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CARTER v. JOSEPH BANCROFT & SONS CO.

July 12, 1973

Margaretta Conderman CARTER
v.
JOSEPH BANCROFT & SONS CO. and Indian Head, Inc.


Clifford Scott Green, District Judge.


The opinion of the court was delivered by: GREEN

Clifford Scott Green, District Judge.

 This is a personal injury action arising from an accident in which the dress of plaintiff, Margaretta Conderman Carter, allegedly caught fire, causing her serious injuries. Plaintiff has brought this action against defendant, Indian Head, Inc., and defendant, Joseph Bancroft & Sons Co., a division of Indian Head, Inc., and alleges that defendants are liable to plaintiff under the laws of Pennsylvania on theories of strict liability, breach of warranty, and negligence. The legal positions of both defendants are identical. Jurisdiction of this Court is founded on diversity of citizenship, and the parties agree that the law of Pennsylvania governs this case. This case was tried before the late Judge Harold Wood and a jury. The trial was bifurcated and the jury returned a verdict in favor of plaintiff against defendants in the liability phase, and thereafter awarded plaintiff the sum of $75,000 as damages.

 Presently before the Court are defendants' motion for judgment notwithstanding the verdict and plaintiff's motion for a new trial limited to damages. For reasons appearing hereinafter, we deny the respective motions of defendants and plaintiff.

 I

 Liability as a Manufacturer and Seller Under the Restatement of Torts, Second, §§ 400, 402A

 In support of their motion for judgment notwithstanding the verdict pursuant to Rule 50 of the Federal Rules of Civil Procedure, defendants forcefully assert that they are not liable to plaintiff even on the strict liability theory of the Restatement of Torts, Second, § 402A (1965). Since the verdict returned by the jury was in favor of plaintiff, we must review the evidence in the light most favorable to plaintiff. Thus, viewed the evidence establishes that sometime prior to September 3, 1967, plaintiff purchased a dress which had affixed to it a tag or label containing the following printed material:

 
"BAN-LON Fashion
 
"BAN-LON is a trademark identifying garment, fabrics, and articles made according to specification and quality standards prescribed and controlled by Joseph Bancroft & Sons Co., a division of Indian Head, Inc.
 
"Unauthorized use of this tag is prohibited. 18-65-10 J.B. & S. Co. 1966 Printed in USA".

 And on the reverse side:

 "A Beautiful BAN-LON ...


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