Full opinion text
TAVARES, Chief Judge. In this action plaintiff, Carol Lee Chapman, a then minor, by her mother, Ruby Chapman, as her guardian ad litem, joined with her parents, Cecil H. Chapman and Ruby Chapman, in suing the defendants, Charles E. Brown and Edith L. Brown, husband and wife, and Merle D. Chase and Helen Chase, husband and wife, for damages for injuries suffered by Carol caused by the burning of a hula skirt while Carol was wearing the same. It was claimed by plaintiffs that the hula skirt had been purchased by Mrs. Frances Leppard, an aunt by marriage of Carol, at a gift shop in Honolulu, Hawaii, known as the “Around the World Gift Shop”, owned and operated by the defendants, or some of them. Mrs. Lep-pard, a resident of British Columbia, Canada, took the skirt back to her home. Somewhat over a year later Mrs. Lep-pard loaned the hula skirt to the plaintiff Carol Chapman, then a minor, to wear at a masquerade party held in a large hall in British Columbia, attended by several hundred people, at which function intoxicating liquors were consumed and there was much smoking and dancing, with cigarette butts left on the floor. At the end of the dance, while Carol and her party were sitting at a table waiting for the clean-up crew to clean the hall, the hula skirt worn by Carol caught fire from an unknown source, inferred to have been from a glowing cigarette butt on the floor, and the resultant fire was allegedly so explosive and intense that the parties were unable to smother the same or remove the skirt from her until it was practically all consumed, except the waist band, and Carol had suffered burns to about 75% of the skin on her body. The hula skirt was what was known as a Tahitian or Ponape type of skirt, made from fine fibers of the bark of the hau tree, these fibers being unwoven except for being tied or bound together in a band at the waist. Before the trial Carol attained the age of majority, the guardianship ceased, and she became plaintiff in her own right. While Carol’s parents were not dismissed as co-plaintiffs, Carol has assumed all obligations and expenses paid or incurred as a result of the accident, including amounts paid or incurred by her parents who are her co-plaintiffs in the action. It was agreed during the trial that no apportionment of damages need be made by the jury among any of the plaintiffs, this being left to the court in the event the question should be raised after the verdict, if a verdict favorable to plaintiffs was received. Under the circumstances, it being obvious to the court that the joinder or non-joinder of Carol’s parents as co-plaintiffs would not affect the total amount of the damages, this decision will refer generally to Carol as though she were the sole plaintiff, it being understood that where the context so indicates, the other co-plaintiffs are included. The defendants denied that the skirt had been purchased at the Around the World Gift Shop, hereinafter sometimes called the “Gift Shop” but, upon a special interrogatory, the jury found that it had been purchasd at that shop by Mrs. Leppard. At the time of the purchase, the business of the shop was being operated in the joint names of two of the defendants, Edith L. Brown, and Helen Chase, doing business as a general partnership duly registered as such under the laws of the State of Hawaii. Although the defendant husbands were not registered as partners, plaintiff claimed that they were in fact partners or principals or joint venturers in this enterprise, and the jury found on the evidence that Charles E. Brown was in fact a general partner or joint venturer along with Mrs. Brown and Mrs. Chase, but that Mr. Chase was not such a general partner or joint venturer. The plaintiff’s case ultimately went to the jury on two general theories (1) alleged negligence of defendants in selling an alleged dangerously flammable hula skirt without warning as to such dangerous flammability, and (2) alleged breach of an implied warranty of fitness of the hula skirt for use as an article of clothing. The jury found (a) in favor of the defendant Merle D. Chase on the ground that he was not a partner, or joint venturer, (b) in favor of all the defendants and against the plaintiff on the negligence claim, and (c) in favor of plaintiff and against defendants, Mr. and Mrs. Brown and Mrs. Chase, on the claim of breach of implied warranty. The principal defenses set up by defendants, besides denial of any negligence or implied warranty, or breach thereof, were lack of privity between plaintiff Carol and any of the defendants, contributory negligence, assumption of risk, and failure to give notice of breach of implied warranty within a reasonable time. At the close of the plaintiff's case, i. e., when plaintiff rested, and before defendants commenced to put on their defense, the defendants moved in effect for a directed verdict — to dismiss the plaintiff’s complaint without recovery and with prejudice on various grounds, which will hereinafter be more particularly noted. After argument on this motion the court in effect reserved its decision on most points until the close of all the evidence. After both parties had rested, the defendants renewed their motion for a directed verdict, which motion was taken under advisement by the court. The jury brought in its verdict on April 29, 1961. Judgment was entered and noted on the docket by the clerk, pursuant to Rules 58 and 79(a) F.R.Civ.P., 28 U.S.C.A. on April 29, 1961, and a written judgment was filed on May 2, 1961. Motions (a) for judgment notwithstanding the verdict, and (b) in the alternative for a new trial, were filed by the defendants on May 5, 1961, well within the period required by Rules 50(b) and 59(b). The motion for a directed verdict after both parties had rested was based upon, and incorporated by reference, the same grounds as the earlier motion of defendants made at the close of plaintiff’s evidence, and the motion for judgment notwithstanding the verdict incorporated by reference all of such previously stated grounds for the preceding two motions. Accordingly, these grounds will now be considered specifically, bearing in mind the rule requiring this court to adopt every favorable fact and inference fairly deducible from the testimony, and accept the evidence tending to support the verdict as true. I. The defendants contended that the evidence was insufficient to prove any or all of the plaintiff’s contentions or causes of action as against any of the defendants. For reasons more particularly stated elsewhere in this decision, the court finds that there was sufficient evidence which, if believed by the jury, would justify the verdict found by the jury on the implied warranty cause of action. II. It was claimed that plaintiff had failed to (a) allege and (b) prove the giving of reasonable notice to the defendants of her claim in the manner and within the reasonable time required by law. As to ground (a) it is clear that, although the complaint and amendments do not in terms clearly allege the giving of notice and the giving thereof within a reasonable time, the case was tried without objection on the theory that the question of notice was involved, and went to the jury based on that theory. See Pre-Trial Order entered April 11, 1961, pages 8 to 9, paragraph 12 of Defendants’ Contentions of Fact; pages 12 to 13, paragraph 6 of Defendants’ Contentions of Law; page 6, paragraph 13 of Plaintiffs’ Contentions of Fact. This ground, therefore, is not well taken. As to ground (b) of the last mentioned contentions — alleged failure to prove that notice was given within a reasonable time — there was sufficient evidence in the court’s opinion to go to the jury and from which the jury could have found, if it believed such evidence, that the notice was given within a reasonable time. Counsel for defendants has cited many strong and persuasive authorities in which, in various types of cases, the courts have held, as a matter of law, that notice given or not given for or within a specified period, ranging from a few days to some years after the injury, was insufficient as a matter of law as not having been given in a reasonable time. However, in this particular case, the facts are, or the jury could have found from the evidence, as follows: The hula skirt was sold on March 10, 1956, and the injury from burning of the skirt occurred on November 2, 1957. The injuries were so severe — about 75% of the skin on plaintiff’s body having been severely burned, plaintiff’s very life being in jeopardy for a considerable time after the injury, plaintiff being required to be isolated for a considerable period to avoid infection, and being hospitalized 17 to 18 months with numerous skin grafting and other operations — that Mrs. Leppard who bought the skirt, was not even permitted to converse with plaintiff Carol until three days before Christmas, 1957. Plaintiff Carol (born September 1, 1938) was a minor (19 years of age) when the accident occurred and even at the time suit was filed, July 2,1959, in the State of Washington, she was still a minor under the laws of that jurisdiction. The law peculiarly favors minors, and delay on the part of her parents or others could not be used to her prejudice. The aunt, Mrs. Leppard, was uncertain as to the name of the shop from which she had purchased the skirt, she not having the sales slip, and it was some time before, by correspondence, she was able to ascertain the right name of it, whereupon she took a trip to Hawaii in November, 1958, and identified the place on the ground, she having previously identified it after some uncertainty. This combination of circumstances, together with the great distances involved from British Columbia to Honolulu, the fact that the accident happened in British Columbia, Canada, a foreign country, which made it necessary for British Columbia counsel to seek advice of counsel in the State of Washington, who in turn had to seek assistance of counsel in Honolulu, plus other circumstances, would all bear on the question of reasonableness of the time within which the notice was given. It is contended that the notice itself claimed by plaintiff to have been given was insufficient, in that it allegedly failed to clearly indicate that a claim for damages would be filed. There is also a question as to when the first notice was given. It seems that when Mrs. Leppard finally identified the Around the World Gift Shop as the place where she had bought the hula skirt, she called with Mr. Anderson, one of the plaintiff’s attorneys, a local lawyer, upon the then management of the shop, told them of the incident, and learned for the first time that the shop had changed hands and that the owners were no longer in Hawaii. Although there is some conflict of evidence as to what was said between Mr. Anderson and Mrs. Leppard on the one hand and the then owners of the shop on the other, and in spite of the fact that, if this constituted notice, it was not given directly to the defendants, evidence brought out in the trial showed that the then shop owners thereafter, around Christmas time, 1958, sent by mail a Christmas card to Mrs. Brown, who said she received it about January 1,1959, and actually alerted the defendants at that time to the possibility of a suit. In the court’s opinion, while this evidence was somewhat ambiguous, the jury could have found from it that notice was actually given and received at that time. Thereafter, Mr. John Roberts, Jr., mainland counsel for plaintiff, called personally upon the defendant Mrs. Brown on January 12, 1959, identified himself as plaintiff’s lawyer, and discussed the hula skirt burning incident, mentioning a letter from Honolulu counsel to him covering the matter. On the same date, January 12, 1959, Mrs. Brown wrote to Mrs. Fink saying she had written to Home Insurance Co. about the claim, and cautioning Mrs. Fink not to talk about it in the shop. Again there is some ambiguity as to exactly what was said by Mr. Roberts, but the court believes that sufficient evidence went to the jury from which it could reasonably have found that this action constituted notice of an intention to claim damages by reason of the alleged defective or dangerous condition of the skirt. Notice was again given by letter of June 25, 1959, received by Mrs. Brown on June 28, 1959, this time in very clear terms of the claim being made and intention to sue. In order to show material prejudice in support of their contention as to the unreasonableness of the delay in giving notice, the defendants have relied upon the testimony of several of the defendants to the effect that certain of defendants’ material books and records of the Gift Shop business had been destroyed in a fire in October, 1958, in the home of defendants Mr. and Mrs. Brown at Topenish, Washington, where, they testified, these records had been stored. Defendants claim that if notice had been given them between the date of the hula skirt burning (November 2, 1957) and the time of the fire in defendants, Browns’ home (October, 1958), they could have used those records to help prove that the hula skirt was not purchased at the Gift Shop. Although plaintiff offered no testimony attempting to disprove the foregoing testimony of defendants, it should be pointed out that plaintiff’s counsel from the very outset in his opening statement and throughout the trial, including the argument to the jury, strongly contended that the defendants were not entirely frank in their testimony, and relied upon what he strongly claimed were at least evasive if not untrue statements of defendants. In this connection, by answering in the affirmative the interrogatory as to whether the hula skirt had been purchased at the Gift Shop, the jury necessarily found that defendants’ contentions and evidence to the contrary were not fully believed. Thus the reasonable possibility appears that the jury may have disbelieved the defendants’ testimony as to the destruction of those records by fire. Under all the foregoing circumstances, the Court rules that it cannot be said that, as a matter of law, proper notice was not given within a reasonable time, but that it was a question for the jury to decide under all the circumstances. This question was submitted to the jury by proper instructions. Notwithstanding the numerous authorities cited by defendants’ counsel holding that the question of timeliness of notice was one of law under the circumstances, this court believes that, if the notice requirement of R.L.H.1955, § 202-49 is applicable, each case must be decided on its own peculiar facts, and that this was a case for the jury. In this connection, it should be remembered that the defect (as found by the jury) — dangerous flammability — was a latent one which would not from its nature be known to plaintiff or the buyer until the happening of the fire which caused the injury, and hence obviously a reasonable time would have to be computed from that date xather than from the date of the sale of the skirt. If, as the jury could have found from the evidence, representations were made by the sellers’ saleslady at the time of sale to Mrs. Leppard, that the .skirt had been treated chemically against ■fire, there would be even less reason for the buyer to suspect danger from the skirt. On the whole, assuming that the .statutory notice requirement is applicable, the rule here adopted appears to be the more reasonable one, and the one more likely to be followed by the Hawaii courts. However, an even better view would be that “The notice provision of the Act is inapplicable, at least where personal injuries are sustained.”, and where there is no privity. True, the court instructed the jury that failure to give timely .notice would constitute a defense to the implied warranty cause of action, but if this was error, it was in favor of the defendants, and they cannot complain. III. As a further ground for the motion, the defendants urged that no privity between the plaintiff and the defendants or any of them had been proven. As this is the main problem in this ease, it will be considered at the end of this decision, point XVIII post. IV. A further ground for the motion was a claim that, as a matter of law, the plaintiff was guilty of contributory negligence, and that this should bar recovery. The court ruled at the time, that contributory negligence would not be a defense to the claim based on implied warranty, although it would be to the claim based on negligence. The court now finds that any facts relied upon as constituting contributory negligence are not so clear that as a matter of law they must be held to constitute contributory negligence. Furthermore, the court holds that contributory negligence, under the generally accepted rule is not a bar to a suit based on implied warranty. A persuasive argument was made by defendants’ counsel to the effect that, historically, implied warranty originated in tort, that there is therefore a tendency to eliminate the requirement of privity, and that the action is now reverting more and more to the theory of tort rather than that of contract; therefore, it is contended, contributory negligence ought, by analogy, to be a defense to the implied warranty claim. It seems to the court, however, that, the doctrine of contributory negligence, which takes no account of the comparative negligence of the parties, often produces results far from equitable, and for that reason is not likely to be adopted by the Hawaii courts in its full strictness, if at all, as a complete defense in eases such as this based on breach of implied warranty, unless the contributory negligence practically amounts to an assumption of risk. See discussion of authorities cited in note 8. On the other hand, it is reasonable to believe that the courts of Hawaii would follow the rule that the plaintiff’s contributory negligence may be taken into consideration by the jury in fixing the amount of the damages in breach of implied warranty cases. Defense counsel asked for an instruction making contributory negligence an absolute defense, but did not ask for a rule of comparative negligence or permitting the jury to consider the alleged contributory negligence in mitigation of damages. However, there was nothing in the court’s instructions to prevent the jury from using any contributory negligence found by them in mitigation of damages. V. As a further ground for the motion the defendants urged that the plaintiff was guilty as a matter of law of assumption of risk, and defendants were relieved of liability by the principle of volenti non fit injuria. This question was submitted to the jury under proper instructions, informing them that if they found assumption of risk, it would bar not only the cause of action for negligence, but the cause of action based on implied warranty. The jury found in favor of the plaintiff, and hence must be deemed to have found that the plaintiff did not assume the risk under the circumstances. Under the facts, the question was one for the jury to determine. The evidence was such that the jury could have found that the plaintiff did not know, and was not in a position where she should have known, that the skirt was so highly flammable as to constitute an undue hazard if worn in a place where there was dancing, drinking, and cigarette smoking, of the type, and in the manner, described by the testimony. The evidence included plaintiff Carol’s statement that someone had told her that the skirt was fireproof. If this testimony was believed by the jury, there would be lacking one essential element of assumption of risk, namely, knowledge of the danger. VI. Another ground for the motion was that there was insufficient evidence, as a matter of law, for the jury to find that a partnership or joint venture relationship existed between the defendants Mrs. Brown and Mrs. Chase and any of the other two defendants, Mr. Brown and Mr. Chase, their respective husbands. This question was submitted to the jury under proper instructions and the jury found that Mr. Chase was not a partner or joint venturer and that Mr. Brown was. The court believes that there was sufficient evidence to go to the jury on this question. Among other things, there was testimony or evidence from which the jury could have found the following facts: That a very substantial part, if not most, of the negotiations in connection with the opening of the business before it was finally opened, was conducted by Mr. Brown; that even after the partnership commenced business in the names of Mrs. Brown and Mrs. Chase as the sole registered general partners, Mr. Brown frequently assisted at the shop, both in waiting on customers, and in delivering orders for merchandise and receipting for such merchandise; that the moneys that were used as the Browns’ share of the initial capital of the partnership came out of a joint account in the names of Mr. and Mrs. Brown, and the money received from the sale of Mrs. Brown’s interest, and moneys withdrawn by Mrs. Brown from the partnership from time to time, were deposited in a joint account of Mr. and Mrs. Brown; that in córre-spondence relating to the partnership business Mr. Brown referred to himself as one of those involved, in using the pronouns “I”, “we”, etc. Also, as pointed out by counsel for the plaintiff in his argument to the jury, there were what could be considered as “hedging” and discrepancies in the testimony of the Browns and Chases from which the jury could also infer that the defendants were not being quite as frank as they might have been, all of which would tend to raise an adverse inference against them While the evidence as to Mr. Brown’s being a partner or joint venturer was far from overwhelming, it cannot be said that, as a matter of law, it was insufficient to justify a finding by the jury of the existence of a partnership or joint venture, at least as far as Mr.' Brown was concerned. VII. In the defendants’ motion at the close of plaintiff’s testimony, the defendants raised the point that there is no such thing as a marital community under Hawaii law, the Hawaii Legislature having repealed the community property statute after a very brief period following its enactment. This was taken care of by a ruling of the court in connection with the instructions, in which the court agreed with counsel for the defendants in this respect and limited the question submitted to the jury to that of a joint venture or partnership, or to agency. This ruling being in favor of defendants, they can suffer no prejudice therefrom. VIII. A further contention was made that the defendants could not be liable for the acts of their wives under §§ 325-1 and 325-7, R.L.H.1955. The court had previously held that one statute (§ 325-7) was modified by the other (§ 325-1), and that these laws must be considered in connection with other Hawaii laws emancipating women. As a result the court ruled that the liability of the husband could arise only where there was proof of the relationship of a true agency under the principle of respondeat superior. The jury were so instructed. The court finds that the same evidence and circumstances which justified submission to the jury of the questions of the defendant husbands’ partnership or joint venture status, vel non, justified the submission to the jury of this question as to agency vel non of the wives for their husbands. IX. Other contentions were made by defendants in support of the motion as to the negligence claim, which need not here be decided, since the jury found in favor of the defendants on the negligence count. If any error was committed, it probably was in favor of the defendants, in the court’s finally refusing to permit the jury to consider the Flammable Fabrics Act, 15 U.S.C.A. § 1191 et seq. in determining, on the merits, the question of negligence. The court has such grave misgivings as to the correctness of this ruling and the influence which the same may have had on the jury’s verdict on the negligence count, that, if it were felt that the verdict as to the implied warranty could not stand, the court would feel compelled to grant a new trial on every issue, including those of whether the skirt was bought at the defendants’ shop and the claim based on negligence. X. The defendants claimed insufficiency of the proof to support the contention that the hula skirt had been represented by the defendants to have been chemically treated for flammability at time of sale; it is also claimed that' there is insufficient proof to show that the skirt was flammable at the time of sale, to the point of being dangerous to an individual wearing it; and it is claimed that there is no proof that defendants knew or should have known that the skirt was flammable and highly dangerous. These contentions are considered here in connection with their bearing on the implied warranty claim. In the court’s view, there was sufficient evidence to go to the jury on the questions of whether the representation was in fact made by the saleslady at the time of sale to Mrs. Leppard that the skirt had been chemically treated against fire. Both Mrs. Lep-pard and Mrs. McDonald so testified in substance, and the jury could have believed them. The defendants’ main defense was that none of them had made, and none of their employees had been authorized to make, any such representation, but they relied primarily on a denial that the skirt was even bought at their shop, a point on which the jury ruled against them in answering the interrogatory submitted to the jury. It also appeared from the testimony of some, or one of the following witnesses — Mrs. Leppard, Mrs. Blanche Louise French (Carol’s sister) and Carol — that Mrs. Leppard had spoken to Blanche before the party in relation to the skirt, and that she had also .spoken to Carol; that Carol recalled that before she put the skirt on she asked if it wasn’t dangerous, and that someone — -she had at first thought it was Mrs. Leppard, but apparently on further thought, was not sure it was Mrs. Leppard — reassured her that it was fire-proof. Carol said she had spoken to Mrs. Leppard before the party but was not sure about what. These impressions of Carol, coupled with the positive testimony of Mrs. Leppard and Mrs. McDonald as to the representations as to treatment for flame resistance made when the skirt was purchased, plus the close family relationship shown between the Leppards, Blanche and Carol- — all would support a conclusion, if the jury so interpreted the entire evidence, that in some way the original representations from the saleslady to Mrs. Leppard as to non-flammability were transmitted from Mrs. Leppard to Carol and relied upon by her. This would tend to disprove any inference that Carol knew or should have known that the skirt was dangerously flammable. Moreover, the fact that, if the witnesses for plaintiff were believed, the skirt flared up in an explosive manner, in itself was evidence from which the jury might have inferred that a year or so previously the skirt was equally flammable, there being no evidence in the record to prove that the mere lapse of a year and a half or the events that intervened between the sale and the burning, such as the wearing of the skirt a couple of times by Mrs. Leppard and a friend to different affairs, hanging it in the trophy room for a while, and cleaning it with a vacuum cleaner, or other conditions, would substantially change the flammable qualities of the skirt, at least in the absence of expert testimony to that effect (of which there was none). XI. Since the plaintiff withdrew the cause of action based on express warranty before the case was submitted to the jury, it is not here considered, except in so far as it has a bearing on other issues, such as negligence and implied warranty. Defendants contended that there was insufficient evidence to support the claim of implied warranty that the skirt was suitable for the special purposes for which it was purchased. This will be considered post in connection with the discussion of the privity question as it bears on the claim of breach of implied warranty. XII. Defendants claim that, as a matter of law, the skirt at the time of the alleged fire was not being used for the purposes contemplated by the buyer and seller at the time of sale. It is contended that the skirt was sold to an adult but used by a smaller person, that it was to be used by buyer for a souvenir and worn to a costume party, which was done, but that at the time of the fire the skirt was being used under circumstances not contemplated, namely in a hall where several hundred people were drinking and smoking, and where plaintiff sat down in the skirt and allowed it to touch the floor. If these alleged differences are material, which is dubious, the question was one for the jury, and the court finds that there was at least evidence sufficient to go to the jury on this point. The evidence, including the jury’s observation of €arol and Mrs. Leppard in court, would support a finding by the jury: (1) that it was or must have been known to defendants at the time of sale (a) that this hula skirt was intended to be used as an article of clothing, (b) that Mrs. Leppard would probably lend it to others, and (c) that it would probably be used as an article of clothing at dances, costume parties or other social gatherings, large or small, where people drank or smoked, which is a very common modern condition; and (2) considering the relative size, height, etc. of Carol and Mrs. Lep-pard and the length of the skirt and how it was pinned on Carol, that the wearing of the skirt by plaintiff would not constitute a different use or purpose from that contemplated at the time of sale. There is no evidence to show that the skirt, when worn by the plaintiff standing up, was any closer to the floor than it would have been if Mrs. Leppard had worn it. Moreover, even if Mrs. Leppard had worn the skirt, it is very clear that when she was in a sitting position the fibers would naturally have fallen and lain on the floor substantially in the same manner and almost, if not fully, to the same extent as when worn by the plaintiff. In this respect it can hardly be said that, as a matter of law, there was any substantial difference in degree of the risk of catching fire as between a wearing by Mrs. Lep-pard and a wearing by the plaintiff. The court feels that it can take judicial notice of the fact that at almost any social party or night club cigarettes are smoked by numerous people and often the butts are thrown on the floor, and sometimes not fully extinguished. As to the effect of the number of people — several hundred being present — there is no evidence that the hall was so small as to be unduly crowded by the number of people present. The fact that some of them imbibed and might have been drunk, others were “feeling good” and others sober (as shown by the deposition of one witness, Glen Site-man, pp. 20-21) would not alter the result, since there is no evidence that the inebriation of anyone actually contributed to the accident. The only evidence (including Siteman’s deposition, p. 25) as to the condition of those at the table of Carol Chapman is that no one there was under the influence of liquor and that no one from the rest of the crowd was near Carol shortly before the fire. There is no evidence that the plaintiff herself had imbibed to any extent sufficient to affect her actions. Certainly the court cannot presume that it was unreasonable to contemplate that a person wearing this skirt might sit down some time during the course of an evening, so that the skirt would touch the floor. XIII. Other contentions were made by defendants in support of their motion at the close of plaintiff’s evidence, but these are believed to have applied to the negligence cause of action and are therefore not discussed. Should any of them, however, be applicable to the implied warranty cause of action, they are hereby denied and overruled as grounds for the motion for judgment n. o. v. XIV. A further contention was made that the case should be dismissed as to the plaintiffs Ruby and Cecil Chapman, parents of plaintiff Carol, they claiming medical expenses. This matter was settled, it seems to the court, by the concession of the plaintiffs, expressed through their counsel, that the amount of the damages would not be increased or decreased by reason of the parents’ being or not being in the picture as plaintiffs, and the court has so ruled, it appearing that Carol had assumed all expenses upon her becoming an adult and had agreed to pay all of the same. It is probable that the parents were responsible, while she was a minor, for any expenses incurred by her or in her behalf, but the minor also could be held responsible for the same, as necessaries. Defendants suffered no prejudice by the joinder of Carol’s parents as co-plaintiffs, and the motion is denied as to this ground. XV. The next point urged was that expenses paid by the Government of the Province of British Columbia for hospitalization of the plaintiff, and which she did not have to repay, should be excluded from the jury’s consideration as to damages. The court ruled, and reiterates that ruling, that the plaintiff is nevertheless entitled to recover the reasonable value of these hospitalization expenses and services. As stated ante, the foregoing are the grounds urged by defendants in support of their first motion to dismiss, or for a directed verdict, made when the plaintiffs rested and before the defendants commenced their case; these grounds were repeated and incorporated by reference in defendants’ motion for a, directed verdict made after both parties had rested and before the case was submitted to the jury; and the motion for judgment n. o. v. incorporated by reference all of those grounds, except the next point, No. XVI, hereinafter discussed, and the one based on lack of privity, which will be taken up at the end of this decision, point No. XVIII post. XVI. The defendants contend that this action is barred by the statute of limitations. The hula skirt was purchased in Honolulu, Hawaii, on March 10,1956. The injury occurred to plaintiff in British Columbia, Canada, on November 2, 1957. Action was commenced in the United States District Court for the Eastern District of Washington, Northern Division, on July 2, 1959, which was 3 years, 3 months and 22 days after the date of purchase and 1 year and 8 months after the injury occurred. The action was transferred to this District prior to trial. The statute of limitations of the State of Washington is 3 years for injury to the person and for the breach of an implied warranty not arising out of a written instrument. There are two statutes of limitations of the State of Hawaii which might be considered as applying to this type of action: 6 years for the recovery of a debt founded upon a contract, obligation or liability and 2 years for injury to the person. It is not necessary for the court to decide whether the statute of limitations of the State of Washington or of the State of Hawaii applies in this case, if the latter, which statute applies, or whether the applicable statute commenced to run against the plaintiff at the time of the purchase or at the time of the injury, because, since plaintiff was only 20 years of age when this action was commenced, even if the statute of limitations started to run at the time of purchase, she is not barred by the Washington statute, or by the Hawaii 2-year statute and, if the Hawaii 6-year statute is applicable, the action was filed in time in any event. The Motion for a New Trial XVII. The foregoing disposes of all .grounds in the motion for judgment n. o. v., except the problem of privity, disposed of post. The court will now take up the alternative motion for a new trial. At the outset, it is noted that defendants request a new trial not only on the issues of whether there was a breach •of an implied warranty and related questions, but also on the questions of wheth■er the hula skirt was purchased at the Around the World Gift Shop, and wheth■er Mr. Brown was a partner or joint venturer in the business known as Around the World Gift Shop, yet they refrain from asking for a new trial also ■on the negligence cause of action and on the question of whether Mr. Chase was also such a partner. If the reason for not asking for a new trial on the negligence claim is that it is considered res judicata, it would seem somewhat inconsistent not similarly to consider as res judicata the finding of the jury on the interrogatory submitted to them that the skirt was purchased at this Gift Shop, and their finding that Mr. Brown was a partner. In the court’s view, if a new trial is to be granted, it should be de novo, not only on those issues mentioned in the motion for a new trial, but on all other issues, including the negligence claim. However, this court believes, and so rules, that the motion for a new trial should be denied, for the reasons herein-before and hereinafter stated. The court will now take up the various grounds specifically set forth in the motion for a new trial, in the order, and with the numbering appearing therein. Grounds 1 to k claiming that the verdict is contrary to law, and contrary to the evidence, and that the evidence is insufficient to justify or support any verdict for plaintiffs, are general grounds, disposed of by rulings set forth ante, and hereinafter, upon specific points. Grounds Nos. 5, 6, 7, 8, and 9 (Timeliness of notice; statute of limitations; privity; claiming contributory negligence, and assumption of risk) are disposed of in points II, XVI, XVIII, IV, and V, respectively, of this decision. Ground No. 10 claims error in the court’s denial of defendants’ pre-trial motion to dismiss the action or in the alternative to exclude Mr. Anderson and his firm from further participation in the ease. This is sufficiently covered by the court’s decision rendered on April 5, 1961 (Reference No. 103 in the court file). Ground No. 11 urges that the court erred in denying defendants’ motion for a mistrial and for the discharge of the jury panel made during the voir dire examination of the jury panel. As the court recalls it, defendants’ counsel made a motion for a mistrial after one prospective juror had said he was convinced that all hula skirts should be treated to be fire resistant. This juror was excused and the court satisfied itself by inquiry that the jurors would not be influenced to the detriment of defendants. This ground is denied. Ground No. 12 claims the court erred in making its ruling prohibiting inquiry of plaintiff Carol Lee Chapman during her pre-trial discovery deposition or during the trial concerning alleged admissions made to one Scotty Friend. This statement and the various affidavits relating to the same are found in the file (reference numbers 86 to 89 inclusive). After argument the court ruled that it would exclude all evidence of Mr. Scotty Friend or relating thereto. A reading of the statement of Scotty Friend in the file would indicate clearly that it contained nothing that could substantially affect the merits of the case. The court finds no error in this connection. Ground No. 13 claims error in denying portions of defendants’ motion to produce documents for inspection and copying. The record and court’s recollection are not entirely clear as to the exact action taken on the motion to produce for inspection and copying filed by defendants’ attorneys April 11, 1961, and no order was filed of record setting forth the court’s final action thereon. However, an inspection of the motion and the supporting affidavits will indicate that they failed to comply with the requirements of Rule 34, F.R.Civ.P. in that they failed to show the actual existence of any documents, the discovery of which was sought, and good cause for such production. Further, the court’s recollection is that, except for documents which were, in fact, ultimately produced by plaintiff’s attorneys to the defendants’ counsel, there was a denial by plaintiff’s counsel as to the existence of the alleged correspondence and documents, of which discovery was sought. The court believes this ground not well taken. Ground No. H claimed error in admitting plaintiff’s Exhibit No. P-20 (drawings of Waikiki building). In the context of the evidence, these were properly admitted as bearing upon the question whether Mr. Brown was a partner with Mrs. Brown and Mrs. Chase, as well as upon the question of credibility of the defendants or some of them. Ground No. 15, claiming error in permitting plaintiff’s counsel to question defendant Mrs. Brown over defendants’ objection with regard to letter dated January 12,1961, is not well taken. This letter had a legitimate and material bearing upon the questions of credibility of the defendant Mrs. Brown and the adequacy and timeliness of notice which was given of the claimed dangerous condition of the skirt and plaintiff’s intention to claim damages. In this connection, the court allowed defendants’ counsel, over plaintiff’s obj'ection, to bring out by further questioning from the • same witness the fact that the insurer, Home Insurance Company, was denying liability, in order to counteract any implication to the jury that the defendants were fully and safely insured, and then the court adequately instructed the jury to disregard insurance or lack of it in determining the merits of the case, and strictly limited the purposes for which the letter and testimony covering same were to be used. The foregoing paragraph also disposes of Ground No. 16 as to alleged error in denying defendants’ motion for a mistrial based on the same point. See Court’s Instruction No. 31. Ground No. 17, claiming error in denying the defendants’ motion for a directed verdict at the close of plaintiff’s evidence and the renewed motion at the close of all the evidence, is disposed of adversely to defendants in the other rulings herein disposing of various grounds urged in support of the motions for judgment n. o. v. and for a new trial. Ground No. 18, claims error in the court’s giving the following instructions, using the court’s numbering of the instructions as finally given: (a) Court’s Instruction No. 12. The defendants claim that this instruction was erroneous because (1) privity is required for recovery on the claim of breach of implied warranty, and no privity was shown here, and there was failure of proof sufficient to justify submitting the issues to the jury of (2) whether or not the skirt was reasonably fit for the purposes for which it was sold, and (3) whether the garment was dangerously inflammable and defective; and (4) there was a failure to give notice within a reasonable time as a matter of law, hence the issue should not have been submitted. These grounds are disposed of by the court’s specific rulings thereon elsewhere in this decision: see points-Nos. II, X, ante and XVIII post. (b): Court’s Instruction No. 18. It. was claimed that the court should have decided that, as a matter of law, the-plaintiff had not given notice within a reasonable time, and further that reasonable notice was required even on the negligence cause of action, defendants claiming that the Sales Act had pre-empted the field. This objection, as to the implied warranty cause of action, is also disposed of adversely to defendants by the court’s ruling on point II, ante. Of course, the objection is moot, so far as-the negligence cause of action is concerned, since the jury decided that claim adversely to the plaintiffs. (c): Court’s Instruction No. Ik This was objected to on the ground that there was a failure of proof to support any claim of implied warranty or any breach thereof; that no privity had been proved, and that the court should rule as a matter of law that notice had not been given within a reasonable time. This is disposed of adversely to defendants by other rulings in this decision on these specific points: see points Nos. II and X ante, and XVIII post. The court believes that this instruction was proper under the peculiar facts of this case. This is a case in which, although the latter was not specifically mentioned during the trial, there were both an implied warranty as to quality and fitness for use, and an implied warranty of merchantability, which were identical as to fitness of the skirt for use as am, article of clothing. It is the court’s firm belief that any article of clothing, such as a hula skirt, which is so highly flammable as to be dangerous to life and limb, is defective and unsuitable for the use for which it was sold, and selling the same would be a breach of both implied warranties of quality and fitness, and merchantability. (d): Court’s Instruction No. lka was objected to upon the same grounds as those with respect to the Court’s Instruction No. 14, which are disposed of above. Also the words of this instruction stating that the warranty included a warranty that the article was reasonably fit and safe “for any purpose the seller might reasonably anticipate it will be used,” were objected to as being too broad. The court believes that these words were proper in the context of the particular facts of this case in which in effect identical warranties of fitness and merchantability for use as an article of clothing could justifiably be implied. The only intended and actual use which could affect the jurors’ judgment shown by the evidence in this case was that of an article of clothing, hence no substantial prejudice was suffered by the defendants, even if, as a general proposition, the language objected to would be too broad. In this connection, it is to be noted that the uncontradicted evidence is to the effect that the skirt flared up with extreme rapidity and in an explosive manner. It is also claimed that the last sentence of this instruction was erroneous in removing from the jury the question of the standard in the community. The court believes that the fact, if it be a fact (there being some conflict, in the light of Mr. Billam-Walker’s evidence, as to what really was the standard in the community), that other storekeepers sold similar merchandise at the time, even if relevant, would not prove that the hula skirt was not defective and dangerously flammable, so as to relieve these particular defendants from liability for selling an article so imminently dangerous to life and limb of the wearer as the jury evidently found this skirt to be, and the evidence appeared to indicate, without warning, particularly in the light of the Federal Flammable Fabrics Act which applied in 1956 to intra-territorial sales. (e): Court’s Instruction No. ll¡.b was objected to on the ground that it is too broad, as in the case of No. 14a. The court believes that this instruction was justified on the same grounds as No. 14a. (f) : Court’s Instruction No. 19 claims error in the court’s limiting the defense of contributory negligence to the negligence claim only, it being contended that, if privity is dispensed with, then implied warranty should sound in tort and contributory negligence should then be available as a complete defense. This point has been fully covered in the court’s decision under point No. IV ante. (g): Court’s Instruction No. 23 is objected to because it limits the defense of contributory negligence only to the plaintiff’s negligence claim. This objection in essence is the same as that to Court’s Instruction No. 19, and is overruled on the same grounds. However, even as to the negligence cause of action the evidence bearing upon whether Carol was in any degree under the influence of liquor was so tenuous that there is serious question whether the court should even have submitted the question to the jury as a possible defense. (h): Court’s Instruction No. 2k? This was objected to on the ground that it permitted the jury to consider the Federal Flammable Fabrics Act insofar as knowledge or lack of knowledge of the same by a shopkeeper would have a bearing upon the question of due care or credibility of a party or witness. Inasmuch as the Act was an act of Congress made particularly applicable to intra-territorial sales of articles of clothing, and was approved June 30,1953, to take effect July 1, 1954, a year and eight months before the sale in question, and was largely publicized by the Better Business Bureau through Donald Billam-Walker, as testified to by him, among Waikiki merchants, particularly engaged in the sale of flammable clothing, including a representative of Mrs. Kam, defendants’ principal supplier of hula skirts, although there is no testimony that he actually contacted the Around the World Gift Shop people, it seems to this court that the defendants, being merchants, had a duty to keep up with developments in the clothing field, such as the Flammable Fabrics Act. If they didn’t know about the Act, this could be argued to the jury along with other evidence, as reflecting'a lack of due care on the part of defendants in selling articles of clothing without keeping up with the laws and regulations applicable to their business which, if known, should have alerted them as to the possible flammability of their stock, and it would certainly reflect on the qualifications of witnesses such as Mrs. Kam, called by the defendants as an expert, who testified that she did not know about the Flammable Fabrics Act until some time after this accident. Insofar as the due care aspect is concerned, this might be moot because of the jury’s verdict in favor of the defendants on the negligence claim. However, the court was extremely dubious about this instruction at the time, and believes that, if it committed error, the error was in favor of the defendants rather than against them in preventing the jury from considering the Flammable Fabrics Act more fully on the merits of the negligence claim. (i) : Court’s Instruction No. 2i-a, concerning agency was germane to the question of whether the wives were acting as agents of their husbands in conducting the business of the Around the World Gift Shop and selling the skirt. It is contended that there was a failure of proof as to the agency of the wives for the husbands. This is disposed of by the court’s ruling on point No. VIII ante. (j) : Court’s Instruction No. 25 is objected to on the ground that the court should have ruled as a matter of law on the evidence that the male defendants were not partners or principals of or with their wives, and that there was insufficient proof to justify submitting this question to the jury. This objection is answered by the court’s decision ante under point No. VI. (k): Court’s Instruction No. 27 was objected to on the ground that there was a failure of proof that any damage sustained by the plaintiff was the proximate result of the breach of implied warranty or negligence of the defendants. This is disposed of by other rulings of the court ante. “If, under the court’s instructions, you should find that plaintiffs are entitled to a verdict on one or more of their causes of action, you shall make a single damage award for all plaintiffs. In arriving at the amount of the award, you shall determine each of the items of claimed damage which I now am about to mention, provided that you find them to have been suffered by plaintiffs and as a proximate result of the defendants’ negligence and/or breach of implied warranty. “The reasonable value of the examinations, attention and care by physicians and surgeons reasonably required and actually given in the treatment of the plaintiff Carol Lee Chapman; and reasonably certain to be required and to be given in her future treatment, if any. “The reasonable value of services of nurses, attendants, hospital accommodations, reasonably required and actually given in the treatment of plaintiff Carol Lee Chapman; and reasonably certain to be required and to be given in her future treatment if any. “The reasonable value of the lost time from employment by said plaintiff Carol Lee Chapman since her injury up to the present time and during which she has been unable to pursue an occupation. In determining this amount, you should consider evidence of plaintiff’s earning capacity and the manner in which she ordinarily occupied her time before the injury, and find what she was reasonably certain to have earned in the time lost had she not been disabled. “If you should find that plaintiff Carol Lee Chapman’s power to earn money has been so impaired by the injury in question that she will suffer a pecuniary loss in the future from that impairment, then you will award her such sum as will compensate her reasonably for any such future detriment as she is reasonably certain to suffer. “In fixing this amount you may consider what said plaintiff Carol Lee Chapman’s health, physical ability and earning power were before the accident and what they are now, the nature and extent of her injuries, whether or not they are reasonably certain to be permanent, all to the end of determining the effect of her injuries upon her future earning capacity and the present value of the loss so suffered.” Ground No. 19 claims error in the court’s refusal to give the following instructions requested by defendants: Nos. 1, 7, 10, 12, 13, 16, 17, 20, 21, 22, 24, 25, and 27. These instructions are not quoted because of the already undue length of this decision. They were refused, either because, in the court’s view, they were covered by other instructions, or because they were not sound as a matter of law or were not justified by the evidence. Ground No. 20 alleged error in denying defendants’ motion for a mistrial and to discharge the jury, made Saturday morning, April 29, 1961, after the jury reported itself deadlocked. In view of the length of this trial and the complexity of the evidence and points involved, the court does not believe that the jury had been out an unduly long time from late afternoon Wednesday, April 26, to Saturday morning, April 29, 1961, especially since the jury had been permitted to go home at night on each day of deliberation and return at 9:00 a. m. or 10:00 a. m. the next morning. Moreover, as it eventually turned out, what the jury really meant was that they were deadlocked on the negligence claim, and not on the implied warranty one, for the dates of the special verdicts indicate that the jury had reached unanimous agreement on the interrogatory and on the implied warranty claim prior to Saturday, April 29. It would have been proper, if so instructed in the court’s discretion, for the jury to report its finding on the interrogatory and special verdict on the implied warranty cause of action separately. Hence defendants cannot complain of the court’s action which resulted finally in a verdict in their favor on the negligence claim, the only one on which the jury was in disagreement at the time they so reported to the court. Ground No. 21 alleges misconduct of plaintiff’s counsel in arguing and discussing the possible existence of insurance during the final argument. The court believes that there was a legitimate reason for counsel to advert to the letter mentioning insurance sent by Mrs. Brown, on questions of credibility, and that the court’s instructions at the time and the formal instruction to the jury were warranted, and that defendants were not prejudiced by this action and/or instruction. Privity XVIII. This point is considered the crux of this case, namely, whether by the law of the State of Hawaii, privity is required in order for a person other than the immediate buyer, injured by a defective or dangerous product, to recover from the retailer or seller of that product. This being a diversity case based on breach of an implied warranty claimed to have been made in Hawaii, the law of Hawaii applies. Here there is no Hawaii decision clearly setting forth the rule by which we are to be guided, and hence this court must guess at what the Hawaii Supreme Court would decide in a similar case. We start here with a finding of the jury, based upon sufficient evidence to justify the same, that at the time of the sale of the skirt to Mrs. Leppard, plaintiff’s aunt by marriage, the seller impliedly warranted that the hula skirt was reasonably fit for use as an article of clothing, and that there was a breach of such warranty. Under instructions of the court which in effect dispensed with any requirement of “privity” between the plaintiff and defendants, the jury found the defendants liable to plaintiff for such breach and brought in a verdict in a very substantial amount. Was the court correct in holding that such privity was not required in this case ? Defendants, pointing to the Uniform Sales Act which was adopted in Hawaii in 1929, and what they claim is the majority or common law rule, contend that the court erred and that the verdict cannot stand and must be set aside because of lack of such privity. If defendants’ contention is correct, this is a defect which could not be expected to be cured by any evidence on a new trial, and hence would require judgment n. o. v. to be entered in favor of the defendants, on the cause of action based on implied warranty. Although a strong technical argument is made out by the defendants in this connection, this court is still persuaded that the countervailing arguments and equities are so strong that they may be expected to be adopted by the Hawaii Supreme Court when occasion arises. The defendants also cite the Committee Reports of both Houses of the Legislature at the Session which passed Hawaii’s Uniform Sales Act, as supporting their contention that the Act adopts the alleged majority or common law rule on privity. The defendants’ argument commenced with § 202-15(a), R.L.H.1955 (of the Hawaii Uniform Sales Act) quoted in the margin. Other relevant portions of the Act, including § 202-15(b), relating to implied warranty of merchantability, are also quoted in the margin. Defendants contend that the terms of the Uniform Sales Act itself, as well as the above-cited history of that particular legislation in Hawaii, plus what is now R.L.H.1955, § 1-1, adopting the common law require a holding that the Act is exclusive, pre-empts the held of implied warranty and adopts what is claimed to be the majority or common law rule limiting the remedy for breach of implied warranty to the immediate buyer, or at most to those in strict privity with the seller. It is assumed, for the purposes of this decision, that, to the extent that the Hawaii Uniform Sales Act is applicable, that law controls. However, for reasons hereinafter stated, this court disagrees with the contention as to the proper coverage and interpretation of that Act, even in the light of what is said by the legislative committees and R.L.H.1955, § 1-1, cited supra. It is unfortunate that, so far as our research discloses, with but one exception, the courts which have written recent landmark decisions departing from the requirement of privity in implied warranty cases — and upon the general reasoning of which the modem trend followed in this decision is largely based —have not clearly and expressly indicated how they reconciled their decisions with the provisions of the Uniform Sales Act in their respective jurisdictions, more particularly the section relating to implied warranties, which, in Hawaii, is R.L.H.1955, § 202-15, quoted supra. Had they done so, the task of writing this opinion might have been much easier. It is true that, after its origin in 1842 in Winterbottom v. Wright, the requirement of privity was adopted by numerous courts without critical examination of its appropriateness with respect either to negligence cases or to implied warranty cases of the nature here involved — so much so as to be rega