EI DU PONT DE NEMOURS AND COMPANY v. Kissinger, 16895.

• Decision Date: 07 November 1958
• Docket Number: No. 16895.,16895.
• Citation: 259 F.2d 411
• Parties: E.I. DU PONT DE NEMOURS AND COMPANY, Appellant, v. James T. KISSINGER, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

259 F.2d 411 (1958)

E.I. DU PONT DE NEMOURS AND COMPANY, Appellant, v. James T. KISSINGER, Appellee.

No. 16895.

United States Court of Appeals Fifth Circuit.

September 22, 1958.

Rehearing Denied November 7, 1958.

Frank M. Dixon, Thomas F. McDowell, Birmingham, Ala., Bowers, Dixon, Dunn & McDowell, Birmingham, Ala., of counsel, for appellant E. I. duPont de Nemours & Co.

Robert S. Vance, R. Foster Etheredge, Birmingham, Ala., Hogan & Callaway, Birmingham, Ala., of counsel, for appellee.

Before HUTCHESON, Chief Judge, and TUTTLE and CAMERON, Circuit Judges.

CAMERON, Circuit Judge.

Prior to February, 1942, appellant duPont constructed a warehouse building and turned it over to its owner, the United States of America. June 17, 1955, appellee Kissinger, an employee of Associated Contractors, engaged in rehabilitating the buildings of which the warehouse was one, received personal injuries when the handle came off of one of its doors he was attempting to open, causing him to fall several feet. The court below submitted to the jury the civil action brought by him, resulting in a verdict for $20,000.00 upon which judgment was entered in favor of Kissinger and the insurance company which had been paying him under the Alabama Workmen's Compensation Law, Code 1940, Tit. 26, § 253 et seq.¹ duPont appeals, claiming that its requests for directed verdict should have been granted on the grounds that no negligence on its part was shown by the testimony and that it was absolved from liability under the facts of this case by reason of the completion of its work as contractor and acceptance of the building by the owner more than thirteen years before the accident.

In 1941, duPont was employed to construct this warehouse, known as No. 229-17, as part of the Alabama Ordnance Works at Childersburg, Alabama. The plant was "a temporary or five-year plant * * * and was not to consist of a permanent type of construction unless specifically authorized in advance by the Secretary of War."² Upon its completion early in 1942, duPont was engaged to, and did, operate it until late in 1945, at which time it was turned over to the United States and thereafter duPont had nothing to do with the plant and no responsibility for its upkeep. A caretaker crew was placed in it by the Government.

Nine years later, the United States decided to rehabilitate the buildings, and Rust Engineering Company was employed as architect-engineer with Liberty Powder Defense Corporation as consulting engineer.³ March 8, 1955, the Government agreed with a group of contractors known as Associated Contractors for the "rehabilitation" of the Alabama Ordnance Works, under the supervision of Rust and Liberty. The warehouse involved here was included in the list of buildings to be rehabilitated. Originally all wooden doors were to be replaced with aluminum doors, but this was subsequently changed so that the wooden doors were to be repaired and covered with aluminum with asbestos lining. The door hardware was to be repaired and put in satisfactory condition or replaced, as might be determined as the work progressed.

The contractors obtained permission to move some heavy machinery from another building to Warehouse 229-17, and appellee Kissinger was one of the crew engaged in this removal. The truck upon which a load of machinery was being transported was backed to one of the doors to this warehouse building, the rear end of the truck matching the height of the door, which was about four feet from the ground. Kissinger grasped the handle to open one of the sliding doors, and the handle pulled off, causing him to fall backward off of the truck onto the ground and to receive severe injuries.

The door was one of a pair of wooden doors, each weighing about two hundred fifty pounds and sliding laterally upon rollerbearing wheels attached to the top of each door. Apparently the door did not move at all, and it is not shown whether it had swelled, or was stuck, or why extra pressure was necessary to move it. The evidence was in dispute as to whether it was latched on the inside.

The gravamen of appellee's complaint was that the handle was attached to the wooden door by four screws, each ¾" long, and that the use of such short screws constituted negligence on the part of appellant. duPont defended on the grounds: that it was not sufficiently shown that the handle was affixed by screws ¾" long; that there was no sufficient proof that the use of such screws would be negligent; that there was no proof that the screws in the handle at the time of appellee's injury were placed therein by appellant; and that appellant, an independent contractor, had turned the building over to its owner and the owner had accepted it in 1942, and under the law it was not liable to appellee. The court below ruled against all of these contentions, and they are urged before us as grounds for reversal based upon the refusal of the court below to direct the jury to find for the appellant.

Appellee offered in evidence and has brought before us a number of screws measuring from ¾" to 1¼" in length, along with the door handle. He claims that he established by the proof that this handle and the ¾" screws were picked up from the ground at the time of his injury, and that these were the screws by which the handle was attached to the door. This proof is confused and not of a satisfactory nature,⁴ and Liberty's safety man testified that the handle and the screws were still on the ground at the point of accident some hours after it happened. On the whole, we think that the proof, though not strong, was sufficient to go to the jury on this point.

The proof was even weaker by which appellee sought to establish that the screws were the ones which duPont had placed in the handle some thirteen years before the accident; and that, under the circumstances and conditions existing at the time of the installation, the use of ¾" screws constituted negligence. There was no direct proof at all that the screws were those initially installed, and appellee is content to argue that their presence in the handle at the time of the accident raises a sufficient presumption that they were the ones installed by appellant.

To establish that the screws were too short, appellee introduced Mr. Moore, who was, in March, 1957, in charge of the building hardware department of a hardware store in Birmingham. He called himself a hardware consultant, but admitted that he was not an expert on screws. He had been in this line of business about fourteen years. In answer to a hypothetical question as to "what size screws would be proper" to install the bow-type handle on a door of the weight and dimensions established by the testimony, he stated that, in his opinion, a screw 1½" long should have been used. Shown the screws appellee had placed in evidence, he testified that they would be "an improper size." His testimony was introduced over appellant's objections.⁵

The proof did not show the type of wood of which the doors were constructed. The court declined to permit appellant's counsel to include in his hypothetical questions the fact that the building was constructed with only a five year life expectancy.

Appellee also used Mr. Pennington, an official of the carpenter's union who worked also as a carpenter, who gave testimony along the same line as the witness Moore. He finally stated, in response to a question by the court: "If I were the architect, if you will pardon me, your Honor, I would install a handle of that size with a 3/16th stud bolt."

The burden appellee was attempting to sustain by the use of these two witnesses was that the use of a ¾" screw in the handle was not in keeping with what the average prudent man would have done if engaged in construction work under like circumstances in the same area and at the same time this building was constructed. No effort was made to show that either witness knew anything about practices in 1941-2 or at Childersburg, Alabama. The proof was of little value, therefore, in establishing this crucial element of appellee's case. Viewed from one angle, possibly these witnesses proved too much. From the gist of their testimony it would be inferred that a ¾" screw would not be sufficient to hold the handle on the door for any length of time or under any circumstances. Since it was undisputed that the handle had been on the door more than thirteen years during part of which time it had had steady use, this proof would give support to the assumption that probably these particular screws had not been placed in the handle by duPont. It is also noteworthy that if a screw meeting witness Moore's requirements had been used, negligence of appellant would still be inferable under witness Pennington's opinion that the use of a bolt was indicated.

Appellee testified that, when he looked at the door preparatory to opening it, it "looked to me as solid as these walls look here." He also placed on the stand one of his associates who was on the truck with him, who testified that the wood where the screws entered it appeared to be in good shape. There was no proof on the part of appellee that anyone probed into the wood, or made such an examination to ascertain whether the wood at the point was firm or pithy under the surface or how much it had deteriorated during its thirteen years of exposure to the weather.

It was undisputed that the entire installation of some sixty-nine buildings was made initially with an expectancy of five years' use. The watchword during the progress of such war projects was speed rather than quality. It would take proof of a convincing character to overcome the assumption which would be universally indulged that a door forming part of such an installation would inevitably have lost much of its vitality and solidity during thirteen years of exposure to the elements.

Pictures were placed in evidence showing warning signs at places in the vast plant cautioning all persons to be...