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3 F.(2d) 12

lection of cases on this subject will be found in note to Loxterkamp v. Lininger Implement Co. (Iowa) 33 L. R. A. (N. S.) 501. Many courts of ability and learning have held that an implied warranty may be available as basis of an action that the article is not suited for purposes for which it was purchased, even when there is an express warranty, unless the implied warranty is excluded by the terms of the express warranty. For instance, that express warranty of title will not exclude implied warranty of quality. Blackmore v. Fairbanks, Morse & Co., 79 Iowa, 282, 44 N. W. 548; Bucy v. Pitts Agricultural Works, 89 Iowa, 464, 56 N. W. 541; Ideal Heating Co. v. Kramer, 127 Iowa, 137, 102 N. W. 840; Petersen v. Dreher, 196 Iowa, 178, 194 N. W. 53.

There is no need, however, of an excursion into that field, as here the alleged express warranty was on the same subject and was merely a slight enlargement of what would be covered by the warranty which the law would imply, and would, if established, exclude an implied warranty relating to the very same subject. However, we think defendant is not in position, as the record stands in this case, to avail itself of this question. In its answer it denied the existence of any express warranty, and throughout the case insisted that there was no express warranty, and still so insists. It should not be heard to say that an alleged express warranty which it denied existed was a bar to a warranty which the law would imply. If the jury found there was no express warranty, we see no reason why they might not find under the evidence showing the circumstances of the sale that there was an implied warranty that the fuse was fit for the purpose intended, viz., of such burning speed as would, in the use to which the agent knew it was to be put, not have been dangerous to plaintiff's safety if properly used, and without negligence on his part. If the plaintiff's testimony was true that the fuse burned instantaneously, there was a breach of implied warranty.

V.

[7] Defendant contends there is no evidence that proves or tends to prove that at the time defendant sold the fuse in controversy any defect of which plaintiff complains existed in the fuse and that hence no liability is shown on the part of the defendant. Defendant bases this argument on the fact that the fuse in controversy was shipped by defendant August 17, 1920, and that there is nothing to show when, where, or how the alleged defect came into existence.

The question was not raised in the trial. No requests were made to the court to instruct thereon, and this contention did not enter into the theory of trial on either side. Regardless of whether or not there is any merit in the question, it is too late to raise it for the first time in this court.

VI.

[8] The last question raised by the assignments of error is the refusal of the court to give the following requested instruction: "You are further charged that, if plaintiff was guilty of such conduct in and about his effort to place the shot under the stump where he claims he was injured as an ordinarily cautious and prudent person would not have been guilty of under the same, or similar circumstances, then you must find plaintiff was careless and negligent, and, if such negligence contributed to or caused plaintiff's injuries, then you must find for the defendant." Proper exception was preserved.

Plaintiff sought to recover in this case upon the ground of breach of warranty and also negligence. He was compelled by the court to elect between these two theories, and chose to rely on breach of warranty. Therefore negligence passed out of the case. The action stood then as one for consequential damages alleged to have been suffered by virtue of said breach of warranty. In other words, an action for breach of contract. Some courts have held that contributory negligence is a defense in an action for consequential damages. Bruce V. Fiss, Doerr & Carroll Horse Co., 47 App. Div. 273, 62 N. Y. S. 96; Razey v. J. B. Colt Co., 106 App. Div. 103, 94 N. Y. S. 59; Draper & Cole v. Sweet and others, 66 Barb. (N. Y.) 145; Hitchcock v. Hunt, 28 Conn. 343. We do not feel called upon to determine this question until it squarely arises.

It is doubtful if under the circumstances of this case, the doctrine of contributory negligence has any place in a correct determination of the issues involved. If the injuries to plaintiff occurred in the way that he and his witnesses describe, then no negligence of the plaintiff contributed thereto. If the injuries, on the other hand, were caused by the explosion of the box of caps, as was defendant's theory, then, under the instructions of the court, plaintiff's cause of action. failed, regardless of negligence on his part. The court at one stage of the proceedings seems to have so thought, for it said: "I do not think the question of contributory negligence arises at all." However, in the further progress of the case the court and

counsel on both sides seem to have considered contributory negligence as an issue, and near the close of the testimony the following appears, which seems to define the final attitude of the parties and the court on this question:

"Mr. Robins: Very clearly their plea of contributory negligence would be a matter of defense.

by the explosion of the dynamite caps caused by such negligence.

In the statement of the case to the jury the court said: "The defendant denies that it made a warranty with reference to the burning speed of the fuse. It alleges that plaintiff's injury was brought about by his own negligence in handling the fuse and dynamite caps that were used in exploding

"Judge Rheuby: They allege the cause of the dynamite." the injury was defective fuse.

"Mr. Robins: I take it that their defense of all this testimony is one of contributory negligence in the careless handling of this explosive.

"Judge Rheuby: In response to that, our defense is not one of contributory negligence on the part of the plaintiff but one of positive negligence.

"Mr. Robins: For what purpose did you introduce all those experts to prove that this was an unsafe way to handle this?

"The Court: I do not think that the question of contributory negligence arises at all. "Mr. Patterson: Your honor, if they have the burden of proving negligence, then we ought to have the right to rebut that by showing by other experts that the practice that we used (—) negligent.

"The Court: He may answer." Evidence was introduced which might raise doubt in the minds of the jury as to what, in fact, did cause the explosion. There was evidence that lighted cigarettes should not be used around explosives. This evidence was introduced apparently to raise the inference that the lighted cigarette in some way caused the explosion, and the defendant did seek to show that the box of dynamite caps exploded from sparks of fire from the lighted cigarette. This was done largely by process of attempted elimination of all other theories of explosion. Proof was made of the open box of caps; the sensitiveness to fire of such caps; the finding of exploded fragments of caps in plaintiff's fuse. Of course, evidence on this theory went to the question of whether the fuse had anything to do with the explosion. There is no testimony in the record that any negligence on the part of plaintiff attempted to be proven had anything to do as a co-acting or contributing cause with the alleged defective fuse in causing the explosion. Certainly, if contributory negligence, under the condition of the record at the time of the court's charge, had any place in the case justifying its submission to the jury, it must be confined to the theory advanced by defendant in its evidence, viz., that the injury was caused

Again the court said: "If his injury was brought about by the explosion of something else, that is, if dynamite caps and those caps were negligently left in the position where they were left by him, then it was through his own negligence that he sustained his injury, and he cannot recover from the defendant for the results of his own negligence."

At the close of his instructions the following occurred:

"Mr. Robins: I want to request the court to instruct the jury that the burden of showing negligence on the part of the plaintiff is upon the defendant.

"The Court: Gentlemen of the jury, in considering the question of negligence you are instructed that the burden of proof to establish that negligence is upon the defendant, unless you find such negligence from the testimony of the plaintiff himself, or the testimony introduced in his behalf.

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The jury were also charged: "If you are unable to determine from the evidence what caused the explosion resulting in plaintiff's injury, or cannot determine that it was caused from the alleged rapid burning of the fuse, then you must find for the defendant." This, coupled with the instruction heretofore pointed out that If the injury of the plaintiff was sustained, not by an explosion of dynamite, but by the explosion of certain caps in the proximity, then you are instructed that he cannot recover. The allegations of the complaint are that the plaintiff was injured through the explosion of dynamite brought about by a fuse that burned practically instantaneously. If his injury was brought about by the explosion of something else, that is, if dynamite caps and those caps were negligently left in the position where they were left by him, then it was through his own negligence that he sustained his injury, and he cannot recover from the defendant for the results of his own negligence," covers, we think, any question of contributory negligence raised by the pleadings and supported by the evidence. There was no error in failing to give defendant's requested instruction No.

3 F.(2d) 21

17. This answers also the question raised as to the refusal of the court to more specifically define negligence.

The judgment of the trial court is af

لا 268

firmed, & der 69 LED 1159, denies 41 45 Sup Ct. 511.

7. Domicile 9-Evidence of wife's Intention, relative to return to former domicile, held admissible as tending to show husband's intention.

Though domicile of wife is that of husband, evidence of wife's intention, relative to return to former domicile, in absence of interruption of marital relation, was admissible as tending to show husband's intention.

PORTO RICO RY, LIGHT & POWER CO. V. 8. Street railroads 98 (6)-Pedestrian may

COGNET et al.*

(Circuit Court of Appeals, First Circuit. December 22, 1924.)

No. 1630.

1. Husband and wife 260, 270 (1)-In Porto Rico, right of action for injury to wife community property, husband may sue for wife's injuries.

In Porto Rico, right of action for injury to wife received during marriage is community property, and, under Civ. Code Porto Rico, 88 159, 161, 1327, husband is representative of conjugal partnership, and may sue for such injury.

2. Husband and wife 270 (5)—Under statute of Porto Rico, wife proper party to husband's action for injuries to wife.

Under Code Civ. Proc. Porto Rico, § 62, wife, though not necessary party, is proper party to husband's action for injuries to wife.

3. Husband and wife 270 (10)-Judgment for husband and wife for injuries to wife held not erroneous, though verdict for wife only.

Where verdict for wife only, in action for personal injuries to wife, was shown by pleadings and evidence to be in favor of community and for both plaintiffs, judgment for both plaintiffs was not erroneous.

4. Courts 323-Evidence held sufficient .to warrant finding plaintiffs not domiciled in Porto Rico, giving United States District Court jurisdiction.

Evidence held sufficient to warrant finding that husband and wife, suing for injuries to wife sustained in Porto Rico, were not domiciled in Porto Rico, and therefore United States District Court had jurisdiction under Act March 2, 1917, § 41 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3803qq).

5. Trial 296(2)—Instruction as to wife's intention to return to former domicile held not misleading, in view of other instruction. Instruction that, if wife's intention to return to her former domicile was indefinite and doubtful, she was bona fide resident of Porto Rico, held not to mislead jury into belief that wife's intention alone was to be considered in determining domicile, in view of instruction covering domicile of both husband and wife.

6. Domicile -Question of domicile decided on particular facts in each case. Question of domicile must be decided on particular facts in each case.

Certiorari denied 45 S. Ct. 511, 69 L. Ed.--.

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In Error to the District Court of the United States for the District of Porto Rico; Odlin, Judge.

Action by Eugenie Cognet and another against the Porto Rico Railway, Light & Power Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

Carroll G. Walter, of New York City (J. Henri Brown, of San Juan, Porto Rico, and Edward J. Patterson, of New York City, on the brief), for plaintiff in error.

Hugh R. Francis, of San Juan, Porto Rico, for defendants in error.

"Sec. 62. All persons having an interest in the subject of the action and in obtaining the relief demanded, may be joined as plaintiffs, except when otherwise provided in this Code."

The defendant contends that, as the Supreme Court of Porto Rico in Vazquez v. Valdes, 28 P. R. 431, held that a complaint by a wife with her husband joined, to recover for injuries to the wife, "did not set forth a cause of action," this action in which both husband and wife are plaintiffs cannot be maintained.

We have examined the case cited, and, while the court there states that:

"It may be doubted whether, in the interests of simplicity, she (the wife) should be joined at all,"

It also states:

"We are aware, of course, that section 62 of the Code of Civil Procedure provides that all persons having an interest in the subject of the action may be joined and the wife may be a proper party in an action for injuries, but she is not the principal or necessary party to the action."

The court also held that:

"The theory of the complaint was clearly one of a right of action in the wife, and hence no cause of action was stated."

us.

The complaint in that case is not before "The The court said of it, however: complaint before us was brought by the It would Before BINGHAM, JOHNSON, and AN. wife, assisted by her husband."

DERSON, Circuit Judges.

JOHNSON, Circuit Judge. This is a writ of error to the District Court of the United States for the District of Porto Rico, For convenience the parties will be designated as they were in the court below.

The plaintiffs, husband and wife, brought an action to recover for personal injuries received by the wife, Eugenie Cognet, through the alleged negligence of the defendant in the operation of a street railway in Porto Rico.

The defendant filed a demurrer to the complaint on the ground that the wife was neither a proper nor necessary party. This was overruled and error assigned.

[1] In Porto Rico, the right of action for an injury to the wife, received during marriage, is community property, and under sections 159, 161, and 1327 of the Civil Code of Porto Rico the husband is the representative of the conjugal partnership, and has the right to bring an action for such injury.

[2] Section 62 of the Code of Civil Procedure of Porto Rico is as follows:

seem from this that the wife had claimed as principal in the complaint a right of action belonging to her and that the husband joined in this complaint.

In the complaint in the case before us both the husband and wife are plaintiffs. Under section 62 the wife, while not a necessary, was a proper, party, and there was no error in overruling the demurrer.

The verdict of the jury was as follows: [3] "We, the jury, find for the plaintiff, and assess her damages in the sum of four thousand nine hundred dollars, no cents, and costs."

And the judgment reads:

"It is considered and adjudged by the court that the plaintiffs herein, Eugenie Cognet and her husband, Alfred Cognet, do have and recover from the defendant, the Porto Rico Railway Light & Power Company, the sum of $4,900, with interest thereon at 6 per cent. from this date until paid, and the costs in these proceedings to be taxed."

Defendant contends that, as the verdict was for only one plaintiff and the judgment for both, the latter does not conform to the

3 F.(2d) 21

verdict, and should be reversed. No objection was raised by the defendant to the form of the verdict. The only issues submitted to the jury were whether the wife was injured through the negligence of the defendant, without any contributory negligence, and, if so, what damages should be assessed for such injuries. While, in form, the verdict was in favor of one plaintiff only, it was, in view of the pleadings and evidence, a verdict in favor of the community estate and for both plaintiffs, and the judgment was correctly rendered for both. There is no reversible error because of this seeming discrepancy between the verdict and judgment, as the pleadings disclose that the verdict was in fact in favor of both. There was no motion in arrest of judgment and no objection made by the defendant to the judgment which was entered.

At the close of all the evidence the defendant moved for a directed verdict in its favor upon the following grounds:

"(1) That upon the evidence plaintiffs were, at the time of the injury complained of and at the time of instituting this suit, domiciled in the island of Porto Rico.

"(2) That there is no evidence of any negligence on the part of the defendant or its servants that was the proximate cause of the injury suffered by plaintiff Eugenie Cognet, and upon which this action is based. "(3) That, upon all of the evidence, plaintiff Eugenie Cognet was guilty of negligence which contributed as a proximate cause of her injury, in that she attempted to cross defendant's railway track or placed herself in such proximity to such track as to be struck by defendant's electric car at a time when the said car was within a short distance of the place where she was struck, without exercising any care or diligence to inform herself as to the proximity of the said car or to protect herself from injury."

Defendant also filed a motion that the court dismiss the complaint, for the reason that upon all the evidence, as a matter of law, plaintiffs were, at the time of the injury complained of and at the time this suit was brought, domiciled in the island of Porto Rico.

Both motions were denied by the court and exceptions taken by the defendant, and this is assigned as error.

Errors are also assigned because of the admission of evidence, the court's refusal to give requested instructions, and the giving of certain instructions.

Under Act March 2, 1917, c. 145; 39 Stat. 951, 965 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3803qq), commonly

called the "Jones Act," the jurisdiction of the United States District Court of Porto Rico is limited as follows:

"Said District Court shall have jurisdiction of all controversies where all of the parties on either side of the controversy are citizens or subjects of a foreign state or states, or citizens of a state, territory, or district of the United States not domiciled in Porto Rico, wherein the matter in dispute exceeds, exclusive of interest or cost, the sum or value of $3,000."

In Porto Rico Light and Power Co. v. Mor, 253 U. S. 345, 40 S. Ct. 516, 64 L. Ed. 944, the Supreme Court has held that the restrictive phrase "not domiciled in Porto Rico" is applicable to aliens as well as Americans. Whether the plaintiffs were domiciled in Porto Rico or not was submitted to the jury with careful instructions which, in substance, were requested by the defendant..

[4] There was evidence from which the jury could have found that the plaintiffs came from the island of Guadalupe to Porto Rico about 13 years before the accident, with the intention of returning to Guadalupe; that at the time the wife received her injuries she and her husband had made plans for returning to Guadalupe; that their children, two sons and a daughter, made their home with the father and mother and supported them. The wife testified that she came to Porto Rico because her oldest son was at work there; that she came to visit him and then to return; and that her intention of returning had never been changed.

The daughter testified that she came from Guadalupe to Porto Rico with her father and mother; that when they left Guadalupe her father and mother stated that they intended to come to Porto Rico for a pleasure trip and then return to Guadalupe; that about the time the war commenced preparations had been made by them to return to Guadalupe; that the return to Guadalupe had been talked over in the family prior to the commencement of the war and after it was ended and preparations were being made for it at the time of the injury to her mother.

[5] On the question of domicile the court gave this instruction:

"The court instructs the jury that, if you find that plaintiffs moved from Guadalupe to Porto Rico with the intention of remaining in Porto Rico for an indefinite time and as a place of fixed present domicile, or that some time after arriving in Porto Rico they had such intention, you should find

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