Simien v. S. S. Kresge Co.

• Decision Date: 20 January 1978
• Docket Number: No. 76-1020,76-1020
• Citation: 566 F.2d 551
• Parties: Wilford SIMIEN, Plaintiff-Appellee, v. S. S. KRESGE COMPANY, Defendant-Third-Party Plaintiff-Appellant. MODERN JACKETS, Defendant, v. SMITH BROTHERS MANUFACTURING COMPANY, Third-Party Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 551

566 F.2d 551

Wilford SIMIEN, Plaintiff-Appellee, v. S. S. KRESGE COMPANY, Defendant-Third-Party Plaintiff-Appellant.

MODERN JACKETS, Defendant, v. SMITH BROTHERS MANUFACTURING COMPANY, Third-Party Defendant-Appellee.

No. 76-1020.

United States Court of Appeals, Fifth Circuit.

Jan. 20, 1978.

Daniel V. Flatten, Beaumont, Tex., for defendant-third-party plaintiff-appellant.

Walter Umphrey, Port Arthur, Tex., for W. Simien.

Thomas J. Swearingen, Port Arthur, Tex., Ken Parker, Beaumont, Tex., for Smith Bros., etc.

Appeal from the United States District Court for the Eastern District of Texas.

Before THORNBERRY, GOLDBERG, and CLARK, Circuit Judges.

CHARLES CLARK, Circuit Judge:

This products liability diversity action was brought by Wilford Simien against appellant S. S. Kresge Company to recover damages for injuries suffered by Simien when a jacket he was wearing caught fire. In January 1973 Simien was wearing the jacket, which he asserts was purchased from Kresge, while starting an outdoor fire. To speed the start-up, Simien threw a small, open-mouthed container of gasoline onto the small flame he had generated. A loud "whoomp" sound occurred, after which Simien found the jacket aflame. He received severe burns to his neck and face. Simien sued Kresge as seller of the jacket under theories of strict liability and negligence. ¹ After a jury trial, Simien was awarded a $66,000 verdict and judgment against Kresge on the strict liability claim. ² From this judgment Kresge appeals.

Because of errors by the trial court in instructing the jury and in refusing to submit a requested interrogatory, it is clear that the verdict cannot stand. Furthermore, the lack of substantial evidence to show any defect in the design of the jacket that would make it unreasonably dangerous requires that judgment be rendered for Kresge.

Instructions to Jury

Since this was a products liability action, a critical issue was whether the jacket was sold in a defective condition which rendered it unreasonably dangerous to the consumer. See Restatement (Second) of Torts § 402A (1965), adopted as the law of Texas in McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967). Kresge contended it was not, and bolstered this contention by pointing to the testimony of experts for both sides that the fabric of which the jacket was composed met and far exceeded the requirements of the federal Flammable Fabrics Act and Commercial Standard 191-53. ³ Compliance with these federal statutory safety requirements and industry standards is evidence that a product is not defective. United States v. Estremera, 531 F.2d 1103 (2nd Cir. 1976) (that a fabric is "normally flammable" under the Flammable Fabrics Act is evidence that the fabric is not unreasonably dangerous); cf. Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178 (5th Cir. 1975) (Federal Aviation Administration advisory circulars are admissible as bearing on the standard of care in determining negligence). Nevertheless, the trial court instructed the jury that if they found that the design of the jacket met the requirements of the statute and commercial standard, that compliance would be evidence that the jacket was defective. ⁴ Kresge duly objected to this specific portion of the charge. For some unexplained reason, the judge overruled Kresge's objection and refused to recall the jury to correct the obviously erroneous instruction.

Simien acknowledges that this portion of the charge was erroneous, but asserts that the error was harmless in light of the charge as a whole. See Delancey v. Motichek Towing Service, 427 F.2d 897, 901 (5th Cir. 1970). We disagree. The best that can be said about this element when the charge as a whole is considered is that it is internally inconsistent. This inconsistency may well have deprived Kresge of the benefit of its most persuasive evidence on this critical issue. For this error alone, the judgment would have to be reversed.

Submission on Interrogatories

Fed.R.Civ.P. 49(a) allows a trial court to require a special verdict from the jury "in a form of a special written finding upon each issue of fact." Once the decision is made to submit the case on special interrogatories, the judge must submit all material issues raised by the pleadings and the evidence. See, e. g., Duke v. Sun Oil Company, 320 F.2d 853, 865 (5th Cir. 1963); Angelina Casualty Company v. Bluitt, 235 F.2d 764, 770 (5th Cir. 1956); C. Wright & A. Miller, 9 Federal Practice and Procedure § 2506 (1971).

Sale of the product in question by the defendant is an essential element of a products liability case. See Restatement (Second) of Torts § 402A (1965). In its pleadings and proof, Kresge put in issue whether it sold the jacket Simien was wearing at the time of the fire. The trial judge at one point in his general instructions told the jury that manufacture or sale was an element in a products liability suit, but numerous other instructions presumed without qualification that Kresge sold the jacket. After these general instructions, the trial judge chose to obtain a special verdict from the jury by requiring them to answer six interrogatories. ⁵ The judge refused to submit an interrogatory inquiring whether the jacket was purchased from Kresge, even though Kresge tendered such an interrogatory and objected to its omission. We agree with Kresge that this omission constitutes reversible error since "each (material) issue of fact" was not submitted to the jury as required by Rule 49(a).

Simien contends that the case was submitted under Rule 49(b) rather than under Rule 49(a). Rule 49(b) allows the court to submit to the jury, " together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict." Although the court did give general instructions, the only form of verdict requested and returned was the response to the six interrogatories. Nowhere was there given to the jury "appropriate forms for a general verdict." Thus the submission must be judged under the standard of Rule 49(a).

Simien also asserts that his wife's testimony that she bought the jacket from a Kresge store was uncontroverted, and that therefore no issue of fact existed. This argument overlooks the testimony of a buyer for Kresge that Kresge's only supplier of this kind of jacket during the time in question was Smith Brothers Manufacturing Company, and the testimony of an officer of Smith Brothers that this jacket was not a Smith product. The jury could have found from this testimony that Kresge was not the seller of the jacket in question.

Finally, Simien argues that even though no interrogatory on sale and purchase of the jacket was submitted, the jury was properly informed that to impose liability they had to find that the jacket had been purchased from Kresge. We need not decide whether the general charge adequately instructed the jury on this element; assuming that it did, the fact remains that nothing in the interrogatories would have allowed the jury to find for Kresge on the basis that it did not sell the jacket. Cf. United States v. Trinity Universal Insurance Company, 457 F.2d 950, 956-57 (5th Cir. 1972). Consequently, the failure of the trial judge to submit Kresge's requested interrogatory constitutes reversible error.

Evidence of a Defective Condition

Kresge argues that there was no substantial evidence that the jacket in question was defective and that consequently the trial judge should have directed a verdict for Kresge rather than submitting the case to the jury or should have granted Kresge's motion for judgment notwithstanding the verdict. To determine whether the evidence in this case was sufficient to submit the case to the jury, we must be guided by the standards enunciated in Boeing Company v. Shipman, 411 F.2d 365 (5th Cir. 1969). In making that determination we must consider all of the evidence, but in a light which draws all reasonable inferences most favorably to Simien's case. If the record contains evidence of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions, then the case was properly submitted to the jury. On the other hand, if the facts and inferences point so strongly and overwhelmingly in favor of Kresge that reasonable jurors could not arrive at a contrary verdict, then Kresge is entitled to judgment. See Boeing Company v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969). After carefully considering the record of this case in the light most favorable to Simien, we hold that there was no substantial evidence of a defect in the jacket in question and that consequently judgment should have been entered for Kresge.

Simien alleges that a defective design of the jacket in question rendered it unreasonably dangerous and resulted in injuries to him. In order to impose strict liability on a seller of a product under Restatement (Second) of Torts § 402A (1965), it is incumbent upon the plaintiff to establish evidence on the critical issue of a "defect" in the product. Gravis v. Parke-Davis & Co., 502 S.W.2d 863 (Tex.Civ.App.1973). A product can be defective as a result of a miscarriage in the manufacturing process or as a result of an improper design. See Henderson v. Ford Motor Co., 519 S.W.2d 87 (Tex.1974). In either case, however, the defective condition must make the product "unreasonably dangerous to the user or consumer" to result in liability. Restatement (Second) of Torts § 402A (1965). A product is not in a defective condition when it is safe for normal handling and consumption. Restatement (Second) of Torts § 402A, comment h (1965). The defective condition must be such as to make the product unreasonably dangerous: dangerous to the extent that any product so designed would not be placed in the channels of commerce by a prudent manufacturer aware of the risks involved in its use, or...