Margie J. Elliott and Lon Elliott, Wife and Husband v. Alpac Corporation, a Nevada Corporation, D/B/A Glaser Beverages

This is an appeal from a judgment entered upon a jury verdict for appellee and from an order which denied appellants’ motion for a new trial. Jurisdiction rested with the District Court because of diversity of citizenship.

Briefly, the facts are as follows. Appellant Margie Elliott purchased six bottles of a soft drink, “Like”, which is bottled by appellee. Subsequently, she opened two bottles without incident. Appellant’s hand was injured when a third bottle she attempted to open fragmented.

This action was predicated upon theories of negligence and breach of implied warranty. The District Court declined to instruct the jury on the law of breach of implied warranty, and instructed only upon the negligence theory. Appellant excepted, alleged error, and this appeal followed.

By the verdict of the jury the negligence issue was resolved against appellants. Therefore the question before us is whether the District Court erred by its refusal to instruct the jury upon the issue of implied warranty under the particular facts of this ease.

In a diversity action such as this, the District Court assumes the function of the highest state appellate court and has the duty to…