Wansor v. George Hantscho Co., Inc.
| Decision Date | 24 March 1978 |
| Docket Number | No. 75-3093,75-3093 |
| Citation | 570 F.2d 1202 |
| Parties | Brian Atwood WANSOR, Plaintiff-Appellant, v. GEORGE HANTSCHO CO., INC., Defendant-Appellee, v. W. R. BEAN & SON, INC., Third-Party Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Cullen M. Ward, W. Davis Hewitt, Jackson C. Floyd, Jr., Atlanta, Ga., for plaintiff-appellant.
N. Forrest Montet, Atlanta, Ga., for defendant-appellee.
T. Cullen Gilliland, Atlanta, Ga., for other interested parties.
Appeal from the United States District Court for the Northern District of Georgia.
Before BROWN, Chief Judge, COLEMAN and MORGAN, Circuit Judges.
In this products liability action, Brian A. Wansor seeks damages for injuries he sustained while working on a printing press owned by his employer, W. R. Bean & Son, Inc. (Bean). Wansor sued the manufacturer of the press, the George Hantscho Company, Inc. (Hantscho), alleging negligence and breach of implied warranties. At the close of the plaintiff's case, the District Court granted Hantscho's motion for a directed verdict and this appeal followed. We hold that the appeal is timely but do not now reach either the propriety of the grant of the directed verdict or the merits of Wansor's claim. Because the issues are controlled by important questions of Georgia law, we certify the case to the Georgia Supreme Court to determine whether the state's rules governing strict liability allow the recovery sought.
On the date Wansor was injured, August 10, 1971, he had been working for Bean, a magazine printing firm, for approximately three weeks. Wansor's job as a jogboy, or journeyman, the lowest position in this shop, required him to see that webb paper coming out of the multi-unit printing press as finished product was stacked and bundled for shipment and delivery. Although Wansor did not actually operate the machinery, he had helped three or four times in cleaning the press after a printing run to remove the ink residue. Wansor was injured during this wash-up process.
After each run, the press was stopped, pans placed under the rollers, and the press turned on so that all six units were idling. Each crew member, armed with a bottle filled with naptha, a cleaning solvent, then stood on a catwalk running around each unit and into the machine and squirted naptha on the unguarded, revolving rollers. Some of the naptha, mixed with ink, would be thrown back onto the catwalks as the rollers turned. Most of the ink and solvent would drip onto the lowest rollers and into the pans. The lower roller was cleaned by a blade that scraped off the accumulating residue. This blade was adjusted before and during the process to ensure that all the residue was removed. Wansor's injuries occurred while he was making this adjustment, the first time he had performed this task while the machine was in operation.
To adjust the scraper blade, Wansor had to crouch on the catwalk to avoid being hit by the rollers above him, turn two screws located about fifty inches apart, then back out in the same Russian-folk-dance crouched walk. On the date involved here, Wansor had finished adjusting the screws and was beginning to back out of the machine when he slipped on the now oily catwalk. In the fall, Wansor's right hand became caught in the unguarded rollers. He attempted to pull his hand out but succeeded only in entangling his left hand as well and in the struggle caught his hair on the upper rollers. Although the machine was quickly turned off, Wansor's hands were severely mangled. Despite extensive medical treatment, he lost most of the fingers and part of the thumb from his right hand and two fingers from his left hand.
Plaintiff Wansor contended that Hantscho was negligent in the manufacture, design, construction, installation, and assembly of the press. 1 Wansor specifically pointed to the lack of guards for the rollers; the placement of the adjustment screws for the scraper blade inside the machine frame next to the rotating equipment; the placement of the catwalk between the units of the machine, requiring a workman to assume a crouched position to reach the adjustment screws; the lack of a device to prevent the catwalk from becoming slick with ink and naptha thrown from the rollers; and the design that permitted the scraper blade to be adjusted while the machine was in operation. Asserting that these aspects of the machine's construction and operation rendered it inherently dangerous, plaintiff also claimed that Hantscho was negligent in failing to warn of such dangers. Finally, Wansor claimed that the machine was defective, in breach of the implied warranties of merchantability and intended use that are statutorily imposed on manufacturers under Georgia Code Ann. § 105-106. 2
At the close of the plaintiff's case, during which experts testified as to the applicable standards of safety in design, manufacture, and operation, the District Judge directed a verdict for the defendant Hantscho. The Judge based his verdict partially on the so-called state of the art defense, stating that "(a) critical test (for negligence) . . . is what the manufacturer knew at the time the equipment was manufactured and what was common practice within the industry at the time," and partially on a finding that the dangers of the machine were open and obvious, thus relieving the manufacturer of a duty to protect or warn the plaintiff.
On this appeal, Wansor urges us to hold that by granting the directed verdict, the District Judge erroneously took the case from the jury when questions remained that belonged to the jury as a matter of law. In particular, Wansor points to the fact that the Judge directed the verdict on March 20, 1975, the day on which the Georgia Court of Appeals handed down the decision clarifying the applicability of strict liability in the state. 3 Wansor asserts that the District Judge erred in refusing to submit questions arising under this doctrine to the jury.
Before we can begin to discuss the merits of Wansor's contentions, we must address Hantscho's claim that the appeal is untimely and must therefore be dismissed. Hantscho bases this argument on F.R.A.P. 4(a), 4 which requires that a timely notice of appeal must be filed "within 30 days of the date of the entry of the . . . order appealed from . . . ." This 30-day period is tolled by a timely motion for judgment under F.R.Civ.P. 50(b); for an altered or amended judgment under F.R.Civ.P. 59; or for a new trial under F.R.Civ.P. 59. The time for appeal begins to run again when the judge grants or denies one of these motions. If an appeal is not filed within 30 days after such an order is entered, the judge may extend the time upon a showing that the failure to file a timely appeal was the result of excusable neglect.
The District Court directed a verdict for Hantscho on March 20, 1975. The running of the 30-day period for appeal was tolled on March 28, when Wansor filed motions for a new trial, for judgment notwithstanding the verdict, and to set aside the judgment. On June 4, 1975, the District Court denied these motions, and the 30-day period began to run anew, ending no later than July 7, 1975. On this date, Wansor had not filed an appeal. However, on June 13, he filed a motion asking the District Court Judge to reconsider the June 4 order denying plaintiff's previous motions. The Judge denied this motion on July 22, and Wansor filed a notice of appeal on July 24, after obtaining an order extending the time for appeal.
The District Court Judge found that Wansor's delay resulted from a belief that the motion to reconsider filed on June 13 was among the motions that toll the period for filing an appeal. This belief is mistaken. A motion to reconsider an order disposing of a motion of the kind enumerated in Rule 4(a) does not again terminate the running of the time for appeal. 5 Ellis v. Richardson, 5 Cir., 1973, 471 F.2d 720; 9 Moore's Federal Practice P 73.09(4), at 3186. The District Court Judge found that the cause of the delay, counsel's misunderstanding of the effect of the June 13 motion, constituted excusable neglect. Hantscho challenges this finding, claiming that the District Court misapplied the standard for excusable neglect that will justify an untimely appeal under Rule 4(a). 6 A panel of this Court has already denied a motion by Hantscho to dismiss the appeal. On the full record, we affirm this earlier order.
A brief look at the history of Rule 4(a) and the excusable neglect rule leads us to conclude that the District Court's finding and the prior ruling of this Court cannot be reversed. Until 1946, the civil rules permitted no extension of the time for appeal. Prior to 1966, a party could obtain an extension of the time for filing a notice of appeal in a civil case only by showing that he had failed to learn of the entry of the judgment, F.R.Civ.P. 73(a). 7 The 1966 amendment omitted this restriction, providing instead that the District Court had the power to extend the time for appeal "upon a showing of excusable neglect." The Advisory Committee Notes to the 1966 amendment to former Rule 73(a) do not indicate what grounds besides failure to learn of the entry of judgment will constitute excusable neglect. The Notes did emphasize that the District Court has discretion to grant extensions of time, a discretion based in the need for action in cases "where injustice would otherwise result." In the present case, the District Court exercised this discretion and found that counsel's error was excusable neglect. We are unable to say that this finding is a clear abuse of the discretion granted by the rule, and therefore decline to dismiss the appeal.
We do not hold that a bona fide misunderstanding or mistake as to the law counsel will constitute excusable neglect. We recognize that such a proposition would make the requirement of timely filing almost undeterminable. See Airline...
To continue reading
Request your trial
-
Morningstar v. Black and Decker Mfg. Co.
...is designed to resolve ambiguities or unanswered questions about the receiving state's law. See, e. g., Wansor v. George Hantscho Co., 570 F.2d 1202 (5th Cir. 1978); Almarez v. Carpenter, 173 Colo. 284, 477 P.2d 792 (1970); West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976); Pierce v.......
-
United States v. State of Tex.
...at trial, a party need not announce its intentions or justification for doing so, unless challenged. Wansor v. George Hantscho Co., Inc., 570 F.2d 1202, 1208 (5th Cir. 1978). In Wansor, the Court of Appeals held that the submission of a strict liability claim unstated in the pleadings or pr......
-
Comfort Trane Air Conditioning Co. v. Trane Co.
...at 374-75 (footnote omitted). Accord McCullough v. Beech Aircraft Corp., 587 F.2d 754, 758 (5th Cir. 1979); Wansor v. George Hantscho Co., 570 F.2d 1202, 1207 (5th Cir. 1978). Unsupported, self-serving testimony is not substantial evidence sufficient to create a jury question. Yoder Brother......
-
Osterneck v. E.T. Barwick Industries, Inc.
...Osternecks' motion. The grant or denial of such a motion is entrusted to the district court's sound discretion. Wansor v. George Hantscho Co., 570 F.2d 1202, 1205-07 (5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 350, 58 L.Ed.2d 344 (1978); In re O.P.M. Leasing Services, 769 F.2d 911 (2d ......