SEARS, ROEBUCK & COMPANY, INC., AN ILLINOIS CORPORATION, APPELLANT,
v.
ROBERT DAVIS, A MINOR, BY AND THROUGH HIS FATHER AND NEXT FRIEND, THERON B. DAVIS, AND THERON B. DAVIS, INDIVIDUALLY, APPELLEES
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Sears' appeal of a jury verdict for breach of warranty on a defective rifle that fired with the safety on is affirmed because sufficient evidence supported the jury's finding of a defect.
A manufacturer may be held liable for breach of warranty when a rifle fires with the safety engaged, and the jury's verdict is supported by direct testimony of the defect.
[1] Direct testimony of a product defect is sufficient to submit a breach of warranty claim to the jury, and expert testimony that the accident could not have occurred as des…
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Join FLexlaw to unlock all legal intelligenceSears sold a .22 caliber rifle to the appellee; approximately five months after purchase, the rifle fired while the safety was on, injuring the appell…
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The appellant was the defendant in the trial court. This appeal is from a final judgment for the appellee which was entered upon a jury verdict. The action was upon an allegation of breach of warranty as to fitness of a .22 calibre rifle. The proof was that the rifle fired with the safety on some five months after purchase and that appellee was injured.
All of appellant’s arguments are based upon a contention that the trial judge should have directed a verdict for the appellant. Our review of the record convinces us that the evidence was sufficient to take the case to the jury. See Seabrook v. Taylor, Fla.App.1967, 199 So.2d 315. The argument that the jury was permitted to pile an inference upon an inference is not applicable because there was direct testimony as to the existence of the defect. In addition, presuming the testimony of appellant’s expert witnesses was to the effect that the accident could not have happened in the way it was described, this testimony would not preclude the jury from finding as it did. See Millar v. Tropical Gables Corp., Fla.App.1958, 99 So.2d 589; Remington Arms Company, Inc. v. Wilkins, 387 F.2d 48 (5th Cir. 1967). Without deciding whether contributory negligence is a defense to a breach of warranty action, we find that the appellee was not shown to be guilty of contributory negligence so that recovery was barred as a matter of law. See, e. g., Saunders v. Kaplan, Fla. App.1958, 101 So.2d 181.
Affirmed.
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McCarthy v. Fla. Ladder Co., 295 So. 2d 707 (Fla. 2d DCA 1974)…78. . Fla.App.2d, 1967, 205 So. 2d 551. . See Henningsen v. Bloomfield Motors, Inc., 1960, 32 N. J. 358, 161 A. 2d 69, 98; Williams v. Ford Motor Company, Mo.App., 1967, 411 S.W. 2d 443; of. Sears, Roebuck and Co., Inc. v. Davis, Fla.App.3d, 1970, 234 So. 2d 695.…
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Curry v. Case, 257 So. 2d 610 (Fla. 3d DCA 1972)…Fla.1964, 159 So. 2d 641; Benitez v. State, Fla.App.1965, 172 So. 2d 520; Hall v. State, Fla.App.1967, 203 So. 2d 202; Meehan v. Seaboard Air Line Railroad Company, Fla.App.1968, 210 So. 2d 476; Sears, Roebuck & Company, Inc. v. Davis, Fla.App.1970, 234 So. 2d 695; Blakely v. Pahler, Fla.App.1971, 253 So. 2d 140; Anderson v. Glass, 19 Ill.App.2d 414, 153 N.E. 2d 863; White v. Rucker, 260 N.C. 226, 132 S.E. 2d 327; Briley v. Austad, S.Ct. N.D.1961, 108 N,W.2d 696; Agren v. Keller, 9 A.D.2d 1000, 194 N.Y.S.2d 8…
Authorities Cited
- Millar v. Tropical Gables Corp., 99 So. 2d 589 (Fla. 3d DCA 1958)
- Saunders v. Kaplan, 101 So. 2d 181 (Fla. 3d DCA 1958)
- Seabrook v. Taylor, 199 So. 2d 315 (Fla. 4th DCA 1967)
- Remington Arms Co. v. Wilkins, 387 F.2d 48 (5th Cir. 1967)