Johnson v. William C. Ellis & Sons Iron Works, Inc.

• Decision Date: 18 October 1979
• Docket Number: No. 77-1919,77-1919
• Citation: 604 F.2d 950
• Parties: 5 Fed. R. Evid. Serv. 504 Susie Mae JOHNSON, Plaintiff-Appellant Cross-Appellee, v. WILLIAM C. ELLIS & SONS IRON WORKS, INC., etc., Defendant-Appellee. Long Reach Manufacturing, a Division of Anderson, Clayton & Co., Defendant-Appellee Cross-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 950

604 F.2d 950

5 Fed. R. Evid. Serv. 504

Susie Mae JOHNSON, Plaintiff-Appellant Cross-Appellee, v. WILLIAM C. ELLIS & SONS IRON WORKS, INC., etc., Defendant-Appellee.

Long Reach Manufacturing, a Division of Anderson, Clayton &

Co., Defendant-Appellee Cross-Appellant.

No. 77-1919.

United States Court of Appeals, Fifth Circuit.

Oct. 18, 1979.

Robert Lawson Holladay, P. J. Townsend, Jr., Drew, Miss., for Johnson.

W. O. Luckett, Jr., Clarksdale, Miss., for Ellis.

W. Swan Yerger, Robert T. Gordon, Jr., Jackson, Miss., for Long Reach.

Appeals from the United States District Court for the Northern District of Mississippi.

Before TUTTLE, GODBOLD and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

Jack Johnson died at the age of 20 as a result of injuries received while he was working on a cotton compress. His mother seeks in this diversity action to recover damages for his death from the company that had repaired and rebuilt the compress thirteen years before, and from the company that had later manufactured and installed a bale unloader device on the machine. The district court directed a verdict for the repairer; held that, as a matter of law, Johnson was contributorily negligent; and submitted the claim against the manufacturer of the bale unloader to a jury, which returned a verdict for the defendant. We conclude that the district court's dismissal of claims against the repairer was correct, but we find a new trial of the claim against the manufacturer necessary.

I. FACTS

On March 14, 1974, Jack Johnson was working for National Compress as a foot headtucker on a cotton compressor, a job he had held for three months. In the course of his work, his head was caught between two parts of the press, a moving part on its southeast corner and a stationary upper member of the press that had been extended by a Long Reach Model Bale Unloader manufactured and installed by Long Reach.

To operate the compress a bale of cotton is conveyed into the compressor area by a belt; then a moving lower platen rises and presses the bale against a stationary upper platen. To receive the bale, the lower platen is recessed below floor level in what is called a "pit". Two workmen perform manual operations on the bale such as the adjusting and tucking its bagging. One is stationed at each end of the compress.

When compressing a standard bale, the worker at what is called the foot of the bale, steps into the pit in order to pull into place the hooks holding the bagging and then gathers the bagging around the bale. Bales once bound no longer have hooks; if the bale requires only rebanding, it is simply compressed at a slower rate than the standard bale, and the foot headtucker may not be required to step down into the pit unless the bagging falls away from the bale.

The foot headtucker is instructed to keep one foot on the warehouse floor whenever he steps into the pit and to center himself between the huge metal arms moving overhead that supply power to the lower platen and are known as lifter links. As the lower platen rises he is to keep only one foot on it, rising with it until it reaches the warehouse floor level, when he is to remove that foot and step back so that both feet are on the warehouse floor.

As the lower platen rises, one lifter link moves from behind and to the left of the foot headtucker in the general direction of the headtucker on the opposite side. Another lifter link behind and to his right moves in the same direction. Both of the lifter links move past his head and pass within a few inches of the side of the stationary upper platen. This narrows the area between the two metal pieces so that any object between them would be pinched; hence this is called a "pinch point."

When the accident occurred there were no guards over the pinch points. Long Reach, under a contract with National Compress, had manufactured and installed a bale unloader shortly before the accident. It was not yet operational when the accident occurred, but it nevertheless shifted the pinch points so that they were closer to the work position of the foot headtucker than they were before it was installed. The foot headtucker could safely move laterally between the lifter links only 34 and 1/2 inches, and he was required to perform his duties in this very circumscribed area. Johnson was fatally injured when his head was caught in one of the pinch points while a reband bale was being compressed.

Evidence was introduced that Johnson had been instructed in the proper procedures to be followed in working as a foot headtucker and that he had initially worked under supervision. The only eyewitness to the events immediately preceding the accident testified that Johnson had stepped into the pit with both feet; he believed Johnson had not attempted to step off the lower platen as it rose up past the level of the warehouse floor; and he had observed Johnson leaning his body and projecting his head to the left in order to carry on a conversation with other members of the crew. However, at that time Johnson's head did not appear to be in a dangerous position. Nash was not watching Johnson at the exact moment he was injured and did not see whether Johnson ever attempted to step onto the warehouse floor.

Other crew members testified that Johnson had been talking and joking with the crew. Several other witnesses testified that, if Johnson had been performing his job in the established and proper manner, it would have been impossible for his head to have been caught between the lifter link and the stationary platen.

Thirteen years before, National Compress had engaged Ellis to move the compress from another location, assemble, inspect, repair, and reassemble it in the plant where Johnson was injured. ¹ In repairing the machine, Ellis remachined and reworked some of the parts, and replaced others.

Susie Mae Johnson, as representative of Jack Johnson's wrongful death beneficiary, contends that both Ellis and Long Reach were under a duty to install guards for the pinch points or to warn National Compress of the danger created by them.

The trial court directed a verdict in favor of Ellis at the close of plaintiff's case on the basis that no negligence by Ellis had been shown and, as a repairer, it had no duty to warn of conditions existing on the machine at the time it was repaired if it did nothing to alter these conditions. The trial judge instructed the jury that, as a matter of law, Johnson had been negligent and that his negligence was a proximate cause of his injury and death, but he submitted to the jury the issues of whether Long Reach had been negligent and whether it was liable on the basis of strict liability. He also instructed the jury to return a verdict for Long Reach if it found that Johnson's negligence was the sole proximate cause of his injury. The jury returned a verdict for Long Reach.

II. LIABILITY OF ELLIS

There is no evidence that Ellis was negligent. The case against it rests, therefore, on the contention that it was liable regardless of fault if the compress left its hands in an unreasonably dangerous condition, and on the companion precept that this liability extends to its failure to warn National Compress of the potential for injury created by the pinch points when the compress was in operation. This condition was not involved in Ellis' repairs and was neither created nor aggravated by it.

Section 402A of the American Law Institute Restatement (Second) of Torts (1965) provides for strict liability of the seller of a product. Mississippi has adopted this standard "insofar as it applies to a manufacturer of a product and to a contractor who builds and sells a house with the product in it," Hamilton Fixture Co. v. Anderson, Miss.1973, 285 So.2d 744, 747; State Stove Manufacturing Co. v. Hodges, Miss.1966, 189 So.2d 113, 118, Cert. denied sub nom. Yates v. Hodges, 1967, 386 U.S. 912, 87 S.Ct. 860, 17 L.Ed.2d 784, but its courts have never directly considered whether the same requirement is exacted of providers of services. They have not yet ruled on whether a furnisher of services is liable, in the absence of negligence, for failure to warn of conditions that existed when it began its work and that it did not create or exacerbate. Nor, of course, have they been presented with the subsidiary question here involved, of the effect, if any, of the fact that this condition was obvious to the customer, whether or not it was equally apparent to the customer's employees.

Other jurisdictions have held repairers and other providers of services to be "sellers" within the meaning of Section 402A and subject to its rule of strict liability for injuries caused by defects in products supplied by them in the course of their services. ² However, appellants have not cited, and we have not found, any cases in which a repairer, installer or other provider of services has been held strictly liable for failing to correct or warn of pre-existing defects in products on which they have contracted to work.

In several cases decided between 1936 and 1978, Mississippi courts have considered the liability standards that we are urged by the plaintiffs to adopt and expand. See Dunson v. S. A. Allen, Inc., Miss.1978, 355 So.2d 77; Hamilton Fixture Co. v. Anderson, Miss.1973, 285 So.2d 744; Thompson v. Reily, Miss.1968, 211 So.2d 537; State Stove and Manufacturing Co. v. Hodges, Miss.1966, 189 So.2d 113, Cert. denied sub nom. Yates v. Hodges, 1967, 386 U.S. 912, 87 S.Ct. 860, 17 L.Ed.2d 784; American Heating & Plumbing Co. v. Grimes, 1941, 192 Miss. 125, 4 So.2d 890; and Mississippi Power & Light Co. v. McCormick, 1936, 175 Miss. 337, 166 So. 534. None of these decisions concerns a repairer who was not negligent. Dunson involved a manufacturer; State Stove and Hamilton Fixture involved installers of products who also supplied them or some of their component parts and who were, therefore, sellers; ³ and Thompson involved neither a repairer nor...