Edwards v. EI Du Pont De Nemours & Co.

• Citation: 183 F.2d 165
• Decision Date: 16 June 1950
• Docket Number: No. 13063.,13063.
• Parties: EDWARDS v. E. I. DU PONT DE NEMOURS & CO. et al.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

183 F.2d 165 (1950)

EDWARDS v. E. I. DU PONT DE NEMOURS & CO. et al.

No. 13063.

United States Court of Appeals Fifth Circuit.

June 16, 1950.

Charles H. Kirbo, Bainbridge, Ga., Vance Custer, Bainbridge, Ga., H. G. Rawls, Albany, Ga., for appellant.

S. B. Lippitt, Albany, Ga., W. H. Miller, Bainbridge, Ga., for appellees.

Before HOLMES, WALLER, and BORAH, Circuit Judges.

HOLMES, Circuit Judge.

This is an action in tort for personal injuries allegedly sustained by appellant from the explosion of ten sticks of dynamite, while he was engaged in blowing up stumps on his farm in Georgia. The appellant bought the dynamite, caps, and fuses, from the appellee Flint Explosive Company, a Georgia corporation, hereinafter referred to as the Flint Company or resident defendant, which in turn bought the same from the other appellee, E. I. du Pont de Nemours & Company, a Delaware corporation, hereinafter referred to as du Pont or the non-resident defendant. The case was removed to the federal court on petition of the non-resident defendant, and appellant's motion to remand was overruled. Thereafter, a summary judgment on the merits was rendered for the appellees, and the appellant gave due notice of appeal to this court.

The only question that we deem necessary to be decided by us is whether the cause was removable under Section 1441(c) of the Federal Judicial Code, 28 U.S.C.A. § 1441(c). No fraudulent joinder of the resident defendant is asserted in the briefs. The grounds of removal relied on therein by the removing defendant are as follows: (1) that a separate and independent cause of action was alleged against du Pont in the complaint; (2) that no joint cause of action was alleged against the appellees; and (3) that the complaint failed to state a claim or cause of action against either the resident or non-resident defendant. These questions, upon the record before us, must be determined from the well-pleaded facts alleged in the complaint. These facts, so far as relevant and material to the jurisdictional issue before us, are in substance as follows:

The dynamite, caps, and fuses, which caused the explosion and injuries, were brought by the appellant from the Flint Company for the purpose of blasting the stumps on his land, and this purpose was well known to said company, which was selling the same for such purpose, at the time and place in question, with the knowledge and approval of du Pont, the non-resident defendant. According to the instructions given appellant by the Flint Company, in each stick of dynamite a cap was to be inserted, with one foot of fuse extending therefrom; the end of the fuse fartherest away from the cap was to be ignited, and the dynamite inserted under the stump. The Flint Company represented to appellant that the dynamite, caps, and fuses, so purchased, were suitable for the use for which they were bought; but the fuse used in this instance was defective in that, when a match was properly applied to it by appellant, the spark passed immediately to the cap and caused an instanteous explosion of the dynamite, blowing off appellant's right hand and lower arm, wounding him in the right leg, deafening him in the left ear, damaging the sight of his left eye, and causing other severe injuries from which he still suffers excrusiating pain.

The original complaint alleged that the defective fuse was manufactured by du Pont, but in an amendment to the complaint and other parts of the record some doubt is raised as to this fact. The petition for removal is not in the record, and we are not advised whether the amendment was made before or after the petition for removal was filed. Whether or not the fuse was manufactured by du Pont may be highly important upon the merits of the case, but it is not a determinative factor here upon the question of removal jurisdiction. Therefore, we shall decide this question without regard to the amendment, the answers of defendants, and the affidavits introduced on the motion for summary judgment. In the original complaint, aside from said allegation as to who manufactured the defective fuse, it is alleged that prior to said purchase by appellant from defendants of said fuse, caps, and dynamite, there had been a series of injuries to various customers of appellees that resulted from similar defective fuses purchased from them, which accidents were well known to both appellees but unknown to appellant. Nevertheless, both appellees continued to sell and distribute said defective fuses, with knowledge of the defect and without exercising the slightest care to correct it. These allegations must be accepted by us as made in good faith, in the absence of an allegation of fraudulent joinder; and, since the petition for removal is not before us, we presume that it contained no such allegation.

The negligence of both appellees is predicated upon their failure to follow prudent customs that were necessary in the sale and distribution of explosives. The Flint Company, it is alleged, had not qualified under Georgia law to possess or sell explosives, and its officers were inexperienced and incompetent, for such business, all of which was known or should have been known to du Pont. The latter, it is averred, negligently sold and distributed said explosives to the general public through Flint, one of its dealers, thereby causing the injury to appellant. The defect in the fuse consisted of the uneven distribution of the powder that it contained. The Flint Company is alleged to have known this fact and to have failed to apprise the appellant of it; du Pont is also said to have been negligent in selling through an unlicensed distributor, with full knowledge of the defective fuses, gained from a series of similar accidents in the same locality, all of which was unknown to appellant, who was free from fault. Finally the complaint alleged that the defendants wantonly failed to devise any ways or means to remove the unnecessary hazards incident to the use of explosives. Their negligent acts are alleged to have caused appellant's injuries. We take the case as stated by appellant. We look to the substantive law of Georgia to ascertain whether a legal claim was stated against either or both of the appellees, and whether a separate and independent claim or cause of action was alleged against the non-resident defendant. Georgia decisions upon procedure may be persuasive Finley...