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MARTINIQUE SHOES v. NEW YORK PROGRESSIVE WOOD HEEL COMPANY (03/24/66)

decided: March 24, 1966.

MARTINIQUE SHOES, INC.
v.
NEW YORK PROGRESSIVE WOOD HEEL COMPANY, APPELLANT



Appeal from judgment of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1959, No. 3283, in case of Martinique Shoes, Inc. v. New York Progressive Wood Heel Company.

COUNSEL

Joseph Head, with him Swartz, Campbell & Detweiler, for appellant.

Harvey B. Levin, with him Harold Jacobs, and Lazarus and Levin, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Montgomery, J.

Author: Montgomery

[ 207 Pa. Super. Page 405]

New York Progressive Wood Heel Company (Progressive) appeals from a judgment entered against it in favor of Martinique Shoes, Inc. (Martinique), in an action of assumpsit for indemnity for losses allegedly sustained from a breach of warranty in the sale of the heel of a shoe. Defendant's motion for judgment n.o.v. and a new trial were refused. Martinique had affixed the heel in question to a shoe it manufactured and sold to William Hahn & Company, Inc. (Hahn). Eventually the shoe was bought from Hahn by a Mrs. Witt, who upon the occasion of her first wearing of it

[ 207 Pa. Super. Page 406]

    was injured in a fall which she alleged was due to the heel splitting because of faulty construction.

Mr. and Mrs. Witt entered a suit in assumpsit for breach of warranty against Hahn to recover damages for personal injuries sustained in her fall. Hahn demanded that Martinique assume the defense of the claim and Martinique notified Progressive of the suit and demanded that it undertake the defense. Neither Martinique nor Progressive undertook such defense and eventually when the case was approaching trial Hahn settled it at a pretrial conference with Mrs. Witt and her husband for $4,500, which amount together with costs of the suit of $1,310.55 and counsel fees of $750 was paid, upon formal demand, by Martinique. The present action was brought to recover these sums from Progressive and resulted in the judgment aforesaid.

The only question raised by this appeal is that relating to the quantity of proof required to support plaintiff's claim. Plaintiff proved the sale of the heel by Progressive to Martinique, the manufacturer of the shoe with the Progressive heel, and its sale to Hahn, the retail sale to Mrs. Witt, the suit of Mr. and Mrs. Witt as evidenced by their complaint and answer thereto filed in the United States District Court for the District of Columbia. Plaintiff also produced evidence of the investigation of the Witts' claim, which included the interrogation of Mrs. Witt, a medical examination, a check of the records of Hahn, a laboratory test of the shoe and broken heel, a report from Mrs. Witt's father who operated an orthopedic shoe repair shop in Cleveland as to the cause of this heel breaking, the advice of counsel for Hahn that upon investigation and a research of the law applicable in the case the suit should be settled, proof of the defective workmanship in the heel by Mr. Birenbaum of Martinique, the opinion of A. P. Piwosky, counsel for Martinique, that the case

[ 207 Pa. Super. Page 407]

    should be settled, notice and demand by Hahn to Martinique, and notice and demand by Martinique to Progressive.

However, how Mrs. Witt's accident happened was not proved. It is, therefore, the argument of Progressive that this was the most important factor in this case, the proof of which was necessary in order to establish Hahn's liability for Mrs. ...


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