John L. Owen v. Sears, Roebuck and Company, a Corporation

This is an appeal from the Trial Court’s order directing a jury verdict for appellee (defendant below) at the close of appellant’s (plaintiff’s) case in chief in the trial of appellant’s action against appellee for alleged breach of warranty of fitness to recover damages sustained by appellant when he was burned by a cigarette-lighted fire in a shirt he was wearing some time after it was purchased by his wife for him at appellee’s Portland, Oregon store.

In the pretrial order which superseded the pleadings, appellee admitted as appellant contended that there is a diversity of citizenship between the parties and that more than $3,000.00, exclusive of interest and cost, is involved in this action. All other allegations and contentions of appellant were denied by appellee in the pretrial order. The Trial Court had and this Court has jurisdiction. 28 U.S.C.A. § 1332 , and 28 U.S.C.A. §§ 1291 and 1294.

Appellee did not before the trial plead in its answer or contend as a defense in the pretrial order, as during and after the trial it has contended and does now contend, that appellant failed to give ap-pellee notice of appellant’s claim against appellee as required by the Oregon…