Edwin Green, Jr., as Administrator of the Estate of Edwin Green, Deceased, and Mary Green v. American Tobacco Company

CAMERON, Circuit Judge

(concurring in part and in part dissenting).

The majority opinion in this case is a careful and accurate portrayal of the status of the case as it now stands before us. And it is a correct interpretation of the holding of the Supreme Court of Florida so far as it holds that the judgments of the court below must be reversed and the case remanded. I cannot join, however, in its conclusion that we should not render judgments for plaintiffs on the issue of liability.

I.

For convenience, I quote the paragraph of the majority opinion which announces this latter conclusion — the point at which I am compelled to part company with my brethren:

“It does not, however, follow, as urged by the plaintiffs, that we should render judgments for plaintiffs on the issue of liability. The jury has not made any sufficient finding on the question of reasonableness, that is, as to whether or not the cigarettes were ‘reasonably fit and wholesome.’ The jury did find that the smoking of Lucky Strike cigarettes on the part of the decedent, Green, was a proximate cause of the development of cancer in his left lung which caused his death. It is possible, however, that those findings are consistent with the standard of reasonableness, for as this Court recently said: ‘Strict liability on the warranty of wholesomeness, without regard to negligence, “does not mean that goods are warranted to be foolproof or incapable *680of producing injury * * * ” ’ Lartigue v. R. J. Reynolds Tobacco Company, 5 Cir. 1963, 317 F.2d 19, 37.”

In order to demonstrate that Lartigue is not authority in this case, and that the majority fell into fatal error when it announced the foregoing quoted language as the basis for its conclusion that the plaintiffs were not entitled to a directed verdict on liability, it is necessary to set out substantially all of the paragraph in Lartigue, a portion of which the majority has quoted above. This is done in a footnote, and the textbook language which Lartigue quoted is italicized to separate it from this Court’s language (317 F.2d 37, paragraph numbered [18]1 A Lartigue was quoting from a textbook based upon a California Appellate Court case which announced law which is wholly inconsistent with the law of Florida.

It is fair to say, I think, that the majority’s entire reliance on Lartigue and the principles it stands for are in direct conflict with the decisions of Florida courts, including the specific holding of its Supreme Court in its answer to the question we certified to it (154 So.2d 169, 172-173).

II.

The majority here finds itself, I submit with deference, in the anomalous position of resting its decision as to the most crucial point in this case upon Lartigue, which in turn went astray because it bottomed its holding on the portion (304 F.2d at 73-77) of this Court’s original opinion which was rejected by the Florida Supreme Court, upon our submission to it. The vital language of Lartigue (317 F.2d 37-39) was based upon, and in considerable part repeated, these rejected holdings of this Court’s original opinion.

It follows, it therefore seems to me, that whatever may be the force of Lartigue — decided two months before the Florida Supreme Court answered our question — in deciding a Louisiana case, it is no authority at all in this case based upon Florida law. Under that law it is not true that “By and large, the standard of safety of the goods is the same under the warranty theory as under the negligence theory.” The direct opposite is true. The instruction given by the court below and its accompanying Question No. 4 were predicated directly upon the negligence theory. Florida rejects that theory and holds that sales of goods for human consumption are not covered by the law of sales with its caveat emptor or the law of negligence with its doctrines of reasonable care. Instead, they are •controlled entirely by the law of contracts. The contract here was between the Tobacco Company and Green. The warranty embodied by the law in every sale the Company made to him was that the cigarettes purchased by him would not do him harm.

*681It would, in my opinion, be a complete rejection of the law of warranty to hold that it could abrogate the requirement that one admittedly injured by the use of tobacco could not recover unless he showed further that the cigarettes were not reasonably fit and wholesome for use by the general public. Those words are used in the warranty to demonstrate the universality of its application. Every sale it makes carries a warranty to each and every member of the public. But each warranty is separate and covers the liability of the Tobacco Company to each separate individual to whom a sale is made. The finding of the jury has settled the fact that the cigarettes sold to Green were not reasonably fit and wholesome for use by him. No other question is, in my opinion, involved under the law of Florida with which alone we are dealing.

III.

The question here under consideration is, in reality, the same question which was debated at great length between the majority and the dissenting opinions in the initial decision of this case by this Court.2 A reading of those two opinions will, it seems to me, cover essentially the point of difference which still persists between the majority and myself. I think no good purpose will be served by repeating the argument made in that dissent and that it is sufficient to refer to it. I undertook to analyze every applicable Florida case and to demonstrate that under the Florida cases, Question No. 4 should not have been submitted to the jury. The Supreme Court of Florida has decided the point submitted against the holding of the majority in that case and in favor of the arguments set forth in my dissent.

In answer to the question we addressed to the Supreme Court of Florida, which the parties stipulated as encompassing the question which would decide the outcome of this litigation, the Supreme Court of Florida answered in effect as follows:

“Yes, the law of Florida imposes on a manufacturer and distributor of cigarettes absolute liability, as for breach of implied warranty, for death caused by using such cigarettes from 1924 or 1925 until February 1, 1956, the cancer having developed prior to February 1, 1956, and the death occurring February 25, 1958, notwithstanding the fact that the defendant manufacturer and distributor could not, on or before February 1, 1956, by the reasonable application of human skill and foresight, have known that users of such cigarettes would be endangered, by the inhalation of the mainstream smoke from such cigarettes, of contracting cancer of the lung.”

It seems certain that, when we submitted that question, the members of the Court thought its answer would dispose of the case. The parties evidently thought the same thing, because they agreed to the asking of this question. I see nothing else for the jury to pass upon, unless the Tobacco Company is to be permitted to bring in a hundred or a thousand witnesses whom Lucky Strike cigarettes have not yet harmed, in an effort to show that the warranty given by the Tobacco Company to Green was not in fact broken.

But the record before us reveals no effort by either party to show that the cigarettes were not reasonably fit and wholesome as to any person besides Green. If that be the thrust of the majority opinion, I think it is fair to say that neither party raised such an issue in the arguments before us on the trial of the original appeal; that this Court never conceived that such an issue was in the case; that the Supreme Court of Florida has not intimated that such an issue does remain in the case, and that no Florida decision is cited — and none can be found by me — which holds such an issue to be relevant to a trial upon implied warranty.

*682The law seems to be settled that:

“In civil cases it is a well-recognized rule that questions not advanced on the original hearing will not be considered on the petition for a rehearing * * * ” 5 Am. Jur.2d, Appeal and Error, § 987, page 412.

I think that the judgment below should be reversed and remanded for trial of the issue of damages alone. I, therefore, respectfully dissent.

. “Strict liability on the warranty of wbolesomeness, without regard to negligence, ‘does not mean that goods are warranted to be foolproof or incapable of producing injury * * * By and large, the standard of safety of the goods is the same under the warranty theory as under the negligence theory.sv The article sold must be unreasonably dangerous to the ordinary consumer, with the knowledge common to the community as to its characterization. For example, sugar is unwholesome to diabetics. Ice cream and butter may contain sufficient cholesterol to be unwholesome to persons with high blood pressure and heart trouble. Whiskey is unwholesome to alcoholics. Diabetics who eat sugar, heart cases who cannot resist ice cream or butter, and alcoholics who drink too much whiskey know that the strict warranty of wholesomeness puts no money in the bank for them.

* * *
“37. 2 Harper & James, Law of Torts § 28.22, p. 1584 (1961).
‘In a recent California case the Court said “The essential inquiry, thus, is the same in respect to the breach of toarranty theory as to the negligence claim: whether the defendant complied with the standard of reasonable ca/re in ascertaining the fitness of the chattel for the use for which he lenew it was hired.” Tierstein v. Licht, 1959, 174 Cal.App.2d 835, 345 P.2d 341.’ ”

. Green v. American Tobacco Company, June, 1962, 304 F.2d 70, dissenting opinion, 77.