the danger
is relieved of any duty to protect the injured person.’’
(A-9) ;
The Trial Court instructed the jury: F
‘“When in the face of an obvious or known danger,
a person voluntarily proceeds with a course of conduct
which may result in injury, he consents to take his
chances and to relieve others of responsibilty.’’ (169a)
20
We fail to see any difference between the Third Circuit’s
language and the charge, let alone fundamental and highly
prejudicial error.*
a
Furthermore, if the jury’s verdict on express warranty
must be upheld, as stated above, the entire issue of assump-
tion of risk is moot. Having found no express warranty on
which plaintiff relied, the case is over, and there is nothing
to which assumption of risk is related. Since jury verdicts
should be affirmed, if at all possible, the jury’s negative
answer to Interrogatory No. 5 on express warranty renders
irrelevant any real or imagined errors connected with Inter-
rogatory No. 7 on assumption of risk.
Finally, there was no miscarriage of justice here. Plain-
tiff received a fair trial. The jury’s verdict was the right
one. See Trent v. Atlantic City Elec. Co., 334 F.2d 847
(3d Cir. 1964). The majority below held that plaintiff must
prove reliance. As Judge Smith noted, see p. 7 supra,
his evidence on reliance ‘‘fell far short of the mark.’’ Al-
though this alone is sufficient to defeat plaintiff’s case, there
was more than enough evidence to support the jury’s finding
of assumption of risk. * To reverse the jury’s verdict on the
groands assigned by the Third Circuit perpetrates a mis-
carriage of justice and divests jury verdicts of any sem-
blance of finality. If for no other reason, this petition
should be granted in the exercise of this Court’s supervisory
power over the lower Federal courts. Gibson v. Lockheed
Aircraft Serv. Inc., 350 U. S. 356; 357 (1956).**
*To make it unanimous, plaintiff’s counsel, in his summation,
explained the law of assumption of risk in the same terms as the
Trial Court in its instructions (Tr. 3019).
** Mr. Justice Frankfurter, in his concurrence, found no confusion
or conflict among the circuits in regard to Rule 51. However, the
issue there was whether an objection below was distinctly stated
in compliance with Rule 51, not the issue here—whether there is a
plain error exception to Rule 51.
21
The Holding of the Third Circuit That There was
Insufficient Evidence to Submit the Issue of Assumption
of Risk to the Jury Violates the Seventh Amendment.
Having found error in the charge of assumption of risk,
the Third Circuit apparently felt it proper to ignore Rule
50(b) which requires motions for a directed verdict and
judgment n.o.v., and to consider the sufficiency of the evi-
dence on that point. If the charge were correct, the jury’s
verdict must stand. Taking the evidence in the light most
favorable to defendant, it clearly made out a case for sub-
mission.to the jury.
The Seventh Amendment prohibits Courts of Appeals
from reexamining facts tried by a jury. When the evidence
is such that fair-minded men may draw different inferences
and reach different conclusions, then the Seventh Amend-
ment requires the case to be submitted to the jury and pro-
hibits interference with that verdict by Courts of Appeals.
Miller v. Brazel, 300 F.2d 283 (10th Cir. 1962); United
States v. Bryan, 265 F.2d 698 (5th Cir. 1959); American
Fidelity & Cas. Co. v. Drexler, 220 F. 2d 930 (5th Cir. 1955).
Under these principles, the Court of Appeals had no
right to disturb the jury’s verdict. Plaintiff’s own testi-
mony, summarized, supra pp. 7-9, shows that there was sufii-
cient evidence upon which the jury based its verdict.
The Third Circuit did not discuss the evidence support-
ing the jury’s finding. It just stated it was insufficient.
It went on to state that defendant’s ads in some way over-
came this evidence. This was a question for the jury, not
an Appellate Court. The jury could have considered the
fact that the ads, although strung together in the opinion
below, were published separately at widely scattered times
from 1928 through 1953 and that plaintiff merely glanced
at them. It could also have considered the fact that de-
fendant, no matter how much research it might have carried
on, could never have discovered the effect its cigarettes are
alleged to have had on this plaintiff. The plaintiff alone
knew that cigarettes were not good for him as au individual,
but he voluntarily smoked anyway.
P 22
If there is to be a third trial, this ruling on the sufficiency
of the evidence is clearly fundamental to the further conduct
of this‘case. Unless defendant can find additional evidence,
the Trial Court at the third trial may well be constrained
to direct a verdict for plaintiff on assumption of risk pur-
suant to the opinion below. Since the plaintiff is now dead,
' it will be well nigh impossible to obtain any additional
evidence. In effect, the Third Circuit is depriving. the
defendant of this defense in violation of the Seventh Amend-
ment despite the fact that the Trial Court decided there
was sufficient evidence and the jury decided there was a
preponderance of evidence that plaintiff assumed the risk.
We submit this is an additional reason for granting the
petition. Larson v. Domestic € Foreign Commerce Corp.,
337 U.S. 682, 685 n. 3 (1949); Land v. Dollar, 330 U.S.
731, 734 n. 2 (1947) ; United States v. General Motors Corp.,
323 U.S. 373, 377 (1945).
CONCLUSION
For the foregoing reasons, this petition for a writ of
certiorari should be granted.
Respectfully submitted,
THUEL M. WEBSTER
NALD J. CoHN
One Rockefeller Plaza
New York, New York 10020
Wuum H. Eckert
1000 Porter Building
Pittsburgh, Pennsylvania 15219
Counsel for Petitioner
Francis K. Decker, Jr.
Wesster SHEFFIELD FLEISCHMANN
Hitcucock & Curystiz
One Rockefeller Plaza
New York, New York 10020
Joun H.eMorcan
Ecxert, Szamans & CHERIN
1000 Porter Building
Pittsburgh, Pennsylvania 15219
Of Counsel
Dated: October 22, 1965
2
Oe
23
Certificate of Service
Thereby certify that a copy of the foregoing Petition for
Writ of Certiorari was served by mail this 22nd day of
October, 1965 upon James P. McArdle and James E. Me-
Laughlin, McArdle, Harrington, Feeney & McLaughlin, 606
Frick Building, Pittsburgh, Pennsylvania 15219, counsel of
record for respondent herein, by depositing the same in a
United States mail box at One Rockefeller Plaza, New York,
New York 10020, in a wrapper addressed to said counsel
as aforesaid with sufficient airmail postage prepaid.
Counsel for Petitioner
Dated: October 22; 1965.
Lo ak Dy Sie bn
ee
om,
ener: ae ia
A-l
APPENDIX A |
UNITED STATES COURT OF APPEALS
For tHe Tutep Crecurr
™~, No. 14802
ANITA i P. ITCHARD, ApmrnisTRaTeix or THE Estate oF ,
\ OTTO E. PRITCHARD, Deczasep, |
: Appellant,
v.
LIGGETT & MYERS TOBACCO COMPANY,
a CoRPORATION, |
Appellee.
AppeaL From tue Untrep Srates Distaicr Court ror THE
Western District or Pennsyivania
o -
Argued—December 8, 1964
Before Ganzy, Smiro and Freepman, Circuit Judges. °
Opinion of the Court
(Filed July 26, 1965)
By Smrru, Circuit. Judge.
The plaintiff brought this action for personal injury
alleging that he contracted lung cancer as a result of having
smoked Chesterfield cigarettes for many years. The claims
for relief, stated in separate counts of the complaint, al-
leged negligence and breach of warranty as the bases of
liability. The defendant, admittedly the manufacturer of
the cigarettes, denied the allegations of the complaint and
pleaded assumption of risk as an affirmative defense to
i”
A-2
each of the claims. The jurisdiction of the court below was
invoked on the ground of diversity of citizenship and there-
fore under the facts of the case the law of Pennsylvania
was applicable.
The action was heretofore before this Court on an ap-
peal from a judgment entered on a directed verdict in favor
of the defendant, 295 F.2d 292. The judgment was re-
versed and a new trial was granted pursuant to the man-
date. The present appeal is from a judgment entered on
a jury verdict in favor of the defendant. The earlier opin-
ion of this Court contains a comprehensive summary of the
pertinent evidence offered in the first trial. Since the evi-
dence offered at the second trial did not differ substantially,
we find it necessary to set forth herein only such additional
facts as may be relevant to the narrow issues raised on
this appeal.
The plaintiff, who was 63 years old at the time of the
second trial, admittedly smoked. cigarettes since he was 15
years of age. He was an habitual cigarette smoker for
several years prior to 1924, when he began smoking Chester-
fields for the first time. Thereafter, and during the critical
period, between sometime in 1924 and the latter part of
1953, he smoked Chesterfields regularly, consuming ‘‘at
least a carton’’ per week. There was ample evidence in
the record from which the jury could have found, as it did,
that the smoking of Chesterfields was a cause of the lung
cancer, which was diagnosed and removed in 1953. This
finding is not an issue on this appeal.
The alleged warranties were contained in a series of
advertisements published periodically in both newspapers
and magazines. These advertisements featured in bold
type such factual affirmations as the following: ‘‘Chester-
fields Are Best For You’’; ‘‘Chesterfields Are As Pure As
The Water You Drink And The Food You Eat’’; ‘“A Good
Cigarette Can Cause No IIls’’; ‘‘Nose, Throat And Acces-
sory Organs Not Adversely Affected By Smoking Chester-
fields’; ‘‘Play Safe Smoke Chesterfields.’’ (See also the
A-3
earlier opinion of this Court). Many of the advertisements
contained assurances that the affirmations were based upon
extensive Fesearch and the opinions of medical specialists.
There was implicit in these assurances a strong suggestion
that while other brands of cigarettes might be harmful,
Chesterfields were not.
This Court stated in its earlier opinion: ‘‘The evidence
compellingly points to an express warranty, for the defend-
ant, by means of various advertising media, not only re-
peatedly assured plaintiff that smoking Chesterfields was
absolutely harmless, but in addition the jury could very
well have concluded that there were express assurances of
no harmful effect on the lungs.’’ eens: ;
The issues were submitted to the jury on a series of
special inierrogatories, Fed. Rules Civ. Proc., rule 49(a),
28 U.S.C.A., all of which, except ond, were answered ad-
versely to the plaintiff. The jury found: (1) the-smoking
of Chesterfield cigarettes by the plaintiff was ‘‘the cause,
or one of the causes,’’ of the cancer; (2) the defendant was
not chargeable with negligence ;*(3) the defendant made no
‘‘express warranties upon which the plaintiff relied and
by which he was induced to purchase’’ the cigarettes; and
(4) the plaintiff assumed the risk of injury by his smoking
the cigarettes. A judgment for the defendant in accord
with the special findings was entered.
The plaintiff moved for a new trial on the grounds,
among others, that the verdict on the breach of warranty
issue was against the weight of the evidence, and the
Court’s instructions to the jury on the same issue were
erroneous. The motion was denied. The only grounds
here urged as a basis for reversal are those relating to
the breach of warranty issue; the others have been
abandoned. ‘
Dentat oF Motion ror New Tera.
The plaintiff argues that the verdict was against the
weight of the evidence and that the denial of his motion
mA
A-4
for a new trial, based on this ground, was error. It is well
settled that a motion for a new trial on the ground herein
urged is addressed to the sound discretion of the trial
judge and its denial is not ordinarily reviewable on appeal.
Silvertti v. Kramer, 314 F.2d 407, 413 (3rd Cir. 1963) ;
Lind v. Schenley Industries, Inc., 278 F.2d 79, 89 (3rd Cir.
1960), cert. den. 364 U.S. 835; Magee v. General Motors
Corp., 213 F.2d 899 (3rd Cir. 1954). Since the judgment
must be reversed on other grounds, we see no need to
discuss the merits of the argument.
Rewiance as Requistre to Ricut or Action
The breach of warranty issue was tried on the assump-
tion that reliance of the purchaser was an essential element
of an express warranty as defined by statute, infra, and
therefore requisite to a cause of action for its breach. The
plaintiff endeavored to prove by his own testimony that
the advertisements were an inducement and that in reliance
thereon he regularly purchased and smoked Chesterfields.
This testimony, when subjected to the test of cross-exami-
nation, fell far short of the mark and apparently failed to
impress the jury.
The Court instructed the jury, consistently with the
foregoing assumption, as follows: ‘‘The law of Pennsyl-
vania provides that any affirmation of fact, or any promise
by the seller relating to the goods, is an express warranty
if the natural tendency of such an affirmation or promise is
to induce the buyer to purchase the goods, and if the buyer
purchases relying thereon.’’ (Emphasis supplied).
These instructions were undoubtedly consonant with
the majority rule which is predicated on a construction of
Section 12 of the Uniform Sales Act,’ as adopted by many
“Any affirmation of fact or any promise by the seller relating to
the goods is an express warranty if the natural tendency of such
affirmation or promise is to induce the buyer to purchase the goods,
and tf the buyer purchases the goods relying thereon. No affirmation
of the value of the goods, nor any statement purporting to be a
statement of the seller’s opinion only, shall be construed as a war-
ranty.” (Emphasis supplied.)
A-5 :
of the States. Pedroli v. Russell, 320 P. 2d 873 (Cal. 1958) ;
Rogers v. Toni Home Permanent Co., 147 N.E. 2d 612 (Ohio
1958) ; Frank v. Salomon, 34 N.E. 2d 424 (IIL 1941); see
also text and Annotations, Frumer and Friedman, Products
Inability, Vol. 1, § 16.04[4]. However, under the law of
Pennsylvania the rule is not applicable where the factual
affirmations run to the public and their natural tendency
is to induce a purchase.
The applicable section of The Sales Act of Pennsyl-
_ vania, 69 P. S. § 121, reads as follows :*
‘“‘Any affirmation of fact or any promise by the
seller relating to the goods is an express warranty if
the natural tendency of such affirmation or promise is
to induce the buyer to purchase the goods, and if the
buyer purchases the goods relying thereon no affirma-
tion of the value of the goods, nor any statement pur-
porting to be a statement of the seller’s opinion only,
shall be construed as a warranty.’’ (Emphasis sup-
plied).
The quoted version differs from that which appears in The
Uniform Sales Act.
It will be noted that in Section 12 of The Uniform Sales
Act the conditional phrase ‘‘and if the buyer purchases the
goods tea thereon,’’ at the end of which a period ap-
pears, modifies the antecedent clause. In the version here-
inabove quoted the same phrase, at the end of which no
punctuation appears, introduces a proviso creating an ex-
ception to the general definition appearing in the first
clause. While punctuation is seldom a reliable guide to
statutory construction it is a relevant factor where, as here,
its effect is to change the import of the statute. The ma-
teriality of the change is 4 significant indication that it
was the intent of the Pennsylvania legislature not to follow
Seetion 12 of The Uniform Sales Act as written.
2 Superseded by Uniform Commercial Code, § 2-313, adopted
April 6, 1953.
A-6
An express warranty, within the meaning of the Penn-
sylvania statute, as we construe it, is any factual affirma-
tion or promise, the natural tendency of which ‘‘is to
induce the buyer to purchase the goods.’’ Reliance of the
buyer is not a requisite of either the warranty or a right
of action for its breach. It follows that the instructions
given were erroneous, as was the submission to the jury
of the issue of reliance. Under the facts of this case the
issue of reliance was wholly irrelevant; the only issue was
whether the factual affirmations contained in the many
advertisements were such as would naturally tend ‘‘to
induce the buyer to purchase the goods.’’
This Court was called upon to construe the statute in
the case of Manmsz v. Macwhyte Co., 155 F.2d 445 (1946).
Therein the respective claims for damages, one for wrong-
ful death and another for personal injury, were predicated
upon the alleged breach of an express warranty contained
in a manual circulated by the manufacturer. The plaintiffs
attempted to prove that the purchase of a wire rope, which
broke while being used to support a scaffold, was purchased
in reliance on certain representations as to strength con-
tained in the manual. They failed in this proof; in fact,
there was no evidence in the record that the manual ever
came to the attention of either the purchaser, who died in
the accident, or his injured employee.
This Court held that where the factual representations
run to the public and are such as would naturally induce a
purchase neither privity of contract nor actual reliance ow
the representations is an essential element:of a right of
action under the statute. Accord Worley v. Proctor &
Gamble Mfg. Co., 253 S.W.2d 532 (Mo. 1952); see also
Williston on Sales, Vol. 1, §§ 206 and 208; Frumer and
Friedman, Products Liability, supra. If a manufacturer
extends to the public an express warranty that his product
is harmless and thereafter a purchaser suffers personal
injury as a result of its breach, the manufacturer cannot
disclaim liability on the ground that there was no reliance
A-7
on the warranty. The express warranty is an integral part
of the contract of sale and may not be disaffirmed, after a
breach has occurred, on the ground’ that the purchaser did
not actually rely on it.
In the Mannsz case, supra, this Court sustained a
judgment in favor of the defendant but on the ground that
the wire rope had been used for a purpose not intended by
the manufacturer and this misuse placed it beyond the
scope of warranty.
ASSUMPTION oF Risk as DEFENSE
An action for personal injury based upon the breach
of an express warranty, although it sounds also in tort,
is in substance one for breach of contract. The availability
of assumption of risk as a defense in such an action depends
upon which of two concepts is adopted. The distinction
may be of little importance in an action for personal injury
based on negligence but it is important where, as here, an
additional basis of liability is the alleged breach of an ex-
press warranty. See Koshorek v. Pennsylvania Railroad
Company, 318 F. 2d 364, 367 (3rd Cir. 1963).
Assumption of risk in its secondary sense is ordinarily
synonymous with contributory negligence and involves a
failure to exercise reasonable care for one’s own safety.
Under this concept recovery is barred because of the plain-
tiff’s departure from the:standard of reasonable conduct
and notwithstanding the misconduct of the defendant.
Potter v. Brittan, 286 F.2d 521 (3rd Cir. 1961) and cases
hereinafter cited. Harper and James, The Law of Torts,
§ 22.2, p. 1201; Prosser, Law of Torts, 2nd Ed. § 55. As-
sumption of risk in its primary and strict sense involves
voluntary exposure to an obvious or known danger which
negates liability. Under this concept recovery is barred
because the plaintiff is assumed to have relieved the de-
fendant of any duty to protect him. Ibid.
In Prosser, Law of Torts, supra, cited with approval
in Koshorek v. Pennsylvania Railroad Company, supra, the
A-8
principles determinative of the distinction are stated as
follows: ‘‘In working out the distinction, the courts have
arrived at the conclusion that assumption of risk is a mat-
ter of knowledge of the danger and intelligent acquiescence
in it, while contributory negligence is a matter of some
fault or departure from the standard of reasonable con-
duct, however unwilling or protesting the plaintiff may be.
The two may co-exist, or either may exist without the other.
The difference is frequently one between risks which were
in fact known to the plaintiff, or so obvious that he must
be taken to have known of them, and risks which he merely
might have discovered by the exercise of ordinary care.”’’
See also Potter v. Brittan, supra; Sullivan v. Shell Ou
Company, 234 F. 2d 733, 739 (9th Cir. 1956), cert. den. 352
U. S. 925.
It has been held by the Superior Court of Pennsyl-
vania, an intermediate court of appeals, that contributory
negligence is inapposite as a defense in an action for breach
of warranty. Jarnot v. Ford Motor Company, 156 A. 2d
568 (1959). We have found, and the parties to this appeal
have cited, no other case in point. We are therefore
obliged to follow this decision in the absence of persuasive
evidence that the highest court of the State would reach a
different conclusion. McLouth Steel Corp. v. Mesta Ma-
chine Co., 214 F. 2d 608, 610 (3rd Cir. 1954), cert. den. 348
U. 8.873; St. Clair v. Eastern Airlines, Inc., 302 F.2d 477
(2nd Cir. 1962).
The rule as announced by the Superior Court appears
to represent the majority view and is supported by sub-
stantial authority in other jurisdictions. Green v. Ameri-
can Tobacco Co., 325 F.2d 673, 679 (5th Cir. 1963), cert.
den. 377 U. S. 943; Brown v. Chapman, 304 F.2d 149, 163
(9th Cir. 1962); Hansen v. Firestone Tire and Rubber
Company, 276 F. 2d 254, 258 (6th Cir. 1960); see also
Frumer and Fri¢dman, supra, § 16.01[3]. It was held in
the cited cases that in an action for personal injury, predi-
cated on breach of warranty, the defense of contributory
os
A-9
negligence is inapposite.. There are other decisons to the
same effect. It seems reasonable to assume that the highest
court of Pennsylvania would reach the same conclusion.
We are of the view, and so hold, that since contributory
negligence is not available as a defense in an action for
personal injury based on breach of warranty, assumption
of risk in the sense of contributory negligence is likewise
not available. However, if a consumer uses a product for
a purpose not intended by the manufacturer and suffers an
injury as a result, he may not recover because such misuse
is beyond the scope of the warranty. See Frumer and
Friedman, supra, § 16.01[3]. This was in essence the hold-
ing of this Court in Mannsz v. Macwhyte Co., supra.
It is the law of Pennsylvania that a person who vol-
untarily exposes himself to a danger of which he has knowl-
edge, or has had notice, assumes the attendant risk. He
may not recover for personal injuries sustained as the
result of the exposure because under the circumstances
the person responsible for the danger is relieved of any
duty to protect the injured person. Kopp v. R. S. Noonan,
Inc., 123 A. 2d 429 (1956) ; Cutler v. Peck Lumber Mfg. Co.,
37 A.2d 739 (1944). It is clear from these cases that
assumption of risk, in its primary and strict sense, is avail-
able as a defense in an action for personal injuries based
upon negligence. It follows as a matter of logic that the
same defense is apposite in an action based on breach of
express warranty.
The defense of assumption of risk Tested solely on the
testimony of the plaintiff which, viewed in the light most
favorable to the defendant, was clearly insufficient. There
was no evidence upon which the jury could have predicated
a determination that the plaintiff either knew or had notice
of the harmful effects of Chesterfields. Absent such evi-
dence, the defense of assumption of risk failed.
There was overwhelming evidence that many of the de-
fendant’s advertisements carried factual affirmations, pro-
fessedly based on medical research, that Chesterfields were
A-10
safe and smoking them could have no adverse effect on
‘*the nose, throat and accessory organs.’’ These adver-
tisements were calculated to overcome any fears the poten-
tial consumers might have had as to the harmful effects of
cigarettes, and particularly Chesterfields. Under the cir-
cumstances it is difficult to perceive show the plaintiff, a
cabinetmaker with no scientific background, could have
been charged with notice or knowledge of a danger, which
the defendant, with its professed superior knowledge, ex-
tensively advertised did not exist. We should emphasize
that the medical researchers engaged by the defendant in
1952; apparently failed to detect the danger.
As hereinabove noted, assumption of risk was apposite
as a defense in the action based upon breach of express
warranty but only in its primary sense. However, the
issue raised by the defense was submitted to the jury on
general instructions which were inadequate and confusing
in that they failed to differentiate between the primary and
secondary concepts; in the instructions thesé concepts were
treated as equivalent. Absent such a differentiation, the
instructions as given did not correctly relate the law to: the
issue and were therefore erroneous. Atkinson v. Roth, 297
F’, 2d 570, 574 (3rd Cir.<1962) ; McNello v. John B. Kelly,
Inc., 283 F.2d 96, 101, 102 (3rd Cir. 1960). It was also
error to submit the issue to the jury in the absence of evi-
dence to support the defense. Morran v. Pennsylvania
Railroad Company, 321 F.2d 402 (3rd Cir. 1963); O’Neill
v. Reading Company, 306 F. 2d 204 (3rd Cir. 1962); Smith
v. Ellerman Lines, 247 F. 2d 761, 766 (3rd Cir. 1957). -
ARGUMENTS IN Support oF AFFIRMANCE
The defendant urges two principal grounds for affirm-
ance and against reversal of the judgment. Preliminarily
to our discussion of these grounds it should be stated that
the trial errors in this case are attributable, at least in
part, to the ineptness of plaintiff’s counsel. He made no
objections to the Court’s instructions or the interrogatories
on which the issues were submitted to the jury.
A-11
The defendant argues that the plaintiff here advances
. in support of reversal a theory different from that on
which the case was tried and submitted to the jury. This
argument has no support in the record. The plaintiff al-
leged the defendant’s breach of warranty as one basis of
liability. The issues tried and submitted to the jury were
those raised in the denial of the allegation and the defense
of assumption of risk. Reversal of the judgment is sought
solely on the grounds that the court below committed error
in the course of the trial. This is clearly not a case in
which there has been a change of theory.
The defendant argues also that since the plaintiff inter-
posed no objection to either the court’s instructions or the
interrogatories submitted to the jury, the questions raised
on this appeal should not be considered. It is the general
rule that the appellate court will not consider trial errors
~ to which no timely objection has been made. The rule is
not inexorable and is subject to exception. Hormel v.
Helvering, 312 U.S. 552, 557, 558; Mazer v. Inpschutz, 327
F’. 2d 42, 52 (3rd Cir. 1964) ; McNello v. John B. Kelly, Inc.,
supra; Callwood v. Callwood, 233 F.2d 784, 788 (3rd Cir.
1956). Where it is apparent on the face of the record that
a miscarriage of justice may have resulted from counsel’s
failure to properly protect the interest of tis client by
timely objection, the error must be noticed and rectified.
-» Ibid. Since the errors in the trial of this case were funda-
mental and highly prejudicial, this exception to the general
rule is applicable.
Judges Ganey and Freedman concur in the result in
this case and in that portion of the opinion which deals.
with the defense of assumption of risk. The majority view
on the question of reliance is discussed in the opinion of
Judge Freedman, in which Judge Ganey joins.
The judgment of the court below will be reversed and
the action will be remanded with the direction that a new
trial be had..
A-12
Opinion by Judge Freedman, concurring.
I concur in the reversal of the judgment and the award
of a new trial: I believe a new trial is required because the
charge of the court did not adequately instruct the jury on
the requirements of § 12 of the Sales Act of May 19, 1915,
P. L. 543 (69 Purdon’s Pa. Stat. Annot. § 121), which ap-
plies to this action, although-it-has since been superseded
by the Uniform Commercial Code (Act of April 6, 1953,
P. L. 3, § 2-313, 12A Purdon’s Pa. Stat. Annot. § 2-313).
In the first place, the charge is inadequate because it
gave the jury no explanation of the meaning of $12 of
the Sales Act as it applied to the facts in the case which
the jury was called upon to decide. An academic recitation
of the language of a statute without any direction as to
how it may be applied to the disputed facts before the jury
is too general to furnish adequate guidance to them. —
McNello v. John B. Kelly, Inc., 283 F.2d 96 (3 Cir. 1960).
Yet it was on this basis that the court submitted to the
jury, which answered ‘‘No’’, Interrogatory No. 5: ‘‘Did
the defendant make any express warranties upon which
the plaintiff relied and by which he was induced to pur-
chase Chesterfield cigarettes?’’
' .The charge was defective not only for vagueness but
also because of another error. It instructed the jury that
they could not find an express warranty unless the seller
‘‘actually intended to be bound by his statement.’’* Such
a requirement is contrary to the law of Pennsylvania since
the adoption of the Sales Act of 1915 by which Pennsyl-
pein departed from its previous adherence to the English
See 1 Williston on Sales (Rev. Ed. 1948), $4 Sa
= Rothermel v. Phillips, 292 Pa. 371, 375-76 (1928).
true test is not whether the seller actually intended to i.
bound by his statement but rather whether he made an
affirmation of fact the natural tendency of which was to
induce the sale and. which did in fact induce it. Act of May
19, 1915, P. L. 543, § 12, 69 Purdon’s Pa. Stat. Annot. § 121;
1 Williston on Sales (Rev. Ed. 1948), § 199.
1R, 165a.
A-13
Although thus joining in the order of reversal and
remand for new trial, I believe it would be erroneovs to
retry the case on the supposed principle that reliance by
the buyer on an express warranty is not required under
§ 12 of the Pennsylvania Sales Act. The opinion of Judge
Smith, which is the opinion of the Court on all other ques-
tions in the case, would eliminate the requirement of re-
liance and thus makes irrelevant the jury’s finding that no
reliance in fact existed.” Its support for this unusual con-
clusion, admittedly contrary to the general interpretation
of § 12 of the Uniform Sales Act, is a difference in punctua-
tion between the section proposed by the Commissioners on
Uniform State Laws and the Pennsylvania statute. Section
12 of the Uniform Sales Act, as it was adopted by the
Commissioners (See 1 Uniform Laws Anmot. (1950), p. 173;
1 Williston on Sales (Rev. Ed. 1948), § 194) reads as fol-
lows: ‘‘ Any affirmation of fact or any promise by the seller
relating to the goods is an express warranty if the natural
tendency of such affirmation or promise is to induce the
buyer to purchase the goods, and if the buyer purchases
the goods relying thereon. No affirmation of the value of
the goods, nor any statement purporting to be a statement
of the seller’s opinion only shall be construed as a war-
ranty.’’ The same section as it appears in the Pennsyl-
vania pamphlet law reads precisely the same except for
punctuation; there is no period after the word ‘‘thereon’’
and there is a comma after ‘‘seller’s opinion only’’. The
punctuation of the Uniform Sales Act, as the main opinion
points out, makes it clear that the phrase dealing with
reliance modifies the antecedent clause relating to express
warranty and that the remaining clause deals with a sepa-
rate matter, i. e., that no affirmation of value or statement
of the seller’s opinion shall be construed as a warranty.
But because of the absence of the period in the Pennsyl-
vania version the main opinion infers an intention that the
2 Although Interrogatory No. 5 contained two questions, i.e., did
the defendant make an express warranty and did the plaintiff rely
upon it, I shall assume that the jury’s negative answer may be
applied to both questions.
A-14
reliance provision be deemed a part of the remaining clause,
so that it would read: ‘‘and if the buyer purchases the
goods relying thereon no affirmation of the value of the
goods, nor any statement purporting to be a statement of
the seller’s opinion only, shall be construed as a warranty.’’
This to my mind makes the reliance provision of the section
meaningless. For it is redundant to speak of reliance in
regard to statements of value or opinion when they are
themselves not to be considered as warranties. If such a
construction would mean only that an affirmation of value
or a statement of the seller’s opinion shall not be construed
as a warranty even if the buyer purchases the goods relying
thereon, it would be an emphatic statement of the unneces-
sary. Moreover, it might well be argued from such a con-
struction that such affirmations of value or statements of
opinion can be construed as warranties if the buyer pur-
chases the goods without relying on them. Reliance would
take affirmations of value or statements. of the seller’s
opinion outside the circle of warranty but non-reliance
would bring them in. This is the opposite of what would
normally be intended, i.e., that where there is only an affir-
mation of value or a statement of opinion there can be no
warranty irrespective of any reliance. So it has been held
in Pennsylvania. Rothermel v. Phillips, 292 Pa. 371, 375-76
(1928).
Section 12 of the Pennsylvania Act contains the same
words as the Uniform Act. It can hardly be supposed that
an intention to make such an important change in the
Uniform Act on its adoption in Pennsylvania would not
have been expressed in some change in language rather
than in punctuation. Especially is this true in Pennsyl-
vania, where the practice for many years has been to print
bills without any punctuation and to leave it to the office
of the Secretary of the Commonwealth to insert punctua-
tion after the bill has been enacted.2 The bill ag it was
® See Act of April 9, 1929, P.L. 177, § 804, 71 Purdon’s Pa. Stat.
Annot. § 274. See also Act of May 4, 1905, P.L. 384, since repealed
by Act of June 7, 1923, P.L. 498, § 2901.
A-15
adopted by the Legislature was without punctuation, and
in accordance with the legislative practice §12 contained
no period or commas.‘ Since the language of the statute is
identical with the Uniform Act and was unpunctuated at
the time the statute was adopted it should be construed to
have the same meaning as the Uniform Act. To arrive ata
different and strange construction solely because of the
absence of a period is to raise punctuation above its true
significance and exalt a clerical act té an exercise of law-
‘making power. It is established in Pennsylvania as a
result of the legislative practice that punctuation cannot
be relied upon in ascertaining the meaning of a statute.
Thus in Wilson v. Wilson, 126 Pa. Super. 423 (1937), the
question arose whether sterility or incapacity to procreate
was a ground for divorce. The causes for divorce in Penn-
sylvania had been laid down in the early Acts of September
19, 1785, 2 Sm. Laws 343, 12 Pa. Stat. at L. 94, § 2, and
March 13, 1815, P.L. 150, 6 Sm. Laws 286, §1. Both of
these early statutes authorized divorce from a party who
‘‘at the time of the contract, was and still is naturally im-
potent or incapable of procreation.’’ In the codification of
the divorce laws of the Commonwealth in The Divorce Law
of May 2, 1929, P.L. 1237, § 10(1), 23 Purdon’s Pa. Stat.
Annot. $10, this language was repeated without change,
but a comma was inserted before the phrase ‘‘or incapable
of procreation’’. Plaintiff pointed to the comma in support
of his contention that sterility was a ground for divorce
separate from impotence.” The court, rejecting this argu-
ment, said (p. 426): ‘‘It is of no importance that the
present Act has added a comma after the word ‘impotent’.
‘There is no punctuation in a statute, which ought to rule:’
Gyger’s Estate, 65 Pa. 311, 312.” The Wilson case was
not an aberrant decision but followed a principle which a
few months later the Legislature itself expressed in the
Statutory Construction Act of May 28, 1937, P.L. 1019, § 53,
* See 1915 Legislative Journal—House, pp. 3210, 3220, reprinting
the bill on final passage.
: A-16
46 Purdor’s Pa. Stat. Annot. § 553: ‘‘In no case shall the
punctuation of a law control or affect the intention of the
Legislature in the enactment thereof.’’ Later, in Kuntz v.
Alliance Sand Co., 156 Pa. Super. 563 (1945), in rejecting
an argument that the meaning of the statute be based on
the absence of a comma, Reno, J., a former Attorney
General of Pennsylvania, said: ‘‘The short and complete
answer to the argument)is that no significance attaches to
the punctuation of a statute. The legislature does not
enact the punctuation which appears in the printed statutes.
Bills introduced in the legislature may contain punctuation
marks but they are entirely deleted by the printer. The
printed bills which the legislature considers and passes and
the Governor approves are totally devoid of punctuation
marks. They are inserted later in the office of the Secre-
tary of the Commonwealth when copies of the laws are
prepared for the printer of the Pamphlet Laws, but they
have no legislative sanction. For these reasons the legis-
lature has expressly commanded that its intention shall not
be controlled or affected by the punctuation [citations].
Reading the cited section, without punctuation, as it left the
legislature and the Governor . . . [the court construed
the statute]’’. (pp. 565-66).
The well established Pennsylvania practice which was
later cast in the form of a statutory command is not weak- -
ened because of a stray decision running the other way.
For if the meaning of legislation is to be affected by punc-
tuation, the official who punctuates the bill would be en-
gaged in a legislative act and the Legislature would be
held to have delegated legislative power to the executive
in violation of the Pennsylvania Constitution.’ Pennsyl-
5 See the interesting commentary by Schulz and Stahl on “The
Enactment and Construction "> in Pennsylvania”, 46 Pur-
don’s Pa. Stat. Annot., pp. 1,°30-1. The one or two cases running
the other way are distinguished by the authors as “sports” and their
statement why such views are erroneous is unanswerable: “[B]ills
in the General Assembly are not punctuated, the periods and commas
A-17
vania’s legislative practice may well appear to be outmoded
and the principle on which it is based—that the language
of a bill should be so clear that no punctuation is necessary
to aid in the expression of its meaning—may well be an
unattainable ideal. But we may not ascribe to the statute
and other marks being inserted after the enactment by the Secretary
of the Commonwealth. . . .
“The thought behind the unpunctuated bill is reputedly that the
wording by itself should be so clear as to leave no doubt as to i
which needs to be cleared up or changed by punctuation. If the sense ;
is inserted or changed by the punctuation, the officer who punctuates
the bill is actually legislating, contrary to the provisions of the Penn-
sylvania Constitution assigning the legislative power to the General
Assembly.’-~(p. 30).
For this reason the statement in Yeager Unemployment Compen-
sation Case, 196 Pa. Super. 162 (1961) must be regarded as ill-con-
sidered dictum. See also the dissent in that case by Judge Flood at
pp. 173-180, especially Note 1.
* The effect of punctuation on meaning and how precision in lan-
€ may minimize the need for punctuation are interestingly illu-
strated in DeVinne, The Practice of Typography: Correct Compo-
sition (1901), pp. 241, et seq., and Brossard, Punctuation of Statutes,
24 Oregon L. Rev. 157 (1945).
DeVinne, who has been very influential because he supervised
the publishing of the Century Dictionary and Cyclopedia, states:
7 # 2 are of value, whether they are found in grammars or are
taught by proof-readers, but they can never take the place of an
understanding of subject-matter. ... Here is an illustration—a short
sentence which can be made to convey contrary meanings by the
insertion or omission of two commas.
“The prisoner said the witness was a convicted thief.
“The prisoner, said the witness, was a convicted thief.” (p. 260).
Brossard, whose article was submitted as a report to the National
Conference of Commissioners on Uniform State Laws, of which he
was a member, shows how this sentence might properly have been
written so that its meaning would not be altered by punctuation:
“That sentence would not depend on points if it were reconstructed
thus: “The prisoner said that the witness was a convicted thief’ or
‘The witness said that the prisoner was a convicted thief.’ Similar
examples of bad syntax have been used to prove that meaning may
hang on a comma. Here is one: ‘Woman, without her, man would
be a savage.’ ‘Woman, without her man, would be a savage.’ Or take
this schoolboy riddle: “Would you rather a lion eat you, or a tiger?’
The comma is relied on to keep the lion from eating the tiger. Those
are mere plays on words. Word juggling may be indulged in for
amusement ; but a statute is no place to ‘conjure with us in a double
sense’.” (p. 170).
A-18
an intention derived from some other practice, one which
the Legislature has not adopted. /
We recognized and applied the Pennsylvania practice
_ in construing a Pennsylvania statute in In Re Industrial
Sapphire Mfg. Co., 182 F. 2d 589 (3 Cir. 1950), where Judge
Goodrich said: ‘‘Once we are freed from the commas the
statute, we think presents no difficulty and we give it the
construction we think is the natural one.’’ (p. 591).
I think § 12 of the Pennsylvania Sales Act should also
receive a natural and sensible construction, one which its
draftsman—who was Professor Williston and not the Penn-
sylvania Legislature—obviously intended. An intention so
clearly and authoritatively written should not be uprooted
and rendered meaningless by the subordinate element of
punctuation, especially when it is irrelevant.
For half a century the courts of Pennsylvania have in-
dicated without any apparent suspicion of doubt that § 12
of the Sales Act of 1915 requires reliance on an express
warranty. They have quoted the statute in a form which
assumes that the last clause is a separate sentence and that
the provision regarding reliance modifies the preceding lan-
guage dealing with express warranty rather than the sub-
sequent clause that an affirmation of value and a statement
of seller’s opinion alone do not constitute a warranty.
Illustrations of this will be found in Butcher v. Newburger,
318 Pa. 547, 552 (1935), where the phrase on reliance is
quoted as part of the description of express warranty and
where if reliance were legally unnecessary much of the
court’s discussion would have been irrelevant. In C. D.
Brown & Co., Inc. v. Standard Hide Co., 301 Pa. 543, 548
(1930), the court quoted the first part of § 12 as qualified
by the requirement of reliance and then went on to say that
a statement of value is excepted from the rule. In Yonker
vy. Vameer, 91 Pa. Super. 157, 161 (1927), a charge requiring
actual inducement was approved. See also Pantano v.
Zamer Motor Sales Co., 170 Pa. Super. 317, 323 (1952), to
the effect that there was no right of action for breach of
A-19
warranty where the buyer relied on its own inspection
rather than the warrantor’s statement. Professor Wil-
liston, reviewing the changes effected in Pennsylvania by
the Sales Act of 1916, concludes: ‘‘ Although the effect of
old decisions is hard to obliterate, the plain words of the
Sales Act must override them, and it has ultimately been
recognized that sufficient essentials of a warranty exist
where there'is an affirmation, the tendency of which is to
induce the sale and which does induce it.’? 1 Williston on
Sales (Rev. Ed. 1948), § 199, p. 512. (Emphasis added).?
In addition to the frequent instances in which the
Pennsylvania courts have drawn the reliance phrase into
the preceding portion of § 12 dealing with warranty, there
are cases which show the necessary complement that the
provision that affirmations of value or a statement of
seller’s opinion are not to be construed as a warranty is
complete in itself and separate from the reliance clause.
This is strikingly shown in Rothermel v., Phillips, 292 Pa.
371, 375-76 (1928), where Mr. Justige Sadler quoted § 12
‘A contemporary expression of the understanding of § 12 of the
Pennsylvania Sales Act is found in the discussion of § 2-313 of the
Uniform Commercial Code. The Pennsylvania Bar Association’s
notes to the section state in regard to subsection (1) (a) dealing with
express warranty: “Under the Code, the qualification that affirma-
tions, etc. create a warranty if made ‘as a basis of’ the bargain, appears
to be substantially the same as the ‘reliance’ qualification in § 12 of
the Uniform Sales Act, 69 P.S. § 121, (repealed).” In discussing
Subsection (2), dealing with affirmations of value or statements of
seller’s opinion, the Bar Association’s note states: “The qualification
as to statements of ‘value’ rephrases but does not appear materially to
change § 12 of the Uniform Sales Act, 69 P.S. § 121 (repealed). :
12A Purdon’s Pa. Stat. Annot., p. 162. Similarly, see the Report
of the Subcommittee on the Proposed Uniform Commercial Code
of the Joint State Government Commission of the Pennsylvania
General Assembly (1952), p. 23.
The comment by the drafters of the Uniform Commercial Code
confirms this view. They make it clear that what was iormerly
described as reliance is now absorbed as a factor which is made a
basis of the bargain. Comment 3 to § 2-313 states that where a
statement is made during a bargain no particular evidence of reliance
need be shown, but that it remains a question of fact whether evidence
introduced by the defendant is sufficient to show non-reliance.
A-20
of the Pennsylvania Sales Act in two parts; in the first
part quoting the language dealing with affirmations of fact
or promises by the seller he included the clause relating_to
the buyer’s reliance, but he excluded it in quoting the clause
that affirmations of value or statements of the seller’s opin-
ion alone are not to be construed as a warranty. The case
was then explicitly decided on the second clause of § 12.
It is clear, therefore, that the conclusion of the main
opinion constitutes a wide departure from the settled view
in Pennsylvania that §12 of its Sales Act is the same as
the Uniform Act, and creates an unwarranted gulf between
the Pennsylvania Sales Act and the equivalent provision
of the Commercial Code.
Reliance is a question of fact. In the language of the
Sales Act the question is whether the buyer relied on an
affirmation of fact or promise by the seller. The main
opinion would remove this factual question and instead
make the test under the Pennsylvania Sales Act whether
the factual affirmation or promise had the natural tendency
to induce the buyer to purchase the goods. Natural ten-
dency to induce is not the same as actual reliance. It may
be that in many cases the circumstances which will indicate
the natural tendency to induce the buyer to purchase the
goods will also be enough to show reliance. But this ele-
ment of fact which is ever present should not be withdrawn
from determination by the jury.
I do not consider that our decision in Mamnsz v. Mac-
whyte Co., 155 F.2d 445 (3 Cir. 1946), stands in the way.
There the injured plaintiff sued the manufacturer of wire
rope for negligence and breach of express warranty. We
sustained the dismissal of the action because of plaintiff’s
failure to prove either negligence in the manufacture of
the rope or its inadequacy for its intended use. In the
course of the opinion it was said that in Henderson v.
National Drug Co., 343 Pa. 601 (1942), Pennsylvania had
adopted the principle of MacPherson v. Buick Motor Co.,
. 217 N. Y. 382 (1916), that privity was not required in a
w
“*
A-21
suit for negligence. The opinion then went on to state
that the abolition of privity extended also to actions for
breach of warranty and indicated that reliance on the rep-
resentations was unnecessary. This statement, which went
beyond the necessities of decision, was unsupported at the
time. Since then the Supreme Court of Pennsylvania,
while reiterating the view that privity is no longer required
in an action for negligence, has emphatically declared that
the privity requirement retains a definite vitality in suits
for express warranty. The reason for this has been stated
to be that a defendant should not be held to be a guarantor
of his product in cases where liability should rest on negli-
gence. The Court has been strict in maintaining that one
who is not a purchaser may not maintain a claim of breach
of warranty where there is an absence of privity, although
it has extended the concept of purchaser ‘to’ include, in
addition to the immediate purchaser, the subpurchasers
along the line from manufacturer to ultimate consumer.®
Even subsequent purchasers may recover from the original
seller only where his express promise may be said to be
a part of the consideration for the purchase and is meant
to be conveyed to and relied upon by subsequent pur-
chasers. See Silverman v. Samuel Mallinger Co., 375 Pa.
422, 428-29 (1953) ; Hochgertel v. Canada Dry Corp., 409
Pa. 610, 616 (1963); Yentzer v. Taylor Wine Company,
414 Pa. 272 (1964). See also Driver v. F. A. Mitchell Cox
35 F.R.D. 226 (E.D.Pa. 1964). In the present Pennsylvania
law under the Uniform Commercial Code® the element of.
reliance on the part of the buyer will be absorbed in the
determination of the basis of the bargain, but it will remain
® With the adoption of the Uniform Commercial Code in Penn-
sylvania this rule has necessarily been expanded to include, by virtue
. of § 2-318 (12A Purdon’s Pa. Stat. Annot. § 2-318), one who is in
the family or household of the buyer or a guest in the buyer’s home
if it is reasonable to expect that he may use, consume or be affected by
the goods. See Yentzer v. Taylor Wine Company, 414 Pa. 272
(1964).
® Section 2-313, 12A Purdon’s Pa. Stat. Annot. § 2-313.
tt
A-22
a question of fact to be determined by the jury where the
seller seeks to show that his affirmation was not a part of
the basis of the bargain.
I would hold, therefore, that the issue of reliance is
not irrelevant and that whether the factual affirmations in
the advertisements were such as would naturally tend to
induce the buyer to purchase the goods was not the only
issue. On the contrary, in my view it was necessary for
the plaintiff to show that affirmations of fact relating to
the: goods had a natural tendency to induce the buyer to
purchase the goods and that the buyer purchased the goods
relying thereon. The jury could, in my view, have found
that these requirements wére met under the evidence in
this case. They should have been told how the evidence
bore on the question of natural tendency to inducement and |
how that same evidence was relevant to the question of
reliance. This the court below did not undertake to do,
and this it should do on a retrial.
I am authorized to state that Judge Ganey joins in
this opinion.
A True Copy:
f
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit.
>
UNITED STATES COURT OF APPEALS
For rae Turep Crovurr
No. 14,802
ANITA PRITCHARD, Apminisrrarrix or THE Estate OF |
OTTO E. PRITCHARD, DECEASED, «
Appellant,
vs.
LIGGETT & MYERS TOBACCO COMPANY .
A Corporation,
(D. C. Crvimt No. 12820) .
On ApPEaL FROM THE UNITED States Districr Court
FOR THE WesTEEN District or PENNSYLVANIA
Present: Ganzy, Siro and FRreepMan, Circuit Judges.
?
&*
Judgment
This cause came on to be heard on the record from the
United States District Court for the Western District of
Pennsylvania and was argued by counsel.
On consideration whereof, it is now here ordered and
adjudged by this Court that the judgment of the District
Court, filed November 9, 1962 and enteréd November 13,
1962, be, and the same is hereby reversed, with costs, and
the action remanded with the direction that a new trial
be had.
Attest:
M. EvizaBetu Fercuson
Deputy Clerk
July 26, 1965
~
APPENDIX B
Swain v. Boeing Airplane Co., 337 F. 2d 940 (2d Cir. 1964)—
decided Oct. 27, 1964.
Batista v. Weir, 340 F. 2d 74 (3d Cir. reine Jan.
8, 1965.
Jerrold Electronics Corp. v. Wescoast Broadcasting Co., 341
F. 2d 653 (9th Cir. 1965)—decided Jan. 22, 1965.
Waaler v. Waczler Towing Co., 342 F.2d (6th Cir. 1965)—
- decided Jan. 29, 1965.
New Orleans and Northeastern R. Co. v. Hewett Oi Co.,
341 F. 2d 406 (5th Cir. 1965)—decided Feb. 11, 1965.
Burns v. Travelers Insurance Co., 344 F.2d 70 (5th Cir.
1965)—decided Apr. 7, 1965. -
Stiles v. Gove, 345 F.2d 991 (9th Cir. 1965)—decided May
24, 1965.
Woods v. National Life/and Accident Insurance Co., 347
F. 2d 760 (3d Cir. 1965)—decided June 22, 1965.
Jones & Laughlin Steel Corp. v. Matherne, 348 F.2d 394
(5th Cir. 1965)—decided June 25, 1965
Umited States v. 84.4 Acres of Land, etc., say? F.2d 117 (3d
Cir. 1965)—decided July 14, 1965.
-Bern v. Evans, 349 F. 2d 282 (8th Cir. 1965)—decided Aug.
3, 1965.
ARE ek
‘
hs i sinebtissdheanl, sc 28: WN ene: ——a nee aati ae
&
>
APPENDIX C
(Tr. 3079)
Mr. Eckert: I don’t think this was on the record before,
so I’d like to put this on the record, if I may.
We respectfully request the court to instruct the jury
that assumption of risk might also be based, in addition
to the two grounds that the court mentioned in his charge,
on the following: First, the plaintiff’s testimony that he
heard from the time he began to smoke cigarettes that they
were coffin nails, and that when a person smoked a cigarette,
it was (Tr. 3080) equivalent to driving a nail into his coffin.
Second, the plaintiff’s testimony that his wife warned
him to reduce his smoking when he was married in 1930,
and that he did so.
Third, that the plaintiff testified that at various times
when he smoked Chesterfield cigarettes heavily, he got a
bad cough, and that then upon his wife’s advice, or upon
his own accord he would switch away from Chesterfield
to some other brand of cigarette, or to a pipe for some-
times perhaps a month or so, two or three times a year,
and that when he did so his cough would go away or ease
off, but that then sometime later he would resume smoking
Chesterfields and go through the same cycle.
Fourth, the fact that Arthur Godfrey in his broadcasts,
which are in evidence, said such things as that cigarettes
were killing him, and that there were a lot of people in this
world with too much sense to smoke them, and other con-
demnation of cigarettes as being harmful to the smoker’s
health; and
Fifth, and last, that in Dr. Colwell’s history taken on
October 15, 1953 which is ‘in evidence, it is stated that
the plaintiff had had a chronic cough for the last six or
eight months following resumption of the smoking of
cigarettes. (Tr. 3081).
C-2
Mr. McArdle: It is my understanding—
The Court: That is all on the assumption of risk.
Mr. Eckert: Yes, that all has to do with assumption of
risk, your Honor.
Mr. McArdle: Your Honor said in his charge—that
except where necessary, he was not going to charge on the
evidence. Any evidence that I think your Honor charged,
I think perhaps it was necessary, was the testimony that
you referred to one of the defendant’s witnesses who said
he smoked stogies, and of course you said if he only smoked
stogies and a pipe, that would be the end of the case. I
suppose that is the policy of our Circuit and of this District.
Counsel now wants to discuss evidence. If he wants to
discuss evidence, then I would suggest that, your Honor, in
this connection would have to do-with discussing the addic-
tion and craving of Dr. Ochsner’s testimony.
The Court: That is exactly what I don’t want to go
into, because that is when we will be in trouble if we do
all that.
I cited these examples, Mr. Eckert, merely as an example
so that the jury would understand what I was talking about
when I said ‘‘assumption of risk.’’ (Tr. 3082).
Now, those items were all thoroughly covered by you in
your closing address yesterday; is that not a fact?
Mr. Eckert: Yes, that’s right.
The defendant also respectfully excepts to any addi-
tional or supplemental charge such as requested by the
plaintiff with respect to negligence because of the publica-
tion of any advertisements.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.