Document re1KmNd2QxVbv9kxbbdMeoOwa

PCB-ARCH-EXT0376458 IN THE COMMON PLEAS COURT OF STARK COUNTY, OHIO FRANKLIN HUMPHREY, et al Plaintiffs vs. MICHIGAN SILO CO. and MONSANTO COMPANY Defendants CASE NO. 114693 (Judge Young) TRIAL BRIEF OF MONSANTO COMPANY Harry W. Schmuck First National Bank Building Canton, Ohio 44702 Attorney for Plaintiffs, Franklin and Marilyn Humphrey Black, McCuskey, Souers & Arbaugh, and Dan M. Belden 1200 Harter Bank Building Canton, Ohio 44702 Attorneys for Defendant, Michigan Silo Company, Inc. Jacob F. Hess, Jr., and Amerman, Burt & Jones Co., L.P.A. 250 Peoples-Merchants Trust Bldg. Canton, Ohio 44702 Attorneys for Defendant, Monsanto Company PCB-ARCH-EXT0376459 TABLE OF CONTENTS Table of Authorities Cited Statement of the Case Issues I. \ Action by the State A. Legality B. Justification C. Lack of court order II. Necessity of cause of action against Monsanto Company A. Negligence B. Strict liability - implied warranty of manufacturer C. Contractual liability III. Burden of proof of damages IV. Affirmative defenses V. Matters of evidence Appendix PAGE ii 1 12 12 15 '20 24 26 26 32 40 41 13 43 ^ 100 PCB-ARCH-EXT0376460 TABLE OF AUTHORITIES CITED f - . ' Brief Page Section 3717.31, R.C. Section 3717.01, R.C. Section 3715.59, R.C. Section 3715.52, R.C. Fouke & Reynolds vs. Great Lakes Co., (1972) 33 0. App. 2d 273 (m.c.o. 9/8/72) U.S. vs. Vita Food Products of 111., Inc., (1973) Case No. 70 C 2246 (D.C., 111.) U.S. vs. Lexington Mill Co., (1914) 232 U.S. 399, 58 L. Ed. 658, 34 S. Ct. 337, Page 402 (232 U.S.) Id., Page 412 (232 U.S.) Toxic Substances, Annual List, 1971, P. VI, U.S. Department of Health, Education and Welfare, Health Services and Mental Health Administration Section 3715.69, R. C. Section 3715.55, R. C. Lonzrick vs. Republic Steel Corp., (1966) 6 Ohio St. 2d 227, 218 N.E. 2d 185 39 0. Jur. 2d 492, Negligence, Sec. 9 Id., 494, Sec. 11 63 Am. Jur. 2d, Products Liability, Section 25 et seq.; Id., Sec. 44 Heck vs. The Beryllium Corporation, (1967) 424 Pa. 140, 226 A. 2d 87 LaPorte vs. U. S. Radium Corp., (N.J. D.C. 1935) 13 F. Supp. 263 Mitchem vs. Johnson (1966) , 7 Ohio St. 2d 66 Cox vs. Shaffer (1972), Pa. Superior Court No. 238, CCH Product Liability, Para. 6937 Restatement of Torts, 2d, Sec. 402-A 63 Am. Jur. 2d 134, Strict Liability Id., 136 Id., 139 Lartigue vs. R. J. Reynolds Tobacco Co., (C.A. 5, La.) 317 F. 2d 19 Ross vs. Philip Morris & Co., (C.A. 8, Mo.) 328 F. 2d 3 16 0. Jur. 2d 118, Damages, Sec. 98 Id., 87, Sec. 69 Id., 86, Sec. 68 Id., 88, Sec.70 Id., 91, Sec. 73 Id., 93, Sec. 74 15,16 16 16 16 17,21,22 17 18 18 19 20 24 26,32, 33,34,35 26 27 29 30 31 32 33 34,36,37 37 37 38 38 39 41 41 42 42 42 42 Appendix Page 101 101 101 102-112 113-125 126-140 101 100 141-166 167-171 172-186 187-194 195 196-217 218-231 - ii i" PCB-ARCH-EXT0376461 TABLE OF AUTHORITIES CITED (Continued) Brief Page Appendix Page Jones vs. Hawkes Hospital of Mt. Carmel, 175 0. S. 503, 170 N. E. 2d 592 Darnell vs. Eastman, 23 Ohio St. 2d 13, 261 N. E. 2d 114 21 0. Jur. 2d 436, Evidence, Sec. 426 Dillow vs. Young, 6 Ohio St. 2d 221, 217 N. E. 2d 868 Section 2317.42, R. C. 21 O. Jur. 2d 628, Evidence, Sec. 608 Goldman vs. Fox Sons & Co., , 60. L. Abs. 581 Section 2317.40, R. C. 21 0. Jur. 2d 588, Evidence, Sec. 573 Better Homes Equip. Co. vs. Nixon, 72 0. L. Abs. 329, 134 N. E. 2d 850 21 0. Jur. 2d, 603, Evidence, Sec. 586 Mazzeo vs. Board of Liquor Control, 73 0. L. Abs. 94 Lewis vs. Woodland, 101 0. App. 442, 140 N. E. 2d 322 Dorsten vs. Lawrence, 20 0. App. 2d 297 Mehochko vs. Gold Seal Co., 66 111. App. 2d 54, 213 N. E.' 2d 581, 19 A.L.R. 3d 1003 5 A.L.R. 3d 307 43 43 43 44 44 45 46 46,48 46 47 47 47 48 48 48 48 232-236 - 111 - PCB-ARCH-EXT0376462 STATEMENT OF THE CASE Franklin and Marilyn Humphrey own and operate a dairy farm in Columbiana County with a herd ranging over the years to 99 head. Michigan Silo Co., founded in 1909 and incorporated in 1916, manufactured, erected and repaired farm silos. Initially, production facilities were located in Charlotte, Michigan, White Marsh, Maryland, and Massillon, Ohio. Concrete Silo Co., with silo production facilities in Bloomfield, Indiana, and Monteagle, Tennessee, was later acquired by Michigan Silo Co. and was aeguMkastaMd operated as a subsidiary of Michigan Silo Co. After acquisition of Concrete Silo Co., headquarters for the entire * * . operation were in Bloomfield, Indiana. In a corporate reorganization in 1966, the management of the Massillon plant was provided the opportunity to and did ac quire the assets of the Massillon plant. At that time, the defendant in this action, Michigan Silo Company, Inc., was organized in Massillon with the Massillon plant assets as an Ohio corporation to manufacture, erect and repair farm silos. The territory served by the Massillon plant of the Michigan Silo Co. and by the defendant, Michigan Silo Company, - 1 - PCB-ARCH-EXT0376463 Inc., included all of Ohio, western Pennsylvania, and parts of New York, West Virginia and Maryland. Silos manufactured by the Massillon plant before and after the corporate reorganiza tion were of the concrete stave type. Among the many chemical products manufactured by Monsanto Company is a series called Aroclors. Some of these are poly chlorinated biphenyls which have been manufactured, sold and used for various purposes since approximately 1930. In 1951 Michigan Silo Co. constructed a 12 x 45 silo and in 1957 a 16 x 45 silo on the Humphrey farm. On construc tion, the interior of the 12 x 45 silo was coated with wax. When the 16 x 45 silo was constructed in 1957, Michigan Silo Co. coated the interior with a formulation which Michigan Silo Co. called'"Cumar". Michigan Silo Company, Inc., recoated the entire in terior of the 16 x 45 silo with "Cumar" in the fall of 1967 and coated the entire interior of the 12 x 45 silo with "Cumar" in the spring of 1968. The formula for "Cumar" was developed by J. Robert Spraul during the summer of 1941 at the request of Walter Brassert of Concrete Silo Company in Bloomfield, Indiana. Mr. Spraul was then a candidate for his Ph.D. degree in Chemistry at Indiana - 2 - PCB-ARCH-EXT0376464 University and had just completed his Ph.D. thesis which re ported work he had undertaken to find suitable coatings to be . used on concrete stave silos. This work had been carried on under a fellowship granted by Concrete Silo Company. The "Cumar" formula was developed by Mr. Spraul as a variation of the general systems which he had found to be best during his thesis work. Mr. Brassert was an inventor in his own right and held several patents relating to silo construction and coatings. The stated purpose of "Cumar" on new construction was to provide a sealant to retain the moisture in the joint mortar during the curing of the mortar and to protect the mortar from the silage to prevent the mortar from curing with silage acid. On reapplication, the stated purpose of "Cumar" was to protect the mortar from the silage acid. On recoating, "Cumar" was in 1966 and thereafter used over the entire interior surface rather than just on the mortar joints for cosmetic reasons to eliminate the patchwork effect when used just on the joints and for whatever protection it might provide for the entire surface. "Cumar" had been used on the interiors of new construc tion and recoating of silo interiors at least since 1948 throughout the entire territory served by the old Michigan PCB-ARCH-EXT0376465 Silo Co. and was used by Michigan Silo Company, Inc., through the 1969 fall construction season. No "Cumar" was used by Michigan Silo Company, Inc., in 1970 or thereafter because of the matters with which this suit is concerned. Other interior coatings such as wax and epoxy have also been used by Michigan Silo Company, Inc., at various times. The "Cumar" used by the Massillon plant of Michigan Silo Co. was at first mixed by Mr. Brassert in Indiana and shipped to the Massillon plant. ,In 1958 the personnel at the Massillon plant received the formula and mixing instructions from Mr. Brassert, and thereafter all "Cumar" was mixed locally. "Cumar" consists of the following ingredients according to the formula used by Michigan Silo Company, Inc., on the Humphrey silos': 40 lb............................ Paradene No. 2 dark flaked 40 lb...................... R-16-A Neville resin flaked 20 lb............................Aroclor 5460 70 lb............................Aroclor 1254 20 lb............................. Clay . 25 lb............................ Par Ion 13 gal.......................... Xylol 5 gal.......................... S. C. Solvent - 100 8 gal.......................... S. C. Solvent - 3 Aroclor 1254 is a material containing a mixture of poly chlorinated biphenyls. Aroclor 5460 is a polychlorinated terphenyl and is not involved in this action. The Aroclor 1254 used by Michigan Silo Co. until 1962 was purchased from Monsanto Company. Thereafter, the Aroclor 1254 - 4 - PCB-ARCH-EXT0376466 used by Michigan Silo Co. and Michigan Silo Company, Inc., was purchased from Ohio Solvent & Chemical Company of Cleveland, which is a distributor of Monsanto products but has no corporate connection with Monsanto. The Foods, Dairies and Drugs Division of the Ohio De partment of Agriculture has since the mid-1960's conducted a routine monitoring program for the detection of chlorinated hydrocarbon pesticide residues in milk. As a part of this program, in January, 1970, an analysis of a bulk delivery of milk to Beverly Farms, Inc., of Alliance, Ohio, was made, and it was believed that DDT, a chlorinated hydrocarbon pesticide, was found. On January 13, 1970, individual samples from each of the 27 producers who had contributed to the bulk were ana lyzed. The Food, Dairies and Drugs Division (FDD) believed that it found 0.12 ppm (parts per million) in the Humphrey milk, which was one of the 27 individual samples analyzed. The results of this finding were reported on February 24, 1970, and on February 27, 1970, the following notice was served upon Mr. and Mrs. Humphrey: "Upon investigation made on the 27 day of February, 1970, by Glenn Diekman, an Inspector of the Department of Agriculture of Ohio, you were found to be in violation of Section 3717.31 Revised Code of Ohio, in the following particu- , lars, to-wit: Milk produced and sold by you contained pesticide residue. You are hereby ordered to discontinue the sale of such milk until laboratory examinations reveal that this - 5 - PCB-ARCH-EXT0376467 residue is at or below legal tolerance Section 3717,31." On March 1, 1970, individual samples from the 76 pro ducing cows of the Humphrey herd were obtained and analyzed for DDT by FDD,and various residue levels of DDT were reported found. Two bulk tank samples were also analyzed, and DDT residue in each was reported found. On March 1, 1970, a silage sample was obtained and analyzed by FDD, and a residue of 0.17 ppm of DDT was reported. On March 11, 1970, a silage sample from the 12 x 45 silo was obtained and analyzed by FDD, and a residue of 1.3 ppm "Araclor 1254" was reported "detected". On March 16, 1970, individual samples from the 76 pro ducing cows were obtained and analyzed by FDD, and various levels of "Araclor 1254" residue were reported. The reports that it was "Araclor 1254" rather than DDT present in the Humphrey milk and silage were the result of co operative work among the U. S. Food and Drug Administration, Ohio State University and the FDD. That is, the FDD personnel were of the opinion that residues of DDT were found in the milk and silage, and after consultation with the other two agencies, they were told that the residues were "Araclor". The analytical technique used in determining the presence and quantity of chemical residues such as DDT and polychlorinated - 6 - PCB-ARCH-EXT0376468 biphenyls requires a great deal of skill and judgment in the operation of highly sophisticated equipment involving gas chromatography with confirmation by mass spectral analysis. Interpretation of the results of the application of such tech nique requires the formation and expression of an opinion of an expert nature. The report by FDD personnel that "Araclor" had been found was not through the independent technique, analysis, and opinion of FDD personnel. The report by FDD personnel was based upon analytical work and opinions of others in the U. S. Food and Drug Administration and at Ohio State University. FDD does not have a mass spectrometer. . After the "Notice" of February 27, 1970, was served, testing of the Humphreys' milk continued and they did not mar ket milk until mid-July, 1970, when they were advised that the Aroclor residue level in their milk was below 0.2 ppm. On September 5, 1970, the Humphreys were again served with a notice by FDD in the following form: "Upon investigation made on the 28 day of August, 1970, by Glenn Diekman, an Inspector of the Department of Agriculture of Ohio, you were found to be violating Section 3717.31 Re vised Code of Ohio, in the following particulars, to-wit: Milk produced containing chemical resi due. You are hereby ordered to discontinue the sale of such milk until laboratory reveals that this residue is at or below legal tolerance." - 7 - PCB-ARCH-EXT0376469 I % c S. For a period of some months thereafter, the Humphreys were told by FDD that they could not market any milk. Then, milk from individual cows in the herd was analyzed, and as the Aroclor level in the milk of each cow dropped to 0.2 ppm, the milk from that cow was permitted by FDD to be marketed. The last group of cows was released in June of 1971. The FDD claims as the basis for its action in ordering the ban on sale of milk by the Humphreys an "internal guideline for initiating legal action against milk in interstate commerce" - at "0.2 ppm polychlorinated biphenyls, on a whole milk basis", which was communicated to FDD by the U. S. Food and Drug Adminis tration. This was communicated to FDD on three occasions, by telephone on March 24, 1970, by letter dated June 8, 1970, and by teletype received July 31, 1970. Such communications are hearsay in nature. The Director of the Department of Agriculture has neither attempted to nor obtained a court order seeking an embargo or destruction of the Humphreys' milk. It is clear that the "internal guideline" communicated by FDA to FDD was not a "regulation" adopted by FDA in accord ance with U. S. statutory procedures requiring notice and hear ing. There is no federal statutory authority for adoption of such an "internal guideline" for the regulation of interstate - 8 - PCB-ARCH-EXT0376470 commerce . The "internal guideline" has no official character or legal effect whatsoever. j It is also clear that there has not been adopted a "regu lation" in accordance with Ohio statutes to regulate polychlorinated biphenyl residues in milk, and the Director of the Ohio Department of Agriculture merely used the unofficial "internal guideline" communicated to him by FDA. 1 Neither the Director of the Ohio Department of Agricul ture, nor the FDD which is within his departmenthas under taken any independent investigatory work as a basis for setting an unofficial "internal guideline" or "regulation" as the basis for action by the State of Ohio. No milk has ever been banned from interstate shipment or seized in interstate shipment by FDA because of polychlorinated biphenyl residues. No state other than Ohio has banned the sal of milk because of polychlorinated biphenyl residues. There is no evidence that milk containing polychlorinated biphenyl residues as reported by FDD may be harmful. No one has ' ' ' I ever been reported harmed by drinking milk from cbws fed from ' . I . silage from silos, the interior of which were coated with "Cumar", during all of the time "Cumar" was used by Michigan Silo Co. or Michigan Silo Company, Inc. - 9 PCB-ARCH-EXT0376471 Polychlorinated biphenyl is a chemical expression used to describe a family of chemicals produced by thejintroduction . ' i of chlorine to biphenyl. Depending upon the amount of chlorina tion, the products may be liquids, resins or solids. Polychlorinated biphenyls of various chlorinations, called Aroclors by Monsanto Company, were first manufactured commercially in the United States in approximately 1930. In dustrial use grew steadily after their introduction. The major uses of polychlorinated biphenyls derive from their nonflamma bility, high dielectric constant and plasticizing!abilities. . j Uses have included applications as dielectric fluids in capaci tors and transformers and as hydraulic fluids, lubricants and as ' ' i heat transfer fluids. Polychlorinated biphenyls have been widely used as plasticizers and solvents in adhesives, sealants, paints and printing inks, pesticide formulations, and microencapsulation of dyes for carbonless duplicating paper. j When Monsanto sold Aroclor 1254 to Michigan Silo Co. and to Ohio Solvent & Chemical Company, when "Cumar" was applied to the Humphrey silos, and thereafter, Monsanto did not foresee and had no reason to foresee that its product would appear in the Humphreys' milk. Monsanto had no knowledge that such would occur until this incident. As John Stackhouse, Director of the I Ohio Department of Agriculture has testified, hisi department had -10 - PCB-ARCH-EXT0376472 no reason to look for polychlorinated biphenyls in milk before January of 1970. In his opinion, Monsanto should not have fore seen that PCB would be found in the Humphreys' milk or that the State would exclude the milk from the market for that reason until sometime "in March or April perhaps May of 1970" when it is claimed that the product was actually found in the milk. The action by the State of Ohio was the cause of the loss claimed by the Humphreys. The cause of such loss!cannot leaally be attributed to Monsanto Company. -.11 - PCB-ARCH-EXT0376473 ISSUES I. The immediate cause of the loss claimed by the Humphreys was the issuance to them by the Ohio Department of Agriculture of the two notices by which they were ordered to discontinue the * sale of their milk. The Humphreys have the burden of proof as to three critical issues as to this action of the State: A. Legality of the action of the State. B. Justification for the action of the State. C. The effect of the failure of the State to petition the court for an order for con demnation of the milk. II. If Monsanto Company must respond for damages to the Humphreys, in addition to proof of damages, the Humphreys must prove every element of a cause of action against Monsanto Com pany based upon one of the following: A. Negligence. B. Strict liability - an action in tort based upon breach of duty assumed by the manufac turer of a chattel by reason of the manufac turer's implicit representation of good and - 12 - PCB-ARCH-EXT0376474 merchantable quality and fitness for intended i use when the manufacturer sells the product. C. Breach of a contractual liability. III. The Humphreys have the burden of proof of damages in the following claimed areas: A. Loss of profits in business. B. Damage to fixtures. C. Damage to personal property. D. Related expenses. IV. Affirmative defenses asserted by Monsanto Company include the following: I ' 1. Failure to state a claim upon which relief can be granted. 2. Illegality of federal or state regulatory system. 3. Supervening and/or intervening acts. 4. Absence of proximate cause, i.e. remote cause. 5. Unavoidable accident. 6. Unforeseen and unforeseeable consequences. 7. Failure of the plaintiffs to challenge!the action by the State. 8. Assumption of risk. - 13 - PCB-ARCH-EXT0376475 9. Contributory negligence. 10. Failure of the plaintiffs to minimize or mitigate their loss. 11. Statute of limitations. V. ing: Matters of evidence to be encountered include the follow A. Requirement for and qualification of opinions of experts. B. Qualification of official records. C. Qualification of business records. - 14 - PCB-ARCH-EXT0376476 APPLICABLE LAW I. The immediate cause of the loss by the Humphreys was the . - I issuance to them by the Ohio Department of Agriculture of the two notices by which they were ordered to discontinue I the sale of their milk. A. The Humphreys must prove that the action by the State was legal. The two notices served on the Humphreys ciped Section 3717.31, R. C.l, the applicable part of which states: | "No person shall sell...adulterated milk, or milk to which water or any foreign substance has been added..." The notices specifically ordered that the sale of milk be discontinued until "this residue is at or below legal tolerance." All of the testimony will indicate that the action by the State was based upon a residue level rather than the mere presence of a residue, and in fact and in law the residue claimed to have been found was not a "foreign substance... added" to the milk. Therefore, the action by the State could only have been based NOTE: Parenthetical page references are to the appendix to this brief where the full text of the matter citzed appears. 1. (P. 101 ) - 15 - PCB-ARCH-EXT0376477 upon the assertion that the milk was "adulteratedj'. Adulterated milk is defined in Section 3717.01, R. C.2, which deals only with content by per cent of water fluid, solids and fats, and by its own terms does not apply to Section 3717.31, i R. C. Adulterated fo od is' defined in Section 3711 5- .59, R. C.J-5 , and by its own terms, this section applies only to prosecution under portions of Chapter 3715, including Section 3715.52, R. C. Perhaps the State was in error and should have cited Sec- ` ' . i --------- tion 3715.52, R. C., which prohibits the "sale...of any food... that is adulterated". In any event, whether the State intended the basis of the notice to be a dictionary definition of "adulterated" under Section 3717.31, R. C., or thL statutory definition under Section 3715.59, R. C., it is the burden of the Humphreys to establish that their milk was adulterated. The Food, Dairies and Drugs Division personnel from January 8, 1970, until mid-March, were of the opinion that DDT residue was present in the milk. Thereafter they were of the opinion that the residue of Aroclor 1254 was present. Neither one of these residues is an "added substance" under Section 3715.59, R. C., or Section 3717.31, R. C. It is alleged that the source of the residue was the silo coating, material from which transferred from the silo wal 1 to the silage, was ingested by the cows, and was excreted with the milk. 2. (P. 101) 3. (P- 101) - 16 - PCB-ARCH-EXT0376478 In a startlingly similar case, the Lucas County Court of Appeals held that mercury residue in fish resulting from inges tion of mercury by the fish is not an "added subsfance". Fouke & Reynolds vs. Great Lakes Co.^ (1972) 33 Ohio App. 2d 273 (m.c.o. 9/8/72) Residue of DDT, a chlorinated hydrocarbon pesticide, in fish resulting from ingestion of DDT by the fish is not an "added substance". U. S. vs. Vita Food Products of 111., Inc.p (1973) Case No. 70 C 2246 (D. C., 111.) | . There is no evidence that Monsanto Company, Michigan Silo Co., or Michigan Silo Company, Inc., intended Aroclor 1254 to become a component of or otherwise to affect the characteris tics of milk, and there is no evidence that anyonja expected it to become a component of or otherwise to affect the characteris tics of milk until it was reported discovered in January, 1970, long after it was sold by Monsanto and applied by Michigan Silo Company, Inc., to the Humphrey silos. Because any residue of Aroclor 1254 which may have been found in the Humphrey milk' is not an "added substLnce", it was the burden of the State to show that the quantity found would ordinarily render it injurious to health before the milk could be legally claimed to be adulterated. (The same is true with 4. (pp. 102-112) 5. (pp. 113-125) - 17 PCB-ARCH-EXT0376479 the DDT the State personnel believed they found.) That is, -mere presence of Aroclor 1254 residue does not legally adulterate the milk. Rather, there must be a quantity of Aroclor! 1254 which ordinarily renders it injurious to health. This necessity of the government carrying this burden as ' t to quantity was upheld by the U. Si Supreme Court in a case in volving the deliberate addition of a poisonous substance to flour. In U, S. vs. Lexington Mill Co.^, (1914) 232 U.S. 399, 58 L. Ed. 658, 34 S. Ct. 337, the court held at page 402 (232 U.S.): "In order to bring an article of food within its condemnation, it must be shown that its consump tion would injure the health of the consumer." The court rejected the charge of the trial court that: "It is the character - not the quantity - of the added substance, if any, which is to determine this case." At page 412 (232 U.S.), the court quoted from the Con gressional Record as follows: "As to the use of the term 'poisonous', let me state that everything which contains poison is not poison. It depends on the quantity and the combination. A very large majority of the|things consumed by the human family contain, under analy sis, some kind of poison, but it depends upon the combination, the chemical relation which it bears to the body in which it exists as to whether or not it is dangerous to take into the human season." At page 412 (232 U.S.), the court quoted an English case report reversing a conviction as follows: I 6. (pp. 126 - 140) - 18 - PCB-ARCH-EXT0376480 "In my opinion, if the justices convicted the appellant of an offense...on the ground that the ingredient mixed with the article of food was in jurious to health, - that the sulphate of copper was injurious to health, and not on the ground that the peas by reason of the addition of sulphate of copper were rendered injurious to health, the con viction is clearly wrong." It is the burden of the Humphreys, therefore, to demon strate the legality of the orders prohibiting them from selling milk with reliable evidence that the quantity of the residue claimed to have been found would ordinarily render the milk in jurious to health. It is proof of the effect of quantity rather than proof of the mere presence that is critical to their case. This is because: "all substances when administered to man or animal at sufficiently high concentrations and exposure time may prove injurious." (Our emphasis) Toxic Substances, Annual List, 1971, P. VI UT S. Department of Health, Education and Welfare, Health Services and Mental Health Administration. I - 19 - PCB-ARCH-EXT0376481 , B. The Humphreys must prove that the action by the State was justified. FDD personnel made no independent attempt to establish that the quantity of DDT residue reported found would ordinarily render the milk injurious to health. After they were of the opinion that the residue that was being found was Aroclor 1254, they made no independent attempt to establish that the quantity believed reported found would ordinarily render milk injurious to health. Instead, they relied solely upon a so-called "internal guideline" communicated to them by the U. S. Food and Drug Admin- istration, first by telephone, as the basis for t leir determina- i tion that the quantity of residues believed found!ordinarily ' ' I rendered the milk injurious to health and as the basis for the action they took. The authority to adopt regulations regarding residue levels in foods is vested in the public health cojuncil as pro . . n ' ' I vided m Section 3715.69, R. C.'. Such regulations as may be proposed can only be adopted in accordance with the administrative procedure act after notice, hearing and opportunity for appeal. No regulation pertaining to residues of Aroclor 1254 has been adopted in Ohio. There is no authority in the statutes or in the case law 7. (P. 101) - 20 - PCB-ARCH-EXT0376482 for the use of a so-called "internal guideline" or other such type of enforcement technique or for the use and application of ! ' a federal "internal guideline", sometimes referred to as an "interim" or "administrative guideline", as proof of violation of a food adulteration statute. There is no federal statutory authority for the use by the federal government or by any state government of an "internal ' I _ guideline" as proof of violation of a food adulteration statute. As used by the federal government, the "internal guideline" is merely an administrative decision, as opposed to regulatory action, as to the level of residue in food which, when exceeded, the federal government will proceed with an enforcement action. An "internal guideline" in no way establishes proof of violation of a food adulteration statute. When the government, by admin istrative decision, has determined that the "internal guideline" has been exceeded and proceeds with enforcement action, the government must still prove, by a preponderance of the evidence (or beyond a reasonable doubt in a criminal prosecution), that the food is adulterated. In the parallel case of Fouke & Reynolds ys. Great Lakes Co.^, the FDD personnel attempted to use the federal "internal guideline" as to mercury in the fish as evidence to prove that 4. (pp. 102-112) - 21 - PCB-ARCH-EXT0376483 the fish were adulterated and that an order should be issued for ' i the destruction of the fish. The court at page 275 stated: "Much evidence was adduced concerning the interim guideline of the food and drug administration of the Department of Health, Education and Welfare, which provides that .5 parts per million of merbury in fish may be harmful, and its significance! and impor tance, and establishing that the Ohio department of agriculture was following the guideline concerning the sale and distribution of commercial fish." The court clearly rejected this as any indication that the fish was adulterated under the Ohio statute because it did not constitute evidence that the quantity of mercury in the fish "ordinarily renders it injurious to health". Because of this, any evidence of a federal "internal . - i! guideline" as to Aroclor 1254 must be excluded, knd any attempt to use the federal "internal guideline" as to Aroclor 1254 as justification for the orders issued to the Humphreys must be denied as immaterial and irrelevant. It is strongly urged that when the matter is raised, the court will consider the matter other than in the presence of the jury. The only evidence expected by way of justification of the State orders that the Humphreys not sell their m'ilk is that the State relied upon the federal "internal guideline" as to Aroclor 1254. Without this, and without proper scientific evidence that the amount of residue reported found rendered th'e milk 22 - PCB-ARCH-EXT0376484 "ordinarily injurious to health", there was no justification of the orders issued by the State. No matter how well-intentioned the FDD personnel might - i ' have been, their conduct must be measured in terms of legality with respect to the Humphreys before the Humphreys have a cause of action against Monsanto Company. Monsanto Company cannot be held to respond to a loss by the Humphreys through inappropriate action by FDD personnel merely because it was a Monsanto product against which the FDD personnel took such action. It is, therefore, the burden of the Humphreys to prove the validity of the action by the FDD personnel in Jhat they had the legal authority to act and that their action was justified. Fail ing to meet this burden, the Humphreys cannot prjevail against Monsanto Company. - 23 - PCB-ARCH-EXT0376485 c. The action of the State was invalid alnd in effective because the State did not petition the court for an order for condemnation of the milk. The notices served by the FDD representative ordered that the Humphreys discontinue the sale of their milk. Verbally, the Humphreys were ordered to dump their milk, and they did. This procedure is not in accordance with that provided in Section Q I 3715.55, R. C.^, which is clear in its terms and mandatory in its directions. This section requires that when the director of the department of agriculture finds or has probable cause to believe that any food is adulterated, he shall affix a tag to it and warn against removal of it. The section next provides that When an article so embargoed has been found to be adulterated, the director shall petition the court for an order of condemnation. Finally, only if the court finds that the embargoed artiJle is adulterated shall it be ordered destroyed, such order, of course, being issued by the court rather than by the director.; The procedure followed with respect to tlje Humphreys' milk was highly irregular and an entirely improper act by the State. The director made a determination that Jhe milk was 9. (P. 100) -24 - PCB-ARCH-EXT0376486 adulterated (although on an erroneous basis) and ordered an embargo. However, he failed to seek and did not obtain a court order for destruction of the milk. Instead, he took it upon himself to order the destruction of the milk. He applied his own standards rather than seeking a judicial determination as to whether the milk was adulterated. Monsanto certainly cannot be compelled to respond to the Humphreys' loss resulting from such a procedure that is not only without statutory authority but also completely contrary to a specific, clear, mandated course of action. 25 - PCB-ARCH-EXT0376487 II. If Monsanto Company must respond for damages to the j Humphreys, in addition to proof of damages, the Humphreys - . ! must prove every element of a cause of action against Monsanto Company in negligence, strict liability, or breach of contract. A. Negligence. In a products liability case, the plaintiff may pursue . I an action in tort grounded upon negligence without privity of contract between plaintiff and manufacturer. Lonzrick vs. Republic Steel Corp.^-0 (1966) 6 Ohio St. 2d 227, 218 N.E. 2d 185 If a negligence theory is pursued, tradit ional concepts and requirements for proof are present. These are existence of a duty owing by the defendant to the plaintiff; defendant's ! failure to discharge that duty; and injury to thje plaintiff proximately resulting from such failure. There Lust be an unreasonable risk to another established by affirmative evi dence tending to show that such conduct falls bejlow the standard represented by the conduct of reasonable men undler the same or similar circumstances. 39 0. Jur. 2d 492, Negligence, Sec. 9 . . I 10. (pp. 141-166) - 26 - PCB-ARCH-EXT0376488 There must be reasonable anticipation or foreseeability of the consequences of one's negligent acts for there to be liability for negligence. There is no liability for negligence unless the injury which results could reasonably have been fore- seen in light of the attending circumstances. Id., 494, Sec. 11 Relating these concepts to the manufacture of a product indicates that the plaintiff must show that the manufacturer failed to exercise reasonable care in the design, production, or release without adequate warning of the produfct. Proof of negligence in design requires proof that the manufacturer had a duty to discover the defect and that the manu facturer failed to discover the defect. Proof that the injury would not have occurred if the product had been Resigned differ- . i ently is not sufficient. On the other hand, proof that the product was used for some time before it produced an injury indicates that there was no breach of duty to use due care in the .design of the product. Proof of negligence in the manufacture of the product requires evidence that the manufacturer used other than careful production methods. It should be noted that a change in produc tion methods following the claimed loss is not Jvidence of negligence in production methods. 27 - PCB-ARCH-EXT0376489 Proof of negligence in failing to give adequate warning upon release of the product requires that the plaintiff must prove that the manufacturer knew, or by the exerpise of reason able care should have known, of the potential danger, and that the manufacturer in the reasonable course of his business should have been able to foresee the possible damages t hat might result from foreseeable uses in the absence of adequate warning. The duty to warn is present when the manufacturer knew or should have known that the product is dangerous when used as alleged. There is no duty to warn merely because the product might conceivably cause some injury, where there is only a remote pos sibility of injury, where there is only the general or some pos sibility of injury, or where the particular type of injury has never occurred previously. The manufacturer is not an insurer. The product involved in this action is Aroclor 1254, which has been produced and sold since approximately 1930. The product has been put to many uses. The use to which the product has been put by Michigan Silo Co., and its successor, Michigan Silo Company, Inc., is as a plasticizer in the "Cumar" formulation. The evidence will show that the product was designed as 28 - PCB-ARCH-EXT0376490 a plasticizer, and as such it has functioned well for many years, The Humphreys cannot show that the product was produced negli gently in that production was other than in accordance with the design specifications. The only claim of negligence is, there fore, that Monsanto Company failed to warn that jthe State of Ohio might ban the sale of milk of the Humphrey herd in 1970, . . ' J . thereby causing a loss. The Humphreys must produce evidence that at the time the product was sold by Monsanto Company to Ohio Solvents & Chemical Company Monsanto Company knew or should have known that the use to which it was put by Michigan Silo Company, Inc., would result in the action by the State of Ohio, and, of course, that the action by the State wasi legal and justified as discussed above. It also should be said that burden of proof of proximate cause parallels that of proof that Monsanto Company knew or should have known the consequence claimed by the Humphreys. The foregoing principles are discussed generally in 63 Am. Jur. 2d, Products Liability, Section 25 e!t seq. Of extreme significance in this matter of warning is the complete absence of any duty to warn with respect to a product which is not in fact dangerous. id.> Sec. 44 The Humphreys must establish that any Aroiclor 1254 which they, claim was found in their milk is in fact dangerous before - 29 - PCB-ARCH-EXT0376491 they can establish negligence of Monsanto Company in failing to warn or otherwise. It is not sufficient to make|out a case against Monsanto Company simply by showing that the State found Aroclor 1254 and ordered that the milk not be sold. Mere proof that the State issued such an order does not meet the strict re quirement of proof that what was found is in fact and law dan gerous. Neither does proof that the State acted under color of a federal "internal guideline" establish proof that the Aroclor 1254 claimed found in the milk is dangerous, either at the time the State acted or at the time Monsanto Company sold the product to Ohio Solvents & Chemical Company. An interesting case dealing with beryllium, a substance known to be toxic, is Heck vs. The Beryllium Corporation, (1967) 424 Pa. 140, 226 A. 2d 87^*, which held in the fjirst syllabus: "Trial court properly held that defendant cor poration, whose plant emitted beryllium and which knew of toxicity of beryllium but did notj know the toxicity level until the Atomic Energy Com mission issued tentative recommendations,! was not negligent prior to time that such rec!ommendations had been issued." There is as yet no evidence that the Aroclor 1254 claimed found in the Humphrey milk is toxic or otherwise harmful. If the "internal guideline" has any standing, which! we dispute, of course, it does not attach liability to Monsanto Company 11. (pp. 167-171) - 30 - PCB-ARCH-EXT0376492 because the knowledge of its existence was not acquired until after the sale of the Aroclor 1254 by Monsanto Company to Ohio Solvents & Chemical Company. Another interesting case dealing with a substance first thought to be beneficial but later learned to be poisonous after harm was caused is La/ Porte vs. U. S. Radium Corp., (N.J. D.C. 1935) 13 F. Supp. 263^2f which held that the defendant could not be charged with the burden that it should have known of the danger to employees painting watch dials with radium until the scientific and medical world and the defendant knew about the industry, which, in this case, was after the harm was caused. I The court held specifically that all of the learning of the i scientific and medical world acquired after the harm was Caused is not relevant to proving a cause of action against the defendant. Again, there is no evidence that the amount of Aroclor 1254 claimed found in the Humphrey milk is harmfjul. The Humphreys must prove that it is harmful. The Humphreys mujst also prove that Monsanto Company knew or should have known not only that such be the case but also that the State would act as it did, based upon the status of information within the medical and scientific world at the time the product was soljd to Ohio Sol vents & Chemicals Corporation to establish negligence on the part of Monsanto Company. 12. (pp. 172-186) - 31 - PCB-ARCH-EXT0376493 B. Strict Liability. Strict liability is an action in tort basfed upon breach of a duty assumed by the manufacturer of a chattel by reason of the manufacturer's implicit representation of good and merchant able quality and fitness for intended use when the manufacturer sells the product. The establishment of this principle in the Ohio law occurred in Lonzrick vs. Republic Steel 10 Howe ver, it does not apply to work and materials supplied in the 'initial con struction or later repair of a farm silo because a farm silo is a real property structure. In Mitchem vs. Johnson (1966), 7 Ohio St. 2d 6613, decided two weeks after Lonzrick, the court held at page 69: "A contract to furnish labor and materials is not a sale of the finished product if the finished product is not personal property]." "...the builder is not an insurer." "...there is no absolute warranty implied! by law against the builder..." The court held in syllabus 2: "An implied warranty.. .will not be imposejd upon the vendor who constructed it..." 10. (pp. 141-166) 13. (pp. 187-194) - 32 - PCB-ARCH-EXT0376494 The same result occurred in Cox vs. Shaffer, (1972) Pa. Superior Court No. 238, CCH Product Liability, Para. 6937^, in which the court held that the plaintiff did not have an actionable claim under the strict liability doctrine against the builder of a silo to recover for the death ojf her decedent, who was asphyxiated by lethal fumes after entering the silo. The court held that a silo constructed in place on the employer's i land is not the sale of a "product" within the meaning of the doctrine. The evidence is clear that Michigan Silo Co., in con structing, and Michigan Silo Company, Inc., in later applying "Cumar" to the two Humphrey silos, constituted the furnishing of labor and materials to a real property structure. There was no sale of a "product" to the Humphreys within the meaning of the doctrine of strict liability. Strict liability in tort will be discussed in the event it is raised by counsel for the Humphreys. Application of the doctrine as set forth in Lonzrick requires proof, by the required degree, of the following: 1. That the product was defective. 2. That the product was defective at thd time the manufacturer sold it. 14. (P. 195) - 33 PCB-ARCH-EXT0376495 3. That the defect caused an injury while the product was being used for its ordinary intended purpose. 4. That the defect was the direct and proximate cause of the plaintiff's injury. 5. That the plaintiff's presence was in a place which the manufacturer could reasonably anticipate. The doctrine of strict liability as adopted in Ohio stems from the Restatement of Torts,, 2d, Section 402 A which provides the following: "402 A. Special Liability of Seller of Product for Physical Harm to User or Consumer. (1) One who sells any product in a defective Con dition unreasonably dangerous to the user or con sumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if ! (a) the seller is engaged in the business of selling such a product, and 1 (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and <b) the user or consumer has not bought the product from or entered into any contractual relation with the seller." - 34 PCB-ARCH-EXT0376496 Ohio has not accepted the doctrine of absolute liability by adopting this doctrine of strict liability. Absolute liability was expressly rejected in Lonzrick at page 237: "Some argue that to allow recovery in the kind of case now before the court means that the court is imposing absolute liability upon the defendant. That is not so." The doctrine of strict liability does not, of course, make - ' i the manufacturer an insurer of his product. Of critical importance is the requirement that the Humphreys produce credible evidence I that the Aroclor 1254 was sold in a defective condition and un reasonably dangerous when it was sold by Monsanto Company to Ohio Solvents & Chemical Company. At issue is what is meant by and what is necessary to prove "defective condition"! and "unreasonably dangerous". We refer to the previous discussion of "defect" in this regard, particularly with respect to that of warning and the necessity that the product be proved dangerous for there to be a requirement of warning. Strict liability carries this one step farther in that the product must be proved to be unreasonably dangerous. Again, use of an "internal guideline" as the claimed basis for the order not to sell milk does not establish that the Aroclor 1254 claimed found in the Humphreys' milk was either "defective" or "unreasonably dangerous". - 35 PCB-ARCH-EXT0376497 An essential requirement of proof in a strict liability - . , j case is that the product, if defective, "may be expected" by the manufacturer to cause harm. Restatement of Torts, 2d, Sec. 402 A, Comment d. There must be proof that the manufacturer "has reason to anticipate that danger may result from a particular use". Id., Comment h. The product must be unreasonably dangerous. Id., Comment i: "The rule stated in this Section applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer. Many products cannot possibly be made entirely safe for all consumption, and any food or drug|necessari ly involves some risk of harm, if only from over consumption. Ordinary sugar is a deadly poison to diabetics, and castor oil found use under Mussolini as an instrument of torture. That is not what is meant by 'unreasonably dangerous' in this section. The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with jthe or dinary knowledge common to the community as to its characteristics. Good whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcjoholics; but bad whiskey,'containing a dangerous amount of fusel oil, is unreasonably dangerous. Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco con taining something like marijuana may be unreasonably dangerous. Good butter is not unreasonably dangerous merely because, if such be the case, it deposits cholesterol in the arteries and leads to heart at tacks; but bad butter, contaminated with 'poisonous fish oil, is unreasonably dangerous." - 36 - PCB-ARCH-EXT0376498 Specifically with respect to the requirement of a warning. the lack of which would provide a cause of action the Restatement in Comment j states: "the seller is required to give warning agkinst it, if he has knowledge, or by the application, of rea sonable, developed human skill and foresight should have knowledge, of the presence of the ingredient and the danger." (Our emphasis) The Humphreys must prove that Monsanto Company knew, or under the circumstances should have known, that as used in "Cumar" Aroclor 1254 would be found in the milk as claimed, that such amount would be unreasonably dangerous, and that Ohio would order that the milk not be sold because of some "internal guideline" of which no one knew. None of this is established merely by proof that Aroclor 1254 was found as claimed. Stated another way, strict liability requires that it be shown by the Humphreys not only that the product was defective for its intended use, but also that the product was so dangerous that a prudent manufacturer would never have marketed the product had he known of its condition. 63 Am. Jur. 2d, 134, Strict Liability. The Humphreys must prove that Monsanto Company had reason to anticipate that danger may result. Id., 136. - 37 - PCB-ARCH-EXT0376499 This requires that the Humphreys first prove that the Aro- clor 1254 claimed found does in fact constitute a danger. The embargo levied by Ohio does not prove this. It can be said that the action by the State was an accident. . . I That is, the action taken by the State was not foreseeable by any one, was without legality or justification, was an action taken by no other state or federal regulatory agency, and was action taken without any demonstration that harm had been caused during the long period during which Aroclor 1254 was used to the time of the embargo or since. That such an accident might happen does not make Aroclor 1254 as claimed found in the milk unreasonably dangerous. Id., 139. . If the Humphreys should be able to produce evidence that the amount of Aroclor 1254 claimed found in the milk is harmful ' j and that the action by the State was legal and justified, to pre vail against Monsanto Company they must show as the basis for a cause of action in strict liability that foresight on the part of ' ' . . ' J Monsanto Company could have avoided the action by the State because strict liability does not exist as to harmful effects when no developed skill or foresight can avoid them. Lartigue vs. R. J. Reynolds Tobacco Co.^5 (C.A. 5, La.) 317 F. 2d 19 15. (pp. 196 to 217) - 38 - PCB-ARCH-EXT0376500 In Ross vs. Philip Morris & Co.^, (C.A. 8, Mo.) 328 F. 2d 3, the court also held the manufacturer's implied warranty does not cover substances in manufactured products, tile harmful effects of which no human skill or foresight could afford knowledge. In : ' ' ' | . Ross, the court also rejected the theory of absolute liability in connection with strict liability theory. The sale of Aroclor 1254 by Monsanto Company to Ohio Sol vents & Chemical Company must be shown to be the proximate cause of the loss claimed by the Humphreys. Such a showing can only be made upon proof of the legality and justification of the action by the State. This in turn can only be shown upon proof that Monsanto ' I Company was negligent or responsible under the theory of strict liability, the latter of which does not apply because a contract to erect or repair a silo is not within the doctrine of strict liability. Evidence only of the finding of claimed Aroclor 1254 long after the sale and action by the State based upon some "internal guideline" not adopted by the State in accordance with required administrative procedures, does not establish the sale by Monsanto Company as the proximate cause of the claimed loss. 16. (pp. 218-231) - 39 PCB-ARCH-EXT0376501 C. Breach of a Contractual Liability. There is neither claim nor evidence of a contractual re lationship between the Humphreys and Monsanto Company upon which a cause of action for breach of express warranty can be founded. 40 PCB-ARCH-EXT0376502 III. The Humphreys have the burden of proof of damages in the following claimed areas: A. Loss of profits in business. B. Damage to fixtures. C. Damage to personal property. D. Related expenses. Profits lost on account of the interruption of an estab lished business may be recovered if the plaintiff makes it reason ably certain by competent proof what the amount of the loss actu ally is. However, anticipated profits are considered too remote, uncertain and speculative. Profits are subject to many contingencies causing fluctuations and uncertainties. 16 0. Jur. 2d 118, Damages, Sec. 98. In the case of claimed destruction of silos, where restora- I . tion is impractical, the measure of damages is the difference between the reasonable value of the silos immediately before the damage and the reasonable value of the silos immediately after. Id., 87, Sec. 69. If restoration or repair of the silos isjpractical, the measure of damages is the reasonable cost of repair unless such cost exceeds the reasonable value of the silos i>rior to the in jury. - 41 - PCB-ARCH-EXT0376503 Id., 86, Sec. 68. The measure of damages applicable to total destruction of a growing crop is the value of the crop at the time and place of destruction. The measure of damages for injury jto or partial destruction of such a crop is the difference in value between the value of the crop immediately before and immediately after the injury. Id., 88, Sec. 70. In Ohio the measure of damages for an injury to personal property is the difference in the market value of the property immediately before and immediately after the injury. Id., 91, Sec. 73. Evidence of cost of repairs is subject td the limitation that the cost of repairs must be less than the diminution in market value due to the injury, and the repairs must never exceed the value of the property itself as it was before the injury. Id., 93, Sec. 74. . . All loss or damage claimed must, of course, be directly related to and stem from some actionable conduct of Monsanto Company for there to be responsibility on the part of Monsanto Company. - 42 - PCB-ARCH-EXT0376504 V. Matters of Evidence. Several matters of evidence will be encountered in this matter. These include,the requirement for and qualification of experts; the qualification for admission of offiqial records; and the qualification of business records. A. Opinions of Experts. Expert opinion evidence is required where jche inquiry per tains to a highly technical question of science or art or to a particular professional or mechanical skill. Jones vs. Hawkes Hospital of Mt. Carmel 175 0. S. 503, 170 N. E. 2d 592 Matters of causation involving a scientific inquiry must be established by the opinions of expert witnesses competent to express such opinions, and in the absence of suclj expert opinions, it is error to refuse to withdraw that issue from the considera tion of the jury. . Darnell vs. Eastman 23 Ohio St. 2d 13, 261 N. E. 2d 114 An expert has no right to base his opinion on the opinions i or conclusions of another expert. His opinion must be based upon evidence in the record. 21 0. Jur. 2d 436, Evidence, Sec. 426 - 43 - PCB-ARCH-EXT0376505 Dillow vs. Young 6 Ohio St. 2d 221, 217 N. E. 2d 868 "The opinion of a medical expert witness that a direct causal relationship existed between! the plaintiff's inhalation of a particular substance and the chronic emphysema from which he suffered is inadmissible in the absence of evidence of the physical properties of that substance and their propensity to produce the injury claimed. If the witness knew such facts of his own knowledge, that knowledge should have been disclosed in hijs testi mony preceding the hypothetical question, i If not, those facts should have been otherwise proved and contained in the hypothesis upon which the| opinion was based." The court in Dillow stated at page 225: "The words, 'poisoning,' 'dangerous,' 'toxicity,' 'toxic,' and the phrase, 'noxious fumes known to have some pulmonary effects,' merely invitle fur ther inquiry. Under what circumstances, to what extent and in what degree are the substances com prising 'Garb-0' poisonous, dangerous, toxic, or noxious? What effects, if any, does a giyen con centration produce? What conditions does jit aggravate? How long do they persist? The evidence supplies no answer to these questions." B. Official Records. Section 2317.42, R. C., Official Reports Admitted as Evidence ~ ~ "" "Official reports made by officers of this state, or certified copies of the same, in a matter with in the scope of their duty as defined by statute, shall, in so far as relevant, be admittedjas evi dence of the matters stated therein." - 44 - PCB-ARCH-EXT0376506 Such a record to be admissible, however, mpst be mad'e and kept by a person whose duty it was to make and keep it. A record of a public officer can only be competent evidence of those mat- I ters which he is authorized or required by law to! make matters of record. Until proof has been adduced that the record or report offered was kept under authority of lav;, the record is not ad missible. Not all officers are considered to be witljin the rule. It has been held that port wardens are not officers within the meaning of the general rule, and entries in their books showing the condition of goods upon their arrival are not admissible under this rule. Records of investigations and inquiries conducted either voluntarily or pursuant to requirement of law, by public officers, - i containing matters involving the exercise of judgment and dis cretion, expressions of opinion, and conclusionsJare not admis sible in evidence as public records. 21 0. Jur. 2d 628, Evidence, Sec. 608 While a statute authoriz*6f employees of the federal bureau of agricultural economics to make certificates as to the grade of agricultural products, such certificates are not con sidered public records and admissible as such to I prove that the - 45 - PCB-ARCH-EXT0376507 products were not up to the standard claimed where the inspector himself is not called upon to testify. Goldman vs. Fox Sons & Co. 60. L. Abs. 581 ~ C. Business Records. \ , Section 2317.40, R. C., Records as Evidence. " '" " ' j "As used in this section 'business' includes every kind of business, profession, occupation, jcalling, or operation of institutions, whether carried on for profit or not. 1 . I "A record of an act, condition, or event, in so far as relevant, is competent evidence if the cus todian or the person who made such record ior under whose supervision such record was made testifies to its identity and the mode of its preparation, and if it was made in the regular course of busi ness, at or near the time of the act, condition, or event, and if, in the opinion of the court, the sources of information, method, and time of prepara tion were such as to justify its admission. "This section shall be so interpreted and construed as to effectuate its general purpose to make the law of this state uniform with those states which enact similar legislation." This section does not make competent otherwise incompetent evidence. 21 0. Jur. 2d 588, Evidence, Sec. 573 An official record containing a self-serving declaration is not admissible under Section 2317.40, R. C. - 46 PCB-ARCH-EXT0376508 1 Better Homes Equip. Co. vs. Nixon . HT0. L. Abs. 329, 134 N. E. 2d 850 The matters entered in the record must not be based on hearsay. Mere self-serving statements or statements of opinion or speculation are not admissible. 21 O. Jur. 2d, 603, Evidence, Sec. 586 To sustain a conviction for selling intoxicating liquor, the state must, if the beverage is not well known, introduce evi dence as to its intoxicating effect. Mazzeo vs. Board of Liquor Control 73 O. L. Abs. 94 " . It is expected that the Humphreys will attempt to intro duce certain records and files from the Ohio Department of Agri culture, Food, Dairies and Drugs Division. Many of these are analogous to certain parts of hospital records. Reports of re sults of analysis by gas-liquid chromatograph, with electron cap ture detector, will be sought to be introduced. The machine, called GLC, produces a chromatogram which is examined by an analyst, who then forms an opinion as to what he| has observed. This technique is rather like reading an x-ray. Other parts of the State record are simply recorded hearsay. The rules with respect to admissibility ojf the recorded opinions of what is shown by x-rays should be applicable to the - 47 - PCB-ARCH-EXT0376509 recorded opinions of the results of the GLC work,| and such opin ions can only be allowed to go to the jury when presented by the person whose opinions.they are. Hospital records are admissible in evidence in so far as i there is compliance with the requirements and conditions of -S---e--c---t-i-o---n-----2---3--1---7--.--4--0---,----R---.----C---., with resp- ect to observabl|e facts. Re corded opinions, however, are not admissible as part of the hospital record. Lewis vs. Woodland, 101 0. App. 442, 140 N.E. 2d 322 This principle has been restated many times and as late ' as 1969 in Dorsten vs. Lawrence, 20 0. App. 2d 297. In addition to the requirement that the person who ex pressed the opinion must appear and testify, the x-ray, or m this case the chromatogram, must be produced and|put in evidence to be available for cross-examination. Mehochko vs. Gold Seal Co. 17 66 111. App. 2d 54, 213 N.E. 2d 581, 19 AlL.R. 3d 1003 The requirements for preliminary proof for the introduc tion of x-rays as summarized in 5 A.L.R. 3d 307 are as follows: 1. That the x-ray is of what it purports to be. 2. That the condition of the person or object was the same at the time it was taken,as at the time in controversy. 17. (pp. 232-236) - 48 - PCB-ARCH-EXT0376510 3. That the x-ray machine was dependable! and operating properly at the time the x-ray was taken. 4. That the operator of the machine possessed the necessary skills to take a correct and accurate picture. 5. Evidence as to the manner in which the picture was taken. These same requirements should be applicable to the pre liminary proof of GLC chromatograms. - 49 - PCB-ARCH-EXT0376511 8715.55. Proceedings when violations suspected or found. (A) Whenever the director of agriculture or the board of pharmacy finds or has probable cause to be lieve, that any food, drug, device, or cosmetic is adulter ated, or so misbranded as to be dangerous or fraudulent, within the meaning of sections 3715.01 and 3715.52 to 3715.72, inclusive, of the Revised Code, he shall affix to such article a tag or other appropriate marking, giving notice that such article is, or is suspected of being, adulterated or misbranded and has been detained or em bargoed, and warning all persons not to remove or dis pose of such article by sale or otherwise until permission for removal or disposal is given by the director or the board of pharmacy or the court. No person may remove or dispose of such detained or embargoed article by sale or otherwise without such permission. (B) When an article detained or embargoed has been found by the director or the board of pharmacy to be adulterated or misbranded, he shall petition the munic ipal or county court in whose jurisdiction the ar ticle is detained or embargoed for an order for con demnation of such article. When the director or the board of pharmacy has not found within ten days that an article so detained or embargoed is adulterated or misbranded, he shall remove the tag or other marking. (C) If the court finds that a detained or embargoed article is adulterated or misbranded, such article shall, after entry of the decree, be destroyed at the expense of the claimant thereof, under the supervision of the di rector or the board of pharmacy, and all court costs, fees, storage, and other proper expenses shall be taxed against the claimant of such article or his agent; pro vided, that when the adulteration or misbranding can be corrected by proper labeling or processing of the article, the court, after entry of the decree and after such costs, fees, and expenses have been paid and a good and suffi cient bond, conditioned that such article shall be so labeled or processed, has been executed, may by order direct that such article be delivered to the claimant thereof for such labeling or processing under the super vision of the director or board of pharmacy. The ex pense of such supervision shall be paid by the claimant. Such bond shall be returned to the claimant of the ar ticle on representation to the court by the director or board of pharmacy that the article is no longer in vio lation of sections 3715.01 and 3715.52 to 3715.72, in clusive, of the Revised Code, and that the expenses of such supervision have been paid. . <D) Whenever the director finds in any room, build ing, vehicle of transportation, or other structure, any meat, sea food, poultry, vegetable, fruit, or other perish able articles which are unsound, or contain any filthy, decomposed, or putrid substance, or which may be poi sonous or deleterious to health or otherwise unsafe, such articles are declared to be a nuisance, and the director hall forthwith condemn or destroy the same, or in any other manner render the same unsalable as human food. (129 v 582. Effi 1-10-61. 127 v 821) Penalty, 3715.09 (A). - 100 - PCB-ARCH-EXT0376512 3715.69. Adulterated food. ' Food is adulterated within the meaning of sections 3715.01 and 3715.52 to 3715.72, inclusive, of the Revised Code, if: (A) It bears or contains any poisonous or deleterious substance which may render it injurious to health; but in case the substance is not an added substance, such food shall not be considered adulterated if the quantity of such substance in such food does not ordinarily render it injurious to health. (B) It bears or contains any added poisonous or added deleterious substance which is unsafe within the mean ing of section 3715.62 of the Revised Code. (C) It consists in whole or in part of a diseased, con-, taminated, filthy, putrid, or decomposed Bubstance, or if it is otherwise unfit for food. (D) It has been produced, processed, prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered diseased, unwholesome, or injurious to health. (E) It is the product of a diseased animal or an ani mal which has died otherwise than by slaughter, or that has been fed upon the uncooked offal from a slaughter house. (F) Its container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health. (G) Any valuable constituent has been, in whole or in part, omitted or abstracted therefrom. (H) Any substance has been substituted wholly or in part therefor. (I) Damage or inferiority has been concealed in any manner. (J) Any substance has been added thereto or mixed or packed therewith so as to increase its bulk or weight, or reduce its quality or strength or make it appear better or of greater value than it is. (K) It is confectionery, and it bears or contains any alcohol or nonnutritive article or substance except harm less coloring, harmless flavoring, harmless resinous glaze not in excess of four-tenths of one per cent, harmless natural wax not in excess of four-tenths of one per cent, harmless natural gum, and pectin; provided, that this division shall not apply to any confectionery by reason of its containing less than one-half of one per cent by volume of alcohol derived solely from the use of flavor ing extracts, or to any chewing gum by reason of its containing harmless nonnutritive masticatory sub- stances. (L) It bears or contains a coal-tar color other than one from a batch which has been certified under au thority of the "Federal Food, Drug and Cosmetic Act." (129 v 582. Eff. 1-10-6L 127 v 819) Penalty, 3715.99 (A). w r 1U.Q7. Aegiuauons and enforcement. The authority to adopt regulations for the enforce ment of section 3715.58, divisions (E), (G), (H), and (I) of section 3715.60, division (A) (2) of section 3715.64, and section 3715.67| of the Revised,'Code is vested in the director of agriculture. The authority to adopt regulations for the enforcement of sections 3715.01 and 3715.52 to 3715.72, inclusive, of the Revised Code, excluding section 3715.58, divisions (E),.(G), (H), and (I) of section 3715.60, division (A) (2) of section 3715.64, and section 3715.67[ of the Revised Code, is vested in the public health council, provided that such regulations are first proposed for adoption by the direc tor or the board of pharmacy.j The regulations adopted in so far a3 practicable shall conform with those promul gated under the "Federal Food, Drug and Cosmetic Act." (129 v 582. Eff. 1-10-61. 127 v 819) Penalty. 8715.99 (A). MILKI 3717.01 Definition of adulterated mflk. In all prosecutions under sections 3717.01 to 3717.13, inclusive, of the Revised Code, if milk is shown upon analysis to contain more than eighty-eight and one-half percent of water fluid, less than' eleven and one-half per cent of solids, or three percent of fats, it is adulterated. (131 v H 420, H 952. Eff. 7-1-66) 3717.01 former GC 12716 Cross References Fees and fines; rotary fund, 917.23. OJur 2d: 24, Food g 28, 29, 30 | ADULTERATION, LABELING AND PACKAGING 3717.31 (12717). from diseased cows. Sale of ; adulterated mfly or mfiy No person shall sell, exchange, deliver, or have in his custody or possession with intent to sell or exchange, or expose or offer for sale, or exchange milk from diseased or sick cows, adulterated milk, or milk to which water or any foreign substance has been added, or milk from cows fed on wet distillery waste or starch waste, or from cows kept in a place which has been declared to be in an nnclean or unsanitary condition by cer tificate of any dulv constituted board of health or duly qualified health o63cer within the county in which said place is located. Penalty, 3717.99(B). j Cross References Duty of dairymen in case of contagions disease in his family, 8707AS. OJur 2d: 24, Food 29 - 101 - PCB-ARCH-EXT0376513 THE SUPREME COURT OF THE STATE OF OHIO THE STATE OF OHIO, ' City of Columbus. 4 Frank Reynolds, etc., Appellee, 1 . vs. Great Lakes Terminal Warehouse Co. et al., Appellants. Tmnii. - 19.11.. TERM September Is, 1972 72-445 Ho._______ i... MOTION FOR AN ORDER DIRECTING THE COURT OF APPEALS for. LUCAS .County TO CERTIFY ITS RECORD It is ordered by the CouH that this motion is overruled. FOR YOUR INFORMATION ONLY ROT FOR FILING COSTS: Motion Fee, $20.00, paid 6y..-.Attorne^General I, Thomas L. Startzman, Clerk of the Supreme Court of Ohio, certify that the foregoing entry was correctly copied from the Journal of this Court. Witness my hand and tUe seal of the Court this...__,,...day of_____ ________ ____ 19...____ . - 102 - 1 PCB-ARCH-EXT0376514 33 Ohio App. 2d] FOUKE v. GREAT LAKES CO. 273 Fouke & Reynolds, d. b. a. Reynolds Fisheries, Appellees, V. Great Lakes Terminal Warehouse Co. et al., Appellants. . . [Cito as Fouke & Reynolds v. Great Lakes Co. (1972), 33 Ohio App. 2d 273.] ' ' Pure Food and Drug Law--R. C. 3715.01 et seq.--Adulterated food--Fish--R. C. 3715.59--Mercury containing tion--Fish not "adulterated," when--Evidence--Bur- den of proof--Director of department of agriculture ' . ; --Rules--Authority. 1. Mercury consumed by fish in their natural habitat is not an "added substance" within the meaning of R. C. 3715.59. 2. In order for fish to be condemned, pursuant to R. C. chapter 3715, for being adulterated with mercury, ,it must be proved by a preponderance of the evidence that the quantity of the mercury ordinarily renders it injurious to health. (Nos. 7182, 7183--Decided April 18, 1972.) Appeals: Court of Appeals for Lucas County. Mr. Joseph L. Newman and Mr. Sheldon Rosen, for appellees. Mr. William J. Brown, attorney general, and Mr. Robert M. Weinberger, for appellant director of Ohio depart ment of agriculture. ' \ Brown, J. This is an appeal from an order of the Court of Common Pleas of Lucas County in two com panion cases involving fish belonging to plaintiffs, appel lees herein, embargoed by defendant Gene R. Abercrombie, the director of the department of agriculture and an ap pellant herein, pursuant to R. C. 3715.55. The trial court found the fish described in the complaint not to be "adul terated" and not subject to condemnation under the pro- 103 - 274 COURT OF APPEALS. [33 Ohio App. 2d visions of R C. 3715.55, et seq. It ordered the fish released to plaintiffs. Defendant director of agriculture claimed the fish toj be adulterated within the meaning of R. C. 3715.55 and 3715.59.* Samples of the fish tested for mercury content levels, in May 1971, exhibited mercury levels in six separate lots ranging from .69 to 1.5 parts per million. Dr. Kolbyc, a! physician and expert in public health, from the bureau of foods, United States Department of Health, Education and -Welfare, construing his testimony most favorable to do-} fendant, in substance, testified that fish containing levels of mercury above .5 parts per million are a danger to health. The trial judge who decided this case filed a memor andum opinion in which ho made a thorough and excellent analysis of the facts adduced and the law applicable thcrej to. Although the trial judge pointed out that there was no proof that the fish contained any poisonous or deleterious substance which could render the fish injurious to health[ there was some evidence relating thereto. However, we do find that the trial court did not err in finding that the defendant director did not sustain his burden of proof. The pertinent part of R. C. 3716.55 provides: "(A) Whenever the director of agriculture * has cause to believe, that any food * * is adulterated * * * as to be dangerous * within the meaning of Sections 3715.01 and 3715.52, inclusive of the Revised Code, he shall affix to such article a tag or other appropriate marking, giving notice that such article is, or is suspected of being, adulterated * * * and has been detained or embargoed * * *. .. "(B) When an article detained or embargoed has been found by the director * * to be adulterated * * he shall petition the municipal or county court in whose jurisdiction the article is detained or em bargoed for an order for condemnation of such article * * The pertinent part of R. C. 3715.69 provides: "Food is adulterated within the meanings of Sections 3715.01 and 3716.52 to 3715.72, inclu sive, of the Revised Code, if: "(A)' It bears or contains any poisonous or deleterious substance -which may render it injurious to health; but in case the substance is not an added substance, such food shall not be considered adulterated if the quantity of such substance in such food does not ordinarily zander it injurious to health * * *." 33 Ohio App. 2d] FOUKE v. GREAT LAKES CO. 275 j The trial judge granted the relief sought hy plain- j tiffs in their complaints--possession of the fish--and dis-; missed the counterclaim of defendant Gene Abercrombie! which sought destruction of the fish. We affirm. Much evidence was adduced concerning the interim: guideline of the food and drug administration of the De-j partment of Health, Education and Welfare, which pro-i vides that .5 parts per million of mercury in fish may be1 harmful, and its significance and importance, and establish-i ing that the Ohio department of agriculture was following j this guideline concerning the sale and distribution of com-j mercial fish. j Dr. Kolbye, the defendants' chief expert and main; witness, could cite no report or record of any person being injured or harmed in the United States from eating fish containing mercury at any level, not even in 1970 when fish taken from Lake St. Clair and the St. Clair River were found contaminated with mercury in excess of .5 parts per million. The mercury poisoning of inhabitants of Minama ta Bay, Japan, eating raw fish several times a day, every ! day of the week, is an episode so dissimilar factually that it is inapposite to the present case and should be disregarded. The mercury found in the fish in these two cases is not an-1*added substance " to the fish, within the meaning of R. C. 3715.59(A), because it comes as a substance natural; to the fish. Allen v. Grafton. 170 Ohio St. 249, paragraph 4 j of the syllabus, and the dissenting opinion, at page 261. When a substance such as mercury is not an "added substance," then as a consequence of the language in R. C. 3715.59, the director of agriculture must prove by a pre ponderance of the evidence that the quantity of mercury in such fish ``ordinarily renders it injurious to health." The defendant director has failed to sustain this bur den of proof. Therefore, the trial judge was eminently cor rect in the judgment rendered. It might further be observed that there is neither . a state statute nor a ruleor regulation of any state agency which sets a standard that mercury, per se, in fish causes it to be adulterated within the meaning of R. 0. 3715.55 et seq. 276 COURT OF APPEALS. [33 Ohio App. 2d However, pursuant to R. C. 3715.58, the director of agriculture has lawful power to promulgate regulations fixing and establishing for fish or any other food a rea sonable definition and standard of quality, and that would include regulations pertaining to mercury content. This procedure, the director of agriculture did not choose to fol low. ' Under R. C. 3715.58, rules and regulations must be adopted strictly in accordance with R. C. chapter 119, the administrative procedure act, which provides, in detail, for public notice of a hearing concerning the adoption of a rule; for reasonable efforts toward informing those af fected by such hearing (R. C. 119.03); and for an appeal from the adoption of any rule by a party adversely affected to the Court of Common Pleas of Franklin County (R. C. 119.11), to determine that such regulation is reasonable and neither arbitrary nor discriminatory. (Weber v. Hoard of Health, 148 Ohio St. 389; 1 Ohio Jurisprudence 2d 482, Admin. T.nw and Proc., Section 80.) This route would also afford the plaintiffs protection for their interests through judicial review. If the route of rule-making procedure, pursuant to R. C. 3715.58, had been traveled by the director of agriculture, subject to review by the courts as provided by law, all par ties would have certain and, therefore, better guidelines and standards to follow; then, more stability would be re stored to the commercial fishing industry. . ' For tho reasons discussed, the judgment of the Court of Common Pleas of Lucas County is affirmed. Judgment affirmed. Potter, P. J., and Wiley, J., concur. k/v Vll JL X I WILLIAM FOUKE ' (72-0288) ) . . . . and ' : ' - ; ) ' ) ) FRANK REYNOLDS (72r-0289) ) ) Plaintiffs ) . . ' ' : vs. - ' . GREAT LAKES TERMINAL WAREHOUSE COMPANY, et al., ) . ) .. ) Defendants. ) ' V ' . . . , ' . . ' . Case Nos. 72-0288 72-0289 : : .. ' . ' . .' . * .. . MEMORANDUM . - . Between April 19, 1971 and May 10th, 1971, the plaintiffs stored with the defendant. Great Lakes Terrains1 Warehouse Company, various lots of fish more particularly white bass, approximating * Sixty-Five Thousand (65,000) pounds for the purpose of resale in a season when the price would be higher. . ' The said white bass vary in size, and were caught by the plaintiffs, duly licensed commercial fishermen, in Lake Erie. The said fish were sampled when taken to storage and found after analysis by the laboratory in Reynoldsburg, operated by the Department of Agriculture, to contain less than 0.5 parts per million mercury, except those lots stored on and after May 7, 1971, which were not examined initially. . At a subsequent re-examination one fifty-sixth of an ounce . 'i . ' ' ' t of raw flesh, bone, and skin of said fish, on six separate analyses, each analysis showed various readings ranging from 0.69 to 1.15 ppm of mercury. ' Another, re-examination of similar samples, taken from the lots in storage, in August of 1971, showed a different set of ' - 107 PCB-ARCH-EXT0376519 trmi.ii.xon, different from the find ings of May, 1971,-some of which were below 0.5 ppm. The defendant; 'Gene R. Abercrombie, Director of the Ohio Department of Agriculture; claims no interest or title in the white bass, but asserts a right to the condemnation and destruction of the fish on the basis that the fish contain mercury levels which may render them injurious to health. The defendant; Gene R. Abercrombie, Director of the Ohio Department of Agriculture; claims that the' fish are adulterated, within the meaning of Section 3715.55 of the Revised Code of Ohio. The defendant; Gene.R. Abercrombie, Director of the Ohio Department of Agriculture; has not adopted or promulgated any rule or regulation concerning what effect mercury has on fish, pursuant to Section 3715.58 of the Revised Code of Ohio. He at the time of trial'stipulated that he presently accepts the interim ' guideline of the Food and Drug Administration of the Health, Education, and Welfare Department of the United States of America * % ' ' - ` ' which says that 0.5 ppm of mercury in fish may be harmful. - Section 3715.59 of the Revised Code of Ohio provides (see Exhibit "BM) in various sections the determination as to -whether food is adulterated. . : ' There has been submitted no proof or evidence that the fish . . ` ' t . . contain any poisonous or deleterious substance which may render the fish injurious to health. The testimony adduced at the trial proved that except for an incident at Minamata Bay on an island in the . ' . - ' Sea of Japan in 1953, no persons in the world have been injured by ^ y> eating fish. The Japanese tolerance for total mercury content in fish has been set at 1.0 ppm.-as has the Swedish tolerance, twice *; ,, . . . - 108 - PCB-ARCH-EXT0376520 m .. -4 1970 when the fish iak$n uuyit|u uxc:^ _ v :Nou -eyen in ~*v ..; :; . . ' Clair River and Lake St. Clair were found.to be contaminated, with .mercury in excess of 0.5 ppm, were there any reports or records of any person being injured or harmed from eating those fish taken from Lake St. Clair or the ' * ' : . St.. Clair River. / . " . ' . . ' *. . ljl\l A recent treatise indicated that mercury was found in a .specimen fish which is in the Smithsonian Institute. Quite obviously, mercury has existed in fish from time immemorial. At trial, testimony was adduced to the effect that mercury, in the air as a free agent, exists. Mercury is found in the ground, and as such, we may assume that the vegetables we eat contain a certain amount of mercury. '* A. careful review of all of the paragraphs of Section 3715.59 of the Revised Code of Ohio which defines when food is adulterated, fails to show that the fish in question are adulterated. Further, a review of the testimony shows no evidence was adduced that would grant to the Director of Agriculture the right to seek condemnation and/or. destruction of the fish under the provisions of the statute. Jean A* Podmore, in May of 1971, had been a chemist at the * ' - laboratory at Reynoldsburg, for. two (2) years. She testified as to the testing method and procedure. Interesting to note is her testimony that if the sample of one fifty-sixth of an ounce was not clear, she threw that sample away and began with another sample. . i \ ' . * ' She further testified that the method used in the laboratory at Reynoldsburg was not the same method used in Canada. Certainly her testimony can only be considered as to procedure followed, which *. * ' ' * . varied with Canadian procedure, and which may /vary <\/ith' other laboratories ; ; V--T09 " ... V. . pPcCbB--/As RCH-EXT0376521 AjLwej.'C u. Xoinye, Jr., M.D., J.D., Deputy Director, Bureau of Foods and Pesticides, BF-2 in charge of the Bureau Overview of. Mercury and Fish Program, Food and.Drug Administration of the Department of Health, Education, and Welfare, United States of America. . . The witness testified that while he himself has n,ever parti cipated in the examinations or experiments, he did visit Minamata and did see the results. His testimony further was that the regulatory provisions of Sweden is 1.0 ppm, , with a recommendation that the fish consumption'of humans be limited to one meal per week. It is interesting to note that he feels the sporting fisherman need have no restrictions as to his consumption of fish but that the rest of the population should be restricted. ,, . . . The studies submitted in the various plaintiff's joint exhibits demonstrate that the injuries attendant from a heavy consumption of raw fish by the.inhabitants of Minamata Bay, near the plant, were identified as the results of actual ingestion of an organic form of mercury, identified as methyl mercury. Yet these identifications, the basis for Dr. Kolbye's conclusions are in contrast to the Swedish studies that showed that while inorganic mercury compounds did not pass through the membranes as does methyl mercury, the Swedish studies indicate that all mercury found in fish does not mean that the organic mercuric compound, methyl mercury, exists, but that it may exist. It is fundamental-that the tests do not ~-k^find methyl mercury but test for mercury,- an unstable element, which exists in its "solid" state as a fluid. No evidence has been presented here that any of the fish in the warehouse contained methyl mercury. This testimony is, that there may be a oossib-' "> < .; ... ' -110 - PCB-ARCH-EXT0376522 compound, exists. . . ' In the special report to the Secretary's Pesticide Advisory Committee, Department of Health, Education, and Welfare, of November, 1970, of which committee, Dr. A. C. Kolbye, Jr., was a member of the study group the testimony of Dr. A. C. Kolbye, Jr., can be succinctly stated exactly as it appears in the report at Page 6; namely, "The major conclusion derived from these and other findings was that it seems unlikely that we wili find overt mercury poisoning . * f ' * '. from the consumption of fish or other food products, as normally marketed in this country. This is not to say that there may not be a few individuals, who because of high consumption of contaminated fish may have signs of mercury poisoning." . ... . Further let it be said that he has not now nor has the FDA adopted any regulation, it has adopted only an "interim guideline." (Similarly the Ohio Department of Agriculture has not adopted a regulation but has followed the FDA guideline). After all these studies that Dr. A.` Kolbye, Jr., has participated in, at no time has a regulation been adopted as was done in cigarettes or recently in the matter of the lead content in paint. The most that Dr. t ' * . Kolbye, Jr., would say is that `certain segments of the population that ate mercury contaminated fish might sustain some injury depend ing on the amount and frequency of ingestion. . The only conclusion possible is the presumption of regularity in the testing procedure, which Dr. A. Kolbye, Jr., claimed made it verifiable and repeatable. His response to the hypothetical question, then cannot be sustained as fact or evidence since the evidence in this case showed there must and did exist error. \ ` `" U The findings were PCB-ARCH-EXT0376523 not verifiable and repeatable since each re-examination disclosed different results. Thus the toxicity of these fish has not been shown. In summation, there is no real probative evidence that the white bass held in storage are poisonous or deleterious, and certainly there is no probative evidence that the usual and ordinary consumption of these white bass by the populace in Ohio will ordinarily render such consumption injuries to health. ' Since the Director of Agriculture has failed to prove that these fish are adulterated and further has failed to prove they are ordinarily injurious to human life, the counterclaim of the Director must be denied and the prayer of the plaintiffs for a preliminary injunction be granted forthwith. . / Judge PCB-ARCH-EXT0376524 IN THE UNITED STATES DISTRICT GOii&f FOR THE NORTHERN DISTRICT OF ILLINOIS .. EASTERN DIVISION UNITED STATES OF AMERICA, ) ) Plaintiff, ) ' ) V> * | INC., a corporation, AND ) LAWRENCE T. SCUWEIG, ) an individual. ) ) Defendants. ) NO. 70 C 2246 MEMORANDUM OPINION AND ORDER , The proceedings upon which the following opinion is rendered are based upon a Complaint for Iitjunction filed by the United States of America under Section 302(a) of the Federal Feed, Drug and Cosmetic Act, 21 U.S.C. 332(a), (hereinafter referred to as the Act), which invests this Court with jurisdiction to enjoin and restrain violations of Section 301 of the Act, 21 U.S.C. 331. Defendant, Vita Food Products of Illinois, Inc., is an Illinois corporation. Defendant, Lawrence T. Schweig, is vice president of the corporation, . . The government alleges that the. defendant receives after shipment in interstate commerce, articles of food consisting of fish, known as chubs, and distributes then for human consumption and that these chubs are adulterated within the meaning of 21 U.S.C. 342(a)(2(C) in that they contain food additives, namely the chemical substances, DDT, derivatives of DDT, and dieidrin, which are unsafe within the meaning of 21 U.S.C. 348(a). The government further alleges that-the above-named additives and their use and intended use are. not in conformity with a regula tion or exemption issued pursuant to 21 U.S.C. 348(a), "since the total amount of DDT and its derivatives present in said smoked chub is at a level in excess of the interim limit of . 5 parts per million which was established by the Food and Drug Admini:-'.ration for all fish pursuant to an announcement to the public on April 22, 1969 and which is still in effect, and since the presence of dieidrin in smoked fish is not permitted by any regulation or exemption issued pursuant to 21 U.S.C. 348(a)." . . . ` . '/.. 113 v PCB-ARCH-EXT0376525 The government contends t;i rjt; the ci-tfone.ts vic\:wx: 21. U.S.C. 33.1(a) in that Limy int reduce and cause to hi* introduced an-.! . deliver and cause to be delivered for introduct.ion into interstate 'commerce smoked chubs which are aduIterated within 1:1 io tncttning of 21 U.S.C. 342(a)(2)(C) and that'.defendants violate 21 U.S.C. 33l(k). in that they cau.sc chubs, whi le held for sale after shipment in interstate, commerce and contain:! ng the above-named chcniica.1 -sub stances, to be prepared, packed and distributed as smoked chubs, which acts result in the smoked chubs being adult a rated within the meaning of 21 U.S.C. 342(aX2)(C). ' . , A hearing was held pursuant to 2.1 U.S.C. 335 orr September 16, 1969 regarding the interstate shipment of smoked chubs which were ' alleged to contain the aforementioned chemical subotaxu-.es in excess of the amounts of 5 parts per million of DDT or derivatives or which contained dieldriu in excess of .3 ppm. . ' ' . I . In effect, the government's theory is . that the chubs involved herein are adulterated within the moaning of 21 U.S.C. 342(a)(2)(C) because DDT and dieldriu are "food additives" under the. Act and second since "their use ar.d intended use arc not: iu conformity with a regulation or exemption" they are "unsafe" as a matter of law under.the terms of 21 U.S.C. 348(a). . Defendants' position is "that any traces of DDT and dieldriu in its smoked fish are not "food additives within the Act", and that the government's mode of procedure "seriously perverts the . elaborate statutory scheme established by Congress to ensure the . safety of-food and food additives and that defendants are not now. ' and have not in the past sold any "adulterated" smoked fish." Defendants contend that the government has tried to establish adulteration as a matter of law because it is unable to establish adulteration as a matter of fact and in so doing has ignored the statute. : 21. U.S.C. 342(a)(1) states as follows: ; '' . . "A food shall be deemed adulterated - if it bears or contains any poisonous or deleterious substance which may render it injurious to health; but in case the substance is not an added substance such food shall 'not be considered adulterated under this clause if the quantity of such .substance in such food dees not ordinarily render it injurious to health; or (2)(A) if it bears or contains any added poisonous or added deleterious substance , (other than one which is (1) a pesticide chemical in or on a raw agricultural commodity; (i.i.) a food additive; (ill) a color additive; or (iv) a new animal drug,) which is unsafe wi thin the .. . ' . " 2 - - PCB-ARCH-EXT0376526 meaning of Section 366 of this Title, or (!>) if it is a raw ngricul final commodity and it hoars or contains a pesticide chemical which is unsafe within the meaning of Section,346(a) of this , Title, or (C) if it is, or it bears or contains, any food additive which is unsafe within the meaning of Section 360 of this Title.........................." 21 U.S.C. 365(a) states as follows: - "A food additive shall, with respect to any . particular use or intended use of such additives, ' be deemed to be unsafe for the purposes of the application of clause (?.) (C) of Section 342(a) of this Title, unless - . - (1) it and its use or intended use conform to . the terms of an exemption which is in effect purse -nt to -subsection (i) of this .section; or (2) there is in effect, and its use or intended use are in conformity with, a regulation issued ' under the section prescribing the conditions under'which such additive may be safely used. ; . While such a regulation relating to a food . . ' additive is in effect, a food shall not, by : . reason.of bearing or containing such an additive in accordance with the.regulation, be considered adulterated within the meaning of clause (1) of Section 342(a) of this Title." . DDT is a chemical pesticide which has been used since the early 1940's to control mosquitoes and other pests. Recently> the use of DDT has been reduced by approximately 50% in the United States (tr. 219) and as of January 1, 1972, due to an order of the Environmental Protection Agency, the use of DDT will be almost eliminated. DDT and its derivatives are found in virtually all living tissue. Studies shew that these concentrations (5-10 parrs per million) in man (tr. ISO) are decreasing (tr. 563-66; 1155-56). Dieldrin is a far more mysterious substance than DDT although like DDT it finds its way into certain organisms. The most that, can be said of dieldrin at this juncture is that its effect has not been fully demonstrated. On April 22, 1969, a "guideline" characterising 5 ppm. as the maximum amount of DDT permissible in. fish shipped in interstate commerce was issued in the form of a press release by the L". D. A. In part the release stated: . . . . . "Residues of DDT (including derivatives) in fish . shipped in interstate commerce will he limited to 5 parts pe million (ppm) under an interim guide line anno, cod today'by the Food and Drug Administrat Lon. .- 3 - PCB-ARCH-EXT0376527 "The interim limit has beer; established nri.maril y because of high residues of" WOT nl it*-; <h-rj.vntJ.v-e;*;. found in coho salmon fros: Luke Mighigno. "Tills guideline is intended to protect fhe public from excessive levels of HI)!' in fj.nl; while a full scientific review is completed," Food cud Drug Ccnrtrdsaioncr Herbr-et Ley, Jr., M. D. explained "It also gives the fishing industry a specific standard. Fish carrying residues higher than 5 ppm will be subject to seizure. . "The F. D. A. has eked the National Academy of Sciences - National Research Council to noninaU: a panel of experts to carry out the review of . DDT residues in fish. The 5 ppm interim limit may be changed as the result of that study, . Dr. Ley said." ' In ruling on the statutory basis for the F. D. A.'s authority to issue its interim enforcement guideline the Court in U. S. v. C.i _tv Smoked Fish Co., et al. (E.D. Mich., Memo. Cp. 33669, pg. 6, 1970) said: ' ' '. ' "Plaintiff : on cedes that this guideline Is neither a 'regulation' which the Act empowers it to issue, nor v . any other species of administrative, rule, recognised .. ; . by any relevant or pleaded statute. This guideline- is not publinked in the Code of Federal Regulations, . nor apparently in any other published compilation of . ' ' administrative rules. . . "Since there is no statutory authority to issue such an interim enforcement guideline, it follows that defendants' violation of law, if any, must be of the statute itself, in this case The Food, Drug . and Cosmetic .Act." The Court therein found such violation of the statute. However, I find myself in disagreement with that decision and instead find that DDT and dieldrin are not "food additives" w-i.thin the mending of the Food, Drug and Cosmetic Act of 1939. . I have come to this conclusion after a careful analysis of: the statute, the 1959 "Food Additives Amendment" and its legislative history and purpose.I I find it necessary to quote at this point from that legislative history: - . - - 4- PCB-ARCH-EXT0376528 "* *. * 11 vis bill, if enacted, will require the processor who wants to add a now and unproven additive to accept the responsibility now voluntarily borne by all responsible food processors of first proving it to be safe for ingestion by human beings. MVc :V */< i'i Vr vr :V V: x >*: >V >V >V v': >\* ;V . V .... "The second flaw in existing- law which has proved detrimental to consumers, the processors, and to our national economy and which this bill seeks to remove is a provision which has inadvertently served to unnecessarily proscribe the use of additives that could enable the housewife to safely keep food longer, the processor t-o make it more tasteful and appetising, and : . the Nation to make use of advances in , technology calculated to increase and ' \ . improve' our food supplies. Your committee . . . . agrees with the Food and Drug Administration , - that existing law should be changed to permit the use of such -additives as our technological : scientists may produce and which may benefit . : our people and our economy when the proposed ' usages of such additives are in "amounts accepted hv the Food and Drug Administration, as safe." Senate Report No. 2422, 85th Cong., .- -2d Sess. , 3 U S. Code Cong. & Admin. News- 5301 (1.958). . . : Thus, the purpose of the Amendment was two-pronged; to permit the use of food additives in safe quantities but only after tests for safety conducted before the food in which those additives are used is..-.introduced- into commerce. ' Section 348 provides an elaborate procedure for evaluating the safety of "food additives". Thus, 21 U.S.C. 348(b)(1) reads as follows: . . . . "Petition for regulation prescribing conditions of safe use; contents; decription of production, methods' . V and controls; samples; notice of regulation . . . ' :.;. i . and contains elaborate procedures that must be adhered to by any person , A., who intends to use a food additive and,details the conditions under , which such an additive may be safely used. It is unc.ontroverted that defendants herein do not actually "add" . , V' DDT or di-eldrj.n to its product. The- chemicals in question are intro duced into the chubs by the environment. In no way have the defend- . - ants been accused of nor do they deliberately use the named substances in connection with the prepa rat Ion of their product. - . - 5- ' ~ ' PCB-ARCH-EXT0376529 The Committee reports which 'accompany the Food Additives Amend ment deal with three clifferen t categories of 'food additives'. "The legislation covers substances which are added intentionally to food. These additives are generally . referred to as "intentional additives". "The legislation also covers substances which may reasonably be expected to become a component of any food or to affect the characteristics of any food. These substances are generally referred to as incidental additives. . . ' "The principal examples of both intentional and incidental additives are substances intended for use in producing, manufacturing, packing, processing, preparing, treating, packaging, . .. transporting, or holding food." Senate Rep. , No. 2422. . . . Therefore, it r.av he seen that, neither the 'intentional* nor 'incidental' category of 'food additive' is applicable. It is not an * intentional * additive because there is no allegation that the defendants nor for chat matter any other person or corporation add the named chemical substances to the chubs. . . Nor may they be ccavsidered 'incidental' additives because Congress clearly enunciated that only those substances deliberately used in the course of the. manufacturing or distribution process would be within that category. It is indisputable that any DDT or die id;; in in defendants' chubs result from unintentional circumstances which occur prior to the fish being.caught. ' The third 'category of 'additives' are * accidental' and the Senate Report states as follows in respect to such additives: "On the other hand,subs fauces which may accidently get into a food, as for example, paints or cleaning solutions used in food processing plants, are not covered by the legislation. These additives arc generally . referred to as 'accidental additives', since these substances if properly used may not . reasonably be expected to become a component of a food or otherwise to affect the character- ist.ics of a food. If accidental additives do get into food, the provisions of the Food, Drug, and Cosmetic Act dealing with poisonous and deleterious substances would be applicable." . . . . . . y . 6 - - . :" ' -ml 18 - PCB-ARCH-EXT0376530 I find myself in agreement with defendants i_na't: if, indeed, DDT and dicldrin traces found in fish are to be considered 'additives' in any sense, they must clearly be considered 'accidental' ones and as such not a 'food additive' under the Act. Thus, I atn in disagreement with the government's con tention that "as component*: of the. defendants' chub, residues of DDT and dicldrin are incidental food additives governed by the food additive provisions of the Act." (Govt.'s post-tr. brief, pg. 30). One of the government's witnesses Dr. Frederick CouIs ton stated that DDT 's presence in the chubs is 'accidental' (tr. 245) Dr. Coulston testified as follows: Q. Do you know, sir, from your studies and . . through your group, what the best think . ing is as to how the DDT got there? . (Into fish that are swimming in lakes). A. Well, of course nobody rightly knows ' exactly how it got there. V.'e can only suppose that the use of the DDT in spraying for environmental control of insects or in use on crops in the soil, ev itoally washed down into the ' rivers and then into the lakes * * *" (tr. 207). - Thus, the chemical substances DDT and dicldrin are not ones intended for use in "producing, manufacturing, packing, processing, transporting, or holding food." Congress was 'most explicit in its delineation of what constitutes cn.-intentional'or 'incidental' additive. . . , 21 U.S.C. 321(s) defines "food additive" and expressly excludes - "(1) a pesticide chemical in or on a raw ' . . agricultural commodity; or "(2) a pesticide chemical to the extent . that it is intended for use or is used . in the production, storage, or trailsportation of any raw agricultural.. . . .. . .- .--V- ...mV. V'.'V:. commodity - * . . : ,. ' A case on point is one cited bv defendant U. S. v. Dodine Produce Co., 20b F.Supp. 201, 210 (D.C. Ariz. 1962) in which the . Court stated that the DDT found in lettuce was not a 'food additive': ' "***By the Food Additive Amendment in 1953 *** Congress tackled the problems of food additives in processed foods in depth. It 7 - 119- - PCB-ARCH-EXT0376531 drew s sharp line between the. Food Additives . Amendment and the Pesticide Chemicals Amend ment. Thus in tlie definition of 'food additive' it excluded pesticide chemicals . in or on raw agricultrual commodities. ***" In Environmental Defense Fund v'. U. S. , 42S F ..2d'1083 (D.C. Cir., 1970), the Court stated: "*** the statute (21 U.S.C. 321(s))explicitly excludes pc. ticide chemicals from the defini tion of tl-.e terms 'food additive' and.'color additive'." The government has- attached as Ex. D to its Trial Memorandum the ruling in U.S. v. City Smokad Fish, supra, in which the Court found: "It further appears that DDT found in raw . chubs is a pesticide chemical, and not a food additive within the meaning of the Act. However, the Court concludes that DDT found in smoked chubs is a 'food additive', since the chubs are no longer in their raw or natural state as required by the Act." . . . . I cannot agree. 21 U.S.C. 342(a) states that a "pestr j.de chemical" remains a "pesticide chemical" within the meaning f the Act even after the "raw agricultural commodity has been subjected to processing such as canning, cooking, fyeaning, dehydrating or milling." ... . - For the above stated reasons,.I find that any traces of DDT or dieldrin found in defendants', chubs cannot be labeled a 'food additive' within the meaning of the Food, Drug and Cosmetic Act of 1938. - ... - ' ' : II . " The next issue to be resolved is that of whether or not t:he chubs in question fall within the. purview of 21 U.S.C. 5342(a) (1), supra, a portion of which states: "A food shall be deemed t:o be- adulterated If it bears -or contains any poisonous or deleterious substance which may render it injurious to health; but in case the sub stance is not an added substance such food shall not: be considered adulterated under this clause if the quantity of such sub stance in such food doer, not ordinarily render it Injurious to health." . - s PCB-ARCH-EXT0376532 The government has alleged as follows: . ' "It should he noted that smoked chubs . containing residues of DDT, its de- rivatives or dieldrin in excess of the enforcement guidelines need not be proven injurious to health to bo.' adult- crated under the Act. In a long line . of cases, the.federal courts have held that foods may be adulterated regardless . of whether they are injurious to health, unless the particular statutory clef ini-- tion of adulteration expressly requires the Government to prove such injury (citing cases). Since 21 U.S.C. 342 (a)(2)(C) does not require such proof, . no injury to health need be shown to : establish the adulteration alleged in , this case." (Govt.'s Tr. Memo., p. 20). ' . However, having found that 21 U. S. C. 342(a)(2)(C) is not 1 applicable, I find that injury to health must be shewn in order for the government to prevail. The testimony on this issue was " diverse and interesting but in the final analysis not as illuminat ing nor as definitive as might have been hoped. Dr. Frederick Coulston, n toxicologist and one of the govern ment *s witnesses testifed as to rumors that DDT might be a carcin ogen: . / .. - ' ' "But its the uncertainty. I can only state . . that I know of no harm to man, human beings, ; from DDT even in larger'amounts than five . . ' ' parts * * (Tr. 213) . . '. Professor Rolf Ilartung, another government witness testified as follows: "There is at least one suggestive study by Poland who looked again at a series of pesticide formuletors and reported that : those people who had received 20 times the normal background level of pesticides did exhibit a slight increase in the rate in which they would metabolize these drugs. . "Now this docs not in any way imply safety either. The reason it doesn't imply harmfulness is because the effects are very subtle and we cannot make an easy judgment . . . - 9 - -121 - PCB-ARCH-EXT0376533 as to whether this is permanently hurting a person or not. I am dubious that-it would personally hurt: y person." (Tr. 297). A short tine later in the trial Professor Hartung stated: "If we want to look for any evidence whatever as to what night be happening for man at normal types or close to normal types of dosage, v?e are very hard put." (Tr. 299). Dr. William Deichmann, an eminent toxicologist, testified in behalf of the defendant and stated during the trial that counsel for the government had telephoned him and: "***told me that the Vita Food Company had been selling smoked fish which- cou- tained 7 or S parts per million DDT, . and whether I would speak for Food and , Drug Administration, since the per- missible limit in smoked fish is 5 parts per million, and the primary issue was whether I could make the statement that the ingestion of smoked fish containing 7 or 8 parts par million is injurious to health. 1 : : . ' ; . ' "Q. And what did you say, sir? . . V; . "A. I told Hr. Ro.ubi check (government counsel) chat if it is a question of whether the food company is guilty of . exceeding the concentration, if that is the question, that I must agree that 7 or 8 is more than 5, and on that basis I would say they would be guilty, but if it is a 'question of health hazard of a concentration of 8 parts per million, that I couldn't support that, and for that reason I declined to testify for Food and Drug, and I wrote to Hr. Raubicheck a letter to that effect." (Tr. 844-4,5). " .' ' ' . . Wien asked his opinion as to the chronic toxicity of residues of DDT in human beings Dr. Deichmann responded: - "I could refer you to the studies that have been dene where the concentrations,. . the retention rates in human beings, - have been very much higher than those PCB-ARCH-EXT0376534 in the general 'population without any effect that the investigators and physicians tried to find and did not find." (Tr. 807). In response to the question of whether he knew of any disease in humans attributable to DDT the witness replied: . "I have introduced this word on twooccasions . (DDT-itis), avid I made the. statement that there is no record of any DDT-itis in this country or any other country. . . ." (Tr. 807). Again Dr. Deichmann testified: "Nowhere in the world does this compound, and I am referring to DDT, present an " 'imminent hazard' to public health - - . (Tr. 852). Thus, I cannot on the basis of the evidence tendered during . the course of this trial unequivocably state that DDT is a known health hazard to man. . ... ... . - . III . , A great portion of the trial revolves srr und the issue of the reliability of the test methodology used by the government to prove that the samples of Vita's chubs involved herein contained DDT con centrates in excess of 5 ppm. The government's test method is . referred to as the 'AOAC' method. Although I shall not go into a detailed analysis of the testing procedures I should like to note, the following information that was gleaned from the trial testimony. No method of testing lias been proven to be absolutely reliable. Certain discrepancies that were raised during trial and in defend ant's post-trial brief-have led me to conclude that the AOAC method is capable of distinguishing between concentrations of DDT in the area of h .to 9 ppm. Thus, there is always the possibility of a margin of.error and 1 nv: t hold that the AOAC method, when left to be followed by testers provided by food processors in all cases . and utilized by government testers only in spot checking on the . continuous batch, upon batch testing to be performed by the food . processors, is incapable of that degree of accuracy which ought to exist to support a court judgment enjoining a food processor . from proceeding on in the industry. .. ,. ... ... . Since September 1971, the American Meat Institute .Laboratory (AML) lias been hired, by Vita to analyze its chubs for pesticides, using' the AOAC method. The AMI Laboratory also analyzes each of. the samples -which formed the foundation for the case herein. its analysis showed substantially .lower results than did the comparable '. v Lv PCB-ARCH-EXT0376535 analysis performed by the FDA chemists. Four of the seven AMI analyses showed readings below 5 ppm and the highest of those above 5 ppm read 5.35. There are numerous other examples of differences between the. various methods of costing. Differences in result?; tended to reflect differences between individual chemists performing the tests. The concept "absolute reliability", like the phrases "unimpeachable preciseness" and "perfect certainty", is repugnant to the scientific mind. The most that should be looked for is "sufficient reliability" - - reliability to a degree, sufficient for the purpose to be served. The purpo.se to be served here is not served when the acknowledged degree of exactness lias a coefficient of error of plus or minus 25%, and when, various tests of Che same samples with the same procedures performed by equally qualified persons result in readings varying over a range of one hundred percent. .. - . . From all the relevant data one fact stands out. It is that . science has not developed' a system which is sufficiently reliable. The AOAC's method is not sufficiently reliable, for me to find by. ' the greater weight of the evidence and as a controlling fact that/ the chubs sampled by FDA in April 1972 contained DDT concentrations ... in excess of 5 ppm. ... There is in this case uncontradicted evidence tending to show that the level of Lake Michigan chubs generally is less than 5 ppm. Mr.. Bernard Ln-anir, a chemist, testified that based upon all of. the test results in evidence (FDA's, Ami's, KMFS,'. and those of . WARF) (Dcf. Lx. 29) the incidence, of DDT and its analogs in Lake . Michigan chub arc at or below 5 ppm. (Tr. 1202-03). . - ": ' , ' ' ' IV ' - ' In summary, I find that 21 U..S.0. 322(a) (2) (C) is not applicable since DDT,'derivatives of DDT and diidrin found in Vita's smoked chubs arc not "food additives" under the Act. I find that DDT derivatives of DDT and dieldrin as'found in Vita's smoked chub: are not a known health hazard within the meaning of 21 U.S.C. 342(a)(1). I find that the test method to be used by processors of smoked chub is not sufficiently precise for a finding of fact that the chubs sampled in April 1972 contained DDT concentrations in excess of . 5 ppm. ...... ; ; . ' . It should be made crystal clear that these findings do not open the gate to an area of abandonment of concern on the part of processors of food. Neither do they restrain the Food and Drug Administration from pursuing a severe program of monitoring ; . . ' processors of smoked fish in its effort to keep out of interstate commerce food that constitutes a known health hscare!. . ' - 12 - I'have boon presented In this cave just one matter and i;:y findings are technical, ones. By true gmnrcr weight of the evidence, and by the- applicable- law the allep.m ions of the complaint against these defendants have not been sustained.. . ' This Memorandum Opinion sh-.-.l l cons tit ue my findings of fact and conclusions of .lav/. orjv-r. ' Wherefore, it: is ordered, adjudged and decreed that judgment with costs ought be end the same hereby is 'cnLcrod in favor of . the-defendants and against the plaintiff. . DATED:- February 14, 1973 PCB-ARCH-EXT0376537 UNITED STATES v. LEXINGTON MILL CO. 399 232U.& ~ UNITED STATES OF AMERICA v. LEXINGTON MILL & ELEVATOR COMPANY. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. No. 648. Argued January 5, 1914.--Decided February 24, 1914. The primary purpose of Congress in enacting the Food and Drugs Act of 1906 was to prevent injury to the public health by the sale and transportation in interstate commerce of misbranded and adul terated food. As against adulteration the statute was intended to protect the public health from possible injury by adding to articles of food consumption poisonous and deleterious substances which might render such articles injurious to health. Where such a purpose has been effected by plain and unambiguous language by an act within the power of Congress, the only duty of the courts is to give the act effect according to its terms. The inhibition in subdivision 5 of 7 of the Food and Drugs Act of 1906 against the addition of any poisonous or other added deleterious ingredient which may render an article of food injurious to health is definitely limited to the particular class of adulteration specified, and in order to condemn the article under subdivision 5 it i3 incumbent Upon the Government to establish that the added substance may render the article inj urious to health. In subdivision 5 of 7 of the Food and Drugs Act of 1906 the word "may" is used in its ordinary and usual signification; and if an article of food may not by the addition of a small amount of poison ous substance by any possibility injure the health of any consumer, it may not be condemned under this subdivision of the act. 202 Fed. Rep. 615, affirmed. The facts, which involve the construction of subdivi- 400 OCTOBER TERM, 1913. Argument for the United States. 232 U. S. eions 4 and 5 of 7 of the Food and Drugs Act of 1906, are stated in the opinion. JldTr. Attorney General McReynolds, with whom Mr. Francis G. Caffey was on the brief, for the United States: The seized flour was adulterated within subd. 5, 7 of the Food and Drugs Act. French Silver Dragee Co. v. United States, 179 Fed. Rep. 824; United States v. 1,950 Boxes of Macaroni, 181 Fed. Rep. 427; United States v. Mayfield, 177 Fed. Rep. 765; United States v. Rosebrock & Co., Notice of Judgment, 825; United States v. Koca Nola Co., Notice of Judgment, 202; Friend v. Matt, 68 J. P. 589. The Circuit Court of Appeals erred in reviewing the weight of evidence as to whether the flour was adulterated within subd. 4 of 7 of the act. The bleaching conceals newness and imparts color of better grade and inferior flour is made to resemble patent. Flour milled from inferior wheat is made to appear as if milled from first-quality. The Circuit Court of Appeals had no power to review the jury's findings. Behn v. Campbell, 205 U. S. 403; Lancaster v. Collins, 115 U. S. 222; Chicago & North Westem Ry. Co. v. Ohle, 117 U. S. 123. The Court of Appeals was correct in holding that there Was no error in submitting to the jury the charges of adulteration under subd. 1 of 7 of the act. The Food and Drugs Act is constitutional. Hipolite Egg Co. v. United States, 220 U. S. 45; Booth v. Illinois, 184 XJ. S. 425; Otis v. Parker, 187 U. S. 606; Powell v. Penn sylvania, 127 U. S. 678; Buttfield v. Stranahan, 192 U. S. 470; United States v. Johnson, 221 U. S. 488; Shawnee Milling Co. v. Temple, 179 Fed. Rep. 517; United States v. 74 Cases Grape Juice, 181 Fed. Rep. 629; United States V. 420 Sacks of Flour, 180 Fed. Rep. 518; United States v. UNITED STATES v. LEXINGTON MILL CO. 401 232 U. S. Argument for Respondent. Heinle Specialty Co., 175 Fed. Rep. 299; United States v. 100 Cases of Apples, 179 Fed. Rep. 985. Mr, Edward P. Smith and Mr. Bruce S. Elliott, with whom Mr. Edward L. Scarritt, Mr. C. J. Smyth and Mr. W. C. Scarritt were on the brief, for respondent: Congress possesses no police power, and the Food and Drugs Act, if sustained at all, must be sustained on the ground that it is a regulation of commerce between the States. Crutcher v. Kentucky, 141 U. S. 47; Lawton v. Steele, 152 U. S. 133; Gibbons v. Ogden, 9 Wheat. 1; Hanni bal & St. Joe R. R. Co. v. Hewson, 95 U. S. 465; Wilkinson v. Rahrer, 140 U. S. 545. The power to make the ordinary regulations of police remains with the individual States and cannot be assumed by the National Government, and in this respect it is not interfered with by the Fourteenth Amendment. Mugler v. Kansas, 123 U. S. 623; Plumley v. Massachu setts, 155 U. S. 461; New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650; United States v. Knight, 156 U. S. 1; Ini. Com. Comm. v. Brimson, 154 U. S. 447; Employers' Liability Case, 207 U. S. 463. The Food and Drugs Act is to be regarded as ah act to regulate commerce, and the court erred in charging the jury that the Government need not prove that the flour in question, or foodstuffs made by the use of it, would injure the health of the consumer; that it is the character-- not the quantity--of the added substance which is to determine this case. Congress never intended the statute in question should be construed as the trial court construed it in this instruc tion to the jury. ' In the passage of this act Congress intended the words of this section to be used as above indicated, in their usual and ordinary sense. It was never intended by Congress that this act should ever be construed to mean that the von. ccxxxn--26 - 128 - PCB-ARCH-EXT0376540 402 OCTOBER TERM, 1913. Argument for Respondent. 232 U. S. useful and harmless property of a citizen should, by the methods providing for the prevention of the sale of harm ful and injurious foods, be confiscated, condemned and destroyed. This would be contrary to the policy and spirit of our laws and the fundamental principles of our govern ment. Church of Holy Trinity v. United States, 143 U. S. 457; United States v. C. & N. W. Ry. Co., 157 Fed. Rep. 618; Binnsv. United States, 194 U. S. 495; Blake v.'Natl. City Bank, 23 Wall. 307; Wadsworth v. Boysen, 148 Fed. Rep. 771. ' The language used in the act in question is not suscep tible of the interpretation placed thereon by the trial court. Montclam v. Ramsdell, 107 U. S. 147; Postmaster General v. Early, 6 L. C. P. 147; 12 Wheat. 136. In order to bring an article of food within its condemna tion, it must be shown that its consumption would injure the health of the consumer. Giving to all the words of the statute, therefore, their plain, usual and ordinary meaning, it is plain that the trial court erroneously construed it. French Silver Dragee Co. v. United States, 179 Fed. Rep. 824. The construction contended for has been sustained by the English courts in construing a similar statute, 38 and 39 Viet., c. 63, 3. Friend v. Mapp, 68 J. P. 589; Hull v. Horenell, 68 J. P. 591. The act as construed by the trial court is arbitrary and an unreasonable interference with the rights of property. Jew Ho v. Williamson, 103 Fed. Rep. 10. If the flour did not contain anything which might render it injurious to health, it is wholly without the power of Congress or any other branch of the Government to exclude it from the channels of commerce or to prohibit its sale. Congress has not undertaken to exclude flour such as this from the markets. Congress only attempted to ex clude from the markets such flour as may be injurious to - 129 - PCB-ARCH-EXT0376541 UNITED STATES v. LEXINGTON MILL CO. 403 232 U. S. Argument for Respondent. health. The trial court by its instructions forced the condemnation and destruction of this flour, even though it contained nothing which would in any wise render it injurious to health. This is not the exercise of a legislative power, but is an arbitrary and illegal taking of property which this court has in many cases condemned. Powell v. Pennsylvania, 127 U. S. 678; Mugler v. Kansas, 123 U. S. 623; Schollenberger v. Pennsylvania, 171 U. S. 1; Collins v. New Hampshire, 171 U. S. 30; Lochner v. New York, 198 U. S. 45. - There is no reasonable foundation in this case for ... holding that it is necessary or appropriate to safeguard the public health or the health of the individuals to destroy and condemn the flour in question. State v. Layton, 160 Missouri, 474; State v. Addington, 12 Mo. App. 219; State . v. Fisher, 52 Missouri, 174; Toledo v. Jacksonville, 67 . Illinois, 37; River Rendering Co. v. Behr, 77 Missouri, 9; McConnell v. McKillipp, 71 Nebraska, 712. - The interpretation placed upon the act by the Circuit ..Court of Appeals is reasonable, gives effect to all the language contained in the act, and is the only interpreta tion under which its constitutionality can be sustained. .. Knowlton v. Moore, 178 U. S. 41; Collins v. New Hamp shire, 171 U. S. 30; Interstate Drainage Co. v. Commis sioners, 158 Rep. Fed. 270. - The statute in question is a penal statute, and as to the rule applicable to the construction of such statutes see Martin v. United States, 168 Fed. Rep. 198, 201; United States v. Wiltberger, 5 Wheat. 77; United States v. Ger maine, 99 U. S. 508; Field v. United States, 137 Fed. Rep. 6; United States v. Lake, 129 Fed. Rep. 499. The intent of Congress, as indicated by the title of the act, was to make the condition of the food the determining factor of adulteration. ' The principle of construction adopted by the Circuit Court of Appeals is sustained in numerous decisions. See - 130 - 404 OCTOBER TERM, 1913. Opinion of the Court. 232 U. S. Maillard v. Lawrence, 16 How. 251; Levy v. M'Cartee, 6 Pet. 110; Parsons v. Hunter, 2 Sumner, 422; Bernier v. Bernier, 147 U. S. 246; Washington Market Co. v. Hoffman, 101 U. S. 115; United States v. Fisher, 109 U. S. 145; Lake Superior Canal Co. v. Cunningham, 155 U. S. 380; Rhodes v. Iowa, 170 U. S. 423; Lake County v. Rollips, 130 U. S. 670; Hamilton v. Rathbone, 175 U. S. 421 ySwarts v. Seigel, 117 Fed. Rep. 18; Glover v. United States, 164 U. S. 298; Harless v. United States (C. C. A.), 88 Fed. Rep. 102. The construction of the law contended for by the Government would render contraband many admittedly harmless articles of food. Other well known articles of food, admittedly harmless, contain nitrites. The Circuit Court of Appeals committed no error in sus taining respondent's contention that there was no sub stantial evidence to support the charge that the seized flour was colored in a manner whereby damage or in feriority is concealed. Naylord & Gerrard v. Alsop Process Co., 168 Fed. Rep. 911,915. : By leave of court, Mr. Ralph S. Rounds filed a brief as amicus curia. Mb. Justice Day delivered the opinion of the court. The petitioner, the United States of America, proceed ing under 10 of the Food and Drugs Act (June 30,1906, c. 3915, 34 Stat. 768, 771), by libel filed in the District Court of the United States for the Western District of Mis souri, sought to seize and condemn 625 sacks of flour in the possession of one Terry, which had been shipped from Lexington, Nebraska, to Castle, Missouri, and which remained in original, unbroken packages. The judgment of the District Court, upon verdict, in favor of the Govern ment, was reversed by the Circuit Court of Appeals for the Eighth Circuit (202 Fed. Rep. 615), and this writ of certiorari is to review the judgment of that court. - 131 - PCB-ARCH-EXT0376543 UNITED STATES t>. LEXINGTON MILL CO. 405 232 U. S. Opinion of the Court. The amended libel charged that the flour had been treated by the "Alsop Process," so called, by which nitrogen peroxide gas, generated by electricity, was mixed with atmospheric air and the mixture then brought in contact with the flour, and that it was thereby adul terated under the fourth and fifth subdivisions of 7 of the act, namely, (1) in that the flour had heen mixed, colored and stained in a manner whereby damage and inferiority were concealed and the flour given the ap pearance of a better grade of flour than it really was, and (2) in that the flour had been caused to contain added poisonous or other added deleterious ingredients, to-wit, nitrites or nitrite reacting material, nitrogen peroxide, nitrous acid, nitric acid and other poisonous and delete- nous substances which might render the flour injurious to health. The libel also charged that the flour was adulterated under the first subdivision of 7, and was misbranded; but the Government does not urge these features of the case here. The verdict was broad enough to cover the charge under the first subdivision of 7, but in the view we take of the case as to the instruction of the court under subdivision 5 it need not be noticed. The Lexington Mill & Elevator Company, the re spondent herein, appeared, claiming the flour, and an swered the libel, admitting that the flour had been treated by the Alsop Process, but denying that it had been adulterated and attacking the constitutionality of the act. . A special verdict to the effect that the flour was adul terated was returned and judgment of condemnation entered. The case was taken to the Circuit Court of Appeals upon writ of error. The respondent contended that, among other errors, the instructions of the trial court as to adulteration were erroneous and that the act was unconstitutional. The Circuit Court of Appeals held that the testimony was insufficient to show that by the 406 OCTOBER TERM, 1913. Opinion of the Court. 232 U.S. bleaching process the flour was so colored as to conceal inferiority and was thereby adulterated, within the provisions of subdivision 4. That court also held--and this holding gives rise to the principal controversy here-- that the trial court erred in instructing the jury that the addition of a poisonous substance, in any quantity, would adulterate the article, for the reason that "the possibility of injury to health due to the added ingredient and in the quantity in which it is added, is plainly made an essential element of the prohibition." It did not pass upon the constitutionality of the act, in view of its rulings on the net's construction. : The case requires a construction of the Food and Drugs .Act. Parts of the statute pertinent to this case are: r:: "Sec. 7. (34 Stat. 769.) That for the purposes of this act an article shall be deemed to be adulterated: . . . a i "In the case of food: n_"First. If any substance has been mixed and packed with it so as to reduce or lower or injuriously affect its quality or strength. ... :r "Fourth. If it be mixed, colored, powdered, coated, or Stained in a manner whereby damage or inferiority is concealed. "Fifth. If it contain any added poisonous or other ndded deleterious ingredient which may render such article injurious to health. ... * * * * * * * # "Sec. 10. (34 Stat. 771.) That any article of food, drug, or liquor that is adulterated or misbranded within the meaning of this act, and is being transported from one State, Territory, district, or insular possession to another for sale, or, having been transported, remains unloaded, unsold, or in original unbroken packages, . . . shall be liable to be proceeded against in any district court of the United States within the district where the same is found, and seized for confiscation by a process of libel for UNITED STATES v. LEXINGTON MILL CO. 407 232 U. S. Opinion of the Court. * . , condemnation. And if such article is condemned as being adulterated or misbranded, or of a poisonous or deleterious . character, within the meaning of this act, the same shall be disposed of by destruction or sale, as the said court may direct." Without reciting the testimony in detail it is enough to say that for the Government it tended to show that the added poisonous substances introduced into the flour by the Alsop Process, in the proportion of 1.8 parts per million, calculated as nitrogen, may be injurious to the health of those who use the flour in bread and other forms of food. On the other hand, the testimony for the re spondent tended to show that the process does not add to the flour any poisonous or deleterious ingredients which can in any manner render it injurious to the health of a consumer. On these conflicting proofs the trial court was required to submit the case to the jury. That court, after stating the claims of the parties, the Government insisting that the flour was adulterated and should be condemned if it contained any added poisonous or other added delete rious ingredient of a kind or character which was capable of rendering such article injurious to health; the respond ent contending that the flour should not be condemned un less the added substances were present in such quantity that the flour would be thereby rendered injurious to health, gave certain instructions to the jury. Part of the charge, excepted to by the respondent, reads: "The fact that poisonous substances are to be found in the bodies of human beings, in the air, in potable water, and in articles of food, such as ham, bacon, fruits, certain vegetables, and other articles, does not justify the adding of the same or other poisonous substances to articles of food, such as flour, because the statute condemns the adding of poisonous substances. Therefore the court charges you that the Government need not prove that this flour or food-stuffs made by the use of it would injure - 134 - PCB-ARCH-EXT0376546 408 OCTOBER TERM, 1913. Opinion of the Court. 232 U.S. the health of any consumer. It is the character--not the quantity--of the added substance, if any, which is to de termine this case." On the other hand the respondent insisted that the law is, and requested the court to charge the jury: "That the burden is upon the prosecution to prove the truth of the charge in the libel, that by the treatment of the flour in question by the said Alsop Process it has been caused to contain added poisonous or other added dele terious ingredients, to-wit, nitrites or nitrite reacting material, which may render said flour injurious to health. "And in this connection you are further instructed that it is incumbent upon the Government to prove that any such added poisonous or other added deleterious ingre dients, if any contained in said flour, are of such a charac ter and contained in the flour seized in such quantities, con ditions and amounts as may render said flour injurious to health, and unless you find that all of such facts are so proven you cannot find against the claimant or condemn the flour in question under that charge in the libel, and if you fail to so find your verdict upon that count or charge in the libel must be in favor of the claimant or de * fendant. * *, * * * * * ' "The law does not prohibit the adding of nitrites or nitrite reacting material to flour, and a jury cannot find for the Government or against the claimant, even if it be shown that nitrites or nitrite reacting material was added to the flour in question, unless they believe from a pre ponderance of the evidence that such addition, if any, rendered said flour injurious to the health of those who might consume the bread or other foods made from said flour." ' It is evident from the charge given and requests refused that the trial court regarded the addition to the flour of any poisonous ingredient as an offense within this statute, no UNITED STATES v. LEXINGTON MILL CO. 409 232 U. S. Opinion of the Court. matter how small the quantity, and whether the flour might or might not injure the health of the consumer. At least such is the purport of the part of the charge above given, and if not correct, it was clearly misleading, not withstanding other parts of the charge seem to recognize that in order to prove adulteration it is necessary to show that the flour may be injurious to health. The testimony shows that the effect of the Alsop Process is to bleach or whiten the flour and thus make it more marketable. If the testimony introduced on the part of the respondent was believed by the jury they must necessarily have found " that the added ingredient, nitrites of a poisonous charac ter, did not have the effect to make the consumption of the flour by any possibility injurious to the health of the 'consumer. '' The statute upon its face shows, that the primary pur pose of Congress was to prevent injury to the public health ' by the sale and transportation in interstate commerce of 'misbranded and adulterated foods. The legislation, as " against misbranding, intended to make it possible that the consumer should know that an article purchased was what it purported to be; that it might be bought for what it really was and not upon misrepresentations as to char acter and quality. As against adulteration, the statute was intended to protect the public health from possible injury by adding to articles of food consumption poisonous and deleterious substances which might render such artides injurious to the health of consumers. If this purpose has been effected by plain and unambiguous language, and the act is within the power of Congress, the only duty of the courts is to give it effect according to its terms. This principle has been frequently recognized in this court. Lake County v. Rollins, 130 U. S. 662, 670: "Where a law is expressed in plain and unambiguous terms, whether those terms are general or limited, the legislature should be intended to mean what they have - 136 - PCB-ARCH-I 41A0 OCTOBER TERM, 1913. Opinion of the Court. 232 U. S. plainly expressed, and consequently no room is left for construction." Hamilton v. RathBone, 175 U. S. 414, 421: "The cases are so numerous in this court to the effect that the province of construction lies wholly within the domain of ambiguity, that an extended review of them is quite unnecessary." Furthermore all the words used in the statute should be given their proper signification and effect; Washington Market Co. v. Hoffman, 101 U. S. 112, 115: "We are not at liberty," said Mr. Justice Strong, "to construe any statute so as to deny effect to any part of its language. It is a cardinal rule of statutory construction that significance and effect shall, if possible, be accorded to every word. As early as in Bacon's Abridgment, sec. 2, it was said that `a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word, shall be superfluous, void, or insignificant.' This rule has been repeated innumerable times." Applying these well-known principles in considering this statute, we find that the fifth subdivision of 7 provides that food shall be deemed to be adulterated: "If it contain any added poisonous or other added deleterious ingredient which may render such article injurious to health." The instruction of the trial court permitted this statute to be read without the final and qualifying words, concerning the effect of the article upon health. If Congress had so intended the provision would have stopped with the con demnation of food which contained any added poisonous or other added deleterious ingredient. In other words, the first and familiar consideration is that, if Congress had intended to enact the statute in that form, it would have done so by choice of apt words to express that intent. It did not do so, but only condemned food containing an added poisonous or other added deleterious ingredient when such addition might render the article of food in- - 137 - PCB-ARCH-EXT0376549 UNITED STATES v. LEXINGTON MILL CO. 411 232 U. S. Opinion of the Court. jurious to the health. Congress has here, in this statute, with its penalties and forfeitures definitely outlined its inhibition against a particular class of adulteration. It is not required that the article of food, containing added poisonous or other added deleterious ingredients - must affect the public health, and it is not incumbent upon the Government in order to make out a case to establish that fact. The act has placed upon the Govern ment the burden of establishing, in order to secure a verdiet of condemnation under this statute, that the added poisonous or deleterious substances must be such as may render such article injurious to health. The word "may" .. is here used in its ordinary and usual signification, there being nothing to show the intention of Congress to affix to it any other meaning. It is, says Webster, "an auxiliary verb, qualifying the meaning of another verb, by express , ing ability, . . ., contingency or liability, or possibility c-or probability." In thus describing the offense Congress - doubtless took into consideration that flour may be used in many ways, in bread, cake, gravy, broth, etc. It may c be consumed, when prepared as a food, by the strong and the weak, the old and the young, the well and the sick; and -it is intended that if any flour, because of any added - poisonous or other deleterious ingredient, may possibly injure the health of any of these, it shall come within the . ban of the statute. If it cannot by any possibility, when the facts are reasonably considered, injure the health of any consumer, such flour, though having a small addition of poisonous or deleterious ingredients, may not be con demned under the act. This is the plain meaning of the words and in our view needs no additional support by reference to reports and-debates, although it may be said in passing that the meaning which we have given to the statute was well expressed by Mr. Heybum, chairman of the committee having it in charge upon the floor of the Senate (Congressional Record, vol. 40, pt. 2, p. 1131): 138 - 412 OCTOBER TERM, 1913. Opinion of the Court. 232 U. S. "As to the use of the term `poisonous,' let me state that everything which contains poison is not poison. It de pends on the quantity and the combination. A very large majority of the things consumed by the human family con tain, under analysis, some kind of poison, but it depends upon the combination, the chemical relation which it bears to the body in which it exists as to whether or not it is dangerous to take into the human system." And such is the view of the English courts construing a similar statute. The English statute provides ( 3, of the Sale of Food and Drugs Act, 1875): "No person shall mix, color, ... or order or per mit any other person to mix, color, . . . any article of food with any ingredient or material so as to render the article injurious to health." That section was construed m Hull v. Horsnell, 68 J. P. 591, which involved preserved peas, the color of which had been retained by the addition of sulphate of copper, charged to be a poisonous substance and injurious to health. There was a conviction in the lower court. Lord Alverstone, C. J., in reversing and remitting the case on appeal, said: "In my opinion, if the justices convicted the appellant of an offence under 3 of the Sale of Food and Drugs Act, 1875, on the ground that the ingredient mixed with the article of food was injurious to health,--that the sulphate of copper was injurious to health, and not on the ground that the peas by reason of the addition of sulphate of cop per were rendered injurious to health, the conviction is clearly wrong. To constitute an offence under the latter part of 3 the article of food-sold must, by the addition of an ingredient, be rendered, injurious to health. All the circumstances must be examined to see whether the article of food has been rendered injurious to health." We reach the conclusion that the Circuit Court of Ap peals did not err in reversing the judgment of the Dis- 139 RUBBER TIRE CO. v. GOODYEAR CO. 413 232 U. S. Syllabus. trict Court for error in its charge with reference to sub division five of 7. The Circuit Court of Appeals reached the conclusion that there was no substantial proof to warrant the convic tion under the fourth subdivision of 7, that the flour was mixed, colored and stained in a manner whereby damage and inferiority was concealed. As the case is to be retried to a jury, we say nothing upon this point. As to the objection on constitutional grounds, it is not contended that the statute as construed by the Circuit Court of Appeals and this court is unconstitutional. It follows that the judgment of the Circuit Court of Ap peals reversing the judgment of the District Court must be affirmed, and the case remanded to the District Court for a new trial. Affirmed. 6 Ohio St. 2d] LONZRICK v. STEEL CORP. 227 Counsel for Parties. Lonzbick, Appku.ee, v. Repubuc Steel Cobp., Appellant. [Cite as Lonzrick v. Republic Steel Corp., 6 Ohio St. 2d 227.] Implied warranty--No contractual relationship--Products li ability case--Not restricted to basis of negligence--Petition states cause of action in tort, when--Breach of implied war ranty--Defective steel roof joists collapsed, injuring work man. 1. The plaintiff in a products liability case is not restricted to prosecuting his action on the basis of negligence alone but may proceed in an action in tort based upon the theory of an implied warranty, notwithstanding that there is no contractual relationship between the plaintiff and the de fendant. (Rogers v. Toni Home Permanent Co., 167 Ohio St. 244, and Inglis v. American Motors Corp., 3 Ohio St. 2d 132, approved and followed; paragraph two of the sylla bus of Wood v. General Electric Co,, 159 Ohio St. 273, and Welsh v. Ledyard, 167 Ohio St. 57, overruled.) 2. Where the allegations of a petition and the reasonable infer ences therefrom establish that the defendant manufactured and sold certain steel roof joists and impliedly warranted that they were fit for the ordinary purposes for which such steel joists were to be used, and where such joists were defective because they were not fit for the ordinary pur poses for which such joists were to be used, and as a direct and proximate result of being so defective these joists col lapsed and fell upon the plaintiff and injured him while he was working in a place where his presence was reasonably to be anticipated by the defendant, such petition states a good cause of action in tort based upon the theory of breach of implied warranty. (No. 39493--Decided June 15, 1966.) Appeal from the Court of Appeals for Cuyahoga County. The facts are stated in the opinion. Messrs. Hahn & Swadey and Mr. Lad J. Roth, for appellee. Messrs. Jones, Day, Cockley <& Reavis, Mr. Edivard P. Trocell and Mr. Robert J. Hoerner, for appellant. 141 228 JANUARY TERM, 1966. [6 Ohio St. 2d Opinion, per O'Neill, J. O'Neill, J. Plaintiff filed a petition in the Common Pleas Court of Cuyahoga County which alleges: "On August 22, 1960, at about 10.30 a. m., plaintiff, who was then in the employ of Valley Steel Erectors, Inc., was engaged in his usual occupation of structural iron worker on certain premises known as the `Stow Industrial Park' located in or near Stow, Ohio, where a new warehouse business was then under construction. "At said time and place, while he was working on the ground in an area where certain steel roof joists manufactured and sold by defendant had been installed directly overhead, a number of such joists collapsed and fell down upon plaintiff, causing him the injuries and damages hereinafter set forth. < "Prior to the occurrence of August 22, 1960, defendant impliedly warranted that the said roof joists were of good and merchantable quality, but said implied warranty was breached by defendant in that said roof joists were not of good and mer chantable quality. "By reason of such breach of warranty on the part of the defendant, the said roof joists came apart in use and fell upon Elaintiff while he was working below them in a place in which is presence was reasonably to be anticipated by defendant. As a direct and proximate result, plaintiff sustained the fol lowing injuries and damages * * V' Defendant's demurrer to the petition was sustained, and, plaintiff not desiring to plead further, his action was dismissed and judgment was entered for the defendant. On appeal, the Court of Appeals reversed the judgment of the Common Pleas Court and remanded the cause to the Common Pleas Court with instructions to overrule the demurrer and for further proceedings according to law. . It may be that the petition in the instant case would be subject to a motion to make some of its allegations definite and certain, especially those allegations as to the implied warranty "of good and merchantable quality" and as to the joists not being'"of good and merchantable quality." However, defendant waived its right to file such motion by filing its demurrer. Clay v. Edgerton, 19 Ohio St. 549. Thus, for the purpose of testing 6 Ohio St. 2d] LONZRICK v. STEEL CORP. 229 Opinion, per O'Neill, J. the legal sufficiency of the petition, defendant's demurrer must be regarded as admitting the truth of the facts alleged and whatever other facts which can by fair and reasonable intend ment be inferred from those facts. Guardian Life Ins. Co. of America v. Veser, 128 Ohio St. 200; Gugle v. Loeser, 143 Ohio St. 362; Bell v. Salvation Army, 172 Ohio St. 326. The allegations of the petition and all reasonable infer ences therefrom will support the following statement of facts: Defendant manufactured and sold certain steel roof joists. In selling those joists, defendant impliedly warranted that they were fit for the ordinary purposes for which such steel roof joists are used. (Section 1302.27, Revised Code, reads in part: "Goods to be merchantable must be at least such as * * [3] are fit for the ordinary purposes for which such goods are used.'') Those joists were defective because they were not fit for the ordinary purposes for which such joists are used. As a proximate result of being so defective, those joists came apart and fell on and injured plaintiff. At that time, plaintiff was working as a structural iron worker on the ground in an area where the joists had been installed directly overhead and was thus in a place where his presence was reasonably to be anticipated by defendant. The Court of Appeals held that this petition states a good cause of action in tort, based upon the theory of breach of warranty. ' ' This is a products liability case. In such a case, there are three possible causes of action which the plaintiff may pursue: (1) An action in tort which is grounded upon negligence. Such cause of action does not require the allegation of a con tractual relationship between the plaintiff and the defendant. The petition in this case does not allege negligence and does not state facts which constitute negligence. ' (2) A cause of action which is based upon contract. Such a cause of action requires that there be a contractual relation ship between the plaintiff and the defendant. The petition in this case does not allege a. contract and it does not allege a breach of a contractual warranty. It does not allege any contractual relationship between the plaintiff and the defendant. (3) An action injort^ which is based upon the breach of a 230 JANUARY TERM, 1966. [6 Ohio St. 2d Opinion, per O'Neill, J. duty assumed by the manufacturer-seller of a product. This dutyis assumed by "the^ manufacturer'byTeasdif of his implicit representation of good and merchantable quality and fitness for intended use when he sells the product. This duty is breached when a defect in the product causes the collapse of the product and is the direct and proximate cause of injury to a person whose presence the defendant could reasonably anticipate. This is the cause of action which the petition in this case states. In this action the plaintiff is required to allege and prove that there was a defect in the steel joists manufactured and sold by the defendant, that such defect existed at the time the joists were sold by the defendant, that the defect was the direct and proximate cause of plaintiff's injuries, and that the plaintiff, at the time he was injured, was in a place where his presence was reasonably to be anticipated by the defendant. It is conceded by both parties that the plaintiff does not .have an action based upon a contract because there was no con tract of sale between the plaintiff and the defendant and, there fore, no contractual relation (privity) between the parties. The position of the defendant is that the plaintiff's peti tion does not state a cause of action because it does not allege negligence, does not allege an express warranty and does not allege any contractual relationship between the plaintiff and the defendant. . The plaintiff concedes that this petition does not allege negligence, does not allege an express warranty and does not allege any contractual relationship between the plaintiff and the defendant. The plaintiff asserts that the petition states a cause of action in tort based upon an implied warranty. The basic question for the court to decide is the same as the question was in Welsh v. Ledyard, 167 Ohio St. 57, in Rogers v. Toni Home Permanent Co., 167 Ohio St. 244, and in Inglis v. American Motors Corp., 3 Ohio St. 2d 132. Is the Slaintiff restricted to prosecuting his action for damages on the asis of negligence alone, or : may he proceed in tort on the theory of breach of warranty? The precise questions this court is required to determine are: (1) Where a defendant manufactures and sells steel roof joists, is there implicit in the production and sale of this pro- 6 Ohio St. 2d] LONZRICK v. STEEL COEP. ' i 231 Opinion, per O'Neill, J. duct the representation that the joists are of good and mer chantable quality and safe for their ordinary intended use? and (2) when, in fact, such steel joists were defective and while being devoted to their ordinary intended use collapsed because of such defect and fell to the floor and injured the plaintiff, who was working on the floor below these steel roof joists in a place where his presence was reasonably to be anticipated by the defendant manufacturer, is such innocent injured party re stricted to prosecuting a tort action for damages on the basis of negligence alone, or may he proceed in tort on the theory of an implied warranty? The defendant relies upon the cases of Wood v. General Electric Co., 159 Ohio St. 273, and Welsh v. Ledyard, 167 Ohio St. 57. . Welsh v. Ledyard, supra, decided November 27,1957, is the high-water mark for this court in the assertion of the principle .of law that an action for a breach of warranty is an action in contract, and, whether it be an express or an implied war ranty, there can be no recovery unless there is a direct con.'tractual relationship between the plaintiff and the defendant. . . In Ledyard, supra, a housewife was injured by an electrical shock when she grasped the handle of a defective electrical cook ing appliance which her husband had purchased from the de fendant. Ledyard presented the same question as the instant case, that is, can there be a recovery grounded in tort based upon an implied warranty where there is no direct contractual relationship between the parties? . The rationale of the majority expressed in the per curiam opinion of the court in that case is that the plaintiff could not recover because an action based upon implied warranty is grounded in contract and not in tort. Since the plaintiff's hus band had purchased the defective appliance she had no direct contractual relationship with the seller and could not recover from him. As in this case, the petitioner in Ledyard did not allege negligence. The injustice of this position was soon apparent. In Ledyard, the majority of the court announced a rule whioh denied recovery to the wife who would ordinarily use such a cooking appliance, but indicated that the rule would - 145 - 232 JANUARY TERM, 1966. [6 Ohio St. 2d Opinion, per O'Neill, J. allow recovery by her husband in a contract action based upon breach of implied warranty had he suffered the same injury, on the ground that since he was the purchaser he had a direct contractual relation (privity) with the defendant. The holding in Ledyard was not based upon the ground that (1) there was no defect, or (2) no defect was present when the appliance was sold, or (3) the defect was not the proximate cause of plaintiff's injury, or (4) plaintiff was someone that defendant could not reasonably foresee would use this cooking appliance for the purpose for which it was manufactured and sold. Rather the holding in Ledyard was grounded upon the fact that plaintiff's husband bought the defective appliance rather than the wife, a circumstance which had no relevance to the fact that the defendant was responsible for the creation of the risk of injury to plaintiff because the defendant pro duced and sold the defective appliance which injured the plain tiff while she was using it for the ordinary purpose for which it was manufactured. . The high tide of Ledyard, supra, was soon to recede. Two months later, January 29, 1958, Rogers v. Toni Home Permanent Co., supra, was decided. In the opinion in that case, which has become a landmark in this area of the law nationally, Judge Zimmerman declined to embrace the rationale of Ledyard, supra. He was joined by Judges Matthias and Bell, who had dissented in Ledyard, and by the late Chief Justice Weygandt. . ~The plaintiff in Toni, supra, had purchased from a re tailer a Toni Home Permanent and used it as it was intended to be used and suffered injuries to her hair and scalp by reason of the defective and deleterious ingredients of the product. The defendant relied upon Wood, supra, and Ledyard, supra, as does the defendant in this case, on the ground that the plaintiff had not purchased from the manufacturer and, thus, had no direct contractual relation (privity) with the manufacturer and, therefore, could not recover in a- tort action based upon breach of warranty but must be limited to an action based upon negli gence. Judge Zimmerman succinctly stated the question, at page - 146 - 6 Ohio St 2d] LONZRICK v. STEEL CORP. 233 Opinion, per O'Neill, J. "The precise question we are now required to determine is whether * such ultimate purchaser is restricted to prose outing his action on the basis of negligence alone or whether he may proceed on the theory of an express warranty." (Em phasis added.) In his opinion, Judge Zimmerman established as the law of Ohio two important principles: First, that an action for breach of warranty in a products liability case may sound in tort rather than in contract; and, second, that an injured party may assert a tort action grounded on a breach of warranty, notwithstanding the fact that there was no contractual relation ship between the plaintiff and the defendant. Judge Zimmerman examined the first principle exhaustively in his opinion and cited cases and authorities to support his position. He asserted that an action based upon contract came into the law as an additional or alternative remedy to the action in tort, which had been recognized earlier, based upon breach of an implied or express warranty not arising out of the contract of sale. , He summed up his position on the first principle, in these words, at page 247: ' UA prevalent but mistaken notion is extant that the term, *warranty/ has always carried the implication of a contractual relationship. From a historical standpoint such a notion is without foundation. Some of the cases, and well known and respected writers on legal subjects, point out that originally the consumer or user of an article, which was represented to he in good condition and fit for use and proved not to be, was accorded redress by an expansion of the action of trespass on the case to include deceit--a fraudulent misrepresentation-- which sounds distinctly in tort. Undoubtedly, the recognition of such a right of action rested on the public policy of protect ing an innocent buyer from harm rather than to insure any con tractual rights. * * *" (Emphasis added.) . Judge Zimmerman pointed out what has been repeated by many of the leading legal writers, namely, that the confusion in these cases frequently arises from the fact that the use of the word, "warranty," has often come to have a connotation of be ing associated with a contract, whereas, prior to the time of the 234 _ . JANUARY TEEM, 1966. [6 Ohio St. 2d Opinion, per O'Neill, J. recognition of an action for breach of warranty based upon contract, there existed the action for breach of warranty in tort. This "kind of warranty" arose not out of a contract of sale but out of the duty of a manufacturer or seller of a product to pro tect the person consuming or using that product in the ordinary way in which it was intended to be used from the harm of injury to person or property caused by a defect in the product. It is a failure to distinguish between these two different kinds of war ranties that has caused confusion in the law, and, in our modern- day mass-production and mass-distribution industrial system, this has resulted in some of the unjust technical decisions based upon outmoded and irrelevant concepts of privity. Judge Zimmerman stated his position with regard to the second principle of law which he established by his opinion, in the following words, at page 246: "In asking for a reversal of the judgment of the Court of Appeals, defendant places great reliance on the compara tively recent case of Wood v. General Electric Co., 159 Ohio St. 273 - at .. " * * [That] rule is based on the proposition that to sup port an action grounded on an implied warranty there must be contractual privity between the buyer who sues and the seller against whom the suit is brought. "Jt must be confessed that the prevailing view is that privity of contract is essential in an action based on a breach of an express or implied warranty, and that there is no privity between the manufacturer of an article and the ultimate pur chaser thereof from a retailer, where the ultimate purchaser was in no way a party to the original sale. * * * < "Other writers have no hesitancy in asserting that in the beginning an action on `breach of warranty' was a tort action to give relief for the breach of a duty assumed by the seller, and that the introduction at a much later date of the method of declaring on a warranty `indebtitatus assumpsit' (an implied promise Or obligation on the part of one to pay to another what in fairness and good conscience the former should pay) consti tuted the recognition of an additional or alternative remedy of 6 Ohio St. 2d] LONZRICK v. STEEL CORP. 235 Opinion, per O'Neill, J. a contractual aspect to secure relief where a breach of warranty is involved. * * *" (Emphasis added.) Judge Zimmerman realized full well that he was changing the law in this field of law by returning to an earlier recognized remedy granted by the courts, and he so stated at page 249: "We are fully aware that the position outlined is opposed to the present weight of authority and may conflict with pre vious decisions of this court. However we consider it a reason able and logical approach today in keeping with the modern methods of doing business." Judge Zimmerman was right in his appraisal that the weight of authority, at the time he wrote the opinion, did not support his position. However, today, the overwhelming weight of authority in the cases which have been decided since he wrote his opinion support the position which he took and have ex tended the law, as stated in paragraph three of the syllabus of Toni, to include implied warranty. Judge Zimmerman foresaw that the acceptance of these concepts would bring additional changes in the Ohio law. It is doubtful, however, that Judge Zimmerman was prepared for the rapidity with which these principles of law which he an nounced would be accepted in most of the leading jurisdic tions of the United States. Judge Herbert, in another landmark decision, in Inglis v. American Motors Corp., supra, followed the principles of law asserted by Judge Zimmerman in Toni, supra, and extended the rule to allow a tort, action based upon breach of warranty rather than upon negligence for property damage (Toni in volved only personal injuries), where no direct contractual rela tionship existed between the plaintiff and the defendant manu facturer. In the case before this court, the controlling principles of law were established by Judge Zimmerman in Toni, supra, and Judge Herbert in Inglis, supra. This is an action in tort for breach of an implied warranty. The warranty in this case is the manufacturer's representation, implicit in the sale of the steel joists, that they were of good and merchantable quality, fit and safe for their ordinary in tended use. This created a duty upon the manufacturer-seller, 149 236 JANUARY TERM, 1966. [6 Ohio St. 2d Opinion, per O'Null, J. which duty was breached when the joists proved defective and collapsed because of the defect, injuring plaintiff. Judge Zimmerman, in Toni, and Judge Herbert, in Inglis, considered representations in national advertising as an ex press warranty under which the manufacturer assumed the duty and upon which a plaintiff could be said to have relied in making a purchase of a product and held that when a defect in such product caused personal injury or property damage the defend- .ant breached the duty and the plaintiff-user was not restricted to an action based upon negligence alone hut could recover upon an action in tort based upon the breach of warranty, and that . in such action no contractual relation (privity) between the plaintiff-user and the defendant-manufacturer is required. .. Iiis,..then, settled law in this state, Toni, supra, and Inglis, supra, that there can be an action in tort, based upon_breach of warranty, and no contractual relation between the plaintiff i;. and the defendant is required. The question which remains to be determined in this case is: ' Where it is conceded that a manufacturer produced and sold steel joists, implicitly representing that they were of good and .-merchantable quality, fit and safe for the ordinary purposes . I .for which such steel joists are used, but without advertising ? ;the product, is an innocent plaintiff-user, whose presence .the '.`defendant could reasonably anticipate and who is injured be- ::.ause a defect in the joists caused them to fall upon him, re- "f :stricted to an action based on negligence alone, or can he re -cover in an action in tort based upon breach of this implied warranty where he was not in direct contractual relation L ~ (privity) with the manufacturer-defendant? ... _ It is evident that to deny this plaintiff the right to state a good cause of action in tort, based upon such implied war ranty, is to hold that a plaintiff, such as the car buyer in Inglis, who bought the same make of car and suffered the same damage as a result of the same defect as the car buyer in Inglis, would be denied recovery if he in fact had not read a national adver tisement or other written material published by the manu facturer about the car; or-that, if a neighbor of the plaintiff in Toni had bought the same- home permanent kit and suffered the same injury from the same defect, she would be denied -150 - PCB-ARCH 6 Ohio St. 2d] LONZRICK v. STEEL CORP. 237 Opinion, per O'Neill, J. recovery if she had not read the national advertisement or other written material published by the manufacturer. To state the result of this kind of rule is to point out its essential injustice. The rulings in Toni and Inglis were sound in allowing re covery to the plaintiff in a tort action based upon an express warranty. The fact that the plaintiff saw the advertisement is a sound basis for recovery, but the fact that he did not read an adver tisement is not a sound basis for denying recovery. Such a rule looks not to the defect in the product which produced the injury, but focuses upon the question of whether the plaintiff saw an advertisement, which is not relevant to the creation of the risk of harm to the plaintiff. Some argue that to allow recovery in the kind of case now before the court means that the court is imposing absolute li ability upon the defendant. That is not so. If this case comes to trial before a jury, there may well be a directed verdict for the defendant if the plaintiff fails in his proof of any one of the elements required to be proved in order to have his case submitted to the jury. If the case goes to the jury, there may well be a verdict for the defendant. --. -- For the plaintiff to recover, he must prove, by the required degree of proof, that the joists were defective, that they were defective at the time the manufacturer sold them, that the defect caused them to collapse while they.were being used for their ordinary intended purpose, that the defect was the direct and proximate cause of the plaintiff's injury, and that the plaintiff's presence was in a place which the defendant could reasonably I anticipate. -- '--- Each of these elements of the plaintiff's case is a jury question, including the question of proximate cause. Defendant has available the opportunity to offer evidence in defense on each of these necessary elements of the plaintiff's case, and also has available the defense of assumption of risk and intervening cause. An examination of Wood and Ledyard as to the funda mental reasons on which the decisions in those cases were based is of no help. 238 ~ JANUARY TERM, 1966. [6 Ohio St. 2d Opinion, per O'Neill, J. The per curiam opinion in Ledyard does not state any rea soning upon which the result rested, but rather arbitrarily cites as authority the holdings of previous cases, as at page 60, where the court cites Wood, supra, and quotes, from Judge Williams, in Canton Provision Co. v. Gauder, a Minor, 130 Ohio St. 43, 48, as follows: "*** An implied contract of warranty requires a meeting of the minds the same as does an express contract. There wak no privity of contract between the plaintiff and either of the defendants for the petition alleges that the liver pudding wad purchased by the plaintiff's mother. Any liability that exists in the instant case therefore necessarily arises out of tort [negligence]." Wood, supra, is no more illuminating. As a basis for the decision, the opinion in that case simply makes the arbitrary statement, at pages 278, 279: << ip0 support an implied warranty there must be con tractual privity between the seller and the buyer. --> r. "Although a subpurchaser of an inherently dangerous article may recover from its manufacturer for negligence, in the making and furnishing of the article, causing harm to the sub purchaser or his property from a latent defect therein, no action may be maintained against such manufacturer by such subpurchaser for such harm, based upon implied warranty of fitness of the article so purchased. Here, there was no . such privity and hence no implied warranty upon the part of LGGeneral Electric and no valid issue on that subject." It must be noted that this rationale is contra to Judge Zina-*" merman's reasoning and conclusions in Toni. Judge Zimmerman recognized this at page 249, where he said: "Without commenting on the soundness of the holding in the Wood case, in light of what has been stated above, suffice it to say that should a case' eome before this court with facts resembling those in the Wood case, it would then be time to re examine and reappraise that decision." In Wood, the opinion relied upon the Restatement of the Law of Torts, which has sinoe been changed to approve such an aotion. 152 6 Ohio St. 2d] LONZKICK v. STEEL CORP. 239 Opinion, per O'NEiiiL, J. Supporting the position of plaintiff and the Court of Ap peals are the following authorities: Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57, 377 P. 2d 897; Vandermark v. Ford Motor Co., 61 Cal. 2d 256, 391 P. 2d 168; Garthwait v. Burgio (Conn.), 216 A. 2d 189; Suvada v. White Motor Co., 32 111. 2d 612, 210 N. E. 2d 182; Spence v. Three Rivers Builders & Ma sonry Supply, Inc., 353 Mich. 120, 90 N. W. 2d 873; Piercefield v. Remington Arms Co., Inc., 375 Mich. 85, 133 N. W. 2d 129; Morrow v. Caloric Appliance Corp. (Mo.), 372 S. W. 2d 41; Santor v. A and M Karagheusian, Inc., 44 N. J. 52, 207 A. 2d 305; Cintrone v. Hertz Truck Leasing & Rental Service, 45 N. J. 434, 212 A. 2d 769; Goldberg, Admx., v. Kollsman Instrument Corp., 12 N. Y. 2d 432,191 N. E. 2d 81; Marathon Battery Co. v. Kilpatrick (Okla.) CCH Prod. Liab. Rep. 5501; Wights v. Staff Jennings, Inc. (Ore.), 405 P. 2d 624; Ford Motor Co. v. Lonon (Tenn.), 398 S. W. 2d 240; Restatement of Law of Torts 2d, Section 402A; Prosser on Torts (3 Ed.) 672 et seq., Section 97, pp. 672 ff; and 2 Harper and James, The Law of Torts, 757, Section 12.4. In Ohio the law in the field of products liability has had a slow, orderly and evolutionary development. In 1958, Toni established an action in tort based upon an express warranty for the recovery for personal injuries. In 1962, the Ohio Gen eral Assembly enacted the Uniform Commercial Code. Section 1302.31, Revised Code, a section of the Commercial Code, pro vides for extending a seller's warranty whether express or im plied to any natural person the family or household of his buyer, or who is a guest in his home, if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty. The effect of this section of the Code is to reverse the re sult in Ledyard by extending an express or implied warranty, arising out of a contract of sale, to the additional persons designated in that section. . In 1965, in Inglis, an action in tort based upon an express warranty was established allowing recovery for property dam age. ------ In Stump v. Phillians, 2 Ohio St. 2d 209, this court held that, where a defendant's brakes failed because of a defect in manu- 240 JANUARY TERM, 1966. [6 Ohio St. 2d Dissenting Opinion, per Taft, C. J. facture, which could only have been detected by a fluoroscopic inspection method, which defect caused a weld to break and pulled the hydraulic fluid line and the emergency brake cable causing both to break with tension and leaving the vehicle with no means of applying the brakes, the defendant was liable as a matter of law and, as a matter of law, his negligence was the proximate cause of the injuries to the plaintiff. If the rule is just in Stump, supra, certainly it would have been just for the defendant in that case to be' able to recoup his loss from the manufacturer by proving the defect was present when the brake left the manufacturer's plant, and that the de fect was the proximate cause of the defendant's loss, without the burden of alleging and proving negligence. Judge Zimmerman dissented in that case on the ground that the.question of proximate cause should be one for the jury. Under the proper rule applicable to this case, all the ele ments of the plaintiff's case are jury questions, including proxi mate cause. In the posture of the present case, which is a demurrer to a petition, the cause of action asserted represents a normal development in the law in this field. The petition in this case states a good cause of action grounded in tort, based upon a breach of the representations which are implicit when a defendant manufactures and sells a product which, if defective, will be a dangerous instrumentality. Judgment affirmed. Zimmerman, Matthias and Herbert, JJ., concur. Taft, C. J., Schneider and Brown, JJ., dissent. " Taft, C. J., dissenting. If followed, the syllabus and judg ment in the instant case would make the manufacturer and sel ler of a product (here, steel roof joists) an insurer without limit of any damage proximately caused by a defect existing in his product at the time of its'sale, even though no amount of care could have eliminated that defect, even though such manufac turer made no representations about his product to anyone, and even though no one knew that it was his product. 154 - PCB-ARCH-EXT0376566 6 Ohio St 2d] LONZRICK v. STEEL CORP. 241 Dissenting Opinion, per Taft, C. J. In my opinion, it is particularly unfortunate that this court should announce such a revolutionary decision where the case before it does not even have in it a basic fact regarded in the syllabus and in the majority opinion as essential for the de cision described therein. Both deal only with a case in which defendant's product was defective at the time of its sale by defendant. There is no allegation in plaintiff's petition that defendant's product was then defective. The petition does allege that "defendant impliedly war ranted that the said roof joists were of good and merchantable quality," and that "said implied warranty was breached by defendant in that said roof joists were not of good and mer chantable quality." There is no allegation as to the respect in which the joists were not of such quality. There are no other allegations which help us to give any meaning at all to the allegations as to defendant's warranty and breach of warranty. Hence, we must look elsewhere for guidance. At the time plaintiff's petition was drawn, Section 1302. 27, Revised Code, provided in part that "goods to be merchant able must be at least such as: (1) Pass without objection in the trade under the contract description * * Thus, under the allegations of the petition, the roof joists sold by defendant could have been not " of good and merchanta ble quality" if defendant supplied them in a weight-bearing capacity per unit of length lighter than that specified, although they were not defective in any way whatever, and even if their actual weight-bearing capacity was clearly marked on them. In such an instance, they would not "pass without objection in the trade under the contract description" for the heavier weight-bearing capacity. Thus, there would be a breach of the alleged warranty of merchantable quality even though the joists were not defective in any way.1 *An extreme example of this is Benniaon V. Stillpasa (1965), 5 Ohio St. 2d 122, 214 N. E. 2d 213, announced a few weeks after the argument of the instant case. There, this court held that mere proof of breach of a contract as to the condition that an article was to have when delivered would not authorize an inference that the article was in a defective condi- 242 JANUARY TEEM, 1966. [6 Ohio St. 2d Dissenting Opinion, per Taft, C. J. If the plaintiff's petition had included allegations that the joists were defective when sold by defendant and that their de fective condition was a proximate cause of plaintiff's injuries, then its allegations would have been sufficient, with help from the doctrine of res ipsa loquitur, to state a cause of action in negligence. See Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer) (1960), 69 Yale L. J. 1099;' Edelstein v. Cook (1923), 108 Ohio St. 346,140 N. E. 765, 31 A. L. R. 1333; Soltz v. Colony Recreation Center (1949), 151 Ohio St 503, 87 N. E. 2d 167. Thus, if the petition had included the al legations that the joists were defective when sold by defendant, and that their defective condition was a proximate cause of plaintiff's injuries, it would be unneccessary for this court to go beyond well settled principles of law to determine, as it has, that the petition states a cause of action. tion when delivered. In that case, defendant supplied to plaintiff's de cedent's employer a tank which "contained vapors of an explosive nature * the tank exploded and plaintiff's decedent was killed as a result of the explosion." In the opinion by O'Neill, J., it is stated at page 125: . ... "The duty under the contract * * was to send a tank which was *dean' [i. ., one that admittedly would contain no explosive vapors] * *. . . * * . . In order for the plaintiff to recover it would be necessary to determine that the gasoline vapors in the tank constituted a `defective con . dition' . " * * it can not be said that the gasoline vapors in the tank constituted `defective condition' * - - Dean Prosser states: . "One may well ask at the outset, why is not liability for negligence enough? Why do the plaintiffs want strict liability * *. "Where the action is against the manufacturer of the product, an honest estimate might very well be that there is not one case in a hundred in which strict liability would result in recovery where negligence does not. When a negligence action is brought against a manufacturer, the plaintiff is faced with two initial tasks. One is to prove that his injury has been caused by a defect in the product. The other is to prove that the defect existed when the product left the hands of the defendant. For neither of these is strict liability of any aid . to him whatever. It cannot prove the causation; and it cannot trace that cause to the defendant Once over these two hurdles, the plaintiff has a third task, to prove that the defect was there because of the defendant's negligence. This is by far the easiest of the three, and it is one in which the plaintiff almost never fails. "It is true that he has the burden of proof on the issue of negligence. 6 Ohio St. 2d] LONZRICK v. STEEL CORP. 243 Dissenting Opinion, per Taft, C. J. The syllabi and decisions in Rogers v. Toni Home Perman ent Co. (1958), 167 Ohio St. 244, 147 N. E. 2d 612, and Inglis v. American Motors Corp. (1965), 3 Ohio St. 2d 132, 209 N. E. 2d 583, are inconsistent with and do not in any way support the syllabus and judgment of the instant case. This is apparent from a comparison of the allegations of the petition in the in stant case with the essential requirements for a cause of action specified in the syllabi of the Rogers and Inglis cases. In Rogers, the syllabus reads in part: "2. An express warranty is an affirmation of fact by the seller as to a product or commodity to induce the purchase thereof, on which affirmation the buyer relies in making the purchase. "3. Under modern merchandising practices, where the manufacturer of a product in his advertising makes represen tations as to the quality and merit of his product aimed direct ly at the ultimate consumer and urges the latter to purchase tiie product from a retailer, and such ultimate consumer does so in reliance on and pursuant to the inducements of the manu facturer and suffers harm in the use of such product by reason <rf deleterious ingredients therein, such ultimate consumer may maintain an actiorTfoFdamages immediately against the manu facturer oh the basis of express warranty, notwithstanding that tnere is no direct contractual relationship between them." (Emphasis added.) The recovery there allowed was in tort. However, it is apparent that the tort contemplated was one, similar to that of deceit, requiring reliance by the consumer on the affirmations or representations of the seller. (See paragraphs two and three of syllabus and opinion at page 247.) There is nothing in the petition in the instant case from which even an inference could be drawn that plaintiff knew It is true also that he seldom, 4f ever, has any direct evidence of what went on in the defendant's plant. But in every jurisdiction, he is aided by the doctrine of res ipsa loquitur, or by it3 practical equivalent. In all jurisdictions this at least gives rise to a permissible inference of the de fendant's negligence, which gets the plaintiff to the jury. And in cases against manufacturers, once the cause of the harm is laid at their doorstep, a jury verdict for the defendant on the negligence issue is virtually unknown." 244 JANUARY TERM, 1966. [6 Ohio St. 2d Dissenting Opinion, per Taft, C. J. that defendant had supplied the steel joists. In other words, the essential elements of representations and reliance thereon emphasized in paragraphs two and three of the syllabus of the Toni case are not present in the instant case. There is no allegation that plaintiff or anyone else relied upon any implied warranty or any representation of defendant. The necessity of "reasonable reliance" by the plaintiff is also emphasized, especially in paragraph three of the sylla bus in Inglis v. American Motors Corp., supra (3 Ohio St. 2d 132). Where products are sold as those of a particular maker who has advertised the general quality of his goods, the rea sons underlying our decision in Rogers v. Toni Home Perman ent Co., supra (167 Ohio St. 244), may be applicable and justify implication of a warranty even though there is no express war ranty, and Rogers v. Toni Home Permanent Co., supra, may therefore require some modification of our decision in Wood v. General Electric Co. (1953), 159 Ohio St. 273,112 N. E. 2d 8. However, that is not this case. There is no allegation of any reliance by anyone on any implied representations or war ranties of defendant. In the opinion in Rogers v. Toni Home Permanent Co., su pra (167 Ohio St. 244), it is stated, at page 249, that "an ex press warranty excludes an implied warranty," and in the opinion in Inglis v. American Motors Corp., supra (3 Ohio St. 2d 132), at page 140, which purports to follow the foregoing statement, it is stated that "where there are express warran ties alleged * * * there is no need for the law to imply a warran ty." ' Unless, therefore, we overrule the requirements of reliance specified in the syllabi of those last two named cases, we will have the incredible result that a non-negligent manufacturer of a defective product will be liable to someone proximately in jured by its defective condition if he says nothing; but such manufacturer will not be liable, where he has made express war ranties about the good condition of his defective product, un less the injured party alleges and proves that he relied on those express warranties. 6 Ohio St. 2d] LONZRICK v. STEEL CORP. 245 Dissenting Opinion, per Taft, C. J. The Court of Appeals recognized that "use of the word `warranty' is probably improper" in explaining what this court is doing in the instant case, and that what it is really doing is recognizing a cause of action for "strict tort liability." See Lonzrich v. Republic Steel Corp. (1964)* 1 Ohio App. 2d 374, 384, 205 N. E. 2d 92. Quite obviously, as is apparent from the authorities cited, the legal conclusions set forth in paragraph- two of the sylla bus represent a somewhat disguised statement of what is usual ly referred to as the doctrine of "strict tort liability." This doctrine of strict tort liability has for some time been vigorously promoted by certain law professors (see for exam ple Prosser, The Assault Upon the Citadel [Strict Liability to the Consumer], supra [69 Yale L. J. 1099]; Harper and James, The Law of Torts, 752 and 1605, Sections 12.4 and 28.33; James, General Products--Should Manufacturers be Liable Without Negligence [1957], 24 Tenn. L. Rev. 923; James, Products Lia bility [1955], 34 Texas L. Rev. 44,192; Wade, Strict Tort Liabil ity of Manufacturers [1965], 19 Southwestern L. J. 5) and by at least one organized group of lawyers (see for example 31 Journal of the American Trial Lawyers Association [1965], 247 to 254, 256 to 259, 261 to 267, 268 to 273, 275 to 279). The doctrine was recently incorporated in Section 402A of the American Law Institute Restatement of the Law of Torts 2d for which Dean Prosser is the reporter. See Smyser, Pro ducts Liability in the American Law Institute; a Petition for Rehearing (1965), 42 U. of Detroit L. J. 343. As stated in 74 A. L. R. 2d 1111, at 1131: "It is frequently stated that it is a `general rule' that a manufacturer or seller of a product alleged to have caused injury cannot be held liable therefor, on the ground of negli gence, to one with whom he is not in privity of contract. At the foundation of this `general rule' as to the nonliability of a manufacturer to a remote vendee or ultimate consumer of the manufactured product is the English decision in * * Winter- bottom v. Wright (1842), 10 Mees and W. 109, 152 Eng. Rep. 402." ` The unsoundness of the rule of Winterbottom v. Wright, 159 I 246 JANUARY TERM, 1966. [6 Ohio St. 2d Dissenting Opinion, per Taft, C. J. supra, led to what Dean Prosser, in quoting from Mr. Justice Cardozo, has referred to as "The Assault Upon the Citadel of Privity.' ' Apparently, those who have been successful in destroy ing the rule of Winterbottom v. Wright have become so enthus iastic as not to be satisfied with mere liability of the manufac- . turer for negligence, even where they have the help of the doc trine of res ipsa loquitur in establishing that negligence. As Dean Prosser pointed out, they are and have been carrying their "assault * * # against the fortress of strict liability." Pros ser, supra (69 Yale L. J. 1099), 1103. Apparently much of the enthusiasm for this latter assault represents a residue of the enthusiasm left over after the suc cessful "Assault Upon the Citadel of Privity" which destroy ed the rule of Winterbottom v. Wright. ' This court should be able to consider whether it should succumb to the "Assault * * * Against the Fortress of Strict Liability" without being subject to the influence of any such residue of enthusiasm. The rule of Winterbottom v. Wright was rejected in this state long before the much more publicized case of McPherson v. Buick Motor Car Co. (1916), 217 N. Y. 382, 111 N. E. 1050, L. R. A. 1916F 696, Ann. Cas 1916C 440. The rule was rejected by this court in Davis v. Guarnieri (1887), 45 Ohio St. 470, 491, 15 N. E. 350, and in Pennsylvania Rd. Co. v. Snyder (1896), 55 Ohio St. 342, 351, 361, 45 N. E. 559. Our subsequent holdings to the same effect are Sicard v. Kremer (1938), 133 Ohio St. 291,13 N. E. 2d 250; Witherspoon v. Haft (1952), 157 Ohio St. 474, 106 N. E. 2d 296; Thrash, a Minor, v. U-Drive-It Co. (1953), 158 Ohio St. 465, 110 N. E. 2d 419 (as to defendant Spot Motors); Durham v. Warner Elevator Mfg. Co. (1956), 166 Ohio St. 31,139 N. E. 2d 10. From comment (b) to Section 402 A of the American Law Institute Restatement of Torts 2d, it appears that the cases supporting the rule stated in that section were decided after 1950 and represent an extension of the rule of strict liability of the seller of food for human consumption. That comment points out that the earlier food decisions "displayed consider able ingenuity in evolving more or less fictitious theories of li ability to fit the case," but that "in later years the courts -160 - PCB-ARCH-EXT0376572 6 Ohio St. 2d] LONZRICK v. STEEL CORP. 247 Dissenting Opinion, per Tait, C. J. have become more or less agreed upon the theory of a `war ranty' from the seller to the consumer, either `running with the goods' by analogy to a covenant running with the land, or made directly to the consumer," and ``other decisions have indicated that the basis is merely One of strict liability in tort, which is not dependant upon either contract or negligence." In Ohio there has been no need for any such ingenuity. The violation of a statute passed for protection of the public is negligence per se. Schell v. DuBois, Advir. (1916), 94 Ohio St. 93, 113 N. E. 664; Coal Co. v. Estievenard (1895), 53 Ohio St. 43, 40 N. E. 725. Hence, because of our holdings that a viola tion of our pure-food statutes represents negligence per se, there has never been any occasion for this court to consider whether, or for any one to argue that, apart from those statutes, strict liability in tort should be imposed on the seller of food. See, for example, Portage Markets Co. v. George (1924), 111 Ohio St. 775, 146 N. E. 283; Canton Provision Co. v. Gauder, a Minor (1935), 130 Ohio St. 43,196 N. E. 634; Great Atlantic & Pacific Tea Co. v. Hughes (1936), 131 Ohio St. 501, 3 N. E. 2d 415; Kniess v. Armour & Co. (1938), 134 Ohio St. 432, 17 N. E. 2d 734; Yochem v. Gloria, Inc. (1938), 134 Ohio St. 427, 17 N. E. 2d 731; Rubbo v. Hughes Provision Co. (1941), 138 Ohio St. 178, 34 N. E. 2d 202; Wolfe v. Great Atlantic <& Pacific Tea Co. (1944), 143 Ohio St. 643, 56 N. E. 2d 230; Allen v. Grafton (I960), 170 Ohio St. 249,164 N. E. 2d 167. From the foregoing decisions, it is apparent that our General Assembly has full power to readily impose what is in effect strict liability in tort on sellers of tangible, items other than food if it should deem it advisable or desirable to do so. In some instances, it has. See, for example, Spaulding v. Waxier (1965), 2 Ohio St. 2d 1, 205 N. E. 2d 890; Bird v. Hart (1965), 2 Ohio St. 2d 9, 205 N. E. 2d 887; and Stump v. Phillians (1965), 2 Ohio St. 2d 209, 207 N. E. 2d 762. Without such statutory help and in the absence of an ex press warranty, this court refused to do so in Wood v. General Electric Co., supra (159 Ohio St. 273), and in Welsh v. Leduard (1957), 167 Ohio St. 57, 146 N. E. 2d 299. Thereafter, the General Assembly apparently considered the problems with which we dealt in deciding those cases and 248 JANUARY TERM, 1966. [6 Ohio St. 2d Dissenting Opinion, per Taft, C. J. Rogers v. Toni Home Permanent Co., supra (167 Ohio St. 244), and enacted a statute which in effect overrules our decision in Welsh v. Ledyard, supra (167 Ohio St. 57), (see Section 1302.31, Revised Code, extending seller's express or implied warranty "to any natural person who is in the family or household of his buyer" as the plaintiff in Welsh v. Ledyard was); but the Gen eral Assembly did nothing to interfere with our decision in either the Wood or Toni case. We have the power to overrule Wood v. General Electric Co., supra (159 Ohio St. 273), and also to overrule the limita tions requiring reliance of the plaintiff on representations of the defendant, which we provided for in deciding Rogers v. Toni Home Permanent Co., supra, and later required in Inglis v. American Motors Corporation, supra (3 Ohio St. 2d 132). We may do this even though the General Assembly, by what it did and did not do, has apparently indicated its approval of those limitations and of the case of Wood v. General Electric Co., supra. However, in my opinion, that apparent legislative approval should be given weight and respect in deciding the instant case. Dean Prosser has confessed that the only substantial argu ment for the doctrine of "strict liability in tort" of the seller of a chattel is (Prosser, supra [69 Yale L. J. 1099], 1120) "the * risk spreading' argument, which maintains that the manufac turers, as a group and an industry, should absorb the inevitable losses which must result in a complex civilization from the use of their products, because they are in the better position to do so, and through their prices to pass such losses on to the com munity at large." He then quotes from Justice (now Chief Justice) Traynor's opinion in Escola v. Coca Cola Bottling Co. (1944), 24 Cal. 2d 453, 461, 150 P. 2d 436, as follows, and we have interpolated in brackets some comments with regard thereto: "Those who suffer injury from defective products are unprepared to meet its consequences [agreed]. The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured [agreed], and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business. [We 6 Ohio St. 2d] LONZRICK v. STEEL CORP. 249 Dissenting Opinion, per Taft, C. J. do not know. A legislature could conduct hearings which would enable it to determine whether this "risk can be insured by the manufacturer" or otherwise "distributed among the pub lic as a cost of doing business."] It is to the public interest to discourage the marketing of products having defects that are a menace to the public [agreed--our present law does so]. If such products nevertheless find their way into the market it is to the public interest to place the responsibility for what ever injury they may cause upon the manufacturer, who, even if he is not negligent in the manufacture of the product, is responsible for its reaching the market [maybe--but a legisla ture has more means of determining through hearings than a court does whether so placing responsibility would unduly inter fere with "desirable aotivity." See 2 Harper and James, The Law of Torts, 757, Section 12.4]. However intermittently such injuries may occur and however haphazardly they may strike, the risk of their occurrence is a constant risk and a general one. Against such a risk there should be general and constant protection [agreed] and the manufacturer is best situated to afford such protection [but how? A legislature has the power to devise ways which no court can]." Another reason why a court cannot cope with the reasons for strict liability suggested by Justice Traynor, as well as a legislature, was stated by Dean Prosser as follows (Prosser, supra [69 Yale L. J. 1099], 1121): Even the distribution of the losses through insur ance may be a process that has its flaws. Until we develop, by analogy to workmen's compensation, a comprehensive system of compulsory insurance with rigidly limited damages--which ho one as yet seems to have proposed specifically in this par ticular field--there will always be uninsured defendants, there will always be liability in excess of coverage, and there will be members of the group whose competitive situation does not permit them to pass on the cost of the insurance to their cus tomers. *" There is considerable appeal to the idea of spreading the risk of loss to an individual from a particular activity over those vrho engage in that activity and profit from it. However, before determining to do so with respect to the manufacture and 250 JANUARY TERM, 1966. [6 Ohio St. 2d Dissenting Opinion, per Taft, C. J. sale of a particular product, a court should at least consider questions such as: (1) What additional liability would be involved? (2) Could insurance be procured against such additional liability? (3) If so, what would its cost be ? I (4) Could such cost be passed on to buyers of the product? How can a court know the answers to such questions? A court such as this has no means of even exploring them. How ever, these are problems which a legislature can fully explore. This court has no reliable information which would justify it in jettisoning existing products liability law and manufac turing new rules of law. To do so, could seriously affect the level of industrial activity in Ohio, and it could substantially increase manufacturing costs and result in either higher con sumer prices, if the costs could be passed on, or many bank ruptcies, if they could not. Further, it is submitted that our General Assembly has, by what it has done, indicated an intention that strict tort li ability should not he imposed upon the manufacturer of a pro duct in a case such as that now assumed by the majority to be before this court for decision. For example, as late as 1957, the General Assembly revised our laws dealing with pure foods and drugs (127 Ohio Laws 819). At that time, it knew that it would be negligence per 86 to make a sale prohibited by such a statute; and, as a result, such a statutorily prohibited sale would in effect involve "strict liability in tort." See citations, supra, page 247. However, the General Assembly has never enacted any statute which could possibly be construed to prohibit the sale of defective steel joists, and thereby in effect to impose strict liability in tort on the seller of such joists. . Thus, although the General Assembly has recently legis lated so as to impose in effect strict tort liability on the manu facture and sale of certain defective products, it has not dealt with steel joists. 1 Finally, the legislative history of the Uniform Commercial Code, which was enacted in this state in 1962 (129 Ohio Laws 1 - 164 - PCB-ARCH-EXT0376576 6 Ohio St. 2d] LONZRICK v. STEEL CORP. 251 Dissenting Opinion, per Taft, C. J. 13), clearly indicates a legislative intention against imposing liability such as that approved by the syllabus and judgment of the instant case. See note "Implied Warranty, Strict Li ability for Personal Injuries, and the Uniform Commercial Code, Section 2-318,13 University of Kansas L. Eev. 411 (1965). The May 1949 draft of Section 2-318 of the Uniform Com mercial Code extended liability for breach of a seller's express or implied warranty to "one whose relationship [to the buyer] is such as to make it reasonable to expect that such person may use, consume or be affected by the goods * * V* This would have expressly permitted an action such as approved by the syllabus and judgment in the instant case. See James, Products Liability, supra (34 Texas L. Rev. 44,192 at 194, Note 10). However, Section 2-318 was modified in the 1952 official draft so as to provide that such warranty "extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume, or be affected by the goods and who is injured in person by breach of the warranty." As so modified, Section 2-318 became Section 1302.31, Re vised Code* (see variations in the Ohio Enactment of the Uni form Commercial Code, 14 Western Reserve L. Rev. 22 [1962]); and, as hereinbefore mentioned, that statute had the necessary effect of overruling Welsh v. Ledyard, supra (167 Ohio St. 57), but approving Wood v. General Electric Co., supra (159 Ohio St. 273). If Comment 3 to that statutory section, as prepared by the American Law Institute and the National Conference of * Commissioners on Uniform State Laws (see 13 Page's Revised Code, Annotated 7, 55), is regarded as expressing any legis lative intent, it clearly indicates an intention that a seller's warranties shall not extend to a person who is not "in the distributive chain." The plaintiffs in Rogers v. Toni Home Permanent Co., supra (167 Ohio St. 244), and Inglis v. Ameri can Motors Corp., supra (3 Ohio St. 2d 132), were each "in the Unlike Section 1302.31, Revised Code, the recently enacted procedural Section 2307.382(5) does not purport to extend the right of recovery beyond those to whom a warranty is "made." 252 JANUARY TERM, 1966. [6 Ohio St. 2d Concurring Opinion, per Schneider, J. distributive chain." Admittedly, plaintiff is not "in the dis tributive chain" and is not one of those specified by the statute as one to whom a seller's warranty should extend. Thus, the syllabus and judgment in the instant case dis regard the intention expressed by the General Assembly when it adopted Section 1302.31, Revised Code. See Hochgertel v. Canada Dry Corp. (1963), 409 Pa. 610,187 A. 2d 575. Schneider and Brown, JJ., concur in the foregoing dissent ing opinion. Schneider, J. I desire to add that the basic underlying difference dividing the court is not the absence of privity but the operative effect of the decision, which eliminates from the consideration of the trier of the facts any standard of care to which the defendant would be required to adhere. In short, if the plaintiff should succeed in laying the defect which proxi mately caused his injury at the door of defendant's place of business, the defendant will be permitted no explanation of any transaction occurring therein, including that which might tend to 6how that every precaution known to man was exercised to prevent the occurrence of the claimed defect. i HEOK V. BERYLLIUM CORPORATION Cite as 229 A.2d 87 Pft. . 87 424 Pa. 140 Wilbur F. HECK and Ruth E. Heck, Appellants, ' v. The BERYLLIUM CORPORATION. Supreme Court of Pennsylvania. ... Sept 27, 1966. i Rehearing Denied Feb. 15,1967. Action against defendant beryllium company for damages for disease allegedly caused by the inhalation of beryllium. The Court of Common Pleas for the County of Berks, as of August Term, 1962, No. 312, James W. Bertolet, J., after jury verdict for the plaintiff entered a judg ment n. o. v. for the defendant and the plaintiff appealed. The Supreme Court, No. 184 January Term, 1966, Cohen, J., held that where at least 11 years had elapsed since defendant corporation had Ii1i started emitting beryllium from its plant i and thereby exposing plaintiff and others before recommendations of maximum safe t i concentrations had been set forth by Atomic Energy Commission, jury could have found that because of the unknown extent of the pre-recommendation exposure and the highly dangerous nature of the substance the defendant had a duty to adhere to the minimum figure set forth by the Atomic Energy Commission recommendation al- - 167 - PCB-ARCH-EXT0376579 88 Pa. 226 ATLANTIC REPORTER, 2d SERIES though after the issuance of recommenda tion the emissions which did exceed the minumum figure never exceeded the safety factor. Judgment reversed and case remanded for a new trial. 4. Damages <5=19 Once a finding of negligence becomes permissible the defendant becomes liable for all harm caused by its negligent act though increased by unknown physical condition. 5. Damages $=208(1) Roberts and Musmanno, JJ., dissented Expert testimony was sufficient to re in part. quire submission to jury of issue of whether the emissions of beryllium from defend 1. Negligence $=19 ant's plant in excess of minimum recom mended figure was a substantial cause of Trial court properly held that defend plaintiff's contraction of disease, although ant corporation, whose plant emitted beryl plaintiff had been previously exposed to lium and which knew of toxicity of beryl emissions under conditions which did not lium but did not know the toxicity level render defendant negligent because no rec until the Atomic Energy Commission is ommendation had been issued as to toxicity sued tentative recommendations, was not . level. negligent prior to time that such recom mendations had been issued. 6. Negligence ^>|39(l), 140 2. Negligence $=136(18) Where plaintiffs and others had been exposed to beryllium emissions from de fendant's plant for 11 years before recom mendations of maximum safe concentra tions were set forth by Atomic Energy Commission, jury, in suit against defendant for damages from inhalation of beryllium, could have found that defendant had a duty to adhere to the minimum figure set by Commission although after the recom mendation the emissions, which did exceed the minimum figure, never exceeded the safety factor. Instruction which permitted jury to use some figure lower than the minimum recommended by the Atomic Energy Com mission for emission of beryllium with respect to determining whether defendant beryllium company was negligent and whether such negligence caused plaintiff's condition was error, since jury should have been instructed that an emission of less than the minimum could not constitute neg ligence by defendant which had no other guide for its conduct and no knowledge that its emissions might be harmful. 7> Negligence $=56(1.1) 3. Negligence $=>136(18) A jury question was prese'nted as to whether emissions of beryllium from de fendant's plant of a greater amount than the minimum figure set forth by Atomic Energy Commission but in an amount less than the safety factor constituted negli gence toward any person within the area of the exposure including the plaintiff who had been exposed to the emissions for at least 11 years prior to time Commission issued recommendations. It is the negligent conduct which must be causative in order to permit recovery. 8. Damages $=216(1) Although defendant corporation could not be held negligent for beryllium emis sions from its plant prior to date on which Atomic Energy Commission issued its rec ommendations as to toxicity level, jury should have been instructed that once it found negligence on defendant's part for emissions exceeding the minimum after HEOK v. BERYLLIUM CORPORATION Pa. 89 / Cite as 228 A.2d 87 issuance of recommendations it could con perhaps earlier. However, the toxicity G sider plaintiff's physical condition'on date level which was unsafe was not known recommendations were issued as affected to defendant until the Atomic Energy Com by prior emissions in determining if the mission, on March 30, 1950, issued tenta post-recommendation emissions caused tive recommendations stating that the aver plaintiff's disease. age monthly concentration should not ex ceed .01 micro-grams per cubic meter (mc3) Seymour I. Toll, Bala-Cynwyd, B. Nathaniel Richter, Edward L. Wolf, John J. McCarty, John A. McMenamin, Richter, Lord & Cavanaugh, Philadelphia, for ap pellants. . for out-plant areas. The testimony shows that a safety factor of eight to ten was used in determining the recommended fig ure.1 Plaintiff was only able to show (because of limitations on data available) that from George P. Williams, III, John S. Mc- the years 1951 to 1955 the defendant's Conaghy, Reading, Samuel Kagle, Oscar emissions of beryllium exceeded the .01 Brown, Philadelphia, Schnader, Harrison, mc3 standard at the location where plain Segal & Lewis, Philadelphia, of counsel, tiff resided (although such emissions did for appellee. not exceed the safety factor). Thus, her Before MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROB showing of any negligence was limited to that period. ERTS, JJ. [1] In its opinion the lower court held, first, that defendant was not negligent be OPINION OF THE COURT fore March 30, 1950. This ruling is cor COHEN, Justice. rect. However, relying on the testimony of plaintiff's expert to the effect that if Plaintiff contracted a disease caused by inhalation of beryllium and, alleging de fendant's liability for the resultant loss, instituted this suit. The lower court, after a jury verdict for the plaintiff, granted judgment notwithstanding the verdict. The trail court also found that a new trial would be proper and that the verdict was plaintiff had not been exposed before 1951 an exposure from that time to the date of trial in the intensity of her exposure from 1951 to 1955 would not have caused her illness, the court then held that any negligence of defendant after March 30, 1950, could not have been causative. This was error. excessive, but it denied the motion for a new trial because it had granted judg ment n. o. v. . :. [2-4] Since the recommendation of maximum safe concentrations was not set forth until 1950, at least eleven years after Between 1939 and trial plaintiff resided defendant commenced its emissions expos within several miles of a plant of the ing plaintiff and others, the jury could defendant Beryllium Corporation. During reasonably have found that, because of that time, except for the period 1942 the unknown extent of the pre-1951 ex 1943 when she laundered the workclothes posure and the highly dangerous nature of her brother who was then employed at of the substance, the defendant had a duty the plant, she inhaled beryllium only from to adhere to the minimum figure of .01 mc3. emissions'of the substance from the plant. Malitovsky v. Harshaw Chemical Com The record shows that the defendant knew pany, 360 Pa. 279, 283, 61 A.2d 846, 848 of the toxicity of beryllium in 1947 and (1948); Restatement, Second, Torts, 289 I. The safety factor thus would have permitted emissions of up to .08 mc3 or .10 roc3. 226 *.20--6Vi - 169 - PCB-ARCH-EXT0376581 90 Pa- 226 ATLANTIC REPORTER, 2d SERIES (comment j) (1965). Thus, the jury could have found that defendant's emission of a greater amount constituted negligence to wards any person within the area of that exposure even though the emission did not exceed the safety factor. Once a find ing of negligence became permissible, de fendant became "liable for all harm caused by [its] negligent act though increased by an unknown physical condition * * Offensend v. Atlantic Refining Company, 322 Pa. 399, 403, 185 A. 745, 747 (1936); Restatement, Second, Torts, 461 (1965). The lower court erred in not considering plaintiff's physical condition as of March 31, 1950, occasioned by her previous ex posure to the emissions even though such earlier emissions were non-negligent. [5] So also, we consider the testimony of plaintiff's expert that the 1951 to 1955 "* * * exposures may be the critical ones, more so than [the] earlier ones and certainly have to be dealt with," suf ficient to require the submission to the jury of the issue of whether the emissions from 1951 to 1955 in fact were a sub stantial cause of plaintiff's contractions of the disease. Majors v. Brodhead Hotel, 416 Pa. 265, 271, 205 A.2d 873, 877 (1965); Restatement, Second, Torts, 431(a), 432(1), 433(a) (1965). [7,8] Further, the trial court did not charge that the jury must find substantial causation only from the 1951 to 1955 emis sions in order to find for the plaintiff. On the evidence presented, the defendant could not have known prior to March ' 30, 1950, to what extent its emissions could be harmful. Consequently, it could be neg ligent only as to emissions subsequent to that date; and, of course, it is the negli gent conduct which must be causative. Re statement, Second, Torts, 430 (1965). As noted above, however, the jury is en titled, once it finds negligence on defend ant's part, to consider plaintiff's physical condition on March 31. 1950, as affected by the prior emissions, in determining if the post-March 31, 1950, emissions caused plaintiff's disease. Judgment reversed and case remanded for a new trial. ROBERTS and MUSMANNO, JJ., con curring and dissenting. BELL, C. J., absent. CONCURRING AND DIS SENTING OPINION ROBERTS, Justice. [6] However, we grant a new trial in this matter because we believe the instruc tions of the trial judge to have been overly broad with regard to the issues of negli gence and causation. While it was proper for the lower court not to bind the jury to either the .01 mc3 standard or the safe ty factor, the language of the charge per mitted the use by the jury of some lower figure. Since, other than by the AEC recommendation the defendant had no guide for its conduct and no knowledge that its emissions might be harmful, the jury should have been instructed that an emis sion of less than .01 mc3 could not con stitute negligence. I concur in so much of the majority opin ion as reverses the action of the trial court in granting defendant-appellee's motion for judgment n. o. v. I dissent, however, from the majority's action in granting defendantappellee a new trial and would remand the case with directions to reinstate the jury verdict. Not only did defendant-appellee not raise the correctness of the court's instructions on this appeal, it specifically disclaimed any complaint with respect thereto, stating, in its brief, that the correctness of the charge is not in issue.1 This is of itself sufficient to preclude the majority's action I. Brief of aj pellee, p. 6. a DUNK v. PENNSYLVANIA PUBLIC UTILITY COMMISSION Pa. 91 Cite as 226 A.2d 91 in ordering a new trial. Moreover, the record discloses that at trial no specific exception was taken by defendant-appellee to the charge.* In the absence of such an exception, I believe it inappropriate to grant a new trial on the basis of an instruc tion which could and should have been ex cepted to at trial, if defendant-appellee's counsel regarded it erroneous and harmful to his client's interests. Having failed to express any dissatisfaction at trial, where the matter was subject to correction, I would not permit defendant-appellee to im pose this extensive litigation for the second time on the plaintiff and our already over burdened trial courts. To paraphrase a view which I have pre viously expressed, to permit defendant- appellee to obtain a second trial, on the ground that instructions, not specifically excepted to, were erroneous, in light of the issues involved, would do a great in justice to countless numbers of persons who are compelled to endure oppressive delay or to settle claims at a fraction of their value because timely judicial relief was not available. While I would heartily ap prove of ordering a new trial in any case in which such action would be in the inter est of justice, I find no justice in setting aside the endeavors of all those who par ticipated in the trial below merely because the majority discerns some disadvantage, problematical at best, to defendant-appellee, a disadvantage which defendant-appellee had every opportunity to discern and to seek to have rectified at trial. See Lobalzo v. Varoli, 422 Pa. 5, 7, 8, 220 A.2d 634, 636 (1966) (concurring opinion); Kersey Mfg. Co. v. Rozic, 422 Pa. 564, 222 A.2d 713 (1966) (concurring opinion). MUSMANNO, J., joins in this concur ring and dissenting opinion. J. The following statement was made by appellee-defendant's counsel, during an Interchange with the trial judge following the charge: "I have no exceptions to take to the charge. I want to protect my position on the record. I would like to except to your Honor's refusal of our supplemental requests for charge, num bers 17, 18 and 19." It should bo noted, however, that the majority does not predi cate its grant of n new trial on tiie court's disposition of defendant-appellee's points for charge. L...i - 171 - PCB-ARCH-EXT0376583 LA PORTE y. UNITED STATES RADIUM CORPORATION ~ 263 13 F. Sapp. 2G3 . LA PORTE V. UNITED STATES RADIUM of cause of action and defendant must in CORPORATION. tend to keep plaintiff in ignorance thereof, District Court, D. New Jersey. Dec. 17, 1035. and silence is not enough to make out fraudulent concealment. 9. Injunction =>29 1. Limitation of actions =>55(4) In New Jersey, plaintiff, seeking to en Alleged cause of action against em join plea of limitation on ground of fraud ployer by watch-dial painter who died from ulent concealment of cause of action, must radium poisoning accrued some time in show reasonable diligence in bringing suit course of her employment, or at latest when after estoppel has expired. she was last exposed to radium, as respects limitation (3 Comp.St.N.J.1910, p. 3164, 3). 10. Injunction =>29 As respects existence of fraudulent concealment of cause of action rendering 2. Limitation of actions <S=>99(I) In action at law for injuries, plea of limitation bars recovery, regardless of fraud of tort-feasor (3 Comp.St.N.J.1910, enjoinable plea of limitations, whether con cealment or fraud springs from same act as cause of action, or is found in subse quent acts or failure to act, is immaterial p. 3164, 3). 11. Injunction =>29 3. Equity =>l I Equity, in case of fraud, does not bar relief to injured party who has been in ig norance of fraud. .4 Injunction =29 To constitute fraudulent concealment of cause of action rendering enjoinable plea of limitation, there must be some sort of conduct or acts which are fraudulent or unconscionable, and mere negligence will not constitute equitable fraud even if In New Jersey, person wronged by plaintiff has no knowledge of cause of ac fraud is relieved from bar of limitation at tion. law by going into Chancery Court and en joining plea of limitation statute at law. 12. Limitation of actions =>99(1) In New Jersey, plaintiff will not be re 6. Injunction =>29 lieved of bar of limitation unless defendant To constitute fraudulent concealment by his equitable fraud has prevented plain of cause of action rendering enjoinable plea tiff from commencing his cause of action. of limitation, acts or conduct constituting concealment need not be such as would be required to make out fraud in law court. 13. Injunction =>29 Employer, sued for injuries and death of watch-dial painter from radium poison 6. Injunction =>29 ing, could not be enjoined from pleading Test of fraudulent concealment of limitation on ground of fraudulent conceal cause of action, rendering enjoinable plea ment of cause of action because of failure of limitation, is whether conscience and du to disclose existence of occupational haz ty of honest dealing should deny one right ard, where in 1920, when employment to repudiate consequences of his represen ceased, and up to 1924, when two-year lim tations or conduct and whether author of itation would have elapsed, there was nei proximate cause may justly repudiate its ther knowledge of. occupational hazard in natural and reasonably anticipated effect dial painting' industry nor reason for em ployer to believe or to have known of haz 7. Injunction =>29 ard (3 Comp.St.N.J.1910, p. 3164, 3). Generally, to constitute fraudulent con cealment of cause of action rendering en 14. Limitation of actions <S=>100 (I) joinable plea of limitation, ignorance of In equity, in cases of fraud, time limit existence of cause of action is required of within which action must be brought will plaintiff, and lack of knowledge of evi not commence to run until discovery of dence or of defendant's identity is insuffi fraud, or until complainant was in situa cient tion, where, by exercise of reasonable dil 8. Injunction =29 igence, he would have discovered fraud. To render plea of limitation enjoinable 15. Limitation of actions =>104(1) under doctrine of fraudulent concealment, Limitation statute will not be tolled on plaintiff must be in ignorance of existence ground of fraudulent concealment of cause 264 IS FEDERAL SUPPLEMENT of action unless plaintiff has shown rea from the girl at the opposite side of the sonable diligence. table. Each girl procured a tray contain ------ i--------- ing twenty-four watch dials and the mate rial to be used to paint the numerals upon In Equity. Suit by Vincent P. La Porte, administrator ad prosequendum and gener al administrator of the estate of Irene F. La Porte, deceased, and individually, against the United States Radium Corpo ration. On bill, etc. them so that they would appear luminous. The material was a powder, of about the consistency of cosmetic powder, and con sisted of phosphorescent zinc sulphide mixed with radium sulphate. This com pound was contained in a small vial about an inch and one-half long and about the Bill dismissed. size of an ordinary lead pencil in diam Milton M. Unger, of Newark, N. J. (Leonard J. Emmerglick, of Newark, N. J., of counsel), for plaintiff. eter. The powder was poured from the vial into a small porcelain crucible, about the size of a thimble. A quantity of gum arabic, as an adhesive, and a thinner of Collins & Corbin (by Edward Markley) water were then added, and this was and Edwards, Smith & Dawson (by Edwin stirred with a small glass rod until a paint F. Smith), all of Jersey City, N. J., for de like substance resulted. In the course of a fendant. working week each girl painted the dials contained on twenty-two to forty-four such FORMAN, District Judge. trays, depending upon the speed with The principal question in this suit is whether or not the plaintiff, in an action at law for damages caused by injuries to the plaintiff's intestate and her subsequent death, is entitled to an injunction restrain ing the defendant from pleading the stat ute of limitations as a bar to the plaintiff's alleged cause of action at law on the ground of equitable fraud. which she worked, and used a vial of pow der for each tray. When the paint-like substance was produced a girl would em ploy it in painting the figures on a watch dial. There were fourteen numerals, the figure six being omitted. In the painting each girl used a very fine brush of camel's hair containing about thirty hairs. In or der to obtain the fine lines which the work required, a girl would place the bristles in Irene F. La Porte, the plaintiff's intes her mouth, and by the action of her tongue tate, was employed by the defendant, the and lips bring the bristles to a fine point. United States Radium Corporation, from The brush was then dipped into the paint, May 14, 1917, to December 11, 1918, and the figures painted upon the dial until more for a brief period of not over six weeks in paint was required or until the paint on the 1920. brush dried and hardened, when the brush The decedent was employed to paint the was dipped into a small crucible of water. dials of inexpensive watches with a lumi This water remained in the crucible with nous paint containing small quantities of out change for a day or perhaps two days. the element radium in the form of a sul The brush would then be repointed in the phate. While the decedent was in the em mouth and dipped into the paint or even ploy of the defendant, no precautions.were repointed in such manner after being taken to prevent dial painters from being dipped into the paint itself, in a continuous exposed to the small quantity of radium process. Some girls painted an entire dial sulphate, an insoluble salt, and the radium with a single pointing of the brush. Some emanation present in the air of their work re-nointed the brush after each numeral. rooms. It appears that the radium used by de The decedent was one of eighty girls cedent had between 8 and 30 micrograms who worked for five and one-half days per of radium element to one gram of zinc week in a large factory room ventilated sulphide; and 1,000 micrograms equal one by a skylight and by windows around the milligram and 1,000 milligrams equal one room. The windows were regulated by gram. At any rate, the maximum quantity any of the girls who saw fit to do so. the decedent might have ingested was 43 They worked at four rows of tables ex micrograms of radium sulphate. for each tending practically the length of the room. working day. This figure is doubtless Each girl worked a few feet away from much too large. The plaintiff has incor the girl next to her and a few feet away porated the following chart in his brief and i . i i j i - 173 - PCB-ARCH-EXT0376585 LA PORTE r. UNITED STATES RADIUM CORPORATION 265 13 F. Supp. 203 accepts the figures used in the third column The decedent died June 16, 1931. Dr. for his purposes: Martland performed an autopsy and con- Material Used. Radium Ingested per Week. Radium Ingested Radium Constantly in 1V4 Yrs. In Alimentary Tract. 8% ug. ra. per -gram 40 grams a week $4 gram Ingested out ot every 19 gr. used 83V4 ug. per gr. 40 grams a week Vj gr. Ingested out of every 10 averaging 8% to 33% ug. per gram 40 gr. a week 44 gr. Ingested out ot every 10 16% ug. 66% ug. % ug. 1300 ug. (300 ug. 3250 ug. 46 ug. 184 ug. 115 ug. -The evidence shows that the decedent firmed his diagnosis that the decedent had was in good health at the time she left the died of occupational radium poisoning (os employ of the defendant. In April, 1921, teogenic-sarcoma of pelvis) in the watch- the decedent was married to the plaintiff. dial industry. Dr. Martland found radium Her health remained excellent up until the deposited in the bone structure of the de autumn of 1927. cedent. In the latter part of 1927 the decedent Plaintiff, husband of the decedent, in complained of a fear that she might have dividually, as general administrator, and as radium poisoning. She delayed visiting administrator ad prosequendum, com her dentist for some time because other menced an action at law for her injuries persons who had radium poisoning had and death on May 17, 1932. In its answer demonstrated symptoms similar to those to the complaint at law, the defendant from which she suffered. The decedent pleaded various provisions .of the New Jer constantly associated with those persons sey statute of limitations, among other de who Were suffering from the radium pois fenses. oning and frequently discussed its danger On January 10, 1933, the plaintiff in and symptoms with them, her husband, and stituted this suit in equity to enjoin the sister. defendant from setting up the statute of In the spring of 1928, the decedent had limitations as a defense to the plaintiff's a tooth extracted that troubled her. She action at law. told her dentist that she had hesitated to go to him for fear that she might have radium necrosis. Her dentist reassured her, and for the time being she appeared to be in good health. From the latter half of 1928 to October 1930, she was treated by a doctor and she complained continually of pains in her face and jaw and frequently discussed radium poisoning. She was convinced that she was a victim. In October, 1930, she began to have pains in her legs and joints. Dr. Harrison S. Martland, the chief medical examiner of Essex county, N. J., deter mined that the decedent was a victim of radium necrosis on October 15, 1930. At that time Dr. Martland read X-rays taken of the decedent's jaws in 1925 as showing typical areas of radiation osteitis. On May 4, 1931, she first presented a claim for damages to the defendant. Nothing like a fair analysis-of the evi dence relating to the development of radi um therapeutically and industrially can be given here. The legal issues will be de cided on the basis of the evidence offered by the plaintiff, and only a brief allusion can be made to the details of the cases pre sented in such a thoroughgoing manner by both parties. There is no question but that dial paint ers, at the time the decedent worked in the defendant's factory, ingested radium sul phate contained in the paint, with which they worked, by pointing the brushes with their lips, and that they breathed and swal lowed radium sulphate contained in the dust in the air of their workroom, and ra dium emanation present in the workroom. The dial painters were protected by nei ther special methods or devices nor scien tific ventilation. 13F.Sui>p.-17% 2G6 13 FEDERAL SUPPLEMENT Doubtless, the insoluble radium sulphate cepted were in a stage of controversial ex was absorbed in part after ingestion; perimentation or unknown. In the plain some of it must have reached the blood tiff's brief there are listed some twenty- Stream and eventually been deposited in 'five alleged admissions made by the de the bones of its victim. At the same time fendant's experts in the course of their a dial painter would have constantly been testimony to the effect that in 1917 radium subject to radium emanation and radium was known to be dangerous; that it was A. It suffices that the autopsy of the de possessed of tremendous energy; that its cedent revealed that radium was present very use, medically, was experimental; and in the decedent's bones after her death in that there were divers other recognized 1931. The amount of radium to which the and unrecognized reasons in the light of systems of dial workers were subjected the knowledge of that time to destroy the must have been fairly constant, and added defendant's case. Many of those "admis to that it appears that its effect would be sions," much of the plaintiff's evidence and cumulative. innumerable of plaintiff's assertions are But there is no reason to consider those unquestionably.- true. The great difficulty factors now. It has only been established is that no one was talking about the use of since 1924 or 1925 that the conditions un radium under the circumstances here. der which the dial painters worked in 1917 Of course, it was recognized in 1917 and thereabouts subjected them to a perni and many years before that radium was the cious and frightful occupational hazard. most active of the elements and possessed The important factual question is to deter an incomprehensible store of energy.1 mine how much the scientific and medical world and the defendant knew about the industry at the time, or thereabouts, that the decedent's alleged cause of action arose. Several writers, one as early as 1913, suggested that radium salts which were not eliminated from the body would eventual ly be deposited in the bone structure and there replace the calcium and actually be Even to-day the problems concerning come a part of the structure in the form radium have hardly been touched. A dec of radium sulphate.3 This was theory and ade and more ago theories presently ac- there were no computations at that time 1 Madame Curie, "Radioactive Sub stances" (1904). Lord Rutherford likewise made this dear in his book, "Radioactivity," pub lished in 1905 (Exhibit P-25), and also In his book, "Radioactive Substances and their Radiation," published in 1913 (Ex1 bibit P-23), pointing' out that radium was known to be a substance which was undergoing spontaneous self-transforma tion. In other words, the breaking up of atoms of radium discharged a gas known ' as "radium emanation." This gas in turn decayed and deposited a solid prod uct known as "radium A." This in turn -decayed and left a solid known as "ra dium B," and so on down through "ra-. dium F," which decayed and deposited lead. Radium itself was known to have a half life of 2,000 years; that is to say, it would be reduced to half it3 activity in 2,000 years. What activity then re mained would take another 2,000 years to reduce 50 per cent., and so on. Ra dium emauation was known to have a half life of 3.S5 days and a practical life of about 20 days, although after 90 days approximately 1 per cent, of the eman ation would still remain in existence. Radium A to F, inclusive, were known as the "active deposit." Their periods of half life appear on the chart which is Ex hibit P-24, a copy of which is attached hereto, and marked "Appendix I." These various products gave off radia tions. Radium, radium emanation, ra dium A, and radium F gave off alpha particles. Radium itself was known to five off 34,000,000,000 per second per gram. In equilibrium with its decay products almost five times this number of alpha particles were given off per second. Exhibit P-23, p. 132. These particles were known to have mass and to be approximatcly 7,000 times the size of an electron. They were likewise known to be positively charged. The speed with ' which they were shot out from the par ent radioactive atoms was between 12, 000 and 18,000 miles per second, and they were shot out in a constant stream. * Soil, Viol and Gordon, "Elimination of Soluble Radium Salts, Taken Intraveneously and Per Os" (May 1, 1910), New York Medical Journal, p. S90, Ex hibit P-34; Dorainici and La Hordes, "Study on Injection of Radium Salts" (1913), Comptes Itendeus Des Seances De L'Academie Dcs Sciences, 156, 1107 1109, Exhibit P-12; and "Concerning Fixation by the Skeleton of Radium In jected in the Soluble State" (1913), Se ances Et Memoirs Dc La Societe De Biologie, 75; 10S-110, Exhibit P-13. i L. - 175 - PCB-ARCH-EXT0376587 T.A PORTE y. UNITED STATES RADIUM CORPORATION 267 13 F. Sapp. 203 to indicate what percentage of a given disturbances or skin changes resulting in amount of the soluble or insoluble salt tak cancer.8 The plaintiff said correctly in his en internally would eventually reach the brief that in 1917 "no one had re-exam bone. There is evidence in the literature, that radioactive salts introduced in the body would be eliminated in part very slowly.3 Assuming that was established, it might be a fair inference, but surely not conclusive, that radium given in frequent doses was cumulative in its nature and effect. The evidence shows that in 1917 many dangers to the human body from radium and radium emanation were recognized. Long exposure to emanation, irradiation, and X-rays had resulted, among a few technicians and scientific men, in fatal or dangerous injuries.4 An article published in 1914 was entitled "Concerning Occupa tional Injuries Due to Radioactive Sub ined an individual who years before had been treated by radium salts administered internally, and found evidence of late in jurious effect." But it is difficult to un derstand how the defendant can be said to have perpetrated a fraud when it, a com mercial enterprise, failed to draw inferenc es, which no doctor had ventured, to the effect that its industry was suicidal to its workers. It was a theory that radium would be deposited in the bones and there were proven cases of burns by X-ray and direct contact causing delayed external ef fects, but that does not lead to the conclu sion that dial painters were doomed or even in danger as of the knowledge of 1920. " stances," 6 and another, "Occupational Dis On the contrary, in the early literature, eases Due to Radium; Report of Cases." 6 numerous statements were made as to the Those articles were principally concerned beneficial effect of radium applied inter with external burns of the skin. nally. Some of the articles to that effect Furthermore, prior to 1917, the indica are listed below.9 tions from radium were contrary to using Plaintiff argues that the administration it for treatment in a number of diseases.7 of radium by prescription under the super It was fairly established that burns might vision of physicians was not to be com show late effects in the form of general pared with the exposure by ingestion, in- $ Dominici and the La Bordes, supra, note 2. 4 Mesernitzky, St. Petcrsburg-Kreuz- ' noch, "Concerning Injury to the System Through Large Doses of Radium Emana- tlon" (1914), publication not given. Ex hibit P-6; "Contribution on the Biologi cal and Pathological Action of Soluble Radium Salts--With Special Reference to its Therapeutic Value in Pernicious Anaemia and Leukemia" (1914), Radium, vol. Ill, No. 5, p. 65, Exhibit P-21A; Part II of same article, vol. Ill, No. 6, p. 85, Exhibit P-21B; Rollcston, ``The Harmful Effects of Irradiation" (1930), The Quarterly Journal of Medicine, No. : 93, p. 101, Exhibit P-49. . 0 Gutzendt and Ilalberstaedter-- Deutsche-Medizinische Wochcnschrift, March 26, 1914, p. 633, Exhibit P-9. Ordway, The Journal of American Medical Association, vol. LXVI, No. 1, p. 1, 1916, Exhibit P-20. 7 Mescrnitzky, supra, note 4; Caraer- on and Viol, "Classification of Various Methods Employed in the Internal Ad ministration of ltudium Emanation and Radium Suits," 1915, Radium, vol. IV, No. 4, p. 57, Exhibit D-1S. 4 Gutzendt and Halberstaedter, supra, note 5; Rolleston, supra, note 4; Ruth erford, "Radioactive Substances and Their Radiation*," 1913, Exhibit P-23. 9 Proeschcr, "The Intravenous Injec tion of Soluble Radium Salts," 1914, Ra dium, vol. II, No. 4, p. 45, Exhibit D-26; vol. II, No. 6. p. 77, Exhibit D-2S. Bissell, "The Intravenous Injection of Radium Element," November, 1914, Pennsylvania Medical Journal, p. 129, Exhibit D-29. Cameron and Viol, "Classification of the Various Methods Employed in the Internal Administration of Radium Emanation and Salts," .1915, Radium, vol. IV, No. 4, p. 57, Exhibit D-18. Delano, "A Study in the Internal Ther. apeutics of Radium," July 24, 1915, Med ical Record, p. 137, Exhibit D-32. Bissell, "Radium Therapeutics Other wise Than For Malignancy," June, 1915, . Medical Record, p. 1023, Exhibit D-30. Proescher, "Contribution on the Thera peutic Value of the Intravenous Injec tion of Soluble Radium Salts in the Treatment of ' Pernicious Anaemia and Leukaemia," 1916, Radium, vol. VII, No. 3, p. 71, Exhibit D-27A, vol. VII, No. r, p. 102, Exhibit D-27. Park, "Chronic Interstitial Nephritis," July 8, 1916, New York Medical Journal, p. 66, Exhibit D-30A. Sterns, "Radium and Radium Salts," 1920, American Journal of Electro therapeutics and Radiology, p. 169, Ex hibit D-22. 2G8 13 FEDERAL SUPPLEMENT halation, etc., suffered by the workers. This is undoubtedly true, but plaintiff seeks to charge that defendant should have known of the great danger from the litera ture of that time. A great deal of the lit erature, as heretofore stated, described the advantages and benefits to be derived from the administration of radium, the exist ence of which furnished an indubitably dis arming influence as to the dangers attend ant to its effect quested an investigation into the situation by the Life Extension Institute of New York. That agency reported on March 11, 1924, that no evidence was disclosed of the influence of any particular metallic poison ing and that the cases, in so far as they went, showed the ordinary range of hu man troubles and did not reflect any spe cific occupational influence. (Letter of Dr. Fisk, to H. B. Viedt, vice president, U. S. Radium Corporation, Exhibit D-3.) It was true in 1917, as the plaintiff states, that radium had been known to have a fatal effect on human beings;, that med ical and scientific men would prefer to ex periment on animals rather than persons to determine its effects under different con ditions; that it was not used in treatment of certain diseases because of contraindi cations; that the dial painters were" in gesting radium and its emanations under conditions far different from its medical use; that the dial workers would have been partly protected by certain devices and changed working conditions; that some literature may have suggested the chance of hazard in the occupation and the requirement for constant or frequent med ical surveillance; that there were less dan gerous methods of dial painting in use in Europe which could have been adopted; and that there were no experiments con ducted or being conducted in 1917, or prior thereto, to determine the effect of dial painting. What has'been said as to the evidence before the court may not be accurate from an expert's viewpoint. It was not so in tended. The object of the narrative was to present the situation in the best light for the plaintiff, since the court is of the opin ion that relief must be denied to the plain tiff on his own statement of facts. Indeed, it is doubtful if an accurate picture of the knowledge existing in 1920 concerning ra dium could be drawn even by experts. The learning of that time was so colored with conjecture and theory, some of-, which has since been discarded, that it is impos sible impartially and reliably to rational ize it i There is no question but that defend ant was utterly ignorant of the harmful effects attendant upon its factory process until 1924, when its attention was directed to an alleged case of radium necrosis suf fered by one of its former employees. It had examinations made of several of its employees of longest standing and re On March 12, 1924, it retained Dr. Ce cil K. Drinker of the School of Public Health, Harvard University, to conduct an investigation of the cause of necrosis oc curring in reported cases. His report con cludes that the necrosis was probably caused by exposure to radium, but as to how this could have occurred he was un able to demonstrate then. The report is contained in Exhibit P-31-7 and the sub stance of the same was received for pub lication on May 25, 1925, by and actually published in the Journal of Industrial Hy giene of August, 1925, vol. VII, No. 8, p. 371, Exhibit D-7. Following investigations and reports made by Dr. Blum, a dentist, and Dr. Hoffman, a statistician, in 1924, Dr. Harri son S. Martland, in 1925, published his first article on the subject, which he enti tled, "Some Unrecognized Dangers in the Use and Handling of Radioactive Sub stances," Journal of American Medical As sociation, vol. S5, p. 1769, December 5, 1925, Exhibit D-l. It is undisputed that he established the occupational hazard in the dial-painting industry. The defendant instigated the investiga tions and evidenced a willingness to co operate in them, demonstrating its effort to determine the cause of the harmful ef fect upon its workers as soon as its atten tion was directed thereto, and there is no suspicion upon which the court may rest to charge it with having knowledge of such cause or that it should, prior to 1924, have had such knowledge. There is no better way to illustrate that conclusion than to turn briefly to the de fendant's case. The defendant contends that up until the year 1924 it did not know and cannot be charged with the knowledge that it was dangerous for the dial painters to ingest the possible maximum amount of radium in the paint into their systems in the course of their work. LA. PORTE v. UNITED STATES RADIUM CORPORATION 269 . 13 F. Sapp. 303 Its contention is based on the assump medical man, consideration of the evidence tion that the decedent might have ingested in this case makes it increasingly obvious 43 micrograms of radium sulphate daily that the considerable portion of the work for 5V& days a week for a period of a year ing knowledge and experimentation in the and a half. That amount is a considerably radium field was that of physicists and not larger figure than that on which the plain of physicians. tiff insists. The defendant suggests it be The corroborating testimony men cause Dr. Martland once stated that this tioned came from very respectable author was the maximum amount according to his ities. estimate. The Office of Industrial Hygiene and As a mater of fact, it is evident that a Sanitation, United States Public Health far smaller quantity was taken into the Service, stated in an article published in system. Each worker painted 24 dials, 1933.10 the following: "Painting watch and each dial having 14 figures, with a gram dock dials with a luminous paint contain or less of paint. There are 28.54 grams in ing a radioactive substance began in this an ounce and the several grades of paint country in 1915. During the world war used contained 1 part of radium to 30,000 and immediately after, this small industry to 120,000 parts of zinc sulphide. A great was at its peak, and since the industry be number of considerations enter into any gan several thousand workers in all have approximation of the amount of paint in gested, and all of them tend to lessen the amount suggested by the defendant or cal culated by the plaintiff. been employed. Only within the last dec ade had poisoning by radium been recog nized. Martland in 1929 reported 40 cases of radium poisoning among workers and Dr. Lind testified that in his opinion of former workers in this industry or in close 1920 no harmful effects were to be expect ly allied occupations." ed frOm dial painting under the circum It is admitted that Dr. Martland first stances and the length of time that the de established the danger in the dial-painting cedent worked. He further testified that industry in 1924 or 1925. Prior to 1924, it the literature of that time had nothing in it had not been suspected, and Dr. Lind, to lead to a contrary conclusion. Dr. whose creditability is not to be questioned, Lind's opinion was corroborated at the tri was unable to conclude that Dr. Martland al by the testimony of Dr. Schlunt, Dr. was right until 1929. . Flinn, Dr. Failla, and Dr. Pohle. Dr. May, who was the only expert wit Both Dr. Lind and Dr. Schlunt partici ness for the plaintiff, testified that prior tcJ pated in the government's project to re 1924 there was nothing in the literature in cover radium in Colorado, and as physi dicating danger from dial painting or to cists stand out in the field. Dr. Lind ex show that harm would result from the use posed himself, without anticipating danger of radium under those circumstances. He to as much as 440 milligrams of radium at stated that he agreed with an article pub one time, and in a period of four years he lished in 1926 by Dr. Flinn 11 that the con supervised the handling of 8grams of clusion that no industrial hazard existed radium. Despite the attack made by plain in the dial-painting industry was justified tiff against him because he could qualify as of that time. He later stated he dis only as a physicist and not as an expert agreed. But he accepted Dr. Martland's ?0 "Health Aspects of Radium Dial Painting," 1933, The Journal of Indus trial Hygiene, vol. XV, Nos. 5 and C, Ex Mbit P-53. This series of articles con tained the findings and recommendations resulting from an investigation of the United States Public Health Service into the hazards which existed in this indus try, which investigation was undertaken tn collaboration with an advisory commit tee consisting of Dr. L. F. Curtiss, Physi cist, United States Bureau of Stand ards, Washington, D. C.; Prof. William Duane, Professor of Bio-physics, Harr- . ard University; Dr, Gioacchino Failla, Physicist, Memorial Hospital, New York . City; Dr. O. H. Gish, Chief, Section of Terrestrial Electricity, Department of Terrestrial Magnetism, Carnegie Institu tion of Washington; Prof. S. C. Lind, Director, School of Chemistry, University of Minnesota; Dr. Harrison S. Mart- land, Chief Medical Examiner, Essex County, New Jersey; Prof. Herman Schlundt, Professor of Physical Chem istry, University of Missouri. tt Flinn, "Radioactive Material An In dustrial Hazard?" 1920, Journal of American Medical Association, voL 87, No. 25, p. 2078, Exhibit P-39. . 270 13 FEDERAL SUPPLEMENT articles1* of 1925 and 1926 as true. He him, although they all eventually came to further agreed with the conclusion of Dr. agree with him. Field as of 1920 that small quantities of radium given internally had no toxic ef fect In 1912, an article by Dr. E. Belling ham Smith13 stated: " * * * Soluble salts of radium arc rapidly eliminated, however administered. The insoluble salts per os are excreted directly by the bowel, and there is no evidence of any temporary It is apparent from the literature pro duced during this trial that prior to 1925, although there was some suggestion of hazard through the agency of radium, many hailed it as a great boon to humanity, and its internal' uses by injection, inhala tion, etc., were frequently advocated. That the articles by Hoffman followed by that of Martland, Conlon, and Knef in the absorption and circulation." Journal of the American Medical Associa Dr. May disagreed with the conclusion tion, published respectively in September that insoluble radium salts administered and December- of 1925, startled the medi per os are excreted completely. He cal world, is demonstrated in the language thought that as of 1912 some of the insol of Lacassagne in his article entitled, "A uble salt might be absorbed. But there is New Professional Accident Among Han no literature prior to 1920 that supports dlers of Radioactive Materials; Necrosis his opinion as to insoluble salts, and the of the Maxillarics."14 He says: "Two opinions of Dr. Schlundt and Dr. Lind to recent articles (1), appearing in the Jour that effect are contrary. nal of the American Medical Association, Radium sulphate is one hundred times less soluble than barium sulphate. The barium salt is so insoluble that it is intro duced in the intestinal tract so that it may be examined by X-ray. Up to 1925, the literature did not show that radium sul phate would remain in the body. Although there had been suggestions to the contrary, it was accepted that the insoluble salt when taken by mouth would pass directly through the intestinal tract and from the body in a short period of time. Radium Was administered by some doctors in the form of a bromide, on the theory that it would remain in the body longer. have revealed on unforseen and surprising nezu accident, which has affected an impor tant proportion of workers occupied in painting with luminous radioactive prod ucts; it is a question of maxillary necrosis, always serious, and often ending in death." He concludes: "This persistence explains the serious lesions of blood form ing organs which can appear some years after the introduction of the radioelemcnt in the body, and ends in fatal pernicious anemia. The knowledge of these facts im poses on physicians the greatest care in the practice of injections of longlived radioac tive materials." . It must be remembered that in consid ering all of the evidence prior to 1924, none of it is remotely concerned with the dial-painting industry, but with the knowl edge and experiments of the scientific and medical world. There is no way to illustrate more em phatically what the experts in radium thought of the dial-painting industry than to recall that even after Dr. Martland's findings in 1925, Dr. Lind, Dr. Flinn, Dr. Schlundt, and Dr. Pohlc disagreed with (Italicizing in both paragraphs mine.) Again in 1927, Allen, Bowing, and Rowntrce 15 commented upon the evolution of thought on the use of radium, as fol lows: "Fifteen years ago the literature was flooded with the optimistic reports on the use of radium in medicine. These re ports ceased rather abruptly, and during the last ten years little has been written on the subject, except by those directly or in directly concerned commercially. During the intervening years radium has been em- 1* Martland, "Some Unrecognized Dan- fers in the Use and Handling of Radioac tive Substances," Journal of American ,Medical Association, vol. So, p. 17GO, Dec. 6 1025, Exhibit D-l. Martland, "Microscopic Changes of Cer tain Anemias Due to Radioactivity," 1926, Archives of Pathology, voL 2, No. 4, p. 465, Exhibit D-6. , U "Distribution and Excretion of Ra dium and its Emanation After Internal Administration," Quarterly Journal of Medicine, 1912, p. 219, Exhibit D-10. 14 Published in the Paris Medical, Feb ruary C, 192G, pp. 132-134, Exhibit P 14. is "The Use of Radium in Internal Medicine" January 15, 1927, The Jour nal of the American Medical Association. oL 88, No. 3, p. 164, Exhibit D-25. LA PORTE t. UNITED STATES RADIUM CORPORATION 271 13 F. Sapp. 203 ployed sporadically in the treatment of va "It would appear that the intravenous rious diseases, particularly arthritis, neuri injection of long-lived radio-active ele tis and hypertension, and more recently ments, or the internal administration of ra thrombo-angiitis obliterans (Buerger's dis dium, mesothorium, or radiothorium, is ease). Although striking results have been highly dangerous on account of the late observed on rare occasions in cases of hy harmful effects. As previously stated, and pertension and arthritis following the use here repeated for emphasis, it is not war of radium by the so-called sipping cure, the ranted in any medical condition, as none of method has dropped into complete disuse the known radioactive substances produce and has been replaced by a more certain any specific or curative result." procedure, the intravenous administration of the soluble salts of radium. However, in most cases, even with this method re sults have been meagre, transient or entire ly negative. Radium treatment is now rarely employed in our wards, in spite of the fact that it always can be had on request." These, then, were red flags of warning to the medical profession. They appear subsequent to the year 1925. But if the defendant is to be denied the protection of the statute of limitations, the plaintiff's case must be based upon the proposition that the defendant should have known of the harm ful effects during the period from 1917 to In a paper published in 1932, by Dr. 1920. . Martland, entitled "The Danger of In creasing the Normal Radio-activity of the Human Body," 10 he says: [1] If it is assumed that a cause of action existed in this case in favor of the dece dent against the defendant, it must have ac "It is the purpose of this paper to sum crued some time in the course of her em marize my findings and views and leave the ployment in 1917, 1918, or 1920, at the lat . reader with the facts, that undue or profes est, wherf she was last exposed to the radi sional exposure to radium and other long- um. It is unnecessary, if not impossible, lived radioactive substances is dangerous to determine the exact date. The question and should be reduced to a minimum, and has not been raised, but, at any rate, if the that the therapeutic use of these substances V internal administration, either by way of the mouth, or by inhalation, or by in travenous or intramuscular injection may be highly dangerous and is not warranted in any medical condition, as none of the known radioactive substances produce any curative results. action arose on the last day of her employ ment, the statute would have normally barred her remedy some time in 1922, which is at least two years before radium necrosis was discovered and over seven years before she was diagnosed. It appears, from a careful consideration of all the evidence, that no one had consid "It should be emphasized, that the disas ered the effect of the radium substances on trous results cited in this paper are not to the workers in this comparatively small and be confused with the legitimate use of ex commercially unimportant occupation. ternal irradiation by means of the X-rays There was much conflicting opinion in the And radium, such as is used for the treat minds of the few experts and little settled ment of malignancy in hospitals and insti knowledge. Some experts in 1920 consid tutions specializing in and competent to ered small quantities of radium such as the handle such treatments. The deleterious painters ingested beneficial to the human effects and hazards of external, penetra system. There is apparently no express tive, non-accumulative irradiation are well statement to the contrary. recognized and have been reduced to a min It is tempting in the light of the knowl imum by proper technic" edge of to-day and the experience since He concludes: . 1920 to create the thought that the defend "Since there is no evidence indicating ant must have been negligent in some way. :any beneficial results from the drinking of To-day, industrial methods which the de waters containing emanation, except phsyc- fendant then employed would not be mere ic ones, and there is scientific evidence that ly negligent but criminal. But it should be radon is not free from danger, their use carefully noted that this case must be de should be forbidden. The human race will cided on the facts as they existed in the mot suffer if they are eliminated. * * * light of the knowledge of 1917 to 1920. 18 Emnnucl I.ibmnn Anniversary Vol ume, 1932, International Press, New York, Exhibit P-33. 272 13 FEDERAL SUPPLEMENT Were safety measures such as scientific subsequent events; and when the period ventilation, masks, periodical medical ex prescribed by the statute has elapsed, the aminations, abolition of brush pointing, and bar is complete, and its force can neither other now known precautions to be consid be strengthened nor impaired by anything ered necessary as of 1920? that has happened in the meantime. * * * Actually, the defendant and its research The statute leaves nothing for presumption. bureau failed to anticipate what later re Time alone settles the rights of the parties, search and scientific investigation proved by the giant force of the statute." to be a fact, namely, that the defendant's That is law to-day in New Jersey. Free dial painters in 1920 were exposed to the man v. Conover, 95 N.J.Law, 89, 112 A. gravest of dangers in their occupation. 324; contra, Crawford v. Winterbottom, The fact is that this experience was not 88 N.J.Law, 5SS, 96 A. 497. brought home to science and medicine un [3] In our system of jurisprudence, equity, til a considerable number of cases such as in the case of fraud, has never barred re that at bar had been considered and then lief to an injured party who has been in the knowledge came slowly, only to be ac ignorance of the fraud. Prcvost v. Gratz, cepted as fact several years after the first 6 Wheat. 4S1, 5 L.Ed. 311; Badger v. necrosis cases were exposed. Badger, 2 Wall. (69 U.S.) 87, 17 L.Ed. Notwithstanding the fact that the court is convinced that the plaintiff is not enti tled to the relief he seeks on the ground of undisclosed fraud, the seriousness of the consequences of the decision makes it de sirable to review briefly the New Jersey authorities defining the limits of the socalled doctrine of fraudulent concealment. The New Jersey statute of limitations which is applicable to tort actions pro vides: "All actions hereafter accruing for injuries to persons caused by the wrongful act, neglect or default of any * * * corporation or corporations within this State, shall be commenced and instituted within two years next after the cause of such action shall have accrued and not aft er." Rev. 1877, p. 594, as amended P.L. 1896, p. 119, 3 Comp.St. 1910, p. 3164, 3. 836; Bailey v. Glover, 21 Wall. (88 U.S.) 342, 349, 22 L.Ed. 636; Exploration Com pany v. United States, 247 U.S. 435, 3S S. Ct. 571, 62 L.Ed. 1200; Howard v. West Jersey & S. S. Railroad Company, 102 N. J.Eq. 517, 141 A. 755. In Bailey v. Glover, supra, the court said in giving its reasons for the equitable doctrine: "They [statutes of limitation] were enactcfi to prevent frauds; to pre vent parties from asserting rights after the lapse of time had destroyed or impaired the evidence which would show that such rights never existed, or had been satisfied, transferred, or extinguished, if they ever did exist. To hold that by concealing a fraud, or by committing a fraud in a man?,, ncr that it concealed itself until such time as the party committing the fraud could plead the statute of limitations to protect [2] This is the genuine and orthodox stat it, is to make the law which was designed ute which was taken from 21 James I, c. to prevent fraud the means by which it is 16. In an action at law, the plea of the made successful and secure." Cited in Ex statute, regardless of fraud on the part of ploration Company v. United States, 247 the tort-feasor, is always a bar to recovery. U.S. 435, at page 447, 3S S.Ct. 571, 62 L. The New Jersey courts have held that the Ed. 1200. Legislature did not intend that there should Vice Chancellor Learning in the West be any exceptions to the statute other than Jersey Railroad Company Case, supra, ex those expressly enacted in other sections. plained that the statute is for the benefit Moreover, it appears that in the later Eng of the individual and not to secure gener lish statute of 3 and 4 Wm. IV, c. 27, a al objects of policy; so, therefore, its ben clause in section 26 expressly saves the efits may be lost by conduct invoking the remedy' under that statute from the bar of principles of estoppel in pais, as well as is concealed fraud. familiarly known, by waiver. In Thorpe v. Corwin, 20 N.J.Law, 311, 317, the court said: "The statute of limita tions makes the lapse of time a positive and legal bar. When once it has begun to run against a person under no legal disability, it pursues its course uninterrupted by any [4] In New Jersey, a person who has been wronged by fraud is relieved from the bar of the statute of limitations at law by a unique method. The plaintiff goes into the Court of Chancery and enjoins the plea of the statute at law. LA. PORTE v. UNITED STATES RADIUM CORPORATION 273 13 F. Sapp. 203 The phase of the doctrine with which In Lincoln v. Judd, 49 N.J.Eq. 387, 24 this case is concerned, "fraudulent conceal A. 31S, 319, the complainant shipped sheep ment," of a cause of action, is established to the defendants, who sold them and re on a broad basis in this state. mitted the proceeds of the sales, less their [5,6] It is not necessary that the acts or conduct constituting; the concealment of a cause of action be such as would be re quired to make, out fraud in a law court. commissions and amounts purported to have been expended for freightage. The freightage deducted was grossly in excess of the actual charges, but the complainants accepted the moneys as correct, relying on The test is defined as follows: "Also it the defendant's honesty, and did not dis should be noted that, while the doctrine of cover the fraud presumably for over six estoppel in pais rests upon the ground of years. The defendants demurred to the fraud, it is not essential that the repre bill for an accounting on the grounds that sentations or conduct giving rise to its ap the complainant had an adequate remedy plication should be fraudulent in the strict at law and that rrtore than six years had ly legal significance of that term, or with elapsed since the cause accrued. But the intent to mislead or deceive; the test ap court overruled the demurrer, holding that pears to be whether in all the circum "in cases of fraud, the time limited within stances of the case conscience and duty of which the action must be brought will not honest dealing should deny one the right commence to run until the discovery of the to repudiate the consequences of his rep fraud, or until the complainant was in a resentations or conduct; whether the au situation where, by the exercise of reason thor of a proximate cause may justly re able diligence, he would- have discovered pudiate its natural and reasonably antici the fraud." pated effect; fraud, in the sense of a court of equity, properly including all acts, omis sions, and concealments which involve a breach of legal or equitable duty, trust, or confidence, justly reposed, and arc inju rious to another, or by which an undue and unconscientious advantage is taken of another. 1 Story Eq.Jur. 1S7. The au thorities in this state to the general effect stated are Lamb v. Martin, 43 N.J.Eq. 34, 37 [9 A. 747]; Martin v. State Insurance Co., 44 N.J.Law 4S5, 4S7, 43 Am.Rep. 397; Holloway v. Appelgct, 55 N.J.Eq. 583, 5S5, 40 A. 27, 62 Am.St.Rcp. S27; Clark v. Au gustine, 62 N.J.Eq. 6S9, 695, 51 A. 68; Freeman v. Conover, 95 N.J.Law, 89, 93, 112 A. 324. See, also, Magner v. Mutual Life Association, 17 App.Div. 13, 44 N.Y. S. 862, affirmed 162 N.Y. 657, 57 N.E. 1116; Thompson v. Phcnix Insurance Co., 136 U.S. 287, 300, 10 S.Ct. 1019, 34 L.Ed. 408." Howard v. West Jersey, etc., R. Co., 102 N.J.Eq. 517, 521, 141 A. 755, 757, su pra. -. ' Another case, Holloway v. Appelget, 55 N.J.Eq. 5S3, 40 A. 27, 62 Am.St.Rep. 827,. held that the defense of the statute in an action at law would be enjoined in equity where a defendant sold certain municipal bonds after making an agreement with an attorney to pay him a percentage for col lecting the bonds and allowed the statute to run without informing the attorney of the fact. See comment, 12 Harv. L.R. 220. The court held in Clark v. Augustine, 62 N.J.Eq. 689, 51 A. 68, that nonresident ex ecutors would be enjoined in equity from setting up the bar of the statute to an ac tion at law on a claim against the estate when the executors gave notice that the claim had been rejected and then remained out of the state until the period for insti tuting suit had expired. The court said in disposing of the case (62 N.J.Eq. 6S9, at pages 694 and 695, 51 A. 6S, 70) : "In large numbers of cases where the defendant has caused the plaintiff to subject his claim to That statement was recently approved the statutory bar by procuring an injunc by the Court of Errors and Appeals in tion upon its prosecution, or by fraudu Patrick v. Groves, 115 N.J.Eq. 208, 169 A. lently concealing its existence, or by ap 701. It suggests a much wider scope to the parently waiving, by a promise or other doctrine of "fraudulent concealment" than wise, the benefits of the statute as a de is generally accepted elsewhere. See Daw fense, courts of equity have restrained the son, Fraudulent Concealment and the Stat defendant from pleading the statute, on ute of Limitations, 31 Mich.L.R. 591; note, the ground that he had estopped himself, Fraudulent Concealment of a Right of Ac or that to permit him to. interpose such a tion and the Statute of Limitations, 43 plea would be to allow him to take advan Harv.L.R. 471; Wood v. Carpenter, 101 tage of his own wrong. Doughty v. U.S. 135, 25 L.Ed. S07. ' Doughty (1855) 10 N.J.Eq. [2 Stock.] 347; 13F.Supi\--18 274 18 FEDERAL SUPPLEMENT Cowart v. Perrine (1870) 21 N.J.Eq. [6 CE.Gr.] 101; Quick v. Corlics [39 N.J. Law, 11], supra; Freeholders of Somerset County v. Veghte (1882) 44 N.J.Law [15 In Patrick v. Groves, 115 N.J.Eq. 208, 169 A. 701, the defendant, who had been an attorney for the plaintiff, misappro priated his clients' money. In affirming the Vr.] 509; Lamb v. Martin (1887) 43 N.J. decree of the Court of Chancery enjoining Eq. [16 Stew.Eq. (34)] 36, 9 A. 747; Hol a plea of the statute to an action at law to loway v. Appclgct (1S96) 55 N.J.Eq. [10 recover the misappropriated money, the Dick.Ch.Rep.] 583, 40 A. 27, 62 Am.St. Court of Errors and Appeals held that the Rep. 827; 19 Am. & Eng. Encycl.L. (2d defendant's fraudulent conduct was re Ed.) 243, 286, 288, and cases cited." sponsible for the plaintiff's delay in prose Howard v. West Jersey Railroad Com pany, supra, one of New Jersey's leading cases, furnishes an excellent illustration of the breadth of the doctrine. There, the plaintiff and the defendant had been nego cuting their action and that he was es topped thereby to set up the statute. The court approved the statement of the doc trine of estoppel in pais in the West Jer sey Railroad Case, supra. tiating a settlement of the plaintiff's claim for damages for personal injuries. The defendant apparently admitted liability, but the amount of damages was in question. The court appears to have been of the opinion that the plaintiff believed, by rea son of the statements and conduct of the defendant, that the amount of damages would be determined when the extent of the injuries had been determined. He asked for $10,000 in settlement of the claim. This was taken under advisement, and the plaintiff awaited a reply. Two days prior to the end of the statutory pe riod, of which the plaintiff did not know, the defendant offered $2,500 in settlement. After discussing the facts of the case, the court said: "While it cannot be said to be ordinari ly any part of duty to apprise an adversary of his rights, it must be recognized that one cannot justly or equitably lull his adver sary into a false sense of security, and [7] Generally, ignorance of the existence of a cause of action is required on the part of the plaintiff. The lack of knowledge of evidence or the identity of the defendant is not sufficient to invoke the doctrine of fraudulent concealment. But in Noel v. Teffeau, 116 N.J.Eq. 446, 174 A. 145, a "hit and run" driver of an automobile was restrained by the Court of Chancery from setting up the defense of the statute to an action brought by the person whom he had injured. This decision was influenced by a statute of New Jersey making it the duty of persons involved in accidents to report such occurrences to proper authorities. [8] Under the orthodox doctrine of fraud ulent concealment, it is required that the plaintiff be in ignorance of the existence of the cause of action and that the defend ant must intend to keep the plaintiff in ignorance thereof. Silence is not enough to make out fraudulent concealment. thereby cause his adversary to subject his [9,10] It is accepted in New Jersey that claim to the bar of the statute, and then be the plaintiff must show reasonable dili permitted to plead the very delay caused gence in bringing his suit after the estop by his course of conduct as a defense to pel has expired. See cases, infra. And it the action when brought. This is recog makes no difference if the concealment (or nized by our federal Supreme Court as a fraud) springs from the same act as the rule of justice in the concluding sentence cause of action or is found in subsequent of the opinion of the court in Thompson v. acts (or failure to act). Phcnix Insurance Co., supra, and is made Thus, it was said in Holloway v. Ap- the basis of decision in Magner v. Mutual pelget, supra, 55 N.J.Eq. 583, at page 585, Life Association, supra. . 40 A. 27, 28, 62 Am.St.Rep. 827: "Any suggestion of want of authority "The question is whether, in equity, of Mr. MacDonald and Mr. Turnbull to Mr. Holloway is entitled to invoke the bind defendants by their conduct is unten statute of limitations in bar of Appelget's able. Admittedly both were acting within action at law. In most of the cases the the field of their employment. Defendants bar has been set up in suits in equity insti cannot avail themselves of the fruits of tuted for the purposes of obtaining relief their activities and at the same time es in instances of fraud. There, however, is cape responsibility for. the methods em no reason why a court of equity should ployed by them.'' not, by the use of its injunctive power, dis- LA. PORTE v. UNITED STATES RADIUM CORPORATION 13 F. Sapp. 203 275 arm a defendant from using the statute fraudulently in an action at law. In the .case of Freeholders of Somerset County v. Veghtc, 44 N.J.Law [15 Vr.] 509, where it was held that a fraudulent concealment of a cause of action was no answer to the statute in an action at law, it was admit ted that relief could be successfully sought in equity. "It also appears that the equitable re lief here invoked has been granted mostly in cases where the act out of which the cause of action arose was a fraudulent act, in its nature self-concealing, such as em bezzlements or thefts carried out by the falsification of accounts or vouchers. But it seems clear that a court of equity will interfere, although the cause of action may not have arisen out of a technically fraud ulent act, if the defendant has employed any means to mislead the plaintiff, or to hide from him the fact that a cause of ac tion has arisen." [11] But of course, there must be some sort of conduct or acts which are fraudu lent or unconscionable. Mere negligence will not constitute equitable fraud even if the plaintiff has no knowledge of the cause of action. - There are apparently no New Jersey cases holding to that effect, but the rule has no exceptions in any jurisdiction ex cept in the so-called inadvertent trespass cases, such as Lewey v. H. C. Fricke Coke Company, 166 Pa. 536, 31 A. 261, 28 L.R. A. 283, 45 Am.St.Rep. 684. ter has exercised due care to fulfill the ob ligations imposed upon him by law, Leuteritz v. Ice Consumers' Co., supra [82 N. J.Law, 251, 83 A. 176]; and found also in the fact that as a matter of equity it is a fraud to act as the defendant did wher ever there exists in fact a relationship in which confidence is reposed on one side with a resulting superiority on the other side. Pomeroy Eq.Jurisp. p. 2039, as quot ed at page 17 of the trial brief). "3. An omission which involves a breach of legal and equitable duties, and by which undue and unconscientious ad vantage is sought to be taken." The plaintiff further contends that the evidence requires a finding that the de fendant is not entitled to use the statute of limitations as a defense on the following grounds: . "1. Actual fraud, consisting of con cealment of material facts when there was a duty to disclose them. "2. Equitable estoppel, found in "(a) Actual knowledge and nondisclo sure of material facts when a duty to dis close them existed. "(b) Imputed knowledge of material facts and nondisclosure under the same cir cumstances. "(c) Proximate causation within the meaning of the rule stated in Patrick v. Groves and the other authorities, as set forth in the trial brief. "3. Constructive fraud, found in [12] As heretofore indicated, there is no orthodox doctrine of "fraudulent conceal ment" in New Jersey. That is due doubt less to the flourishing Court of Chancery, which is maintained apart from and inde pendently of the law courts. At any rate, the plaintiff will not be relieved of the bar of the statute unless the defendant by his equitable fraud has prevented him from commencing his cause of action. The test of equitable fraud is stated in Patrick v. Groves and the West Jersey Railroad Case, both supra. [13] In this case, the plaintiff contends that the testimony tends to show: *`l. An omission which involves a breach of legal duty. ,, "2. An omission which involves a breach of confidence justly reposed (found in the fact that as a matter of law the servant is entitled to assume that his mas "(a) Actual knowledge and nondisclo sure of material facts when a duty to dis close them existed. "(b) Imputed knowledge of material facts and nondisclosure under the same circumstances. "(c) Proximate causation within the meaning of the rule stated in Patrick v. Groves and the other authorities, as set forth in the trial brief." On the contrary, the court is con strained to find that in 1920 and up to 1924, in which time the two-year period of limitations would have elapsed, there was neither knowledge of an occupational hazard in the dial-painting industry nor, in the light of the knowledge concerning ra dium, reason for the defendant to believe or to have known of the hazard. The de fendant could not have been under a duty to disclose a hazard which, so far as it or the world knew, did not exist. 270 IS FEDERAL SUPPLEMENT In 1920, It is a fact that dial painting was not known to be a hazardous occupa tion. It was only shown to be some time in 1924, or thereafter. To determine this case, the court must consider the knowl edge concerning radium existing at least prior to the end of the normal period of limitations. All the learning of the scien tific and medical world after that time, in cluding the fact, which is now admitted by every one, that the occupation was highly dangerous, is not relevant, per se, to the issue. Another way of stating this case in its final analysis is that in 1920 the head of the defendant's research bureau had failed to carry its research to the conclusion which scientific and medical experts later accepted, with some reluctance, after a number of the cases of radium necrosis had been carefully studied. Indeed, it is fair to say that until Dr. Martland estab lished the cause, it was only by the process of elimination that suspicions pointed to radium as the trouble maker. It can be said that this is a case where in both the plaintiff and defendant were ig norant of the existence of facts which may have constituted a cause of action, the reason for it being the fault of nei ther. Medical and scientific knowledge had failed to discover the dangerous pro pensities of the occupation. The statute of limitations and its exceptions were not conceived for this extraordinary situation. No one has even attempted to contro vert the fact that Dr. Blum, Dr. Hoffman, Dr. Drinker, and the defendant, itself, found, reason to suspect the danger in 1924; that Dr. Martland established it in 1925; but that several of the most eminent men in radium could not accept his conclu sion as true until later. There are no sug gestions to the contrary even by the plain tiff; but, at any rate, the court is com pelled to accept the opinions of the expert witnesses to that effect and the literature which fully corroborates those opinions and the fact that no reported cases exist ed prior to the one to which the defend ant's attention was brought early in 1924. Going back to 1920, there was no knowledge that an occupational hazard ex isted in dial painting. Whether or not it could have been established, if the radium experts had put themselves to the specific task, is a matter of conjecture. Medical and scientific opinion concerning radium was going through changes, slow in proc ess, which were the result of an increasing number of experiments. There is nothing on which a finding of negligence, in fail ing to discover the dangers in the industry, could be based. There is another serious question which should be briefly considered, but the deci sion of the court makes it unnecessary to determine it. It is that of whether or not the conduct of the decedent and the suc cessors to her alleged cause of action con stituted laches which would prevent the plaintiff from enjoining the defense of the statute of limitations, even if the defend ant was guilty of equitable fraud. It should be remembered that the de fendant was unaware of the decedent's ex istence after 1920; that the decedent firm ly believed during 1927 that she was a vic tim of radium poisoning; that, in fact, she had the common symptoms of the disease experienced by other cases with whom she frequently associated; that she had had Xrays taken in 1925 which Dr. Martland read in 1930 as showing typical areas of radiation osteitis in her jawbone; that aft er 1927 she attended dentists and a physi cian and related her fears to them but was reassured by them; that she continued to suffer from the manifestations of the dis ease; that on October 15, 1930, Dr. Martland diagnosed her trouble as radium pois oning; that a claim was made against the defendant on May 14, 1931, for the first time; that the decedent died on June 16, 1931; and that the action at law was com menced May 17, 1932. [14] "It is a well-settled rule in equity that, in cases of fraud, the time limited within which the action must be brought will not commence to run until the discov ery of the fraud, or until the complainant was in a situation where, by the exercise of reasonable diligence, he would have discovered the fraud.'' Lincoln v. Judd, 49 N.J.Eq. 3S7, 24 A. 318, 319; Patrick v. Groves, 115 N.J.Eq. 208, 169 A. 701. Accordingly, it might be contended that this rule should be invoked against the de cedent and her successors in. view of the evidence. The action at law was not com menced until June 16, 1931. While Dr. Martland did not diagnose her case until October 15, 1930, and her physician and dentist assured her that she did not suffer from the radium affliction, she knew of her own experience that she was suffering from the usual manifestations of the dis ease as she had had the opportunity to ob LA PORTE v. UNITED STAl IS RADIUM CORPORATION 277 13 F. Si p, 203 serve. It was more than the suggestion of tecting the public from fraud. Its ends fear in her mind that troubled her. She were desirable and necessary, and in the suffered the progressive effects of the dis infinite variety of cases that come before ease. Her associations with known victims the courts that is still true. The responsi with whom she even visited the offices of bility in this case can only be laid to the the radium experts when they were being tremendous progress made in science in treated is significant in determining wheth the last four decades, for radium was un er or not she was using reasonable dili known prior to 1S98. The development of gence in establishing her true condition the law to meet such contingencies must which was probably discoverable as early of necessity lag behind their discovery. as 1925. Only forward looking, intelligent legisla [15] In view of the unanimity of opinion of all courts that the statute will not be tolled unless the plaintiff has shown "rea sonable diligence," the question may well tion can protect future situations such as the one here presented. The bill must be dismissed. It is intended that the foregoing dis be raised here as to whether or not the de cussion of facts and law shall be in satis cedent was required to avail herself of faction of "the requirements of Equity Rule such medical examination as could have 70a/2 (28 U.S.C.A. following section 723), been made as soon as she entertained sus concerning findings of fact and conclu picions of her condition as early as 1927. sions of law. Under the reasoning herein it seems un necessary to decide this question, how Appendix I. ever. SUBSTANCE. PERIOD OF ONE HALF LIFE. The plaintiff contends that the de cedent did voice her complaints and sus picions to at least one doctor and dentist, as early as 1927 or 1928, but was assured by them that they were unfounded. This in itself lends force-to the argument of the. defendant that, in fairness and equity, it could not be charged in 1917 to 1920, with the anticipation of the dangers and haz ards attendant upon its industrial use. of radium in the infinitesimal quantities in which it was incorporated in the luminous paint. In 1925 and 1926, nation-wide pub licity was given to the discovery of radi um poisoning as the cause of the ailment from which several of these dial painters suffered. In the face of this and the di rect statement by the decedent that she suspected that she, too, was a victim, her own doctor and dentist in 1927 were un able to diagnose her trouble. Under such circumstances, can her employer be charged with the responsibility of antici pating such dangers in the light of the learning of the years 1917 to 1920? Naturally there is no question as to where the sympathies of any human being would lie in a case of this sort. But a court has no power to adjust the law which has been enacted to meet the needs of a time when no such case as this could be foreseen. This is an extraordinary case even today. The statute of limita tions was enacted for the purpose of pro- LEGEND -- ALPHA -- BETA -W* GAMMA 2000 YEARS 3.85 DAYS 3 MINUTES 26.8 MINUTES 19.5 MINUTES I&5 .YEARS 5 DAYS 136 DAYS 66 JANUARY TERM, 1966. [7 Ohio St. 2d Statement of the Case. -Mxtchem et al., Appellants, v. Johnson, d. b. a. Wallace Johnson Co., Appellee. , [Cite as Mitchem v. Johnson, 7 Ohio St. 2d 66.] Warranty--Breach by builder-vendor of real-property struc ture--Liability for damages not dependent on negligence-- Implied warranty of uncompleted structure not imposed on "builder-vendor, when--Duty of builder-vendor to employ . . care and skill--Hidden defects resulting from failure of duty--Liability to vendee. 1. Where a warranty is breached by the builder and vendor of a real-property structure, he is subject to liability for dam ages proximately caused by such breach, and the recovery of damages for such breach does not depend on his negli gence. (Paragraph two of the syllabus of United Pacific Ins. Co. v. Balcrank, Inc., 175 Ohio St. 267, approved and followed.) 2eAb `implied warraHty^frtavoriBf'the^eBdee'of'iitrTtmcoti^ pXeted real-property structure that it will, when finished, b% ^suitable for the purpose intended will not be imposed upon . [the.vendor who constructed it and undertakes to complete 'it-as A.parth>fdthe-execnted.contract' for sale of the real7 . stat$. ... 3.A duty is imposed by law upon a builder-vendor of a real- property structure to construct the same in a workmanlike manner and to employ such care and skill in the choice of materials and work as will be commensurate with the gravity of the risk involved in protecting the structure . against faults and hazards, including those inherent in its site. If the violation of that duty proximately causes a de feet hidden from revelation by an inspection reasonably -available to the vendee, the vendor is answerable to the vendee for the resulting damages. (No. 40023--Decided June 29, 1966.) Certified by the Court of Appeals for Lucas County as being in conflict with Vanderschrier v. Aaron, 103 Ohio App. 340. rr 7 Ohio St. 2d] MITCSEM v. JOHNSOtf. &t Statement of the Case. For the sum of $31,000, plaintiffs (appellants) purchased a new residence from the defendant (appellee), who con structed it. When the purchase price was paid and the title transferred to plaintiffs, the structure was not complete, and defendant agreed to finish the house as a part of the transac tion. Plaintiffs have no complaint as to defendant's work in completing the house. Beyond this point, however, the facts are in dispute. Plaintiffs sued the defendant because, they allege in sub stance, the lot and residence were located in an area which had surface-water problems, and, notwithstanding that fact and unknown to the plaintiffs, the residence was constructed on a low portion of the lot and without the installation of foundation drainage tile or any system to protect the structure from the surface-water problems, "the same being required by good workmanship" (emphasis supplied); "defendant did not use proper roofing, sheeting and insulating materials, and did not erect and install the same properly, or in the exercise of good workmanship, resulting in the installation of a defective roof" (emphasis supplied); and, because of these conditions, surface waters accumulated under the residence, saturated the founda tion and roof support members, and seeped up and into the roof insulation and roofing portions of the structure, which, in turn, caused the latter to warp, open, pull apart and permit water to seep into the residence. These conditions required the roof and related parts of the structure to be removed and . replaced "with proper materials" (emphasis supplied). Plaintiffs allege further that, during periods of heavy rainfall and high soil moisture, the area around the' residence structure became sodden and impaired the effectiveness of the septio tanks, rendering the interior toilet facilities partially unusable. . " Plaintiffs attempted to correct all these "defects and poor workmanship" (emphasis supplied) but without avail. Plain tiffs claim that as a result of defendant's breaches "of his im- Slied warranties to construct and wholly complete said resience in a proper and workmanlike manner, using proper ma terials throughout" (emphasis supplied), plaintiffs were dam aged in the amount of $3,800. . 188 - PCB-ARCH-EXT0376600 68 JANUARY TERM, 1966. [7 Ohio St. 2d Opinion, per Schneider, J. In his answer, defendant presents two affirmative defenses beyond a general denial of the matters disputed: (1) That cer tain modifications made in the structure by the plaintiffs were the real cause of their problems, and (2) that the damages sus tained were the result of natural conditions in the land over which defendant had no control. By reply, the plaintiffs deny the statements contained in the separate defenses and, on the issues thus joined, a trial was had. (A second cause of action based on express warranty and misrepresentation was dismissed for lack of sufficient evidence. No error was claimed arising from that action.) Before argument, the jury was given a special written instruction reading in pertinent part as follows: *`I instruct you that, as a matter of law, when parties pur chase a home from a builder and construction is not yet com pleted, the law implies certain conditions and warranties in that contract of sale. Among these conditions and warranties, it is an implied term of the sale that the builder will complete the house in such a way that it will he reasonably fit for its in tended use and that the work would be done in a reasonably efficient and workmanlike manner." The jury returned a verdict for the plaintiffs for $2,258.95. On appeal, the Court of Appeals for Lucas County reversed the judgment and remanded the cause for a new trial for the sole reason that the special written instruction was improper and prejudicial. Two other assigned errors were not con sidered in view of that judgment. Mr. Richard H. Conn, for appellants. Messrs. Rowley & Leahy and Mr. Paul J. Leahy, for appel lee. Schneider, J. The record brought to our attention under Rule IV of our Rules of Practice, and relied upon by plaintiffs, consists only of the petition, the answer, the reply, the special written instruction giyen before argument, and the judgment entries of the lower courts. Thus, the singular question pre sented is whether an implied warranty, in favor of the vendee of an uncompleted structure that it will, when finished, be suit able for the purpose intended, should be imposed upon the 7 Ohio St. 2d] MITCHEM v. JOHNSON. 69 Opinion, per Schneider, J. vendor who constructed and who undertook to complete it as a part of the executed contract for the purchase and sale of the real estate. In the Vanderschrier case, 103 Ohio App. 340, at best, a "bargain" was implied that work to be completed on real estate "would be done in a reasonably efficient and workman like manner," notwithstanding that the promise to complete was part of an executed contract of sale for the purchase of the realty. The implied "bargain" was held to extend beyond, and not to be extinguished by, the payment of the purchase price and the transfer of title. See, also, annotation, 84 A. L. R. 1008, and the cases cited therein. ' A contract to furnish labor and materials is not a sale if the finished product is not personal property. The require ment of workmanlike performance is no more than that which the law imposes upon the builder of a structure on land owned by another, unless, of course, a higher duty may be fairly implied from the terms of the contract itself. 17A Corpus Juris Secundum 851, Contracts, Section 515. In Flannery v. St. Louis Architectural Iron Co., 194 Mo. App. 555, 558,185 S. W. 760, we are of the opinion that the law is correctly stated: " *It is the duty of the builder to perform his work in a workmanlike manner; that is, the work should be done as a skilled workman would do it; the law exacting from a builder ordinary care and skill only.' [6 Cyc. 59.] It is certain that the builder is not an insurer. Nor is he required to respond to the owner on account of defective construction, except in ac cordance with the precepts of ordinary care, unless the obliga tion is affixed upon him through a special contract to do so. "Here, it is conceded there was no special contract requir ing plaintiff to mend the roof in any event or make good any otter part of the building which should fail because of latent defects in material not discoverable through exercising ordinary care to that end. Of course, there is no absolute warranty im plied by law against the builder, for the measure of his duty, as above stated, is to be ascertained by reference to the stand ard of ordinary care and skill in the circumstances which beset the particular situation." 70 JANUARY TERM, 1966. [7 Ohio St. 2d Opinion, per Schneider, J. If, as to work to be done and material to be furnished on real estate in futuro, the law imposes no higher standard than a "reasonably efficient and workmanlike manner," and the duty required is no more and no less than ordinary care (except perhaps in the case of an extraordinarily hazardous transac tion), we are not persuaded by any logic that the higher duty of an insurer should be imposed upon the builder-vendor as to the completed portion of a partially completed structure. Para graph two of the syllabus of United Pacific Ins. Co. v. Balerank, Inc^ 175 Ohio St. 267. In the absence of express warranties, the overwhelming weight of authority is that caveat emptor controls the purchase and sale of a completed structure, and the vendor will not be strictly liable to the vendee on an implied warranty that the structure is fit or suitable for the purpose ordinarily intended, even though the vendor was responsible for its construction. Shapiro v. Kornicks, 103 Ohio App. 49; annotation, 78 A. L. R. 2d 446; 6 A. L. R. 2d, Later Case Service, 285; 7 Williston on Contracts 3 Ed. 779, Section 926. If recovery were to be permitted solely on a warranty in this case, the effect would be as follows: By reason of the water seeping into the basement, thence into the roof supports and to the roof itself, the warranty would be breached by the vendor, because that condition is not reasonably anticipated in a structure to be used as a residence nor is that structure reason ably suitable as a residence, unless the vendor could demon strate that those conditions were caused other than by his own acts. Having constructed the building, the vendor must be held to his bargain irrespective that the work or materials, or both, utilized in its construction may have been reasonably suitable for their purpose and the care and skill utilized may have been that which was commensurate with the gravity of the risk in volved in protecting the structure against hazards, including those inherent in its site. Such result avoids the harsh truth that unfortunate problems arise on real estate and in real struc tures which no prudence can avoid and which defy every reason able skill. However, the courts of several American jurisdictions have purported to imply a warranty of fitness in sales of real estate upon a builder-vendor. In Louisiana (Sikes v. B & S Supply, 7 Ohio St. 2d] MITCHEM v. JOHNSON. 71 Opinion, per Schneider, J. Inc., 164 So. 2d 81), the decision is explained entirely by the Louisiana Civil Code, Book III, Title 7, "Of Sale," which is applicable to sales of realty as well as personalty, as distin guished from the Uniform Commercial Code adopted in Ohio. Section 1302.03, Revised Code. Three other cases (Carpenter v. Donohoe, 154 Colo. 78, 3S8 P. 2d 399; Glisan v. Smolenske, 153 Colo. 274, 387 P. 2d 260; and Jones v. Gatewood [Okla.], 381 P. 2d 158) involved defects caused by the negligence of the'builder which were not disclosed to the buyer. There appears no valid reason why recovery should not have been permitted even with out the device of implied warranty. In the only other case which we have been able to discover (Hoye v. Century Build ers, Inc., 52 Wash. 2d 830, 329 P. 2d 474), the cause of the "con dition which stubbornly resists correction" is not revealed by the report of the case. Thus, it is difficult to either agree or disagree with the reasoning of that decision, but, to the extent that it implies a warranty in a contract to construct a dwelling on the lot owned by the contractee, we cannot concur in the ab sence of knowledge of the terms of that .particular contract. We are of the opinion that the paucity of reported decisions involving an authentic common-law implied warranty involving real estate sales indicates that the doctrine of caveat emptor is so ingrained in our customary real estate transactions that few, if any, attempts have been made to pierce the shield of protection from specious claims of defect which it affords to vendors, not only of older buildings but of newly completed structures. It may also indicate that real estate buyers gen erally experience little difficulty in securing express warranties or guarantees if they are insistent, or, if not, that they have been successful in recovering for latent defects arising from improper work or materials in actions sounding in deceit or misrepre sentation for nondisclosure of those defects. Pumphrey v. Quillen, 165 Ohio St. 343; Brew v. Christopher Construction Co., 140 Ohio St. 1; Triplett v. OstrosUi, 103 Ohio App. 290; and Galvin v. Keen, 100 Ohio App. 100. In any event, the rule of caveat emptor is firmly anchored in the fact that the purchase of real estate is invariably pro ceeded by a lengthy period of inspection, consideration and nego tiation. ,One does not purchase land under conditions in any way similar to the purchase of home permanents (Rogers v. 72 JANUARY TERM, 1966. [7 Ohio St. 2d * Opinion, per Schneider, J. Toni Home Permanent Co., 167 Ohio St. 244), cooking appli ances (Welsh v. Ledyard, 167 Ohio St. 57), soap (Krupar v. Procter & Gamble Co., 160 Ohio St. 489) or electric blankets (Wood v. General Electric Co., 159 Ohio St. 273). Therefore, we find no overarching reason in this case "to pierce the shield." On the other hand, that is not to say that defendant here is entitled to final judgment. We note that the allegations of the petition make out a case of liability for the vendor's failure to disclose that which, as the builder, he should have known--a fault hidden from revelation by an inspection reasonably available to the vendee and caused by poor work manship or materials or both. . Apparently, the evidence reviewed by the Court of Appeals was sufficient on both sides of the issues of faulty construction and damages proximately flowing therefrom to convince that court to remand this cause for retrial and submission to the triers of the facts, free from the issue of implied warranty which would compel a verdict for the plaintiffs on the mere finding that the damage was proximately caused by acts of the defend ant, notwithstanding that those acts might have involved the exercise of ordinary care and skill. Defendant would be per mitted no explanation other than to show causation of damage flowing otherwise than from his own conduct or assumption of the risk by the plaintiffs. In other words, the special instruction on warranty obviated the necessity of plaintiffs proving, and the triers of the facts finding, a lack of good workmanship, that is, ordinary care em ployed by the builder under all of the circumstances, and that such lack of good workmanship proximately caused the damage. And it shifted the burden of explanation from the plaintiffs to the defendant. Lonzrick v. Republic Steel Corp., 6 Ohio St. 2d 227. The trial Court confused the operative effect of a warranty, even though implied by law, with the duty historically imposed by law upon all persons that they measure their conduct by that of the ordinarily prudent person under all the circumstances, which include the risk of harm from the natural and probable consequences of that conduct. We do not understand that a builder of structures on real estate is relieved of that duty any more than any other person in whatever capacity he may act. 7 Ohio St. 2d] GAS CO. v. AKRON. 73 Syllabus. Thus, it is not the law that a vendor-builder "does not generally, in the absence of some express bargain or warranty, undertake any obligation with regard to the condition of the house.'' (Emphasis supplied.) Vanderschrier v. Aaron, 103 Ohio App., at page 341. Nor can we agree with the trial court's instruction in this case that it was "an implied term of the sale that the builder will complete the house in such a way that it will be reasonably fit for its intended use. * *." On the other hand, we do concur in the statement that "it is an im plied term of the sale that the builder will complete the house in 6uch a way that the work [both before and after the sale] would be done in a # # workmanlike manner." Thus, the defendant should be entitled to show, and to have the triers of the facts consider in assessing fault, that he em ployed proper materials and workmanlike skill and judgment in constructing the house, taking into consideration the hazards of the lot and area and the risk of harm to the structure from those hazards. The judgment of the Court of Appeals is affirmed, and the cause is remanded to the Common Pleas Court for further pro ceedings consistent herewith. Judgment affirmed. Taft, C. J., Zimmebmah, Matthias, O'Neill, Hebbebt and Bboww, JJ., concur. Cox vs. Shaffer, (1972) Pennsylvania Superior Court No. 238. Appeal from the Court of Common Pleas., Civil Division, Washington County. CCH Products Liability, Paragraph 6937. Strict Liability--Applicability of--Silo Builder's Liability . ^lerftbfefsfrict'L'abiiity doctrine against^j:., jjjjiiiider of ELsilo to.recover for the'deaiii:dfLKerf decedent: who was asphyxiated byJetha! fumes' ^ffer edt'efi:ig.;,th'e.`''si!o. :A`silo constrjictcd'.^n place.on the emplover s innd'is'cot'ffiesaltTora ^i^Qct'f\nthTn-'theimTanin^.oT'tSe*Qoctiiac?' Back reference.--1)41S0.39, For the plaintiff: Milton D. Rosenberg, Bloom, Bloom, Rosenberg & .Bloom, Washington, Pa. . . For the defendant: Thomas L. Anderson, Washington, Pa. Per Curiam.- Glenn Cox, an employee of Agway, Incorporated, died on May 3, 1970 from asphyxiation when overcome with lethal fumes after entering a silo through a hatch in the top. The silo had been constructed for Agway in January, 1970 bv Donald Shaffer, d/b/a Shaffer Construction Co. . (Strict Liability] Suit was thereafter instituted against Shaffer by the Administratrix of Cox's Estate, the Complaint alleging that Cox had fatally suffocated from lack of oxygen and charging negligence of defendant in design and con struction of the silo in that it did not provide for ventilation of air and also charging defendant with strict liability under section 402A of Restatement of the Law of Torts. Defendant filed Preliminary Objections in the nature of demurrer alleging that the.Com plaint failed to stale a cause of action because (1) "such siio is by definition and generally known to be constructed and operated oxygenfree, as an essential of its physical and chemical operating principle..."; and (2) section 402A was not applicable in that "such silo obviously was not a product, nor was plaintiffs decedent user or consumer, nor was this defendant a seller, r.or were any other governing facts, within the intent and meaning of sec. 402A." The court below dismissed the first objection, the court;correctly holding that whether or not there was negligence in the design of the silo could not lx? answered ns matter of law on the basis of any definition of the term hut that a factual issue was presented for determination by a jury. ' The court below, however, sustained defendant's second objection and held that the strict liability of section 402A was not applicable to this constructed silo. Plaintiff has appealed to this court, arguing that the court below erred in so ruling. We would agree with plaintiffs complaint that the lower court went astray in its discussion of the issue as an attempted extension of no-fault insurance or of liability for an ultrnhazardous activity, as such discussion was not of any relevance to the very narrow issue involved, namely: Did the strict liability of Section 402A apply to a silo con structed in place on the employer's premises. However, though the lower court did. in its reasoning, go far afield, it eventually reached the correct result, as a study of the language of section 402A reveals, that section applies only to "One who sells any product in a defective condition". A silo constructed in place on the employer's land is not a sale of a "product". We find the section inapplicable by virtue of its very clear language and find no need to resort to any extended reasoning to support our deter mination that a building so constructed on the site is net a product within the intent and meaning of section -102A. It can be noted that the inability to proceed under section 402A will not materially affect the plaintiffs right of recovery in this case. In the event that defendant proves what he con tends, that there is no defective condition in the silo because a silo of necessity must be con structed oxygen-free, there would be no defec tive condition making section 402A applicable. If plaintiff proves there is a defective condition in a silo constructed without ventilation, of which condition defendant knew or should have known, recovery can be supported on the basis of negligence. The fact that pbintilf in the negligence action (unlike the action based on 402A) has to prove defendant knew or should have known of the defect does not in this case impose upon plaintiff any p-eat obstacle since defendant has not disclaimed knowledge of the condition alleged to be defective but has claimed that that condition is a necessary and proper one in the proper construction of a silo. Order affirmed. 195 - PCB-ARCH-EXT0376607 LARTIGUE v. R. J. REYNOLDS TOBACCO COMPANY 19 Cite as 317 F.2d 19 (1003) " '' burden of proof on the plaintiff and did not erroneously limit the time when the * . defendants were required to give warn ing. . . Affirmed. L Courts =359 Louisiana law controlled diversity case against cigarette manufacturers for death from cancer of plaintiff's husband, a Louisiana resident. 2. Negligence 0=134(1) Sales 0=441(1) Evidence supported verdict for cig arette manufacturers sued for death of heavy cigarette smoker on basis of breach of warranty and negligence. Victoria St. Pierre LARTIGUE, Appellant, v. B. J. REYNOLDS TOBACCO COMPANY and Liggett and Myers Tobacco Company, Appellees. No. 18903. United. States Court of Appeals Fifth Circuit. April 19, 1963. Action against cigarette manufac turers for death from cancer of plaintiff's husband, a heavy smoker. The United States District Court for the Eastern District of Louisiana, Herbert W. Chris.tenberry, J., rendered judgment on jury's general verdict for the defendants. The plaintiff appealed. The Court of Ap peals, Wisdom, Circuit Judge, held that the verdict was not contrary to the mani fest weight of thq evidence, that the instructions on the nature of implied warranty were not contrary to Louisiana law, and that the instruction on the neg ligence claim did not place an impossible 5. Sales 0=440(1) The use, in instructions on warranty in action against cigarette manufactur ers for death from cancer of plaintiff's husband, a heavy smoker, of cuch terms as "knowledge," "reasonable diligence," "reasonably foreseeable," "reasonably fit" and "reasonable care" was proper even though such terms are ordinarily associated with negligence. 4. Sales 0=279 The terms "knowledge," "reasonable diligence," "reasonably foreseeable," "reasonably fit" and "reasonable care" define the nature and scope of a manu facturer's so-called "warranty" (law-im posed duty) to consumers. 6. Sales 0=425. 427 The liability on warranty that con sumer invokes against manufacturer, with whom he has no contract of sale, is delictual, a liability in tort; in Louisi ana, in the case of food products and other articles intended for human con sumption, it is strict liability regardless of fault; this is a heavy burden on a manufacturer, but it is a. liability only for a defective condition not contemplat ed by consumer, the harmful consequenc es of which, based on state of human knowledge, are foreseeable. 6. Sales =255 The Louisiana codal warranty against redhibitory vices contemplates a 20 317 FEDERAL REPORTER, 2d SERIES direct, seller-buyer, contractual or com mercial law relationship, not a manufac turer-ultimate consumer relationship. LSA-C.C. arts. 2476, 2520, 2522, 2531, 2545, 2547. 7. Fraud 031 Sales 0425 The Louisiana Civil Code distin guishes between redhibitory action, based on implied warranty, arising from sale and action for fraud or deceit for misrepresentations which might arise. LSA-C.C. arts. 2476, 2520, 2522, 2531, 2545, 2547. 8. Food 025 Negligence 0102 Sales 0*425 To recover from cigarette manufac turers for death from cancer of plain tiff's husband, a heavy smoker, it is not necessary for the plaintiff to resort to the redhibition articles of the Louisiana Civil Code; the Code is broad enough to allow a consumer to recover damages against a manufacturer, either on negli gence or, in food products cases, on strict liability without negligence. LSA-C.C. arts. 2315, 2316, 2476, 2520, 2531, 2545, 2547. 0. Food =25 Negligence =27 Under the Louisiana Civil Code, a manufacturer of injurious or defective product is liable to a consumer when he fails to use due care in manufacturing a product; in the case of decayed food stuffs or food products containing dele terious substances, the manufacturer is held to strict liability, without regard to negligence; such liability, is not incon sistent with the civilian requirement of "fault". LSA-C.C. arts. 2315, 2316. 10. Torts @=1 In Louisiana, delictual responsibil ity without dolus (willful harming) or culpa (negligent harming) is explainable in terms of presumption of fault. 1L Torts =1 In Louisiana, delicts (torts) do not have to depend on negligence. 12. Sales =255, 274, 277 In Louisiana the law imposes strict liability on manufacturer for breach of implied warranty of wholesomeness that food product is safe for human consump tion; this warranty of wholesomeness may co-exist with warranty against redhibitory vices but manufacturer's warranty is directly to consumer and distinct from any conventional obliga tion he assumes to his immediate buyer or that is imposed upon him by the redhi bition articles of the Code; the liability is delictual, imposed because the party responsible for the product, in control of its preparation, and therefore in a euperior position, breached his duty to ultimate consumers who rely on him to furnish goods reasonably safe for human consumption. LSA-C.C. arts. 2476, 2520, 2522, 2531, 2545, 2547. 13. Sales =255 In Louisiana, privity is not a neces sary element in holding manufacturer liable on his warranty. 14. Sales =26G, 280 In Louisiana, manufacturer of to bacco should be classified with food proc essor and held to warrant the whole someness of his product, (that is, he is strictly liable in tort for an unwholesome product)--but, as in the case of the food processor, the strict liability should apply only when the damages were fore seen, or could easily have been foreseen, as likely to result from the putting of the thing sold to the use for which it was sold. 15. Sales =284(1) Under Louisiana doctrine of strict liability of manufacturer on his war ranty, it is not necessary for the plain tiff to show that the manufacturer failed to use due care or that the manufacturer had knowledge of the defective condi tion; however, it is necessary to show that the warranted product contained an element from which, on basis of existing human knowledge, harm might be ex pected to flow. I L. * - 197 - PCB-ARCH-EXT0376609 LABTIGUE v. R. J. REYNOLDS TOBACCO COMPANY 21 ate as 317 F.2d 19 (19G3) 16. Food =25 tation, (3) implied warranty against When a manufacturer or a proces redhibitory vices, and (4) strict liability sor places food products in channels of or implied warranty of wholesomeness commerce for human consumption he as of articles of intimate bodily use. sumes a special responsibility to the pub lic; the consumer has the right to ex pect, in the case of products so vitally important to human existence and health of community as food and other products for intimate bodily use, that products are reasonably fit for purposes for which they were sold; the goods therefore 21. Trial 0=295(5) The charge, read as a whole, gave plaintiff, who was suing cigarette manu facturers for death from cancer of plain tiff's husband, a heavy smoker, the full benefit of the manufacturer's implied warranty of wholesomeness. must comply with reasonable and ascer tainable standards of safety; the burden of any accidental injuries caused by such products must be placed upon those who produce and market the products and know the risks. 17. Sales =280 In Louisiana, manufacturer of food products is strictly liable for breach of warranty of wholesomeness only if there is foreseeability of harm. 22. Food 0=25 Sales 0=279 Torts 0=1 In Louisiana, a manufacturer of food and cigarettes is strictly liable for foreseeable harm resulting from defec tive condition in product when customer uses product for purposes for which it was manufactured and marketed; there is no absolute liability for harmful ef fects of which no developed skill or fore sight can avoid; cigarette smokers who 18. Sales =279 Strict liability on warranty of wholesomeness, without regard to negli gence, does not mean that goods are war ranted to be foolproof or incapable of producing injury; by and large, the started smoking before the great cancer smoking debate cannot rely on tobacco companies' "warranty" that their ciga rettes had no carcinogenic element; the manufacturer is not an insurer against the unknowable. standard of safety of goods is the same under the warranty theory as under the negligence theory; the article sold must be unreasonably dangerous,to the ordi nary consumer, with the knowledge com mon to the community as to its char acterization. 23. Negligence <S=138(2), 139(7) In negligence action against ciga rette manufacturers for death from can cer of plaintiff's husband, a heavy smok er, instruction to effect that manufac turer charged with negligence for some inherent danger or defective condition in 19. Sales 0=279 The fitness of cigarettes for use, un der the redhibitory article of the Louisi ana Civil Code, is essentially the same as their fitness for human consumption. LSA-C.C. art. 2520. '20 his product is held to standard of rea sonable care, that in determining this standard it is proper for jury to take in to account the state of medical knowl edge before the husband's cancer started, and that tobacco companies are not liable for negligence on basis of medical 20. Fraud 0=33 studies yet to be published did not place Negligence 0=103 Sales 0=427 Torts 0=24 Assuming facts favorable to plain tiff suing cigarette manufacturers for an impossible burden of proof on plain tiff and did not erroneously limit time when manufacturers were required to give warning. death from cancer of plaintiff's husband, a heavy smoker, recovery might be grounded under Louisiana law under (1) negligence, (2) fraud for misrepresen H. Alva Brumfield, Baton Rouge, La., Melvin M. Belli, Sr., San Francisco, Cal., Sylvia Roberts, Baton Rouge, La., for appellant. - 198 - PCB-ARCH-EXT0376610 22 317 FEDERAL REPORTER, 2d SERIES Harry B. Kelleher, Harry McCall, Jr., lit one cigarette from another, and i New Orleans, La., Frederick P. Haas, smoked them down to small butts. As I Theodore Kiendl, Porter R. Chandler, early as 1934, "all the doctors" had ad Edwin J. Jacob, New York City, for ap vised him not to smoke. October 5, 1954, pellees. Lartigue was operated for cancer of the Before HUTCHESON, RIVES, and WISDOM, Circuit Judges. larynx. The larynx, all of the right vo cal cord, and part of the left vocal cord were removed. Medical reports showed WISDOM, Circuit Judge. that he had a squamous cell cancer and evidence of leukosplahia. He was dis [1] The Court's decision on this ap charged from the hospital October 12, peal turns on the nature and scope of a 1954. December 12 he returned to the cigarette manufacturer's warranty of its hospital; he had lung cancer. He re product. Theplaintiff's husband, Frank mained in the Ochsner Clinic Founda J. Lartigue, died of cancer. The com tion Hospital in New Orleans until Feb plaint alleges that the cancer came from ruary 25, 1955, and then entered the Vet smoking the defendants' tobacco prod erans Hospital in Houston, June 21. ucts, Picayune cigarettes and King Bee There he died July 13, 1955, in his sixty- tobacco, manufactured by Liggett & fifth year. An autopsy showed that the Myers, and Camel cigarettes, manu cause of death was carcinoma of the factured by Reynolds.1 The plaintiff right lung, with extension to chest wall bases her claim on breach of warranty and suppression of superior vena cava. and negligence. The defendants pleaded Lartigue's long medical history shows i a general denial, contributory negli that for over thirty-five years he was gence, and assumption of risk. After a long trial, the jury gave a general ver dict for the tobacco companies. The plaintiff appeals, mainly on the ground that the trial judge erred in not instruct ing the jury properly on the defendants' implied warranty of wholesomeness, a warranty distinct from the warranty against hidden vices implied in every sale as provided in the Louisiana Civil Code. This is a diversity suit; Louisi ana law controls the case. We affirm. physically weak, racked by coughing and a sore throat. His army records reflect that he had measles, pertussis, and diptheria as a child; malaria in 1917; in fluenza in 1918; chronic tonsilitis, pyor rhea, and muscular pain; gonorrhea in 1910 and tertiary syphilis in 1918. Lat er, he had tuberculosis. Lartigue had rheumatism as early as 1934. He had all of his teeth pulled. The plaintiff offered evidence that none of these ills cause or aggravate cancer; the defendant count I. Frank J. Lartigue, a resident of New Orleans, started smoking Picayunes in ered with evidence that, except for rheu matism, all of these ills aggravate and are suspected causes of cancer. 1899 when he was nine years old. He con [2] The plaintiff contends that the tinued to smoke Picayunes and also King jury's verdict was contrary to the mani Bee tobacco for 55 years until October fest weight of the evidence. The record 5, 1954, when he was operated on for consists of twenty volumes, not to speak cancer of the larynx. In 1944 he began of exhibits, most of it devoted to medical smoking Camels, along with King Bee opinion. The jury had the benefit of and Picayunes. His wife, who married chemical studies, epidemiological studies, him in 1917, testified that he was a reports of animal experiments, patho "cigarette fiend." As long as she knew logical evidence, reports of clinical ob him he smoked at least two packs a day, servations, and the testimony of re I. The Irby Branch of the old American Tobacco Company, not a defendant in the case, manufactured King Bee tobacco and Picayune cigarettes until 1911. Liggett ft Myers was incorporated upon the dis solution of the old American Tobacco Company. - 199 - PCB-ARCH-EXT0376611 I LARTIGUE v. R. J. REYNOLDS TOBACCO COMPANY 23 . Cite as 317 F.2d 19 (19G3) nowned doctors. The plaintiff made a facturer can have knowledge in the convincing case, in general, for the exercise of reasonable diligence, the causal connection between tobacco and absence of which causes damage enneer and, in particular, for the causal connection between Lartigue's smoking and his cancer. The defendants made a convincing case for the lack of any causal connection. The district judge, in the course of the hearing on the plaintiff's motion for a new trial, expressed the view: "I regret now I did not propound that is reasonably foreseeable. "The manufacturer of products which are offered for sale to the public in their original package for human consumption or use, implied ly warrants that its products are reasonably wholesome or fit for the purpose for which they are sold. But such implied warranty does not the interrogatory with respect to cover substances -in the manufac the connection between the smoking and his lung cancer because I'm sat isfied the jury never got beyond that question and I know--I'm sure at least that they simply decided the plaintiff had failed to prove the causal connection between his smok ing and his lung cancer but that is water under the bridge now." tured products, the harmful effects of which no developed human skill or foresight can afford. "You are instructed that the man ufacturer who makes a product is under a duty first to exercise rea sonable care in testing and inspect ing its finished product to determine whether such products are reason We consider it unnecessary in this opin ion to summarize the evidence. We find substantial evidence in the record to sup port the verdict. II. ably safe for their intended use. And if he fails to do so and injury proximately results, he in such in stance would be liable for the injury. A party is liable for all the conse quences which reasonably flow from The appellant's central attack on the or follow the wrongful act, if they trial judge's charge is that the instruc tions on the nature of implied warranty were contrary to Louisiana law. The appellant's flank attack is that the in structions on warranty were so inter spersed with principles of negligence as be established. Whether actually contemplated or not, and the wrong ful act being established, the liabil ity extends to all the consequences that naturally and proximately flow from such act. to be misleading. The appellant relies on the following extract from the charge, quoting the un derscored language to support her main attack: "If you find that at the time Mr. Lartigue's cancer started, the cig arettes manufactured by the defend ants were usable as such, and that the state of medical knowledge was "I will give this special charge, 30: Plaintiff also claims that the De fendants are liable to her for the death of her husband because, as she contends, their products caused or contributed to the causing of can cer from which he died, and thereby, then such that the defendants could not have anticipated in the exercise of reasonable care that their prod ucts would cause cancer, then your verdict on the issue of implied war ranty, would be in favor of the de fendants. breached the warranty of general quality which is implied by Louisi ana law in every sale. The war ranty of general quality which is implied by Louisiana law is only as to those qualities of which a manu "Now, in weighing the actions of the defendants and plaintiff's de ceased husband, Frank Lartigue in this case, in so far as negligence on the part of the defendants and con tributory negligence and assump- - 200 - l PCB-ARCH-EXT0376612 i 24 317 FEDERAL REPORTER, 2d SERIES tion of the risk on the part of the plaintiff is concerned, you should consider that even if defendants did not know of the dangerous sub stances in their products, you should consider from the evidence whether they should have taken steps to as certain the effects of their products when used for human use, especial ly as to whether their products would cause or be a contributing cause in the development of cancer of the lung and larynx." Considering the charge as a whole, we find that the trial judge explained to the jury that the action was based both on negligence and on breach of warranty and that he correctly differentiated be tween the two claims. After the usual general instructions, the trial judge, in three pages of printed text, instructed the jury on the elements of negligence. In about a page of printed text he ex plained contributory negligence. In these instructions the trial judge made no reference to warranty. Next he made it clear to the jury that having com pleted the instructions on negligence he would then instruct on breach of war ranty, At this point he gave the instruc tions we have quoted. [3-5] It is true that such terms as "knowledge", "reasonable diligence", "reasonably foreseeable", "reasonably fit" and "reasonable care", which the trial judge employed in his instruction on warranty, are ordinarily associated with negligence. But they are also prop erly used when recovery Is sought against a manufacturer on the ground of breach of warranty. These terms define the nature and scope of a manufacturer's so-called "warranty" (law-imposed duty) to consumers. The trial judge used them properly. "Liability in warranty arises where damage is caused by the failure of a product to measure up to express or implied representations on the part of the manufacturer or other supplier. * * * [It] is strict if a breach there of is proved." 1 Frumer & Friedman 16.01 [1] (1961). The liability on war ranty that a consumer invokes against a manufacturer, with whom he has no contract of sale, is delictual, a liability in tort; in Louisiana in the case of food products and other articles intended for human consumption, it is strict liability regardless of fault. This is a heavy bur den on a manufacturer, but it is a lia bility only for a defective condition not contemplated by the consumer, the harm ful consequences of which, based on the state of human knowledge, are foresee able. "The foreseeability here involved is different from that required in negli gence cases. It is not the foreseeability of unreasonable risks, but rather the foreseeability of the kinds of risks which the enterprise is likely to create." James, Strict Liability of Manufactur ers, 24 Tenn.L.Rev. 923, 925 (1957). Further discussion will clarify our views. 1 A. First, it is helpful to take a quick look at the manufacturer's liability 2 as the law has developed in other states. 2. Legal writings on the subject are prolific. Seo especially Perkins. Unwholesome Food as a Source of Liability, 5 Iowa L.Bull. 6 (1919); Llewellyn, on Warranty of Quality, and Society, I, 30 Col.L.Rev. 699 (1930): II, 37 Col.L.Hev. 341 (1937); Jcanblanc. Manufacturers'..Lia bility to Persons Other Than Their Im mediate Vendees, 24 Va.L.Rev. 134 (1937); Prosser, The Implied Warranty of Merchantable Quality, 27 Minn.L.Rcv. 117 (1943); James, Products Liability, 34 Tex.L.Rcv. 44, 192 (1955); James, Green, Plant, Lucey, Noel, Symposium, Strict Liability of Manufacturers, 24 Tenn.L.Rev., Spring. 1957; Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), G9 Yale LJ. 1099 (1959); Patterson, Manufacturer's Stat utory Warranty: Tort or Contract, 10 Mercer L.Rcv. 272 (1959); Keeton, Products Liability-Current Developments, 40 Tex.L.Rcv. 193 (1901); Comment, 27 Mo.L.Rev. 194 (19C2). In general, see Melick, The Sale of Food and Drink (193G): 1 Williston, Sales 5 241-243 .-(Rev. Ed. 194S) ; Dickerson, Products Liability and the Food Consumer (1951) ; Prosser, Torts 84 (2d Ed. 1955); 2 Harper & James, Torts, 28 (1936); Frumer and Friedman, Products Liability (1961); Hursh, American Law of Prod ucts Liability (19G1). See also Restate ment of Torts. Second 5 402(A) Tent Draft No. 7 (1962). - 201 .- PCB-ARCH-EXT0376613 LARTIGUE v. R. J. REYNOLDS TOBACCO COMPANY 25 Cite as 317 `.2d 19 (1903) In the common law, traditionally, the 456, 12 P.2d 409, 15 P.2d 1118, 88 A.L doctrine of caveat emptor 3 and the re R. 521. quirement of privity between the seller and buyer freed a manufacturer of lia bility to a remote user or consumer. Winterbottom v. Wright, 1842, 10 M. & W. 109, 152 Eng.Rep. 402. The "citadel of privity"4 was first successfully stormed in negligence actions against manufacturers involving inherently dan gerous instrumentalities. In a water shed decision, Judge Cardozo stated the modern rule in affirmative terms of lia bility rather than in terms of a negative rule of nonliability to which an exception must be found: if a manufacturer's product "is reasonably certain to place life and limb in peril when negligently made," the manufacturer is liable to con When a claim is based on injuries from food products manufactured or processed for human consumption a spe cial rule prevails in a large majority of the states: strict liability, with or with out privity, regardless of negligence.6 In recent years a number of courts have extended the rule of strict liability to articles "for intimate bodily use", such as cosmetics, chewing tobacco, cigarettes, drugs given .by injection, and similar products. Thus, the American Law In stitute has approved a new section in the Restatement of the Laws of Torts Sec ond which is couched in non-contractual phraseology: sumers, even if there is no privity. MacPherson v. Buick Motor Co., 1916, 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696. When the claim is based on breach of implied warranty in a non-food case, lack of privity is generally a defense.5 One engaged in the business of selling a product by advertising, however, may be liable on express warranty to a con sumer injured by relying upon a mis representation in the advertising. Bax ter v. Ford Motor Co., 1932, 168 Wash. " 402A. SPECIAL LIABILITY OF SELLERS OF PRODUCTS FOR IN TIMATE BODILY USE "ONE ENGAGED IN THE BUSINESS OF SELLING FOOD FOR HUMAN CONSUMPTION OR OTHER PRODUCTS FOR INTI MATE BODILY USE, WHO SELLS SUCH A PRODUCT IN A DEFECTIVE CONDITION UN REASONABLY DANGEROUS TO 3. See Hamilton, The Ancient Maxim Caveat Emptor, 40 Yale L.J. 1133 (1931). Hamilton points out, however, that in tbo common law food vendors have long been held to a spceinl responsibility when they failed to exercise the degree of skill prevailing in their trade. The ale-wife who sold weak beer ``journeyed to the tumbrel with distaff and spindle". 4. "The assault upon the citadel of privity Is proceeding in these days apace." Jus tice, then Judge, Cardozo in Uitramares Corp. v. Touche, 1931, 255 N.Y. 170, 174. N.E. 441, 74 A.L.R. 1139. 5. For example: "[T]here is no contrac tual relation existing between the original ecllcr, the warrantor, and a subpurchaser. They are unknown to each other in the transaction." Pcnse & Dwyer Co. v. Somers Planting Co., 1922, 130 Miss. 147, 83 So. 673. The Restatement of Torts Second, Tentative Draft No. 7, 1902, lists the following nineteen jurisdictions as sup- porting the rule of strict liability for food and drink: Arizona, California, Florida, Illinois, Iowa, Kansas, Louisiana (citing LcBlanc v. Louisiana Coca Cola Bottling Co., 1952, 221 La. 919, CO So. 2d S73; Miller v. Louisiana Coca-Cola Bottling Co., La.App.1954, 70 So.2d 409; Michigan, Mississippi, Missouri, Ncbraska, New Jersey, New Y'ork, Ohio, Penn sylvania, Puerto Rico, Texas, Virginia and Washington. The following five states reach the same result under stat utes which provide for strict liability, or arc construed to. have that effect: Connecticut, Georgia, Minnesota, Mon tana, and South Carolina. The follow ing eleven jurisdictions reject the rule: Alabama, District of Columbia, Kentucky, Maine, Massachusetts, New Hampshire, North Carolina, Rhode Island, South Da kota, West Virginia, and Wisconsin. In the remaining fourteen states the law is not definite ns to food products liability. No state has rejected the rule since 1935; since 1935 ten states have adopt ed the rule. 26 317 FEDERAL REPORTER, 2d SERIES THE CONSUMER, IS SUBJECT TO LIABILITY FOR BODILY HARM THEREBY CAUSED TO ONE WHO CONSUMES IT, EVEN THOUGH "(a) THE SELLER HAS EXER CISED ALL POSSIBLE CARE IN THE PREPARATION AND SALE OF THE PRODUCT, AND "(b) THE CONSUMER HAS NOT BROUGHT THE PRODUCT FROM OR ENTERED INTO ANY CONTRACTUAL RELA TION WITH THE SELLER." Courts have had little trouble in hold ing a seller of foods strictly liable to the ultimate consumer; it has not been so simple to rationalize the result. From time to time courts have based recovery on a contract for the benefit of a third person, an agency relationship between an intermediate dealer, wholesaler or re tailer, and the consumer, and an implied representation of fitness.7 Until recent ly, the most popular theory based re covery on an implied warranty running with the goods similar to a covenant run ning with the land. This theory has many obvious difficulties, the most seri ous of which is the confusion caused when the useful fiction of a warranty to explain an action for damages in tort is sought to be applied literally as if it were indeed a covenant inseparable from a contract of sale. That confusion perme ates the thinking of the parties in this case: the plaintiff considers that the warranty, like a warranty of title to real estate, covers all possible defects; the defendants resolutely insist that the only warranty in Louisiana is the contractual warranty against redhibitory vices im plied in every sale. The view now gen erally accepted by common law authori ties is that the "warranty" is not con tractual but is strict liability in tort, in dependent of negligence.8 The explana tion is consistent with the history of warranty. "The action for breach of warranty was originally one on the case, sounding in tort and closely allied to de ceit, from which it was not distin guished." 0 The Comment to Section 402A of the Restatement of Torts Sec ond, Tentative Draft No. 7 (1962), states, in part: " 'Warranty The liability stated in this Section does not rest upon negligence. It is strict liability, similar in its nature to that covered by Chapters 20 [Liability of Pos sessors of Wild Animals] and 21 [Liability for Abnormally Danger- 7. For a collection of twenty-nine examples of what Dean Prosser calls (60 Yale L.J. 1090, 1124) "a remarkable variety of highly ingenious, ami equally unconvincing theories of fictitious ngency, third-partybeneficiary contract, and the like to get around the lack of privity" see Giilara, Products Liability in a Nutshell, 37 Ore. LJlev. 119, 153 (1907). 8. Amc3, The History of Assumpsit, 2 HarvJL.Rcv. 1 (1SSS): Williston, Sales 195 (194S); Melick, The Sale of Food and Drink 8 (1930); Dickerson. Prod ucts Liability and the Food Consumer 34 (1951); Prosser, Assault Upon the Citadel (Strict Liability to the Con Sumer), 69 Yale L.J. 1099, (I960), Re statement of the Law of Torts Second | 402A, Tent.Draft No. 7 (1962).9 9. Prosser, Assault Upon the Citadel, 69 Yale L.J. 1099, 1120 (1960). . "[I]t was not until 1778 that tho con tract action was held to lie at all. It la undisputed that the original tort form of action, as on the case, still sur vives to the present day, and may every where be maintained. Nor is this a mere technical matter of procedure, . since there are many decisions which have held that the tort aspects of war ranty permit the application of a tort rather than a contract rule, in such matters as the survival of actions, the statute of limitations, the measure of damages, or recovery for wrongful death. Beyond this, the old tort char acter has continued to color the sub stantive law of warranty itself, by per petuating the idea of a misrepresenta tion of fact, however innocent, and of a liability arising and imposed by opera tion of law, which is quite independent of any intention to agree upon terms as a matter of fact. Thus there arc a great many cases, even between the immediate parties, in which to say that the warranty is a term of the con tract is `to speak the language of pure fiction.*" Ibid. LARTIGUE v. R. J. REYNOLDS TOBACCO COMPANY 27 Qtc as 317 Fid 19 (1963) us Activities] of this Restatement. In food products cases Louisiana courts The basis of liability is purely one have reached the same result as courts f tort. * * * ` in most common law states. In doing so "Although warranty was in its ori gin a matter of tort liability, and it is generally agreed that a tort action will still lie for its breach, it has become so identified in practice with a contract of sale between the plaintiff and the defendant that the warranty theory has become some thing of an obstacle to the recogni tion of the strict liability where there is no such contract. If the rule stated in this Section is to be treated as one of `warranty' to the consumer, it is at least a very dif ferent kind of warranty from those usually found in the sale of goods, and it is not subject to the various contract rules which have grown up to surround them." 10 Louisiana courts have relied on common law authorities about as often as on civilian authorities.11 We turn now to Louisiana law. B. Louisiana courts, unlike common law courts, have no difficulty in finding an implied waranty when the defendant is the seller: the LSA-Civil Code implies a warranty in every sale. Article 2475 provides: "The seller is bound to two principal obligations, that of delivering and that of warranting the thing which he sells." This obligation resulting from the sale is similar to the warranty in the Uniform Sales Act and the Uniform Com mercial Code.12 Thus, the Civil Code deals with the subject in Chapter 6, "Of 10. The Comment continues: "The rule stated in this Section does not require any reliance on the part of the consumer upon the reputation, skill or judgment of the seller who is to be held liable, nor any representa tion or undertaking on the part of that seller. The seller is strictly liable al though, as is frequently the case, the consumer does not even know who he is at the time of consumption. The rule stated in this Section is not governed by the provisions of the Uniform Sales Act, or those of the Uniform Com mercial Code, a3 to warranties; and it is not affected by limitations on the scope and content of warranties, or by limitation to `buyer' and `seller' in those statutes. Nor is the consumer required to give notice to the seller of his in jury within a reasonable time after it occurs, as is provided by the Uniform Act. The consumer's cause of action does not depend upon the validity of his contract with the person from when he acquires the product, and it is not af fected by any disclaimer or other agree ment, whether it be between the seller and his immediate buyer, or attached to and accompanying the product into the hands of the consumer. In short, `war ranty' must be given a new and dif ferent meaning if it is used in con nection with this Section. It is much simpler to regard the liability here set tled as merely one of strict liability in tort" Dean William L. Prosser is the Reporter for the Restatement. The Advisers are: Laurence H. Eldrcdgc, Gerald F. Flood, Fleming James, Jr., Robert E. Keeton, W. Page Keeton, Calvert Magruder, Wex Smathers Malone, Clarence Morris, War ren A. Scavey, Samuel D. Thurman, Jr., Roger J. Traynor, and John W. Wade. 11. See especially LeBlanc v. Louisiana Coca Cola Bottling Co., 1952, 221 La. 919, 60 So.2d 873. 12. "[W]hilc there are differences between the two systems in the treatment of some situations, the basic principle behind both is the same." Fazio, A Comparison of Redhibition in Louisiana and the Uniform Commercial Code, 19 La.L.Rev. 165. See also Dickerson, Products Liability and the Food Consumer 44-63 (1951). Cf. the Restatement comment quoted in foot note 10. Section 15 of the Uniform Sales Act provides for warranties of (1) fitness and (2) merchantability. In all sales: "(1) Where the buyer, expressly or by implica tion, makes known to the seller the par ticular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether ho be the grower or manufac turer or not), there is an implied war ranty that the goods shall be reasonably fit for such purpose. (2) Where the goods are bought by description from a seller who deals in goods of that descrip tion (whether he be the grower or mannfacturer or not), there is an implied i 28 817 FEDERAL REPORTER, 2d SERIES the Obligations of the Seller", Articles 2476-2548, in the title "Of Sales". The warranty is two-fold. Article 2476 provides: "The warranty respect ing the seller has two objects; the first is the buyer's peaceable possession of the thing sold, and the second is the hidden defects of the things sold or its redhibi tory vices."13 The defendants assert that the plaintiff must find relief in the Code and that the only warranty the Code provides "for hidden defects of the things sold" is the sales warranty de scribed in the articles on redhibition. The scope of the codal warranty against redhibitory vices is stated in terms of fitness for intended use.14 The defendants therefore argue that the basic question is whether their cigarettes were fit for smoking. They say that their ciga rettes are established products made from commercially acceptable or superior tobacco having no quality differentiating it from tobacco in other commercially acceptable cigarettes. Historically, in Louisiana such products comply with the warranty of quality if they meet the standards of comparable products and are suitable for the use for which they are bought. The plaintiff contends that in dependent of the warranty of "quality" or "fitness for use" implied in every sale, a seller or manufacturer of products for human consumption warrants the whole someness of such products. There are material differences in legal theory be tween the two warranties. In this case, however, where the defendants have chosen to ignore the defensive possibili ties of the contractual aspects of, the warranty against redhibitory vices and where the intended use of the product is for human consumption (of a kind), the differences in the warranties are not as great as-the parties would have it ap pear--at least, in terms of the scope of the liability for the risk of harm. [6] Starting with the words of the Code itself, as one must, we find that the Code refers to the warranty against redhibitory vices only as an implied term of a contract of sale. Article 2520 defines the scope of the warranty as fit ness for the use for which the thing was* bought by the buyer: "Art. 2520. Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be sup posed that the buyer would not have warranty that the goods shall be of mer chantable quality." 63 Col.L.Rcv. 517. The Uniform Commercial Code is similar except that 2-314 of the Code docs not require a sale by description for the warranty of merchantability to apply; and, while the Uniform Sales Act provides that there is no implied warranty of fit ness for a particulr purpose when the article is sold under its patent or trade ' name, the Code requires only reliance on the seller's "skill and judgment". . 13. The warranty of quality has been treated extensively in the Tulane and Louisiana Stato Law Reviews. See especially the symposium on the subject in 23 Tulane Law Review 83-173 (104S). See also Morrow, Warranty of Quality: A Com parative Survey, 14 Tul.L.Ilev. 327, 528 (1940); Malone, Res Ipsa Loquitur, and Proof by Inference, 4 La.L.Rcv. 70 (1941); Rebel, The Nature of the War ranty of Quality, 24 Tul.L.Rcv. 273 (1950); Fazio, A Comparison of Redhibi tion in Louisiana and the Uniform Com- mercial Code, 19 La.L.Rcv. 165 (1958); Murray, Implied Warranty Against Latent Defects: A Comparative Law Study, 21 Ln.L.Rev. 5S(i (1961); Jumon- ville. Liability for Damages Resulting from Consumption of Deleterious Food stuffs in Louisiana, 22 La.L.Rev. 435 (1962). And see Notes 5 Tul.L.Rcv. 646 (1931); 14 Tul.L.Rcv. 470 (10-10); 13 La.L.Rcv. 624 (1953); 14 La.L.Rev. 1S2 (1953); 27 Tul.L.Rev. 369 (1953); 33 Tul.L.Rcv. 273 (195S); 37 Tul.L.Rev. 336 (1963). 14. In each instance where breach of war ranty under Article 2520 is claimed, the first question is "whether the thing pur chased served the purpose for which it was brought". Di Pietro v. LcBlanc, La. App.1953, 68 So.2d 156, 158. In the case of machinery, the question is wheth er it can be "successfully used for the operation for which it was constructed and sold". Nelson v. M.C.M. Truck Lines, 1946, 209 La. 5S2, 25 So.2d 236, 237. - 205 - PCB-ARCH-EXT0376617 LARTIGUE v. R. J. REYNOLDS TOBACCO COMPANY 29 Cite as 317 F.2d 19 (19U3) purchased it, had he known of the . vice." Article 2522 provides for disclaimer, an escape valve of doubtful value to a seller of food products: "The buyer can not institute the red hibitory action, on account of the latent defects which the seller has declared to him before or at the time of the sale. Testimonial proof of this declaration may be received." The extent of liability for breach of warranty depends on whether the vendor was in good or bad faith. If a seller did not know of the vices, he is bound only to restore the price and pay expenses; if the seller knew of the vices he is an swerable in damages. Thus: "Art. 2431. The seller who knew not the vices of the thing, is only bound to restore the price, and to re imburse the expenses occasioned by the sale, as well as those incurred for . the preservation of the thing, unless the fruits, which the purchaser has drawn from it, be sufficient to satis fy those expenses." "Art. 2545. The seller, who knows the vice of the thing he sells and omits to declare it, besides the resti tution of the price and repayment of the expenses, is answerable to the buyer in damages." law relationship, not a manufacturerultimate consumer relationship. In civilian terms, if the buyer would not have made the purchase had he known of the defect, his obligation is lacking in the "cause" which prompted him to buy.15 The defendants make a persuasive ar gument, but the fact is that the plaintiff relies on none of the articles touching on redhibition and expressly denies that her suit has anything to do with the war ranty against redhibitory vices. Mrs. Lartigue's suit is not a redhibitory ac tion to rescind her husband's lifetime purchases of cigarettes or an action of quanti minoris for a retroactive reduc tion in sales price. And, although Ar ticle 2545 does impose damages on the seller who has concealed the vices of the thing sold from the buyer, that was not the basis of the complaint. Moreover, the plaintiff's vendors who made the sales to Lartigue were not the defendant manu facturers. They were unknown retailers, subvendees. Unless by some awkward theory of subrogation or fictitious as signment enabling the last buyer even tually to reach the manufacturer, it is by no means certain that in Louisiana a redhibitory action reaches back through a chain of sales to the first seller.16 The notion has never been advanced in any of the Louisiana cases involving a manu However, the imputation of knowledge facturer of food products. to a seller-fabricator reduces the utility [7] Article 2547 is especially signifi of Article 2531 as a bar to liability. cant in this case. It reads: These articles contemplate a direct, seller-buyer, contractual or commercial "Art. 2547. A declaration made by the seller, that the thing sold pos- 15. Fnzio, A Comparison of Redhibition in Louisiana and the Uniform Commercial Code, 19 La.L.Rcv. 1G5, 107 (1958). 16. A dictum in McEachcm v. Plauche Lumber & Construction Co.. 1952. 220 La C9G, 57 So.2d 405, 40S. suggests that Louisiana recognizes the extension of warranty ngainst redhibitory vices to sub vendees. The decision in LcBlanc v. Lou isiana Coca Cola has been criticized be cause of the extension of implied warran ty to one who was not a buyer. 13 La. L.Rev. G24 (1952). In France the right to sue the original vendee for breach of warranty is trans mitted with the sale of the goods. 10 Hue, Commcntnirc thcSorique et prntiguc des droit civil 209 (1S97); 17 Baudry- ' Lacantincrie et Saignot, Trait6theorique et pratique de droit civil, De la vente et de l'cehange 309 (2d ed. 1900). Pro fessor Morrow lias suggested that Article 2503 of the Louisiana Civil Code gives rise to the same rule. Morrow, War ranty of Quality: A Comparative Sur vey, 14 Tul.L.Rev. 529. 550 (1910). Note, 33 Tul.L.Rcv. 275 (195S). See also Fazio, A Comparison of Redhibition in Louisiana and the Uniform Commer cial Code, 19 La.L.Rev. 1C5, 171-183: (1958). ' 30 317 FEDERAL REPORTER, 2d SERIES sesses some quality which he knows it does not possess, comes within the definition of fraud, and ought to be judged according to the rules laid down on the subject, under the title: Of Conventional Obligations. "It may, according to circumstances, give rise to the redhibition, or to a reduction of the price, and. to dam ages in favor of the buyer." Thus, the Code itself distinguishes be tween the redhibitory action, based on implied warranty, arising from a sale and an action for fraud or deceit for mis representations which might arise, as in this case, out of the same circum stances, assuming for example that the defendants made false representations in their advertising,17 ^ [8-11] To recover in this case, it is not necessary for the plaintiff to resort to the redhibition articles.18 Article 2315 ("Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it") is broad enough to allow a consumer to recover damages against a manufacturer, either on negligence or, in food products cases, on strict liability without negligence. In Louisiana under Articles 2315 and 2316,19 as in other states, a manufacturer of an injurious or defective product is liable to a consumer, when he fails to use due care in manufacturing a product. In the case of decayed foodstuffs or food prod ucts containing deleterious substances, the manufacturer is held to strict lia bility, without regard to negligence.20 17. Section 402B of the Restatement of Torts Second provides: *`S 402B. MISREPRESENTATION BY SELLER OF CHATTELS TO CON SUMER ONE ENGAGED IN THE BUSI NESS OF SELLING CHATTELS WHO, BY ADVERTISING, LABELS OR OTH ERWISE. MAKES TO THE PUBLIC A MISREPRESENTATION OF A MATE RIAL FACT CONCERNING THE CHARACTER OR QUALITY OF A CHATTEL SOLD BY IIIM IS SUB JECT TO LIABILITY FOR PHYSICAL HARM TO A CONSUMER OF THE ' CHATTEL CAUSED BY JUSTIFI. ABLE RELIANCE UPON THE MIS REPRESENTATION, EVEN THOUGH IT IS NOT MADE FRAUDULENTLY OR NEGLIGENTLY." Cf. LeBlanc v. Louisiana Coca Cola Bot tling Co., 1052, 221 La. 910, CO So.2d S73 and Cooper v. R. J. Reynolds Tobacco Co., 1 Cir., 1956, 234 F.2d 170: 195S, 1 Cir., 256 F.2d 464, cert, den'd 358 U.S. 875, 70 S.Ct. 112, 3 L.Ed.2d. 105. 18. Prosser writes: "There is no need to borrow a concept from the contract law of sales; and it is only by some violent ponnding and twisting that `warranty' can be made to serve the purpose at all. Why talk of it? If there is to be strict liability in tort, let there be strict lia bility in tort, declared outright, without an illusory contract mask." Prosser, The Assault Upon the Citadel (Strict Liai- bility to the Consumer), 69 Yale L.J. 1099, 1134 (1960). . 19. "Art. 2310. Every person is responsi ble for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill." 20. ``[N]egligcnce law and `fault' are dif ferent concepts. The attempt to identify them as the same can only result in endless confusion. Ncgligenco law was evolved at the beginning of the industrial revolution, when enterprise was financial ly weak, for the purpose of relieving defendants of heavy economic liabilities. * * * `Fault' gavo way to the pro tection of our basic economic enterprises, and the victims of enterprise activities were for the most part left to lick their own wounds. "More lately and since en terprise has become financially strong and able to spread many of its risks among others, the policy of the law has steadily changed until negligence law is tending to make liability--in fact in many areas it has already become--even strict er than it was under the common law actions." Green, A Reply to Mr. Gay's Rejoinder, 34 Tex.L.Rcv. 6S1 (1956). Professor Malone, reviewing the Lou isiana cases, writes: "Very often the de termination of negligence or no negligence is not so much a matter of passing judg ment upon the quality of the defendant's conduct as of seeking to elicit all hypoth eses that point the finger of respon sibility toward or away from him. * * The employment of res ipsa loquitur in [food products cases] does not then re sult in a logical inference of negligence; for the existence of negligence is an im material issue. * * It is obvious that resort to res ipsa loquitur is not necessary in this type of case, and its use by the courts amounts to little more than LARTIGUE v. R. J. REYNOLDS TOBACCO COMPANY 31 ' Cite as 317 Fid 19 (10G3) Such liability is not inconsistent with the things which he fabricates in the civilian requirement of "fault". the exercise of the art, craft, or busi Delictual responsibility without dolus ness of which he makes public pro (wilful harming) or culpa (negligent fession, and that lack of such knowl harming) is explainable in terms of pre edge is imputed to him as a fault, sumption of fault. Stone, Tort Doctrine which makes him liable to the pur in Louisiana: The Concept of Fault, 27 chasers of his fabrications for the Tul.L.Rev. 1, 14, 19 (1952). Delicts damage resulting from the vices or (torts) do not have to depend on negli defects thereof which he did not gence. In the Civil Code, as in the com make known to them and which they mon law, there are a number of instances were ignorant of. of strict delictual liability when the law conclusively presumes fault notwith standing the fact that the party liable did not will the damage and was not personally negligent.21 In the food products cases the Louisi ana courts have seldom cited the articles on redhibitory defects.22 In Doyle v. Fiierst & Kraemer, Ltd., 1911, 129 La. 938, 56 So. 906, 40 L.R.A..N.S., 480, one of the two leading cases in Louisiana, although the court used some of the codal language, the court did not mention the articles on redhibition. In that case a restaurateur was both the seller and the manufacturer or fabricator. The war ranty against redhibitory vices was therefore unquestionably available to the plaintiff.23 The court said: "The principle which governs in this case is that every one ought to know the qualities, good or bad, of "This principle obtains both in the civil and the common law, as ap pears from the excerpts hereinafter given. "The measure of damages in a case of this kind, where there was no actual knowledge of the vices of the things sold, but only an imputed knowledge, is not simply reimburse ment of the price, as contended by defendant, but liability on the part of the seller for all the damages that were foreseen, or could easily have been foreseen, as likely to result from the putting of the thing sold to the use for which it was sold. This fully appears from the excerpts hereinafter given. "It is common knowledge, to which the keeper of a public eating place must be held, that food in which the process of decomposition has begun window dressing in the opinion." Malone, Res Ipsa Loquitur, 4 La.L.Rcv. 70, SO, 97 (1941). See also Jaffc, Res Ipsa Loquitur Vindicated, 1 Buffalo L.Rev. 1, 13 (1951). 21. For example: Article 177 (master liablo for damage caused "by whatever is thrown out of his house into the street . or road") ; Article G67 (owner of land liable for new work causing dam age to his neighbor); Article 2321 (own er who has "turned loose a dangerous or noxious animal * * * must pay for all the harm done"); Article 2322 (owner of a building "answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of n vice in its original con ' etruction". See Harris, Liability With out Fault, C Tul.L.Rev. 337 (1932); Stone, Louisiana Tort Doctrine: The Concept of Fault, 27 Tul.L.Rev. 1 (1932). Sec also Williams v. Employers Liability Assurance Corp., 5 Cir., 1901, 296 F.2d 509. 22. "The clenr intent of the Doyle case was to apply the presumption of knowl edge only to a preparer of foodstuffs." Jumonville, Liability for Damages Re sulting from Consumption of Deleterious Foodstuff's in Louisiana, 22 La.L.Rev. 435, 438 (1902). See also Lcsher v. Great Atlnntic & Pacific Tea Co., La.App. 2d Cir., 1961, 129 So.2d 90, 97. 23. In the common law the concept developcd that an innkeeper merely provieds a service for bis guests; he does not sell food, a concept some courts still apply to restaurants and cafeterias. In Louisiana however, under Article 2439 of the LSA-Civil Code there is no doubt that a sate takes place when a customer dines in a restaurant. See Note, 37 Tul.LRev. 33G (1903). L.. - - 208 PCB-ARCH-EXT0376620 32 317 FEDERAL REPORTER, 2d SERIES is liable to make the person who eats it iU. Indeed, we do not think there can be any serious difference of opin ion on the point that an eating estab lishment which sells unwholesome food to be consumed by its customers must be held to have contemplated the probable effects of such tainted food upon the customer. * * * "It can be considered to be also well settled at common law that the vendor of articles of food for con sumption by the purchaser warrants their wholesomeness." (We have supplied the emphasis in order to point out that this strict liability is nevertheless dependent on the fore seeability of harm.) The court quoted Pothier, Dalloz, Baudry-Lacantinerie & Saignat, Laurent, and Troplong to the effect that when the seller is the one who fabricates the prod uct, he is bound to repair the damage caused by hidden defects, even though ignorant of the defects. The Court's language, especially its frequent use of the words "fabricates" and "fabrica tion", indicate that the rationale of the decision is that because of the manufac turer's superior position his lack of knowledge is a "fault". This may be just another way of stating that, for pur poses of a warranty against redhibitory vices, the same result may be reached by .a conclusive presumption that a seller who is also a manufacturer knows the qualities of the article he fabricates and sells.*4 Under either view there is strict liability for a hidden defect, but Doyle's teaching is that in Louisiana the scope of the liability is limited to defects pro ducing "damages that were foreseen, or could easily have been foreseen." In LeBlanc v. Louisiana Coca Cola Bottling Co., 1952, 221 La. 919, 60 So.2d 873, the other key case in Louisiana, there could not have been an implied warranty against redhibitory vices, even on an assignment theory; no sale was made to the plaintiff.25 The plaintiff found a decomposed housefly in a bottle which a neighbor gave her. The court allowed recovery on the theory that the manufacturer of foodstuffs in sealed con tainers or capped bottles "by advertise ments extolling the quality of its prod uct" had warranted the "wholesomeness" of its product to consumers. Although the Court did not say so, the advertising might be regarded as the "declaration * * * within the definition of fraud" referred to in Article 2547. In any event the warranty is not the warranty against redhibitory defects. "The theory of the case is based upon tort rather than con tract law."26 Justice McCaleb, for the Court said; "It is to be borne in mind in these cases that the defendant com pany is engaged in the business of distributing its beverages to the public in sealed containers or cap ped bottles and that, by the very nature of its enterprise, it repre sents, we think, by advertisements extolling the quality of its product, that it is fit for human consumption and free from deletenous matter. And, while there is not a direct con tract to this effect between the con suming public and the manufacturer (as it distributes to retailers or mid- *4. "[A] manufacturer who disposes of the things which he himself has manufactured can properly nod legitimately be held pre sumptively to a knowledge of the qualities of the things he sells." George v. Shreveport Cotton Oil Co., 1905. 114 La. 498, 505, 38 So. 432, 434. See also Tem- pleman Bros. Lumber Co. v. Fairbanks, Morse & Co., 1911, 129 La. 983, 1002, 57 So. 309, 315; Radalcc. Inc. v. Automatic Firing Corp.. 1955, 223 La. 116, 125, 81 6o.2d 830, 833. 25. Similarly, in Miller v. Louisiana CocaCola Bottling Co., La.App.Orl.Div., 1954, 70 So.2d 409. a guest of the final pur chaser's daughter was allowed to recover against the manufacturer. 26. Note, 27 Tul.L.Rev. 370. Professor Ferd Stone agrees. Stone, Tort Doctrine in Louisiana, 27 Tul.L.Rev. 1, 14 (1952). I r~ i - 209 - PCB-ARCH-EXT0376621 LARTIGUE v. R. J. REYNOLDS TOBACCO COMPANY 33 Cite ns 317 F ,2d 19 (1003) dlemcn who in turn sell to the con court treated the problem purely as one in sumer), it is fair to imply that, tort. The only question was whether the since the manufacturer, in market evidence met the requirements necessary ing its products in capped bottles, for application of res ipsa loquitur. intends them to reach the consumer "Each case", said the court, "involving in the same condition in which they tort liability stands or falls on the proof leave the factory, a warranty of made of the facts alleged." wholesomeness exists between it and the consumer." Before LeBlanc, Louisiana courts of appeal in food products cases usually Contrary to previous food products cases based recovery on negligence.29 After in which res ipsa was invoked, the plain LeBlanc, courts of appeal have allowed tiff was relieved of the burden of proving recovery on breach of implied warranty that a middleman or retailer had not treated as a tort.30 They have had no tampered with the bottle; the defendant trouble therefore with privity. In at was saddled with the burden of proving least one food products case the court that there was tampering after the bottle said unequivocally, "This is an action in left his plant. "Applying the doctrine of tort by plaintiff." Morrow v. Bunkie implied warranty on a manufacturer of Coca-Cola Bottling Co, 1956, La.App. 2 such bottled beverages is almost tanta Cir, 84 So.2d 851, 852. , mount to making him an insurer and practically imposing absolute liability on him," ** In Arnaud's Restaurant, Inc. v. Cotter, 6 Cir, 1954, 212 F.2d 883, cert, den'd 348 U.S. 915, 75 S.Ct. 295, 99 L.Ed. 717, In the interim between Doyle and Le this Court reviewed the Louisiana food Blanc 23 the Louisiana Supreme Court de products cases. This Court noted that cided only one food case, Mayerhefer v. although there is a divergence of opinion Louisiana Coca-Cola Bottling Co., 1951, among the State courts as to whether a 219 La. 320, 52 So.2d 866. In that case manufacturer's liability is predicated up the plaintiff became ill from drinking on negligence or an implied warranty, Coca-Cola containing free iodine. The "under Louisiana jurisprudence a plain- 27. Prom the concurring opinion of Judge LeBlanc. 28. "Although the Doylo case appears to have been decided on a warranty basis, the jurisprudence dealing with deleterious food and drink in the ensuing forty years is an admixture of tort and contract principlcs, the tort doctrine of res ipsa loquitur being frequently employed.'' Jumonvillc, Liability for Damages Re-, suiting from Consumption of Deleterious Foodstuffs in Louisiana, 22 La.L.Rev. 435 (1002). 29. Moore v. Louisiana Coca-Cola Bottling Co., La.App.Orl.Cir., 1952, 5S So.2d 310; Day v. Hammond Coca Cola Bot tling Co., La.App. 1st Cir., 1951, 53 So. 2d 447; Nichols v. Louisiana Coca-Cola Bottling Co., La.App.Orl.Cir., 1950, 40 So.2d 095; Mayerhefer v. Louisiana Coca-Cola Bottling Co., La.App.Orl.Cir., 1950, 45 So.2d 442; White v. Coca-Cola Bottling Co., La.App. 2 Cir., 1943, 10 So.2d 579; Jenkins v. Bognlusa Coca Cola Bottling Co., La.App., 1st' Cir., 1941, 1 So.2d 420; Hollis v. Ouachita Coca-Cola Bottling Co., LaApp. 2d Cir, 1940, 196 So. 376; Dye v. American Beverage Co, La.App.Orl.Cir, 1940, 194 So. 43S; Freeman v. Louisiana Coca-Cola BottliDg Co, La.App.Orl.Cir, 193S, 179 So. 621; Kelly v. Ouachita Dairy Deal ers Cooperative Ass'n, La.App. 2d Cir, 1937, 175 So. 499; Hill v. Louisiana Coca-Cola Bottling Co, La.App.Orl.Cir, 1930, 170 So. 45; Lee v. Smith. La.App. 1st Cir, 1930, ICS So. 727; Watts v. Ouachita Coca-Cola Bottling Co, La.App. 2d Cir, 1930, 100 So. 151; Iviug v. Lou isiana Coca-Cola Bottling Co, La.App. Orl.Cir, 1933, 151 So. 252; Dean v. Alexandria Coca-Cola Bottling Co, La. App. 2d Cir, 1933, 148 So. 448. 30. Lesher v. Great Atlantic & Pacific Tea Co, Ln.App. 2d Cir, 1901, 129 So.2d 96; Rcine v. Baton Rouge Coca Cola Bottling Co, La.App. 1 Cir, 1901, 120 So.2d 035; Walker v. American Bev erage Co, La.App. 4 Cir, 1900. 124 So. 2d 157; Miller v. Louisiana Coca-Cola Bottling Co, La.App.Orl.Cir, 1954, 70 So.2d 409; Montz v. Louisiana Coca-Cola Bottling Co, La.App.Orl.Cir, 1953, 64 So. 2d 805. f 34 317 FEDERAL REPORTER, 2d SERIES tiff in such a case is entitled to rely upon (Pillars v. R. J. Reynolds Tobacco Co., the manufacturer's implied warranty." 1918, 117 Miss. 490, 78 So. 365). In The warranty is that the "product is safe Pillars the plaintiff sued a retailer and a for human consumption." The Court manufacturer for damages alleged sus held that the question of contributory tained as a result of finding a "human toe negligence was for the jury, perhaps an in a state of putrefaction" embedded in a indication that the Court recognized the plug of Brown Mule Chewing Tobacco. tortious character of the action.31 In allowing the retailer to escape liability [12] Our review of state cases indi but holding the manufacturer liable, the Court said: cates that in Louisiana the law imposes strict liability on a manufacturer for "The fact that the courts have at breach of the implied warranty of whole this time made only the exceptions someness that a food product is safe for mentioned to the general rule does human consumption. This warranty of not prevent a step forward for the wholesomeness may co-exist with the health and life of the public. The warranty against 'redhibitory vices but principles announced in the cases the manufacturer's warranty is directly which recognize the exceptions, in to the consumer and distinct from any our opinion, apply, with equal force, i conventional obligation he assumes to his to this case. Immediate buyer or that is imposed upon "We believe that the way the to him by the redhibition articles of the bacco is to be used furnishes the rea Code. The Doyle and Arnaud cases in son for great care in its preparation. volved restaurateurs who were sellers as * * * Anything taken into the well as "fabricators". In the LeBlanc mouth there to be masticated should case the defendant was a manufacturer. be free of those elements which may The reasoning in all three cases indi endanger the life or health of the cates that the liability is delictual, im user." posed not because of the redhibition ar ticles but because the party responsible for the product, in control of its prepara tion, and therefore in a superior position, breached his duty to the ultimate con sumers who rely on him to furnish goods reasonably safe for human consumption. In recent years courts in some of the states have held the manufacturers liable to consumers on implied warranty not only for such articles as hair dye (Gra ham v. Bottenfield's Inc., 1954, 176 Kan. 68, 269 P.2d 413), a permanent wave solution (Markovich v. McKesson & Rob C. The same public policy reasons bins, 1958, 106 Ohio App. 265, 149 N.E. which justify holding a manufacturer to 2d 181), and a detergent (Worley v. 1 strict liability for food products apply Proctor and Gamble Mfg. Co., 1952, 241 to cigarettes. Although there is some Mo.App. 1114, 253 S.W.2d 532), but also authority to the contrary,3- courts have for cinder building blocks (Spence v. applied the rule to foreign substances in Three Rivers Builders & Masonry Sup cigarettes (Liggett & Myers Tobacco v. ply, Inc., 1958, 353 Mich. 120, 90 N.W.2d DeLape, 9 Cir., 1940, 109 F.2d 598), 873), automobile tires (B. F. Goodrich smoking tobacco (Foley v. Liggett & Co. v. Hammond, 10 Cir., 1959, 269 F.2d Myers Tobacco Co., 1930, 136 Misc. 468, 501), and automobiles (Henningsen v. 241 N.Y.S. 233, aff'd 232 App.Div. 822, Bloomfield Motors, 1960, 32 N.J. 358, 161 249 N.Y.S. 924), and chewing tobacco A.2d 69, 75 A.L.R.2d l).33 For purposes 31. On contributory negligence as a defense. Bee 1 Frumer & Friedman 16.01 13] (1001). 32. Liggett & Myers Tobacco Co. v. Can non. 1915, 132 Tenn. 419, 178 S.W. 1009, LJI.A.1916A, 940; Block v. Lig- gett & Myers Tobacco Co., 1937, 162 Misc. 325, 296 N.Y.S. 922. 33. In Henningsen the Court said that it could "see no rational doctrinal basis for differentiating between a fly in a bot tle of beverage and a defective automo- - 211 - PCB-ARCH-EXT0376623 LARTIGUE v. B. J. REYNOLDS TOBACCO COMPANY 35 Cite as 317 Fid 19 (1903) of defining the scope of strict liability im the strict liability should apply only posed on sellers, the American Law In when, in the words of the Doyle opinion, stitute in the Restatement of Torts Sec "the damages * * * were foreseen, ond classifies cigarettes with food and or could easily have been foreseen, as drink and other articles intended for likely to result from the putting of the human consumption as "products intend thing sold to the use for which it was ed for intimate bodily use".3* sold." No case in Louisiana has applied [13] Louisiana courts were quick to get around the notion of privity as a necessary element in holding a manufac turer liable on his warranty. In this case it is not necessary to go as far as the court went in Henningsen. Making an Erie educated guess, we hold that for purposes of this litigation Louisiana courts would classify cigarettes with food and drink. [14] D. Thus far we have been in accord with the plaintiff's theory of the case. At this point, however, we part company with the plaintiff. We agree that the manufacturer of tobacco should be classified with the food processor and held to warrant the wholesomeness of his product, (that is, he is strictly liable in tort for an unwholesome product)-- but, as in the case of the food processor, the rule of strict liability, even in food cases, except when harm from the defec tive condition was a foreseeable conse quence of the defect. As suggested, this language, although often used with refer ence to negligence, is basic to the trial court's duty here of explaining the scope of the warranty of wholesomeness. [15] Under the doctrine of strict lia bility it is not necessary for the plaintiff to show that the defendant failed to use due care or that the defendant had knowl edge of the defective condition. How ever, it is necessary to show that the warranted product contained an element from which, on the basis of existing human knowledge, harm might be expect ed to flow. Thus, in Doyle the plaintiff had ptomaine poisoning from eating the defendant's spoiled cakes. In LeBlanc and Mayerhefer there was a foreign sub- bile". A number of commentators be lieve that Henningsen will be as im portant in the implied warranty cases as McPherson v. Buick Motor Co. was in the negligence cases. See Restatement of the Law of Torts Second, 402A, Tent. Draft No. 7 (19G2) ; 1 Frumer & Friedman, Products Liability 10.04, p. 400 (1900).34 34. "Intimate Bodily use. Products in tended for intimate bodily use, as that phrase is used in this Section, includo all food and drink, and everything intend ed for internal human consumption, whether or not it has nutritional value. Thus the term includes candy, chewing "gum or chewing tobacco, snuff, cigarettes, and all raw materials, such as unground coffee, from which the consumer or some intermediate party is expected to propare food or drink ultimately to be con sumed. It includes drugs which are to be taken internally, and such an arti cle as a surgical piu fon setting bone fractures, which is to be incorporated in side of the body. " `Intimate bodily use' also includes products intended for external application or contact with the human body, where such application or contact is of an `inti mate' character. This does not mean that everything which may be expected to come in contact with the person is to be included. A nail is not intended for in timate bodily use, merely because the user may be expected to hold it in his fingers while he drives it with a hammer. On the other hand, products such as cloth ing, intended to have close and continued contact with the body, are for intimate bodily use. So are soap and cosmetics, liniments or other medical preparations for external application, hair dye, solu tions for imparting a permanent wave to the hair, and similar products intend ed to affect in some manner the body itself. In determining whether a prod uct is for intimate bodily use, the ques tion is one of whether it is intended for a purpose which involves long continued contact with the person, or such close and personal contact or application, even in a single instance, that the ordinary man would recognize that something more than n casual touching, something amounting to an intimate approach to his person, is involved." Restatement of Torts Second 402A Comment (Tent. Draft No. 7 (1962), 36 317 FEDERAL REPORTER, 2d SERIES stance, a decomposed housefly in a bottle of Coca-Cola. In Amaud there was a piece of crab shell, natural to the crab but foreign to pompano cn papilotte. In McAvin v. Morrison Cafeteria Co. of La., La.App., 1956, 85 So.2d 63, and in Ogden V. Rosedale Inn, La.App.1939, 189 So. 162, shrimp salad was spoiled. In McLehan v. Loft Candy Stores, La.App., 1937, 173 So. 367 mincemeat was spoiled. Bottled drinks seem to have a special affinity for foreign substances.33 Walk er. v. American Beverage Co., La.App., 1960, 124 So.2d 157; Kelly v. Ouachita Dairy Dealers Cooperative Association, La.App., 1937, 175 So. 499; Dye v. American Beverage Co., La.App., 1940, 194 So. 438; Hollis v. Ouachita CocaCola Bottling Co., La.App., 1940, 196 So. 376. Walker found a vegetable stalk in his Coca-Cola, Kelly found maggots in a milk bottle, Dye found some vegetable matter in his R. C. Cola, and Hollis found in his Coca-Cola--just part--of a black widow spider. [16] In all of these cases the injury was caused by a foreign substance or by spoiled food. The risk of their being such injuries is incident to the business and known to all. When a manufacturer or a processor places food products in the channels of commerce for human con sumption he assumes a special responsi bility to the public. The consumer, help less to protect himself, has the right to expect, in the case of products so vitally important to human existence and the health of the community as food and other products for intimate bodily use, that the products are reasonably fit for the purposes for which they were sold; the goods therefore must comply with reasonable and ascertainable standards of safety. The manufacturer presumably exercises due care to comply with proper standards, but he also knows that a "wee, sleekit, cow'rin, tim'rous'' mousie may outwit his bestlaid plans for a clean plant. Public policy demands that the burden of any accidental injuries caused by such products be placed upon those who produce and market the products and know the risks. The injuries from knowable risks are a cost of production for the industry to bear; they are passed on to consumers. The consumer of such products is entitled to a maximum of pro tection at the hands of some one, and the proper persons to afford it are those who receive the benefits from manufacturing and marketing the products. [17] But it is reasonable to draw a line somewhere: a manufacturer of food products is not like one who keeps a tiger for a pet in a crowded city. Lou isiana draws the line at unknowable risks. For strict liability to apply there must be foreseeability of harm.3365* In every decided Louisiana case the food was unreasonably dangerous because of 35. "tTJhc rats of Hamlin were ns nought which we are dealing, undoubtedly be in comparison with that horde of mice cause food poisoning is such an obvious which has sought refreshment within result of bad food. We are thrown back . Coca-Cola bottles and died of a happy . upon two reasonably close analogies: the surfeit." Spruill, Privity of Contract ns a Requisite on Warranty, 19 N.C.L.Uev. direct warranty from the retailer to his purchaser, and the negligence action 651, 5GG (1941). against the manufacturer. * * * 36. "A more difficult problem [then dam age] is that of what Professor Elirenzweig has called `typicality' of the injury. Put in more ordinary language, this means the foreseeability of the harm-- the seller's reasonable anticipation of it as a normal consequence of the consump tion or use of his product if it should turn out to be defective. It is the sort of issue that is likely to be buried un der the name of `proximate cause.' There has been virtually no considera [T]he problem is "reduced to one of what the consumer has a right to expect, which is a product reasonably fit for the purposes for which it is sold; and strict liability should call for no different con clusion. * * Few products can ever be made entirely safe, and the producer cannot be made an insurer of every one who mny possibly be hurt." Prosser. The Assault Upon the Citadel (Strict Liability to tiie Consumer) 1099, 1143, 1145 (19G0). tion of this problem in the cases with LARTIGUE v. R. J. REYNOLDS TOBACCO COMPANY 37 Cite ftjs 317 F.2d 19 (1903) a defective condition, not contemplated rich made a cogent comment which the by the ultimate consumer; in every case court acted on:38 risk of harm could reasonably be foreseen as a consequence of the existence of the defect. As stated in Justice LeBlane's opinion in LeBlanc, the effect of the warranty of the manufacturer's war ranty is "almost tantamount to making him an insurer." He is an insurer against foreseeable risks--but not against unknowable risks. "If a man buys whiskey and drinks too much of it and gets some liver trouble as a result I do not think the manufacturer is liable un less (1) the manufacturer tells the customer the whiskey will not hurt him or (2) the whiskey is adulter ated whiskey--made with methyl alcohol, for instance. The same [18] Strict liability on the warranty of wholesomeness, without regard to neg ligence, "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." 37 The surely is true of one who churns and sells butter to a customer who would be on a nonfat diet. The same is true, likewise, as to one who roasts and sells salted peanuts to a custom er who should be on a no-salt diet. Surely if the butter and the peanuts are pure there is no liability if the cholesterol count rises dangerously. article sold must be unreasonably dan gerous to the ordinary consumer, with "In this case there was no claim that Chesterfields are not made of the knowledge common to the community commercially satisfactory tobacco. as to its characterization. For example, sugar is unwholesome to diabetics. Ice See Restatement (Second), Torts 402A (Tent. Draft No. 6, 1961)." cream and butter may contain sufficient cholesterol to be unwholesome to persons with high blood pressure and heart trouble. Whiskey is unwholesome to al coholics. Diabetics who eat sugar, heart cases who cannot resist ice cream or but ter, and alcoholics who drink too much whiskey know that the strict warranty of wholesomeness puts no money in the bank for them. Thus, in a concurring opinion in Pritchard v. Liggett & Myers, 3 Cir., 19G2, 295 F.2d 292, Judge Good- In Green v. American Tobacco Co., 5 Cir., 1962, 304 F.2d 70, this Court had before it a Florida case of lung cancer allegedly caused by smoking.30 The jury returned a general verdict for the de fendant. In answer to special interroga tories, the jury found that the decedent had cancer and that smoking was a proxi mate cause of his cancer, but that the de fendant "by the reasonable application of human skill and foresight" could not have known prior to February 1, 1956, when it was first discovered that Green 37. 2 Harper & James, Law of Torts 28. 22, p. 15S4 (1901). In a recent California case the Court said "The essential inquiry, thus, is the ' ' same in respect to the breach of war- rantjr theory as to the negligence claim: whether the defendant complied with the standard of reasonable care in ascertain ing the fitness of the chattel for the use for which he knew it was hired." Tieratein v. Licht, 1009, 174 Cal.App.2d 835, 345 P.2d 341. 38- The Court cautioned the trial judge On remand to submit the case to the jury on interrogatories to ascertain the basis of liability, if any, "[i]n light of ths concurring opinion." 39. The trial judge's charge in the case before ns is similar to the charge in Green. On an important point, however, it is more favorable to the plaintiff here, since the jury was required to find that the "implied warranty docs not cover sub stances in the manufactured products, the harmful effects of which no developed human skill or foresight can afford". In Green the interrogatory allowed the manufacturer to escape liability if the Jury found that the defendant had used "reasonable application of human skill and foresight" I r - 214 - PCB-ARCH-EXT0376626 38 317 FEDERAL REPORTER, 2d SERIES 1: had cancer that users of cigarettes would the manufacturer and could not have il be in danger of contracting cancer. A been known by any developed human majority of the Court affirmed the judg skill or foresight. Plaintiffs contend ment.40 On rehearing, the Court "re- that the knowledge of the manufac main[ed] of the same views as expressed turer is irrelevant and immaterial to * * * on the original hearing" al the manufacturer's liability on an though it certified the question to the Su implied warranty under Florida law, preme Court of Florida41 and that a manufacturer's implied The plaintiff's main insistence in that case was similar to the plaintiff's argu ment in this case: "The fundamental point upon which the plaintiffs rely on this ap peal is that the Trial Court erred, as a matter of law, in ruling that the warranty is not limited to harmful substances of which the manufac turer either had knowledge, or should have had knowledge, or could have had knowledge according to developed human skill and fore sight." - implied warranty of fitness which a This Court ruled that the defendant manufacturer of products for human "could not be held liable as an absolute consumption is held by Florida law insurer against consequences of which to make does not cover deleterious no developed human skill and foresight t substances in its products, the harm could afford knowledge." 42 In language ful effects of which are unknown to suggestive of the opinions in the Lou- 40. The Court divided into three classes the cases dealing with products intended for human consumption: (1) ``those be lieved by all to be wholesome, for cx- ample, most foods; (2) those known by all to be injurious to some while per- haps beneficial or pleasurable to others, for example, alcoholic beverages; (3) those heretofore thought by all to be wholesome or tolerable, but which con stantly expanding scientific research, thought and knowledge have now proved, or at least convinced many, to be inju rious, such as cigarettes in the smoke of which appear polycyclic aramatic hy drocarbons and minute quantities of ar senic, and eggs, milk and butter with their high cholesterol content1'. In all three classes the consumer relies on the su perior skill and knowledge of the seller, but in the last class it is a question of fact to bo determined by the jury whether the seller, in the estimation of the parties, had a superior opportunity to gain knowl edge of the product and whether the buy er relied on the judgment of the seller. It seems to us that the Court proper ly classified the products. Cigarettes (possibly causing cancer) and dairy prod ucts (possibly causing high cholesterol) are different from foods containing for eign substances: (1) The defendant tobacco companies have no more knowl- ' edge of the risk of harm than the plain tiff; (2) the defendants' cigarettes are an established product containing com mercially acceptable tobacco; (3) nobody has to smoke. These distinctions may not be valid in later cigarette cases or in a case involving a different kind of prod uct, for example, a polio vaccine which functions in reverse and contains a virus not in other polio vaccines. In such cases a different result may be reached con sistent with Green and the instant case. In addition, the advance of scientific knowledge and the forward movement of public policy may suggest a different re sult in later cases. 41. 304 F.2d 85, question certified to Su preme Court of Florida, Civil No. 19003, 5 Cir., Aug. 8, 1962. See Fla.Stat.Ann. 25.031 (19G1). This Court certified the following question: "Docs the law of Florida impose 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, 195S, when the defendant manufacturer * could not on, or prior to, February 1, 1956, by the reasonable application of human skill and foresight, have known that users of such cigarettes would be en dangered, by the inhalation of the main stream smoke from such cigarettes, of contracting cancer of the lung?" 42. Accord Pritchard v. Liggett & Myers Tobacco Co., D.C.W.D.Pa.l9C2, on re mand. - 215 - PCB-ARCH-EXT0376627 LARTIGUE V. R. J. REYNOLDS TOBACCO COMPANY 39 Cite as 317 F ,2d 19 (19C3) isiana cases, Judge Rives, speaking for the Court, said: "With that insistence we cannot agree. To the contrary, we are con vinced that the doctrine of implied warranty by a manufacturer and seller of the qualities and fitness of the thing sold for the purpose for which it is intended or desired is founded on his superior opportunity rettes manufactured by the defend ants were usable as such, and that the state of medical knowledge was then such that the defendants could not have anticipated in the exercise of reasonable care that their prod ucts would cause cancer, then your verdict on the issue of implied war ranty, would be in favor of the de fendants." to gain knowledge of the product and to form a judgment of its fitness. That principle can clearly be deduced from all of the Florida cases on im plied warranty whether by the man ufacturer or by the dealer." This is the language of Doyle and Le Blanc, the leading cases in Louisiana. It is also the language of Green which this Court has approved. Moreover, there is no qualification to the require ment that the harmful effects must be of Here the manufacturer ``had no oppor tunity to gain knowledge, or to form a judgment as to the dangerous qualities such a character that "no developed human skill or foresight" could have avoided them. of the product". The manufacturer was in no better position than the consumer. [20-22] Assuming facts favorable to the plaintiff in this case, recovery might [19] E. We recognize, as the ap pellant points out, that the trial judge instructed the jury on the ``warranty of general quality" against redhibitory vices. The warranties of quality and wholesomeness, however, partly overlap: the fitness of cigarettes for use, under Article 2520 of the Code, is essentially the same as their fitness for human consumption. The trial court specifically charged that the manufacturer warrants wholesomeness: "The manufacturer . of products which are offered for sale to the public in their original package for human consumption use, impliedly warrants that its products are rea sonably wholesome or fit for the pur pose for which they are sold." The appellant complains that the trial judge defined the scope of the warranty of wholesomeness in terms of the fore seeable risk of harm. The trial judge said: be grounded on (1) negligence, (2) fraud for misrepresentation, (3) implied war ranty against redhibitory vices, and (4) strict liability or implied warranty of wholesomeness of articles of intimate bodily use. Possibly the trial judge might have surveyed these grounds and marked off the boundary lines more pre cisely than he marked them off in his charge to the jury. But the law of prod ucts liability is still developing, guide lines are not sharp and clear, and the warranties (such as they now are) over lap. Reading the charge as a whole, it seems to us that the plaintiff received the full benefit of the manufacturer's im plied warranty of wholesomeness. At this stage of the law and of human knowledge, in Louisiana a manufacturer of food and cigarettes is strictly liable for foreseeable harm resulting from a defective condition in the product when the consumer uses the product for the purposes for which it was manufactured and marketed. Thus far, public policy "But such implied warranty does not cover substances in the manu factured products, the harmful ef fects of which no developed human skill or foresight can [avoid] * * If you find that at the time Mr. Lartigue's cancer started, the ciga- has not decreed absolute liability for ``the harmful effects of which no developed skill or foresight can avoid." At this point, it cannot be said that cigarette smokers who started smoking before the great cancer-smoking debate relied on the tobacco companies' "warranty" that 40 817 FEDERAL REPORTER, 2d SERIES their cigarettes had no carcinogenic ele ment. Today, the manufacturer is not an insurer against the unknowable. the plaintiff and erroneously limited the time when the defendants were required to give warning. III. [23] The principal aspect of the neg ligence claim which the appellant asks the Court to consider is that the trial judge erred in giving the following in struction : "The plaintiff contends that the defendants were negligent in not warning the public, and particularly Frank J. Lartigue, that the use of their tobacco would cause or pre cipitate cancer of the vocal cord or lung. As a fundamental principle of law, before any person can be charg ed with negligence of this sort, it must be established that he had knowledge of some inherent danger or defective condition of his prod uct. This knowledge may be either actual knowledge or such knowledge as a reasonably prudent man should have acquired under the circum stances. Plaintiff must prove that defendants knew or should have known before Mr. Lartigue's lung cancer started, that their product could cause that disease. Under the circumstances of this case, such knowledge can only be had by these defendants if medical science also had it and had made it publicly known at the time that Mr. Lar tigue's lung cancer started. The mere failure to warn against the re sult which could not have been rea sonably anticipated, is not action able negligence. The defendants cannot be held guilty .of negligence on the basis of medical opiriion, surveys, or other similar materials not announced untilafter that time." The contention is that the instruction placed an impossible burden of proof on The instruction seems fair to us. It amounts to saying that a manufacturer charged with negligence for some inher ent danger or defective condition in his product is held to the standard of rea sonable care. In determining this stand ard it is proper for the jury to take into account the state of medical knowledge before Lartigue's cancer started. The tobacco companies cannot be held- liable for negligence on the basis of medical studies yet to be published. The trial judge was careful not to limit his in structions on knowledge to the defend ants' knowledge. He charged: "[Y]ou should consider that even if defendants did not know of the dangerous substances in their prod ucts, you should consider from the evidence whether they should have taken steps to ascertain the effects of their products when used for human use, especially as to whether their products would cause or be a contributing cause in the develop ment of cancer of the lung and larynx." The timing of any warning and the effect of a failure to warn, both before and after Lartigue's cancer started, were matters for the jury to decide. The in structions gave the jury sufficient lat itude to have decided these matters in favor of the plaintiff. Taking the charge as a whole, we find that it was fair, balanced, and free from reversible error. The Court has carefully considered all of the appellant's contentions whether or not discussed in this opinion. The judgment is Affirmed. ROSS v. PHILIP MORRIS & COMPANY 3 Cite as 32$ F.2d 3 (IDG-4) John T. ROSS, Appellant, v. PHILIP MORRIS & COMPANY, Ltd., a Corporation, Appellee. No. 17202. United States Court ot Appeals Eighth Circuit. Feb. 26, 1964. Rehearing Denied March 20, 1964. Cigarette consumer's action against manufacturer for injuries allegedly sus tained as result of smoking manufac turer's cigarettes. The United States District Court for the Western District of Missouri, Floyd R. Gibson, Chief Judge, entered a judgment for the man ufacturer and the consumer appealed. The Court of Appeals, Matthes, Circuit Judge, held that where cigarette con sumer developed cancer after smoking manufacturer's cigarettes since 1934, un der circumstances, manufacturer's im plied warranty, under Missouri law, was that of being reasonably fit for intended use and it was liable only if harmful effects of cigarettes could have been an ticipated by use of any developed human skills or foresight, but under proper fac tual circumstances, Missouri courts would apply strict liability. Affirmed. 218 828 FEDERAL REPORTER. 2d SERIES 1. Courts 0370 In action based on diversity of cit Izenship federal court's function is limit ed to ascertaining and applying applica ble state law and not in formulating it, and court is required to determine what Supreme Court of state would have de clared the law to be if case were before it. 2. Sales 0255 Under Missouri law, lack of privity between manufacturer and consumer of cigarettes is not in itself a bar to re covery for alleged breach of implied war ranty. 8. Sales 0255, 427 Under Missouri law, when implied warranty claim is asserted by purchaser based on injuries from food or beverages manufactured for human consumption, rule of strict liability prevails, with or without privity, regardless of negligence. 4. Sales 0279, 427 Where cigarette consumer developed cancer after smoking manufacturer's cig arettes since 1934, under circumstances, manufacturer's implied warranty, under Missouri law, was that of being reason ably fit for intended use and it was liable only if harmful effects of cigarettes could have been anticipated by use of any de veloped human skills or foresight, but under proper factual circumstances, Mis souri courts would apply strict liability. 6. Negligence 027 Even in negligence actions against manufacturer for injuries resulting from use of products, manufacturer is held to skill of expert, is charged with su perior knowledge of its products, and is. obligated reasonably to keep abreast of scientific information. 6.Courts 0400.5(18) - Admission or exclusion of evidence on grounds of relevancy, is in the federal courts a matter primarily for trial court's judgment, and its ruling will not be dis turbed except for clear and prejudicial abuse of discretion. Fed.Rules Civ.Proc. rule 61, 28 U.S.C.A. 7. Evidence 0208(2) An admission in pleading in one action may be received in evidence against pleader on trial of another action to which he is a party, in favor of party to latter action, provided admission is relevant and material to issue being litigated. 8. Courts O40G.5(18) Evidence 0205(1) Statements made by cigarette man ufacturer on advertising and use of ma terials in motion to dismiss Federal Trade Commission proceeding did not constitute. admissions against interest and their exclusion from consumer's ac tion against manufacturer for breach of implied warranty was not a clear and prejudicial abuse of discretion. Fed. Rules Civ.Proc. rule 61, 28 U.S.C.A. Charles L. Carr, Kansas City, Mo., Clay C. Rogers and Lyman Field, Rogers, Field & Gentry, Kansas City, Mo., of counsel, for appellant. David R. Hardy, Kansas City, Mo., William W. Shinn, Kansas City, Mo., John Vance Hewitt and Alexander Holtzman, New York City, Carl E. Enggas, Kansas City, Mo., Conboy, Hewitt, O'Brien & Boardman, New York City, and Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, Mo., for appellees. Before VAN OOSTERHOUT, MATTHES and MEHAFFY, Circuit Judges. MATTHES, Circuit Judge. This so-called cigarette-cancer case originated in the Circuit Court of Jack son County, Missouri, on November 23, 1954, was removed to the United States District Court for the Western District of Missouri on the ground of diversity of citizenship and the requisite amount in controversy, and was tried in that court before a jury in June and July, 1962. From a judgment entered pursuant to a verdict for defendant-appellee (here inafter referred to as defendant), plain- BOSS v. PHILIP MORRIS & COMPANY g Cite as 32S F.2d 3 (1904) ' tiff-appellant (hereinafter referred to as plaintiff) has perfected this appeal. Count I of the complaint upon which the action was tried was for breach of an implied warranty; Count II sounded in negligence; and Count III for fraud and deceit by false advertising. Defend ant's motion for summary judgment on Count III was sustained before trial, thus eliminating that count from jury con sideration. In addition to answers which essentially amounted to a general denial, defendant also interposed as defenses: (1) the statute of limitations, (2) as sumption of risk, and (3) contributory negligence. (1) was determined adverse ly to defendant in a pre-trial conference, and (2) and (3) were not submitted to the jury and are not in issue on appeal. The implied warranty and negligence counts were submitted, and by general verdict, both were resolved adversely to plaintiff. On this appeal plaintiff has abandoned the fraud and deceit issue, and --except as to the court's refusal to admit certain evidence, seeks no review of the disposition of the negligence count. The nature of the points relied upon as grounds for reversal docs not necessi tate a detailed recitation of the evidence. For purposes of this opinion, the follow ing factual resume will suffice. Plaintiff was born on November 20, 1899, and began smoking cigarettes when he was 28 or 29 years old. He became a confirmed smoker in 1934, and from that time until his cancer operation in 1952, he smoked Philip Morris brand cigarettes almost exclusively. Plaintiff increased his consumption of smoking cigarettes from the early 1930s and with in four or five years was smoking two. packages a day. Again, he increased to the point where in 1939 and 1940 he smoked as many as three and sometimes four packages a day. He did not reduce his smoking until he went to Mayo Clinic for the cancer operation in 1952. In 1951 plaintiff first experienced a throat irritation. As a result of a med ical examination and biopsy performed upon him in January or February, 1952, plaintiff was informed that he had can cer of the throat. He immediately went to Mayo Clinic at Rochester, Minnesota, for a complete examination. There, on February 16, 1952, upon the basis of medical advice, he submitted to an op eration which included a laryngectomy, a neck dissection, and a tracheotomy. Since the operation plaintiff has had to breathe through an opening in his neck, and can speak only with the aid of an .electric device attached to his throat. Plaintiff's own testimony reveals a history of indulgence, heavy at times, in alcoholic liquor. He is a former member of Alcoholics Anonymous, was arrested several times on charges involving intoxi cation, and with the exception of the year when he was a member of Alcoholics Anonymous, indulged--in varying de grees--in the consumption of liquor.1 Plaintiff's contentions here bring into question (1) the nature and scope of de fendant's warranty of Philip Morris cig arettes, and (2) the propriety of the trial court's action in excluding certain prof fered evidence. More precisely, on the crucial implied warranty issue, plaintiff challenges the validity of the court's charge to the jury. Plaintiff contends that his offered instruction properly de clared the applicable Missouri law of implied warranty and that prejudicial er ror resulted in the court's refusal to give such instruction. In pertinent part, this refused instruction declared; "the law to be that one who manu factures, processes and markets cig arettes for consumption and smoking by the general public, such as the defendant Philip Morris Company, Ltd. * * * owes to consumers of its product the duty to provide cigarettes which, including the smoke therefrom, do not contain any The testimony of defendant's six dis tinguished doctors was to the effect that smoking of cignrcttcs was not the cause of plaintiff's cancer of the pyriform fossa. At least four of these doctors stated that suspected factors in the cause of cancer of the pyriform fossa include alcohol. I 6 328 FEDERAL REPORTER, 2d SERIES harmful, dangerous or deleterious substances to human health when smoked and used by consumers, that is to say, cigarettes that are fit and wholesome for human consumption. In this respect, the law implies a warranty of fitness for human con sumption to the smoker of such prod uct irrespective of whether the man ufacturer did not know, or even could not have known in the exer cise of the ultimate in care, skill and foresight, that the product may have contained any harmful, dangerous and deleterious substances or in gredients." (Emphasis supplied). The refused instruction authorized a verdict for plaintiff on the implied war ranty count if the jury found-- "on the basis of reasonable prob ability, there were harmful, danger ous and carcinogenic substances in the tobacco smoke of defendant's cigarettes, * * * and that such smoking of defendant's cigarettes, on the basis of reasonable proba bility, directly caused plaintiff's cancer * * *. "And this is true, and is the law, * * * irrespective of whether the defendant did not know, nor in any way could have known, that its prod uct contained any such harmful, dan gerous and carcinogenic substances and ingredients. * * Instead of giving plaintiff's offered instruction, the court submitted the issue -of alleged breach of implied warranty to the jury by an instruction which stat ed, inter alia: "A manufacturer of products, such as cigarettes, which are of fered for sale to the public in their original package for human use or consumption, impliedly warrants that its products are reasonably wholesome or fit for the pxirpose for which they are sold, but such implied warranty docs not cover substances in the manufactured product the harmfid effects of which no de veloped human skill or foresight can afford knowledge." (Emphasis sup plied). The given instruction then authorized a verdict for plaintiff upon a finding that there were harmful, dangerous, carcino genic substances in the tobacco smoke of defendant's cigarettes that caused or contributed to cause cancer in the plain tiff. "Provided, however, that if you find and believe from the evidence that there were cancer causing substances in defendant's cigarettes, and that the harmful effects of such sub stances could not have been antici pated by the use of any developed human skill or foresight before the commencement of plaintiff's cancer, then your verdict should be for the defendant on Count I, dealing with the alleged breach of implied war ranty.'' (Emphasis supplied). It should be observed that plaintiff, in objecting to the instruction that was given, did not in the trial court and does not here seriously challenge the sufficiency of the evidence to support the instruction. The principal objection to the italicized portion of the instruction made in the trial court was that it-- "misstates the law of implied war ranty in Missouri in that it permits the defendant to escape, if the jury found and believed from the evidence that harmful effects and substances in the defendant's product could not have been anticipated by the use of any developed human skill or fore sight, because under the law of Mis souri, * * * the defendant is under a duty of absolute liability under implied warranty once it is shown that the product for human consumption contained harmful, dan gerous or carcinogenic substances, and it would make no difference whether the defendant knew or could have known of such substances in its product, * * Plaintiff also objected to that portion of the instruction submitting the issue of "reasonableness," asserting that under -22 1 - PCB-ARCH-EXT0376633 ROSS v. PHILIP MORRIS & COMPANY 7 Cite as 328 F22d 3 (10(H) the law of Missouri "the defendant is not [2] When the case before us was permitted to escape under implied war argued and submitted on November 14, ranty on the reasonableness of its prod 1963, neither counsel nor this court was uct being wholesome or fit, but it is again aware of the opinion in Morrow. There a question of absolute liability whether after, in forwarding copies of the Mor jt is wholesome or is fit." (Emphasis row opinion to this court, counsel for de supplied.) fendant tacitly conceded that the hold Defendant asserts that the given in struction on implied warranty submitting the elements of "reasonableness" and "developed human skill or foresight" was a proper one, and also claims that the court properly refused to permit intro duction of the questioned evidence. Ad ditionally, however, defendant argues that: (A) under Missouri law, a cig arette manufacturer does not impliedly warrant its product to an ultimate con sumer and that, consequently, the breach of implied warranty issue should not even have been submitted to the jury, and (B) the evidence was insufficient as a matter of law to make a submissible case on the essential question whether the smoking of defendant's cigarettes caused plaintiff's cancer.1 ing therein was dispositive of issue (A), stating: "The Morrow case imposed liability upon a manufacturer of a defective gas range on the theory of implied warranty despite lack of privity of contract with the plaintiffs. This case is contrary to the position taken by appellee in Point IA of its Brief that liability for breach of implied warranty in Missouri in the absence of privity extends only to food and drink, * * In light of the teachings of the court in Morrow, further discussion of this point is deemed unnecessary. We are satisfied that in Missouri lack of privity between the manufacturer and the con sumer of cigarettes is not in itself a bar to recovery for alleged breach of an [1] Of course, in this diversity ac implied warranty. tion, our function is limited to ascertain Inasmuch as defendant prevailed be ing and applying the law of Missouri-- low on the merits, and in view of our not in formulating it. Explicitly, we are disposition of plaintiff's assignments of required to determine what the Supreme error here, defendant's point (B) is ren Court of. Missouri would declare the law dered moot, and we pretermit considera to be if this case were before it. tion of it. Turning to the Missouri cases with this function in mind, we find that issue (A) above was authoritatively resolved ngainst defendant by the Missouri Su preme Court in Morrow v. Caloric Ap pliance Corporation, en banc, 372 S.W.2d 41 (November 11, 19G3). In Morrow, damages were sought by the purchasers of a gas range from the manufacturer on the theory of breach of an implied wnrranty of reasonable fitness for use. In upholding the trial court's action in submitting this issue and in permitting recovery on this theory, the Supreme Court struck down the privity require ment rule which had previously been ap plied in Missouri except in a limited number and type of cases hereinafter more fully considered. Here, plaintiff's central attack upon the trial court's instruction on implied warranty follows the same theme as it did below. Plaintiff argues that under Missouri law the manufacturer of ciga rettes owes the ultimate consumer the "absolute duty" to have its product "fit and wholesome for human consumption;" that the manufacturer is "absolutely liable" and is "an insurer of the fitness and wholesomeness of its product;" and that the manufacturer acts "at its peril," irrespective of knowledge, "actual or constructive" and "even regardless of the possibility or impossibility of the man ufacturer obtaining knowledge, that its product contains harmful, dangerous, deleterious or carcinogenic substances and ingredients." 8 328 FEDERAL REPORTER, 2d SERIES [3] We recognize that in Missouri it has with finality been judicially deter mined that when an implied warranty claim asserted by the purchaser is based on injuries from food or beverages man ufactured for human consumption, the rule or doctrine of strict liability pre vails, with or without privity, regardless of negligence. For example, in Williams V. Coca-Cola Bottling Co., Mo.App., 285 S.W.2d 53, 55 (1955), a Missouri inter mediate appellate court, after citing nu merous Missouri cases imposing strict liability in implied warranty without privity, stated: "Considerations of public policy, * * * and the protection of the health of the consuming public re quire that an obligation be placed upon the manufacturer of Coca-Cola to see to it, at his peril, that the product he offers the general pub lic. is fit for the purpose for which . it is intended, namely, human con sumption. The `demands of social justice' require that his liability should be made absolute." (Empha sis supplied.) The definite trend in Missouri--even in cases not involving the typical food for human consumption situation--has been away from the privity requirement in actions by the ultimate consumer against a manufacturer for breach of implied warranty of fitness. See and com pare, Worley v. Proctor & Gamble Mfg. Co., 241 Mo.App. 1114, 253 S.W.2d 532 (1952) (soap detergent); Midwest Game Company v. M. F. A. Milling Company, Mo.Sup., 320 S.W.2d 547 (1959) (food for fish); Albers Milling Company v. Carney, Mo.Sup., 341 S.W.2d 117 (1960) (feed for turkeys); Borman v. O'Donley, Mo.App., 364 S.W.2d 31 (1962) (corn silage for cattle); Morrow v. Caloric Appliance Corporation, supra, 372 S.W. 2d 41 (1963) (gas range). [4] In light of this history, we con clude that under the proper factual situa tion the Missouri courts would impose the same strict liability upon a manu facturer of cigarettes as has been ap plied in the food and beverage cases. But, in our considered view, if pre sented with the facts in this case, the Missouri courts would not apply the strict rules of the "fly in the bottle cases'' but--on the contrary, would limit abso lute liability to the same extent that such liability was limited here by the district court. It is enlightening to note the reason ing employed by the courts in the cases imposing an absolute liability upon a manufacturer for breach of an implied warranty. Emphasis is placed upon "so cial justice," for "only the manufacturer * * * can know of the contents * * Williams v. Coca-Cola Bottling Company, supra, 285 S.W.2d at 55; Worley v. Proctor & Gamble Mfg. Co., supra, 253 S.W.2d at 537; Degouveia v. H. D. Lee Mercantile Company, 231 Mo.App. 447, 100 S.W.2d 336, 337-338, 339 (1936) (manufacturer not a party; remanded for submission against retailer). Here, however, we fail to comprehend how the ends of justice could be served by adopt ing the fiction that the manufacturer of cigarettes was--as early as 1934 (w'hen plaintiff began smoking defend ant's cigarettes exclusively)--in a better position, except in theory, than the con sumer to ascertain the now highly-pub licized causative relationship between smoking and cancer of certain areas of the body. It is perhaps tempting in the light of knowledge of today to create the thought that defendant should have been aware of the cancer-smoking relation ship; that the controverted instruction unduly stresses the scientific knowledge or foreseeability factor; and that the instruction has no evidentiary basis-- not to mention the lack of specific legal precedent in the field of implied warranty in Missouri. However, it should be care fully noted that this case must be de cided on the facts as they existed in the light of the knowledge of the early 1930s to 1952. Examination of the "fly in the bottle" or food cases in Missouri readily reveals significant distinctions between them and the instant case. For example, a mouse in a bottled soft drink--Holyfield v. Jop- ROSS v. PHILIP MORRIS & COMPANY 9 Cite as 328 F .2d 3 (10) |in Coca Cola Bottling Co., Mo.App., 170 S.lV.2d 451 (1943); broken glass in but termilk--Carter v. St. Louis Dairy Co., that it was scientifically impossible to have known of the alleged danger in us ing its detergent, but rather defended in Mo.App., 139 S.W.2d 1025 (1940); par part on the ground that plaintiff failed ticles of glass in soup--Bell v. S. S. Kres- to show that the detergent contained any gc Co., Mo.App., 129 S.W.2d 932 (1939) (soup purchased at defendant's lunch counter); a fly in a can of salmon--De- ingredient or chemical compound inju rious to the skin. In reversing in favor of defendant, the court stressed the possi gouveia v. H. D. Lee Mercantile Co., bility of an allergy, stating that "plaintiff supra, 100 S.W.2d 336 (manufacturer or failed to sustain the burden * * * packer not a party defendant); formal to prove that she was one of the class dehyde in buttermilk--Fantroy v. Schir- covered by the warranty." 3 Likewise, in mer, Mo.App., 296 S.W. 235 (1927); or Midwest Game, plaintiff could point to even moldy feed for turkeys--Albers no deleterious, foreign matter in the fish Milling Company v. Carney, supra, 341 food, but was able to state a claim upon S.W.2d 117, present rather flagrant de which relief could be granted because viations from what a consumer expects plaintiff could specifically allege that the when he buys a product and what the food lacked certain ingredients, was an manufacturer intends his product to con incomplete food, and thus--most im tain. These cases involve products con portantly--did not measure up to the taining readily identifiable foreign mat standards and customs of the trade.4 ter, inherently nauseous, deleterious, or putrid; in every case the risk of harm could reasonably have been foreseen as Contrarilv, here plaintiff has made no contention that defendant's cigarettes do not conform to the standard of the ciga n consequence of the presence of the rette industry, but rather has presented defect. evidence in an attempt to prove not And although not as obviously dis tinguishable, there also are significant differences between this case and both Worley v. Proctor & Gamble Mfg. Co., supra, 253 S.W.2d 532--involving a de tergent alleged to contain an ingredient which caused a skin infection,2 and Mid west Game Company v. M. F. A. Milling only that smoking defendant's ciga rettes caused his cancer, but also to show the general causative relationship be tween smoking cigarettes--of any brand --and cancer of certain portions of the body. Plaintiff does not attempt to iso late a foreign, deleterious substance pe culiar only to defendant's cigarettes. Company, supra, 320 S.W.2d 547--involv Nor does he contend that the cigarettes ing a fish food which, contrary to trade contained a substance which--like the custom, was not a "complete" food. In fish bone in the seafood cases5--was Worley, defendant made no contention inherent to the original material or food 2. Our research discloses that most author ities consider Worley as involving im plied warranty, although some have as sociated it with express warranty law. Sec, e. g. Williams v. Coca-Cola Bot-' tling Company, supra, 2S5 S.W.2d at 55. 3. Compare also, Merrill v. Beaute Vues Corporation. 10 Cir., 235 F.2d 893 (195G) (allergy to home permanent wave lotion). 4. Compare Simmons v. Rhodes & Jamieson, Ltd., 40 Cal.2d 190, 293 I\2d 20 (1950), where the Supreme Court of California, en hnne, affirmed a judgment granting a non suit in on action brought by the buyer of cement against the seller and its agent to recover damages for bums sustained by JJ8 r.u--m the buyer while handling the cement. The court found that siuco the cement was fit for the purpose of laying a base ment floor (the purpose for which it was sold), and since there was no showing that the cement contained nuy unusual substance or was different from ordinary cement in any way, there was no breach of warranty although the cement, due to its inherent nature, produced burns on the buyer who handled it. Sec also, the discussion in Baker v. Stewart Sand & Material Company, Mo.App., 353 S.W.2d 10S (1901) (negligence case). 5. Compare, for example, Shapiro v. Hotel Statlcr Corporation, S.D.Cnl., 132 F. Supp. S91 (1955) (fish bone in fish food 10 328 FEDERAL REPORTER, 2d SERIES but was not intended by the manufactur ranty which required the jury, as a pre er to be included in the finished product requisite to a finding for plaintiff, to that was sold to the consumer. Here, find the gas range "was not reasonably plaintiff's position is that even though fit and suitable for its intended purpose." defendant's cigarettes may have con The court also emphasized the consum formed to cigarettes generally; even er's dependence "upon processed food and though the cigarettes contained no for manufactured articles" and the consum eign matter that defendant intended to er's reliance on "the processor or man exclude from its product; even though ufacturer" who holds out such food or defendant may have had no reason to articles "to the public as fit and reason suspect that smoking its cigarettes could ably safe." (Emphasis supplied.) 372 produce cancer; even though there may S.W.2d at 55. . have been no immediate harm from smoking a package of cigarettes, but that the smoking-cancer relationship was a cumulative one; and even though no de veloped human skill or foresight could The foregoing pronouncements are, in our view, sound and fundamental, and indicate persuasively that the instant submission of "reasonableness" is the standard the Missouri courts would adopt afford knowledge of the cancer-smoking . and apply under like circumstances.1 relationship,6 *defendant should be held absolutely liable as an insurer if smok ing its cigarettes caused or contributed to cause plaintiff's cancer. No Missouri case has imposed such a strict respon sibility upon a manufacturer. Focusing our attention next on the foreseeability or scientific knowledge is sue, three cases involving similar factual circumstances as the one before us are worthy of brief review even though they were decided under the law of states Turning to the controverted instruc tions themselves, supra, we note that plaintiff objected to the "reasonable ness" portion of the charge as well as to the submission of the element of "de veloped human skill or foresight." In other than Missouri. In these cases, the instructions on foreseeability and the state of human knowledge were either identical with or similar to the contro verted instruction here. In Pritchard v. Liggett & Myers Tobacco Company, su Morrow v. Caloric Appliance Corpora pra, 295 F.2d 292 (Pennsylvania law), tion, supra, 372 S.\V.2d 41, the Missouri the Third Circuit reversed the trial Supreme Court approved the verdict court's judgment of dismissal of a war- directing instruction on implied war nty count and a directed verdict for serving is not n foreign substance--no im plied warranty recovery against res taurant), and Allen v. Grafton, 170 Ohio St. 249, 104 N.E.2d 107 (1900) (piece of oyster shell in serving of oysters--no implied warranty recovery against res taurant), with Boncnberger v. Pittsburgh ' Mercantile Co., 345 Fa. 559, 2S A.2d 913, 143 AX.lt. 1417 (1942) (oyster shell in canned oysters--submissiblc implied war ranty case made against retailer), and Paolinclli v. Dainty Foods Manufacturers, 322 IU.App. 5SG, 54 X.E.2U 759 (1944) (bone in noodle soup mix--negligence re covery from manufacturer). 6. Again, it should be noted that plaintiff did not, in objecting to the given instruc tion, challenge the sufficiency of the cridence to support that portion of the charge regarding scientific knowledge or foreseeability. It is noteworthy that in Green v. Ameri can Tobacco Company, 325 F.2d G73 (De cember 11, 19G3), after certification of the foreseeability issue to the Florida Supreme Court, 154 So.2d 1G9 (1903), the Fifth Circuit, in light of the Florida Court ruling, reversed the position it had taken earlier, 304 F.2d 70, on the fore seeability issue, but the court still as serted that under Florida law a cigarette manufacturer impliedly warrants that its cigarettes are "reasonably wholesome or fit for human consumption," and remand ed for jury determination on the question of "reasonableness." See also, Lartigue v. It. J. Reynolds Tobacco Company, 5 Cir., 317 FBd 19 (19G3), cert, denied, 375 U.S. 805. 84 S.Ct. 137, 11 L.Ed.2d 02 (1003): Pritchard v. Liggett & Myers Tobacco Company, 3 Cir., 295 F.2d 292 (1001). ROSS v. PHILIP MORRIS & COMPANY H Cite as 328 Fid 3 (1004) . defendant as to a negligence count, and human skill or foresight can afford,'' the remanded for a new trial. Judge Good- court stated: rjch--although concurring in the decision . to reverse and remand the case for sub mission to the jury--expressed his views as to certain limits beyond which he would be "unwilling to go" in holding a manufacturer liable. He stated: "If a man buys whiskey and "Here the manufacturer `had no opportunity to gain knowledge, or to form a judgment as to the dangerous qualities of the product'. The manu facturer was in no better position than the consumer. . ****** drinks too much of it and gets some liver trouble as a result I do not think the manufacturer is liable un less (1) the manufacturer tells the customer the whiskey will not hurt him or (2) the whiskey is adulterat ed whiskey--made with methyl alco hol, for instance. The same surely is true of one who churns and sells but ter to a customer who should be on a nonfat diet. The same is true, like wise, as to one who roasts and sells salted peanuts to a customer who should be on a no-salt diet. Surely "Thus far, public policy has not decreed absolute liability for `the harmful effects of which no de veloped skill or foresight can avoid.' At this point, it cannot be said that cigarette smokers who started smok ing before the great cancer-smoking debate relied on the tobacco compa nies' `warranty' that their cigarettes had no carcinogenic element. To day, the manufacturer is not an in surer against the unknowable." 317 F.2d at 39-40. if the butter and the peanuts are pure there is no liability if the cholesterol count rises dangerously. The proceedings in the ^hird pertinent court of appeals case--Green v. American Tobacco Company, supra, 304 F.2d 70r "In this case there was no claim that [the cigarettes] are not made of commercially satisfactory tobac on statutory certification to the Supreme Court of Florida, supra, 154 So.2d 169, on reconsideration by the Fifth Circuit, co." 295 F.2d at 302. supra, 325 F.2d 673 (December 11, 1963) The retrial in Pritchard resulted in a judgment for defendant cigarette com pany based upon answers to specific in --are relied upon heavily by plaintiff, primarily because of the trial court's reference in the instant case to the first terrogatories submitted to the jury, and decision rendered by the Fifth Circuit in the case is again on appeal.8 Green. In an unreported order denying In Lartigue v. R. J. Reynolds Tobacco plaintiff's motion for new trial, the court Company, supra, 317 F.2d 19 (Louisiana below, applying Missouri law, stated: law), the Fifth Circuit affirmed a judg ment rendered on a jury's general verdict for defendant cigarette manufacturers in an action brought for the death of plain tiff's husband--a heavy smoker--from cancer. Approving the instruction that the "implied warranty does not cover substances in the manufactured products, the harmful effects of which no developed " * * * when applied to a sub stance which is a natural constituent of a product, which has not been previously considered harmful, it is the opinion of the Court that the proper rule of law should require that a manufacturer should be shown to have knowledge of the harmful ness of the substance or reason to .8 Wc Imve been advised tlmt the jury found tlint smoking defendant's cigarettes Was the cause or one of tlic causes of the cancer in plaintiff's riglit lung; that defendant was not chargeable with negli gence which was a proximate cause of plaintiff's injury; that defendant did not make nny express warranty npon wbieh plaintiff relied and by which he was in duced to purchase defendant's cigarettes; that there was not a breach of warranty implied by law; and that plaintiff assumed the risk of injury by his smoking of cigarettes. 12 328 FEDERAL REPORTER, 2d SERIES have such knowledge imputed to him, and that the rule of absolute liability should be^ qualified to this extent." The court then pointed out that, in its view, if this case were presented to the Supreme Court of Missouri, that court would approve of the instruction regard ing foreseeability that was given here and in the Green case. But subsequent to this statement, the Florida Supreme Court on statutory certification ruled that under Florida law, ``implied war ranty liability is not limited by the foreseeability doctrine, the `reasonable application of human skill and foresight' test of tort liability," 9 supra, 154 So.2d at 172, and consequently the Fifth Cir cuit has reversed and remanded Green for further proceedings. i However, merely because the court be low referred to Green with approval be fore the Florida Supreme Court respond ed contrarily in the certification proceed ing, we are not compelled to hold that the Missouri Supreme Court would arrive at the same conclusion as the Florida court. Judge Gibson--in the court below--de cided that "the better rule of law" was that enunciated in the first Green deci sion by the Fifth Circuit, and that "if the case were presented to the Supreme Court of Missouri, that court would ap ply the rule followed in the Green case and given to the jury by the instructions of this Court." Judge Gibson did not even imply that the Missouri courts would blindly follow Florida law on this subject--if such law should (as it has) subsequently turn out to be contrary to the first enunciations by the Fifth Cir cuit. Indeed, as noted previously, this case is to be decided under Missouri law, and neither the Green case, the Lartigue case (which approved a similar instruc tion as is controverted here), nor the Pritchard case (which also used a similar instruction below and is now again on appeal) is dispositive or decisive of the present controversy. The field of implied warranty is in a state of. flux, and it is obvious that Mis souri has joined the liberal trend toward allowing recovery from a manufacturer for breach of such a warranty under fac tual situations once governed by the rigid caveat emptor doctrine--let the buyer beware. However, after exhaustive study of all relevant Missouri author ities, we are convinced that, on the facts of this case, the trial court correctly charged the jury and properly refused plaintiffs instruction which would have made defendant an absolute insurer-- without regard to "reasonableness" and without regard to "developed human skill or foresight." 10 And the burden that the foreseeability instruction placed upon defendant was not a light one. For defendant was re quired to offer evidence affording proof that no one, not even the most renowned scientist or the most eminent medical authority in the world, could have fore seen the cancer-producing danger that 9. For purposes of this opinion, we need not involve ourselves in the controversy concerning whether .in implied warranty sounds in contract or in tort as strict ' liability. Sec Prosser, Torts. S3, pp. 403--494 (2d cd. 1903): Prosser. "The Assault Upon the Citadel (.Strict Liability to the Consumer)," CO Yale Law Journal . 1099, 1124-1134 (1000). It is. however, interesting to observe that in Morrow v. Caloric Appliance Corp., supra, 372 SAW 2d 41, 55, the Missouri Supreme Court mentioned and guoted from Greenmail v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cnl.Rptr. 097, 377 P.2d S97 (1902), n case which imposed strict lia bility in tort on a manufacturer. 10. It is interesting--although certainly not controlling--to note that Missouri has approved the Uniform Commercial Code as of August 15, 1903, effective July 1, 1905. Under the section of the Code dealing with implied warranty of mer chantability, V.A.M.S. 400.2-314. em phasis is placed upon usage of the trade, and among other requirements, goods to bo merchantable must "pass without ob jection in the trade under the contract description." Plaintiff here does not con tend that defendant's cigarettes could not pass without objection in the trade as . cigarettes. See also, V.A.M.S. 5 400.2 315 (implied warranty of fitness for par ticular purpose). ROSS v. PHILIP MORRIS & COMPANY IS Cite as 32S '.2d 3 (1004) smoking cigarettes can--under certain food or drug necessarily involves circumstances--apparently create.11 some risk of harm, even if only from While certainly not decisive of Mis souri law, it is not entirely without sig nificance that recognized authorities in the field of implied warranty have ex pressed views which lend support to our determination of the foreseeability issue. In Harper & James, The Law of Torts, Vol. 2, 28.22, pp. 1584-158G (195G), the following statement appears: "Food sold for immediate consump tion is warranted as fit for consump tion by ordinarily healthy and nor mal people under ordinary circum stances. This means that it is not contaminated and that it is free from impurities that might forcsee- over-consumption. * * * ****** "Where, however, the product contains an ingredient to which a substantial number of the population are allergic, and the ingredient is one whose danger is not generally known, or which.the consumer would reasonably not expect to find in the product, the seller is required to give warning against it, if he has knowl edge, or by the application of reason able developed human skill and fore sight should have knowledge, of the presence of the ingredient and the danger." (Emphasis supplied.) ably prove injurious, such as peb [5] We have carefully read and bles, glass or mice." (Emphasis sup studied these and a vast array of other plied.) 1121 In the proposed revision of Restate ment (2d ed.) Torts, 402A (Tentative Draft No. 7, 1962), the writer classifies cigarettes with foods for the purpose of imposing strict liability on the manufac turer, but further states: non-judicial authorities--some of which would limit the liability of a cigarette manufacturer for reasons other than are in issue in this case. There is, however, no need for further elaboration, for while these authorities are not without import in the field of implied warranty generally, our task here is a more limited one and "The rule stated in this Section is confined to the application of Missouri applies only where the defective con law. Under such law, a manufacturer, dition of the product makes it unrea in the proper factual situation, is held sonably dangerous to the consumer. as an absolute insurer against knowable Many products cannot possibly be dangers, and thus has an incentive to made safe for consumption, and any keep abreast of scientific knowledge.13 11. Although no question is raised here as to the measure of damages we note that in on action based upon breacli of con tract, the traditional Iladlcy v. Baxcndalc, 9 Exch. 341, rule limits recovery to such consequences ns may be reasonably sup , Iioscd to be in the contemplation of the parties at the time of making the con tract. If an implied warranty under Missouri law sounds strictly in contract (but see, supra, fn. 9), a plaintiff seeking to recover from a manufacturer of cignrettes alleging that smoking caused plaintiff's cancer, might still be required to show that the possibility of such a consequence might reasonably be sup posed to have been within the "con templation" of the parties at the time of the sale. 12. See also, "General Products--Should Manufacturers Be Liable Without Negli gence?", 24 Tcnn.L.Rcv. 923, 925, 927 (1957), nn article by Fleming James (co author of The Law of Torts, Harper & James, and Professor of Law at Yale Law School) in which lie argued for an ex tension of liability without fault but con cluded that the liability of a manufacturer . should--as to hazards injected into so ciety by the manufacturer--be limited to the extent that such hazards arc "reason ably foreseeable." "Liability should ex tend to anyone who is hurt by a fore seeable use of the product. The foresee ability here involved is different from that required in negligence cases. It is not the foreseeability of unreasonable risks, but rather the foreseeability of the kinds of risks which the enterprise is likely to create." 13. Even in a negligence case, a manufac turer is held to the skill of an expert, is charged with superior knowledge of the nature and qualities of its products, and 14 328 FEDERAL REPORTER, 2d SERIES But, in our view, the Missouri courts case. The supporting affidavit of de would not--under the facts of this case fendant's president stated: --go still further and eliminate knowl edge altogether as a condition of liability, regardless, for example, of whether any ingredient in a cigarette was known or . could have been known to be an irritant or deleterious substance that could cause cancer. "The respondent has abandoned its advertising that the smoke from its `Philip Morris' brand of ciga rettes is less irritating to the throat than the smoke from cigarettes of the other leading brands. It has also abandoned the use of the hygro In summary, we are satisfied that the scopic agent mentioned in the said trial court properly determined the ap order and which was the basis of the plicable Missouri law and that its charge said advertising. It has also aban was correct. In any event, the court's doned any advertising representing conclusion was a permissible one and is that the smoke from its said ciga invulnerable to successful attack on ap rettes Will not leave an after-taste. peal. "It is not the intention of re [6] We approach the question wheth er the exclusion of evidence offered by plaintiff was prejudicial error, mindful spondent to resume said advertising or the use of the said hygroscopic agent." that under Rule 61, Fed.R'.Civ.P., no er Plaintiff sought unsuccessfully to intro ror in the admission or exclusion of duce the motion to dismiss and support evidence is ground for granting a new ing affidavit in effect as admissions trial or for vacating a judgment, unless against interest. a refusal to do so is inconsistent with substantial justice. See Great American Insurance Company v. Horab, 8 Cir., 309 F.2d 262 (1962). In Hawkins v. Mis souri Pac. R. Co., 8 Cir., 188 F.2d 348, 351-352 (1951), in speaking for the court, Judge Johnsen, now Chief Judge, stated the applicable rule in this manner: "* * * [T]he admission or ex clusion of any evidence, as being properly relevant or being too re mote, is in the federal courts a mat ter primarily for the trial court's judgment, and its rulings in this re spect will not be disturbed except Additionally, plaintiff offered, again basically as admissions against interest, the testimony of defendant's former Di rector of Research (dead at the time of this trial) adduced in 1943 in the same proceeding before the Federal Trade Commission. In denying both offers-- i. e., the motion to dismiss the Federal Trade Commission complaint and the testimony of the Director of Research, the trial court expressed the opinion that such evidence did not constitute admis sions against interest and was not rele vant to establish any pertinent fact. for clear and prejudicial abuse of the discretion." [7] In taking issue with the trial court's exclusion of the offered evidence, Proceeding to the question, we find plaintiff relies upon the general rule, un that in 1942 a complaint was filed before disputed here, that any statement made the Federal Trade Commission which ap by a party to an action which is against parently formed the basis for air inves his own interest and which in its nature tigation by that Commission of defend tends to establish or disprove any mate ant's dissemination of certain advertising rial fact in the case is competent to be of its cigarettes. On February 2, 1959, put in evidence against him in the trial defendant filed before the Federal Trade of the action. 31A C.J.S. Evidence Commission its motion to dismiss that 272; 20 Am.Jur., Evidence 544. Under is obligated reasonably to keep abreast of scientific information, discoveries, and advances. LaPlaut v. E. I. Dupont De Nemours And Company, Mo.App., 340 SAV2d 231 (19C1). i r - 229 - PCB-ARCH-EXT0376641 BOSS v. PHILIP MORRIS & COMPANY J5 Cite as 328 '.2d 3 (1004) this principle, an admission in a plead subject of exhaustive pre-trial consid ing in one action may be received in eration during the time that the case evidence against the pleader on the trial was pending before Judge Ridge (now a of another action to which he is a party, member of this Court). After thorough in favor of a party to the latter action, analysis of plaintiff's contentions, Judge provided the admission is relevant and Ridge ruled that the proceedings before material to the issues being litigated. the Federal Trade Commission and the Sec 31A C.J.S. Evidence 303; 20 Am. questioned evidence were not admissible. Jur., Evidence 630; cf. Albertson v. But in so doing, the court did not fore Wabash R. Co., 363 Mo. 696, 253 S.\V.2d close plaintiff's right to offer evidence 184 (1952). if it was in fact relevant to establish a [8] The difficulty and weakness of plaintiff's position is that the excluded evidence does not, in our considered view, meet the test encompassed within the foregoing rule. We are unable to comprehend how the statement in the motion to dismiss the Federal Trade Commission proceedings to the effect that defendant intended to abandon portions material fact or constituted an admis sion against interest.15 During the trial the same evidence was again offered, was carefully examined by Judge Gibson who, after a plenary hearing on the question of its admissibility, ruled that it was not material, did not constitute an ad mission against interest, and refused to allow its introduction. of its advertisements and to abandon the use of the hygroscopic agent in the man ufacture of its cigarettes, constituted an admission, or could have been so regard ed, that its product was not reasonably wholesome or fit, or that defendant had been guilty of the alleged negligence in the manufacture of its cigarettes.14 The refused testimony of its former Research Director, when considered in light of the issues that were litigated, falls in the same category. Plaintiff was permitted to introduce numerous advertisements promulgated by defendant and which appeared in national magazines, newspapers and other adver tising media during the period of time relevant to the case. The evidence took a wide range and afforded the jury a panoramic view of the litigated issues. The admission of the controverted evi dence would not, in our opinion, have in fluenced or caused the jury to arrive at a different result. Its rejection was not The materiality and admissibility of prejudicially erroneous, and manifestly all of the refused evidence was first the there is no basis for us to hold that the 14. Compare, Albertson v. 'Wabash It. Co., supra, 253 S.W.2d 1S4 (although not con trolling in a federal court action involving n question of admissibility of evidence),' where the Missouri Supreme Court held it wns prejudicial error to admit applica tion filed by the railroad company before Public Service Commission for permis sion to eliminate an existing grade cross ing, characterized in the application as "dangerous." The action was brought against the railroad company for dam age resulting from collision between an nutomobilo and a standing railroad car nt that same crossing, claimed by plain tiff to be "unusually hazardous." 15, The pre-trial proceedings indicate clear ly that plaintiff's purpose nt that time in securing a favorable ruling on the admis sibility of the controverted cvidenco was to establish his fraud and deceit action-- Count III. In its memorandum opinion granting summary judgment on Count III, the court stated: "Seemingly, what plaintiff is attempting in this case is to get before the jury at the trial, ns primary evidence, excerpts from the pleadings and record made be fore the F.T.C.. as proof to sustain the charge of fraud and deceit which lie al leges in Count III. * "Plaintiff cannot in this action use ns primary evidence, the `Specific Admissions Against Interest by Defendant and Its Officers, Contained in Plaintiff's Exhibits 8, 10, 11, 12 and 13, Record Before the Federal Trade Commission, Docket Xo. 4704,' (filed herein December 10, 1900) in proof of the claim of fraud and deceit made in Count HI." I f5- I L. _ - 230 - PCB-ARCH-EXT0376642 16 328 FEDERAL REPORTER, 2d SERIES court's ruling constituted a clear abuse of discretion. The record demonstrates that the case was fairly tried, free of prejudicial er ror. Consequently, we Affirm. authorizing officers to make search at night. Affirmed, - 231 - PCB-ARCH-EXT0376643 p 1003 MYRTLE MEHOCHKO, Appt., v GOLD SEAL COMPANY, a Corporation Illinois Appellate Court -- January 11, 1966 66 111 App 2d 54, 213 NE2d 581, 19 ALR3d 1003 SUMMARY OF DECISION . Recovery for bodily injuries resulting from the use of a product distributed by the .defendant was sought in the instant action. A physician testified for the plaintiff that the burns suffered by the plaintiff could have been caused by a material spilled on her foot. A biochemist in the employ of the man ufacturer of the product testified concerning the results of certain tests per formed on the product under his direction and supervision and, over the objection of the plaintiff, was permitted to give further testimony of the report of a test conducted on the product by an independent laboratory. On an appeal by the plaintiff, a judgment rendered by the Circuit Court, St. Clair County, Illinois, Harold O. Farmer, J., on a verdict for the defend ant, was reversed, and the cause remanded with directions for a new trial and other relief, by the Appellate Court of Illinois, Fifth District, which, in an opinion by George J. Moran, J., held'that testimony of the report of the test by a third person was inadmissible hearsay and that the plaintiff was r prejudiced by its admission in evidence. HEADNOTES Classified to ALR Digests Appeal and Error 250 -- admission of evidence -- sufficiency of objection 1. An appellate court may refuse to conlidcr the appellant's claim of reversible error in the admission of certain evidence, where his objection to the testimony is not suffi ciently specific. Evidence 1039 -- hearsay -- report of test by third person 2. In a products liability action in which a biochemist in the employ of the manu facturer testifies concerning the results of certain tests performed on the product under his direction and supervision, error is com- SUBJECT OF ANNOTATION Beginning on page 1008 Admissibility, as against hearsay objection, of report of tests or experiments carried out by independent third party - 232 - PCB-ARCH-EXT0376644 1004 Mehochko v Gold Seal Co. 19 ALR3d 66 111 App 2d 54, 213 NE2d 581, 19 ALR3d 1003 mitted in admitting hearsay evidence con Appeal and Error 781 -- hearsay -- report sisting of his further testimony of the report of test by third person -- prejudicial of a test conducted on the product by an error independent laboratory. [Annotated] 5. In a products liability action in which a biochemist in the employ of the manu Appeal and Error 205 -- questions raised -- sufficiency of evidence 3. An appellant who alleges the insuffi ciency of the evidence to support the verdict thereby indicates that the other party failed to prove his case. facturer testifies concerning the results of certain tests performed on the product under his direction and supervision, error com mitted in admitting hearsay evidence con sisting of his further testimony of the report of a test conducted on the product by an independent laboratory is prejudicial, since Appeal and Error 202 -- questions raised the effect on the jury of the independent *-- prejudice in admission of hearsay Jaboratory's test lent an air of impartial evidence veracity to the test results and opinion of 4. An appellant who alleges prejudicial of the witness. error in the admission of inadmissible hear [Annotated] say thereby alleges that the admission prob ably or substantially controlled the result. BRIEFS OF COUNSEL Meyer & Meyer, of Belleville, for appel lant: The defendant failed to prove a similarity of conditions between the experiment per formed by it and the condition of defendant's product at the time of the injury. Hammer v Slive (1962) 35 111 App 2d 447, 183 NE 2d 49, 52; Handley v Erb (1941) 314 111 App 207, 212; Smith v Strover Mfg. Co. (1917) 205 111 App 169, 175; Downing v Metropoli tan (1941) 314 111 App 222, 226; Chicago City Ry. Co. v Brecher (1904) 112 111 App 106, 108. The introduction into evidence by the defendant of the results of an experiment made by a third party constituted hearsay which was of a prejudicial nature. McCoy v Union Elevated (1916) 271 111 490, 498; People v Capoldi (1957) 10 111 2d 261, 268; Coal Creek Drainage & Levee Dist. v Sani tary Dist. of Chicago (1929) 336 111 11, 43; Novicki v Dept, of Finance (1940) 373 111 342, 344; Adkins v Blue Bird Coach Lines, Inc. (1960) 27 111 App 2d 34; McCormick, Handbook of the Law of Evidence 460 (1954); 5 Callaghan's Illinois Evidence 213, 214 (1964). Oehmke, Dunham, Boman & Leskera, and John W. Leskera, both of East St. Louis, for appellee: There was no abuse of discretion by the trial court in permitting the defendant to show experiments on a product-made by the manufacturer of the product. Hardman v Helene Curtis Industries, Inc. (1964) 42 111 App 2d 42, 198 NE2d 681; Freisland v City of Litchfield (1960) 24 Ilk App 2d 390, 164 NE2d 606; Saldania v Atchison, T. & S. F. Ry. Co. (1957) 241 F2d 321; Downing v Metropolitan (1941) 314 111 App 222; Ham mer v Slive (1962) 35 111 App 2d 447, 183 NE2d 49; 20 Am Jur, Evidence, 758; Section 68.1 (2), Ch 110, 111 Rev Stats, 1963. No prejudicial error was committed by the introduction of evidence of tests made by an independent laboratory confirming ex periments of the manufacturer of the prod uct. Smith v Broschied (1964 ) 46 111 App 2d 117, 196 NE2d 380; Hickey v Chicago Transit (1964) 52 111 App 2d 132, 201 NE 2d 742; Ward v Cozzi (1959) 20 111 App 2d 297, 156 NE2d 222; Ciskoski v Michalsen (1958) 19 111 App 2d 327, 152 NE2d 479; Melford v Gaus & Brown Const. Co., Inc. (1958) 17 111 App 2d 497, 151 NE2d 128; Feeley v McAuliffe (1948) 335 111 App 99. 19ALR3d ' Mehochko v Gold Seal Co. 6,6 IU App 2d 54, 213 NE2d 581, 19 ALR3d 1003 1005 ' OPINION OF THE COURT George J. Moran, J. This is a products liability action in which the plaintiff charges that she was injured because the defendant, a distributor of a product known as Firewax, negligently and carelessly failed to warn that this product was dan gerous to the human body when it came into contact with the skin. The jury found the issues in favor of the defendant and the court entered judg ment in favor of the defendant on the jury's verdict. Plaintiff appeals from the denial of her post trial motion for a new trial. . On August 19, 1961, John M. Arnold purchased a can of Firewax at plaintiff's request and took it to the home of the plaintiff in O'Fallen, Illinois. Arnold sprayed this on some charcoal in a portable grill, with the plaintiff standing just a few inches away. Arnold "miscued" and allowed some of the Firewax to fall over the grill. Plaintiff did not notice any on her shoe at that time. One-half an hour to forty-five minutes later, while she was barbecuing, plaintiff felt a burning sensation at her foot. She then noticed a substance on her shoe that looked like the remains of the substance sprayed on the charcoal. Plaintiff wiped off the substance, took off her shoe, then put the shoe on again and continued to barbecue. About forty-five minutes to one hour later, after she finished barbecuing, she went indoors, removed her shoe, washed her foot, and applied medication. Plaintiff did not have the substance in the can which she purchased tested, and it was not tested to her knowledge. Her examining physician did not test the substance and did not know the ingredients of Firewax. Firewax is manufactured by R. M. Hollingshead Corporation. The defend ant is the distributor. Firewax is sent to the defendant in cases, ready for resale. . The label is on the product when it leaves Hollingshead Corporation. Ml Plaintiff claims that the court committed reversible error in permitting Dr. Harold C. Lederer, a biochemist and toxicologist employed by the Hollingshcad Corporation to testify concerning the results of certain tests per formed on this product under his direction and supervision. We do not believe plaintiff's objection to this testimony was specific enough to make this point available for review, so we will not consider it in this opinion. 1*1 Plaintiff also claims the trial court committed reversible error in admit ting inadmissible hearsay evidence on-.behalf of the defendant over plaintiff's specific objection. In addition to giving testimony of his own on behalf of defendant, Dr. Lederer also read the results of a test conducted on Firewax by an independent biological laboratory into evidence over the objection of the plaintiff. McCormick, Evidence, p 460, defines hearsay as ". . . such offered to show the truth of matters asserted therein and thus resting for its value on the credibility of the out-of-court assenter." Appellants cite numerous cases to the effect that it is hearsay to read the reports of another into evidence. Appellees do not contest the point that 1006 Mehochko v Gold Seal Co. 19ALR3d . * 66 111 App 2d 54, 213 NE2d 581, 19 ALR3d 1003 thin was hearsay, but urge that the report was admissible as an exception to the hearsay rule. Appellees rely principally upon Smith v Broscheid, 46 111 App 2d 117, 196 NE2d 380 (1964) and upon Hickey v Chicago Transit Authority, 52 111 App 2d 132, 201 NE2d 742 (1964). In Smith a doctor testified as to the facts shown in an X-ray after another doctor had pointed out the indications and interpreted the results for the testifying doctor. The first doctor testified concerning things visible to him and within his own knowledge and expertise, i. e., he pointed out facts and indications on an X-ray which the second doctor who testified then saw and recognized. The second doctor was allowed to testify based on matters within his own knowledge which were first shown him or interpreted to him by the first doctor. He was allowed to base his expert opinion of what the pictures showed upon his own knowledge plus another expert's opinion. In Hickey the court concluded 52 111 App 2d at page 139, 201 NE2d at page 146 that "it is proper for an attending physician to testify with respect to the pathology revealed by a myelogram or X-ray, even though he did not perform the myelogram or take the X-ray, and had sought the advice of a specialist in its interpretation, blit the myelogram or X-ray must be produced and put in evidence so as to furnish the basis for cross-examination;" In tests, the essential elements are the results, methods and qualifications of the tester. The method and qualification of the tester (to conduct the test and correctly read its results) give the results their veracity. Dr. Lederer was not testifying from his own knowledge about an exhibit (like the X-ray or myelogram) before the court. He could not be cross-examined about an exhibit before the court. He was not testifying from his own knowledge about an exhibit before the court; he knew no more about the independent tests than he had read (been told). The tests were not before the court and he could not be cross-examined about the method (save what he read about it) nor about the tester's qualifications to perform the experiments and cor rectly interpret the results. Dr. Lederer was a stranger to the evidence he introduced. He knew nothing about it save through hearsay; he could not be cross-examined about the essence of the independent tests. The lower court erred in admitting this inadmissible hearsay evidence. Dr. Lederer's testimony did not come within the hearsay exception in Smith v Broscheid, supra, or Hickey v Chicago Transit, supra. 13. 4] is this error so prejudicial to plaintiff that she is entitled to a new trial? When an appellant alleges there is insufficient evidence to support a verdict, he indicates the other party failed to prove his case. When an appel lant alleges prejudicial error in the admission of inadmissible hearsay, he alleges the admission probably or substantially controlled the result. 5 . Callaghan's Illinois Evidence, 214 (1964). [5]Reviewing the various testimony, a physician testified for plaintiffappellant that the injury "might or could have been caused by the material spilled on her foot"; Dr. Lederer, a biochemist-toxicologist, testified that Fire- 19ALR3d Mehochko v Gold Seal Co. 1007 66 111 App 2d 54, 213 NE2d 581, 19 ALR3d 1003 wax as usually produced will not burn the skin; and finally, Dr. Lederer read the results of an independent testing firm. The inadmissible hearsay was approximately one-half of the defendant- appellee's case. Whether a jury, faced with a physician's contrary testimony would have believed defendant's witness cannot be known. The effect of an independent laboratory's test on the jury, however, lent an air of impartial veracity to Dr. Lederer's opinion and test results; it did not come to light through a representative of that laboratory called by the defendant. The independent test results appeared, through hearsay, as an impartial imprimatur to Dr. Lederer's expert opinion. The inadmissible hearsay verified his results and opinion. Prior to the i1 admission of the hearsay results, both plaintiff and defendant had expert opinion to support their allegations. Following the erroneous admission, the defendant had the apparent blessing and confirmation of an independent I1 i laboratory. These independent results have a misleading air of impartiality about them because defendant did not have to call the tester as a witness. The error in admitting inadmissible hearsay was prejudicial to the plaintiff- appellant. The judgment is therefore reversed and the cause is remanded with directions to grant the motion for a new trial, and for such other and further relief as is not inconsistent with the views herein expressed. Judgment reversed and cause remanded with directions. v Goldenhersh and Eberspacher, JJ., concur. ( - 236 - PCB-ARCH-EXT0376648