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3 F.(20) 12 lection of cases on this subject will be found The question was not raised in the trial. No in note to Loxterkamp v. Lininger Imple- requests were made to the court to instruct ment Co. (Iowa) 33 L. R. A. (N. S.) 501. thereon, and this contention did not enter

Many courts of ability and learning have into the theory of trial on either side. Reheld that an implied warranty may be avail- gardless of whether or not there is any able as basis of an action that the article is merit in the question, it is too late to raise not suited for purposes for which it was it for the first time in this court. purchased, even when there is an express

VI. warranty, unless the implied warranty is excluded by the terms of the express warran- [8] The last question raised by the asty. For instance, that express warranty of signments of error is the refusal of the court title will not exclude implied warranty of to give the following requested instruction: quality. Blackmore v. Fairbanks, Morse & "You are further charged that, if plainCo., 79 Iowa, 282, 44 N. W. 548; Bucy v. tiff was guilty of such conduct in and about Pitts Agricultural Works, 89 Iowa, 464, 56 his effort to place the shot under the stump N. W. 541; Ideal Heating Co. v. Kramer, where he claims he was injured as an ordi127 Iowa, 137, 102 N. W. 840; Petersen v. narily cautious and prudent person would Dreher, 196 Iowa, 178, 194 N. W. 53. not have been guilty of under the same, or

There is no need, however, of an excur- similar circumstances, then you must find sion into that field, as here the alleged ex- plaintiff was careless and negligent, and, if press warranty was on the same subject and such negligence contributed to or caused was merely a slight enlargement of what plaintiff's injuries, then you must find for would be covered by the warranty which the the defendant.” Proper exception was prelaw would imply, and would, if established, served. exclude an implied warranty relating to the Plaintiff sought to recover in this case upvery same subject. However, we think de- on the ground of breach of warranty and fendant is not in position, as the record also negligence. He was compelled by the stands in this case, to avail itself of this court to elect between these two theories, question. In its answer it denied the ex- and chose to rely on breach of warranty. istence of any express warranty, and Therefore negligence passed out of the case. throughout the case insisted that there was

The action stood then as one for consequenno express warranty, and still so insists. It tial damages alleged to have been suffered should not be heard to say that an alleged by virtue of said breach of warranty. In express warranty which it denied existed other words, an action for breach of conwas a bar to a warranty which the law would tract. Some courts have held that contribuimply. If the jury found there was no tory negligence is a defense in an action for express warranty, we see no reason why consequential

damages.

Bruce Fiss, they might not find under the evidence show- Doerr & Carroll Horse Co., 47 App. Div. ing the circumstances of the sale that there 273, 62 N. Y. S. 96; Razey v. J. B. Colt Co., was an implied warranty that the fuse was 106 App. Div. 103, 94 N. Y. S. 59; Draper fit for the purpose intended, viz., of such & Cole v. Sweet and others, 66 Barb. (N. burning speed as would, in the use to which Y.) 145; Hitchcock v. Hunt, 28 Conn. 343. the agent knew it was to be put, not have, We do not feel called upon to determine this been dangerous to plaintiff's safety if prop- question until it squarely arises. erly used, and without negligence on his It is doubtful if under the circumstances part. If the plaintiff's testimony was true of this case, the doctrine of contributory negthat the fuse burned instantaneously, there ligence has any place in a correct determinawas a breach of implied warranty.

tion of the issues involved. If the injuries

to plaintiff occurred in the way that he and V.

his witnesses describe, then no negligence of [7] Defendant contends there is no evi- the plaintiff contributed thereto. If the indence that proves or tends to prove that at juries, on the other hand, were caused by the time defendant sold the fuse in contro- the explosion of the box of caps, as was deversy any defect of which plaintiff com- fendant's theory, then, under the instrucplains existed in the fuse and that hence no tions of the court, plaintiff's cause of action, liability is shown on the part of the defend- failed, regardless of negligence on his part. ant. Defendant bases this argument on the The court at one stage of the proceedings fact that the fuse in controversy was ship- seems to have so thought, for it said: “I ped by defendant August 17, 1920, and that do not think the question of contributory there is nothing to show when, where, or negligence arises at all.” However, in the how the alleged defect came into existence. further progress of the case the court and

V.

counsel on both sides seem to have consid- by the explosion of the dynamite caps causered contributory negligence as an issue, and ed by such negligence. near the close of the testimony the following In the statement of the case to the jury appears, which seems to define the final at- the court said: “The defendant denies that titude of the parties and the court on this it made a warranty with reference to the question:

burning speed of the fuse. It alleges that “Mr. Robins: Very clearly their plea of plaintiff's injury was brought about by his contributory negligence would be a matter own negligence in handling the fuse and of defense.

dynamite caps that were used in exploding “Judge Rheuly: They allege the cause of the dynamite." the injury was defective fuse.

Again the court said: “If his injury was “Mr. Robins: I take it that their defense brought about by the explosion of something of all this testimony is one of contributory else, that is, if dynamite caps and those caps negligence in the careless handling of this were negligently left in the position where explosive.

they were left by him, then it was through “Judge Rheuby: In response to that, our his own negligence that he sustained his indefense is not one of contributory negli- jury, and he cannot recover from the degence on the part of the plaintiff but one of fendant for the results of his own neglipositive negligence.

gence." "Mr. Robins: For what purpose did you At the close of his instructions the folintroduce all those experts to prove that this lowing occurred: was an unsafe way to handle this?

“Mr. Robins: I want to request the court “The Court: I do not think that the ques- to instruct the jury that the burden of showtion of contributory negligence arises at all. ing negligence on the part of the plaintiff

"Mr. Patterson: Your honor, if they is upon the defendant. have the burden of proving negligence, then "The Court: Gentlemen of the jury, in we ought to have the right to rebut that by considering the question of negligence you showing by other experts that the practice are instructed that the burden of proof to that we used (-)'negligent.

establish that negligence is upon the defend“The Court: He may answer.

ant, unless you find such negligence from Evidence was introduced which might the testimony of the plaintiff himself, or raise doubt in the minds of the jury as to the testimony introduced in his behalf. what, in fact, did cause the explosion. There The jury were also charged: “If you are was evidence that lighted cigarettes should unable to determine from the evidence what not be used around explosives. This evi- caused the explosion resulting in plaintiff's dence was introduced apparently to raise the injury, or cannot determine that it was causinference that the lighted cigarette in some ed from the alleged rapid burning of the way caused the explosion, and the defend- fuse, then you must find for the defendant." ant did seek to show that the box of dyna- This, coupled with the instruction heretomite caps exploded from sparks of fire from fore pointed out that

If the inthe lighted cigarette. This was done largely jury of the plaintiff was sustained, not by by process of attempted elimination of all an explosion of dynamite, but by the exother theories of explosion. Proof was made plosion of certain caps in the proximity, of the open box of caps; the sensitiveness then you are instructed that he cannot reto fire of such caps; the finding of exploded cover. The allegations of the complaint are fragments of caps in plaintiff's fuse. Of that the plaintiff was injured through the course, evidence on this theory went to the explosion of dynamite brought about by a question of whether the fuse had anything fuse that burned practically instantaneousto do with the explosion. There is no tes- ly. If his injury was brought about by the timony in the record that any negligence on explosion of something else, that is, if dynathe part of plaintiff attempted to be proven mite caps and those caps were negligently had anything to do as a co-acting or con- left in the position where they were left by tributing cause with the alleged defective him, then it was through his own negligence fuse in causing the explosion. Certainly, if that he sustained his injury, and he cannot · contributory negligence, under the condition recover from the defendant for the results

of the record at the time of the court's of his own negligence," covers, we think, any charge, had any place in the case justifying question of contributory negligence raised its submission to the jury, it must be con- by the pleadings and supported by the evifined to the theory advanced by defendant in dence. There was no error in failing to its evidence, viz., that the injury was caused give defendant's requested instruction No.

268ris

3 F.(28) 21 17. This answers also the question raised as

7. Domicile I-Evidence of wife's Intention, to the refusal of the court to more specifi

relative to return to former domicile, held

admissible as tending to show husband's incally define negligence.

tention, The judgment of the trial court is af

Though domicile of wife is that of husband, firmedat den

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 mm 98(6)–Pedestrian may COGNET et al.

rely on car being run at customary speed.

Pedestrian, familiar with usual rate of (Circuit Court of Appeals, First Circuit. De speed of street cars at dangerous street intercember 22, 1924.)

section, had right to rely on belief that car

would run at customary speed. and testimony No. 1630.

as to usual rate of speed was admissible.

1. Husband and wife am 260, 270(1)-In Porto 9. Street railroads om 114(14)-Evidence held Rico, right of action for injury to wife com- to warrant inference pedestrian knew usual munity property, husband may sue for wife's speed of cars. injuries.

Evidence held to warrant inference that In Porto Rico, right of action for injury to pedestrian injured at intersection knew usual wife received during marriage is community rate of speed of street cars at intersection. property, and, under Civ. Code Porto Rico, &$ 159, 161, 1327, husband is representative of 10. Evidence om 539/2 (2)-Former motorman conjugal partnership, and may sue for such in- held qualified as expert to testify as to disjury.

tance within which street car running at

specified speed could be stopped. 2. Husband and wife 270(5)-Under stat.

Former motorman, wbo had operated cars ute of Porto Rico, wife proper party to hus. equipped with air brakes, and was familiar with band's action for injuries to wife.

car which struck pedestrian, was qualified to Under Code Civ. Proc. Porto Rico, § 62, testify as expert as to distance within which wife, though not necessary party, is proper car could be stopped while traveling at usual party to husband's action for injuries to wife. rate of speed.

3. Husband and wife 270(10)- Judgment 11. Street railroads Om 113(5)-Evidence as

for husband and wife for injuries to wife held to distance within which car could be stopped not erroneous, though verdict for wife only. admissible on question of speed.

Where verdict for wife only, in action for Evidence as to the distance within which personal injuries to wife, was shown by plead- street car running at usual rate of speed could ings and evidence to be in favor of community have been stopped was admissible on question and for both plaintiffs, judgment for both of speed at time of accident, where evidence plaintiffs was not erroneous.

was conflicting as to distance within which it

was stopped. 4. Courts 323-Evidence held sufficient to

warrant finding plaintiffs not domiciled in 12. Street railroads Om 117(21)-Instruction Porto Rico, giving United States District that there was no evidence pedestrian knew Court jurisdiction.

of customary speed, or whether gong was Evidence held sufficient to warrant finding

sounded, held properly refused. that husband and wife, suing for injuries to Jury could reasonably infer from evidence wife sustained in Porto Rico, were not domi- that pedestrian, struck by street car at interciled in Porto Rico, and therefore United section, had often passed such point and that States District Court had jurisdiction under she knew customary rate of speed of cars and Act Mai 2, 1917, § 41 mp. St. 1918, whether gong was usually sounded at interComp. St. Ann. Supp. 1919, 8 3803qg).

section, and instruction that there was no evi

dence on such issues was properly refused. 5. Trial em 296(2)- Instruction as to wife's

intention to return to former domicile held 13. Street railroads Om 113(5)-Motorman's not misleading, in view of other instruction. competency could be considered in determ inInstruction that, if wife's intention to return

ing issue of negligence in operating car. to her former domicile was indefinite and doubt- Jury could consider motorman's competency ful, she was bona fide resident of Porto Rico, on issue of his negligence in operating car at held not to mislead jury into belief that wife's excessive speed at dangerous street intersecintention alone was to be considered in deter- tion, and hence instruction that question of mining domicile, in view of instruction covering competency could not be considered was misdomicile of both husband and wife,

leading.

6. Domicile ml-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. -

14. Trial em 252(1)-instruction given must be applicable to facts disclosed by evidence.

Instruction given must be applicable to facts disclosed by evidence.

15. Trial On 252(4)- Instruction that domicile "Sec. 62. All persons having an interest of wife was that of husband held inapplica- in the subject of the action and in obtaining ble.

the relief demanded, may be joined as plainWhere it was not claimed wife's domicile tiffs, except when otherwise provided in this was different from husband's, instruction that

Code." her domicile was same as husband's was properly refused.

The defendant contends that, as the Su

preme Court of Porto Rico in Vazquez v. 16. Street rallroads w117(7,21). Pedestrian's Valdes, 28 P. R. 431, held that a complaint

freedom from negligence and motorman's neg. by a wife with her husband joined, to religence held for jury.

Evidence held sufficient as against motion cover for injuries to the wife, "did not set for directed verdict to sustain finding that forth a cause of action,” this action in which street car, which struck pedestrian at intersec- both husband and wife are plaintiffs cantion, was running at excessive speed, and that

not be maintained. pedestrian was not contributorily negligent.

We have examined the case cited, and, 17. Appeal and error em930(1)-Evidence while the court there states that: considered in light most favorable to verdict.

"It may be doubted whether, in the interOn appeal from verdict for plaintiff, evi- ests of simplicity, she (the wife) should be dence must be considered in light most favor

joined at all,” able to plaintiff.

It also states: In Error to the District Court of the of the Code of Civil Procedure provides

"We are aware, of course, that section 62 United States for the District of Porto that all persons having an interest in the Rico; Odlin, Judge.

subject of the action may be joined and the Action by Eugenie Cognet and another wife may be a proper party in an action for against the Porto Rico Railway, Light & injuries, but she is not the principal or Power Company. Judgment for plaintiffs, necessary party to the action." and defendant brings error. Affirmed.

The court also held that: Carroll G. Walter, of New York City (J.

“The theory of the complaint was clearly Henri Brown, of San Juan, Porto Rico, one of a right of action in the wife, and and Edward J. Patterson, of New York hence no cause of action was stated.” City, on the brief), for plaintiff in error.

The complaint in that case is not before Hugh R. Francis, of San Juan, Porto The court said of it, however: "The Rico, for defendants in error.

complaint before us was brought by the

It would Before BINGHAM, JOHNSON, and An. wife, assisted by her husband."

AN

seem from this that the wife had claimed as DERSON, Circuit Judges.

principal in the complaint a right of ac

tion belonging to her and that the husband JOHNSON, Circuit Judge. This is a joined in this complaint. writ of error to the District Court of the

In the complaint in the case before us United States for the District of Porto Rico, both the husband and wife are plaintiffs. For convenience the parties will be desig- Under section 62 the wife, while not a necnated as they were in the court below.

essary, was a proper, party, and there was The plaintiffs, husband and wife, brought no error in overruling the demurrer. an action to recover for personal injuries The verdict of the jury was as follows: received by the wife, Eugenie Cognet, [3] “We, the jury, find for the plaintiff, through the alleged negligence of the de- and assess her damages in the sum of four fendant in the operation of a street rail- thousand nine hundred dollars, no cents, way in Porto Rico.

and costs." The defendant filed a demurrer to the And the judgment reads: complaint on the ground that the wife was "It is considered and adjudged by the neither a proper nor necessary party. This court that the plaintiffs herein, Eugenie was overruled and error assigned.

Cognet and her husband, Alfred Cognet, do [1] In Porto Rico, the right of action for have and recover from the defendant, the an injury to the wife, received during mar- Porto Rico Railway Light & Power Comriage, is community property, and under pany, the sum of $4,900, with interest theresections 159, 161, and 1327 of the Civil Code on at 6 per cent. from this date until paid, of Porto Rico the husband is the represen- and the costs in these proceedings to be tative of the conjugal partnership, and has taxed.” the right to bring an action for such injury. Defendant contends that, as the verdict

[2] Section 62 of the Code of Civil Pro- was for only one plaintiff and the judgment cedure of Porto Rico is as follows:

for both, the latter does not conform to the

us.

3 F.(20) 21 verdict, and should be reversed. No objec- called the "Jones Act," the jurisdiction of tion was raised by the defendant to the the United States District Court of Porto form of the verdict. The only issues sub- Rico is limited as follows: mitted to the jury were whether the wife "Said District Court shall have jurisdicwas injured through the negligence of the tion of all controversies where all of the defendant, without any contributory negli- parties on either side of the controversy gence, and, if so, what damages should be are citizens or subjects of a foreign state assessed for such injuries. While, in form, or states, or citizens of a state, territory, or the verdict was in favor of one plaintiff district of the United States not domiciled only, it was, in view of the pleadings and in Porto Rico, wherein the matter in disevidence, a verdict in favor of the com- pute exceeds, exclusive of interest or cost, munity estate and for both plaintiffs, and the sum or value of $3,000." the judgment was correctly rendered for In Porto Rico Light and Power Co. v. both. There is no reversible error because Mor, 253 U. S. 345, 40 S. Ct. 516, 64 L. Ed. of this seeming discrepancy between the 944, the Supreme Court has held that the verdict and judgment, as the pleadings dis- restrictive phrase "not domiciled in Porto close that the verdict was in fact in favor of Rico” is applicable to aliens as well as both. There was no motion in arrest of Americans. Whether the plaintiffs were judgment and no objection made by the de- domiciled in Porto Rico or not was submitfendant to the judgment which was entered. ted to the jury with careful instructions

At the close of all the evidence the defend- which, in substance, were requested by the ant moved for a directed verdict in its fa- defendant.. vor upon the following grounds:

[4] There was evidence from which the “(1) That upon the evidence plaintiffs jury could have found that the plaintiffs were, at the time of the injury complained came from the island of Guadalupe to Porto of and at the time of instituting this suit, Rico about 13 years before the accident, domiciled in the island of Porto Rico. with the intention of returning to Guada

“(2) That there is no evidence of any neg- lupe; that at the time the wife received her ligence on the part of the defendant or its injuries she and her husband had made servants that was the proximate cause of plans for returning to Guadalupe; that the injury suffered by plaintiff Eugenie their children, two sons and a daughter, Cognet, and upon which this action is based. made their home with the father and moth

(3) That, upon all of the evidence, plain- er and supported them. The wife testified tiff Eugenie Cognet was guilty of negligence that she came to Porto Rico because her oldwhich contributed as a proximate cause of est son was at work there; that she came her injury, in that she attempted to cross to visit him and then to return; and that defendant's railway track or placed herself her intention of returning had never been

such proximity to such track as to be changed. struck by defendant's electric car at a time The daughter testified that she came from when the said car was within a short distance Guadalupe to Porto Rico with her father of the place where she was struck, without and mother; that when they left Guadalupe exercising any care or diligence to inform her father and mother stated that they inherself as to the proximity of the said car tended to come to Porto Rico for a pleasor to protect herself from injury."

ure trip and then return to Guadalupe; Defendant also filed a motion that the that about the time the war commenced court dismiss the complaint, for the reason preparations had been made by them to rethat upon all the evidence, as a matter of turn to Guadalupe; that the return to Gualaw, plaintiffs were, at the time of the in- dalupe had been talked over in the family jury complained of and at the time this prior to the commencement of the war and suit was brought, domiciled in the island after it was ended and preparations were of Porto Rico.

being made for it at the time of the injury Both motions were denied by the court to her mother. and exceptions taken by the defendant, and [5] On the question of domicile the court this is assigned as error.

gave this instruction: Errors are also assigned because of the “The court instructs the jury that, if you admission of evidence, the court's refusal to find that plaintiffs moved from Guadalupe give requested instructions, and the giving to Porto Rico with the intention of remainof certain instructions.

ing in Porto Rico for an indefinite time Under Act March 2, 1917, c. 145; 39 and as a place of fixed present domicile, or Stat. 951, 965 (Comp. St. 1918, Comp. St. that some time after arriving in Porto Rico Ann. Supp. 1919, § 3803q9), commonly they had such intention, you should find

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