Whiteley v. OKC Corp., 81-2249

Decision Date19 October 1983
Docket NumberNo. 81-2249,81-2249
Citation719 F.2d 1051
Parties14 Fed. R. Evid. Serv. 1177 Wayne WHITELEY, Individually, and Wayne Whiteley, d/b/a Whiteley L.P. Gas, Plaintiff-Appellee, v. OKC CORP., Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Jim Ikard, Oklahoma City, Okl., for plaintiff-appellee.

Ronald N. Ricketts of Gable, Gotwals, Rubin, Fox, Johnson & Baker, Tulsa, Okl., for defendant-appellant.

Before McWILLIAMS, BARRETT, and McKAY, Circuit Judges.

BARRETT, Circuit Judge.

Defendant OKC Corporation (OKC) appeals from a judgment of the district court awarding plaintiff Wayne Whiteley damages in the amount of $151,700.00 on claims that OKC breached express and implied warranties of merchantability, 12A O.S. Secs. 2-313, 314, and fitness for a particular purpose, 12A O.S. Sec. 2-315. Whiteley had alleged damages, both business and personal, for these violations pursuant to the Uniform Commercial Code as adopted by Oklahoma. Whiteley, d/b/a Whiteley L.P. Gas, originally sought damages in the amount of $65,000.00, and Whiteley, individually, originally sought damages in the amount of $50,000.00 for personal injuries suffered. Whiteley subsequently amended his complaint to increase the amount of his claim to $75,000.00 for business damages and to $250,000.00 for personal damages with an additional claim for punitive damages totalling $1,000.000.00.

Whiteley commenced this action in federal district court, pursuant to 28 U.S.C. Sec. 1332, against OKC as the result of an accident that occurred in December of 1978 at Whiteley's storage yard. Whiteley, an Oklahoma resident, is engaged in the retail sale of liquid propane gas to customers in three rural Oklahoma counties. Whiteley purchases the propane from Home Petroleum Company (Home) and Home then assigns Whiteley to a refinery with available propane--OKC in this case. Whiteley then takes delivery of the propane by driving his personal transport truck to the OKC refinery for filling.

On December 14, 1978, Whiteley accepted delivery of approximately 10,000 gallons of propane from the OKC Refinery. He transported the gas back to his storage yard where it remained in his truck for the next two days. On the morning of December 16, 1978, one of Whiteley's customers came to the yard to complain about the presence of moisture in some propane purchased from Whiteley. The presence of moisture in propane is a potentially dangerous problem that concerns all who are associated with the gas. Whiteley drove the customer across the yard to the transport truck which contained the propane accepted from OKC on December 14. Whiteley determined to show the customer the nature of the problem--water-filled propane loads from the OKC Refinery.

Whiteley, while kneeling under the body of the truck with a container in his hands to catch any liquid, opened a "belly" valve underneath the truck's tank to allow any moisture to run out. 1 When Whiteley opened the valve, a large amount of liquid poured out, striking the bottom of the container and knocking it from his hands. As a result, Whiteley was drenched with the liquid from his knees to his face. Extensive testimony later revealed this liquid to be hydrofluoric acid. 2 After feeling a strong burning sensation, Whiteley disrobed, jumped into his pickup truck, and drove across the yard back to his house.

After showering off and soaking in cold bath water, Whiteley's skin turned red and eventually blistered. Whiteley testified that at this time he was experiencing "unbearable" pain. (T.Vol. VII, p. 72). Whiteley then went to the emergency room of a nearby medical clinic, received medical treatment by the physician on duty, and was released at his own request with instructions to return two days later. Whiteley returned to the clinic in two days where his burns were re-dressed, his eye (which was irritated from the splashing liquid) was checked, and he was prescribed further medication.

On direct examination, Katie Whiteley, Wayne's wife, testified that, despite the medication use, her husband remained in constant pain. (T.Vol. VII, p. 142). In addition, his skin began turning darker. Whiteley therefore went to a specialized burn center in Tulsa, Oklahoma. There, to prevent the risk of gangrene, the doctors performed a procedure called "debridement" on Whiteley's legs. This procedure involves surgically cutting off damaged (dead) skin from a patient's body and thoroughly cleansing the area. Whiteley testified about the extreme pain he endured during this procedure, (T.Vol. VII, p. 76), and for two to three weeks thereafter. (T.Vol. VII, pp. 78, 103-04). Whiteley further testified about the pain he experienced from his burned hands, and how his fingernails, after being eaten away by the acid, took nine to ten months to grow back. (T.Vol. VII, pp. 78-79).

Other testimony by Whiteley revealed that he was unable to return to his "normal life" without pain until approximately five months after the accident. (T.Vol. VII, p. 83). His legs are now discolored, which embarrasses him to wear shorts or a swimming suit in public. (T.Vol. VII, pp. 79-80). Notwithstanding Whiteley's pain and suffering, our review of the entire record discloses that there was no evidence that Whiteley sustained any permanent disability, nor did he present any expert testimony regarding either his personal injuries or the nature of the damaging liquid.

On appeal, OKC raises several issues: (1) Whether the damages awarded were so plainly excessive as to suggest passion and prejudice on the part of the jury; (2) whether the trial judge committed error by admitting evidence of the financial condition of OKC over the defendant's objection; (3) whether the trial judge committed error by admitting evidence of an accident that occurred at OKC's refinery approximately twenty months after the incident in question; and (4) whether the jurors mistakenly believed that they could award punitive damages.

I.

OKC's primary contention on appeal is that the jury award was overly excessive. OKC raises several possible causes for the alleged excessiveness of the award, one of which we now consider. OKC contends that evidence concerning its financial condition was improperly admitted by the district court, and, thus, contributed to the grossly excessive verdict. At oral argument, Whiteley strenuously argued that OKC "opened the door" to allow this evidence to be admitted. We agree with Whiteley.

As a general rule, it is error to admit evidence of a party's financial condition unless necessary to determine the damages sustained. Blankenship v. Rowntree, 219 F.2d 597, 598 (10th Cir.1955). To admit financial condition evidence, the damages to be determined must be punitive in nature. Id.; Smith v. United States Gypsum Co., 612 P.2d 251, 255 (Okl.1980); 22 Am.Jur.2d Damages Sec. 322 (1965). Additionally, this inadmissible evidence includes that of the poverty of a party. 22 Am.Jur.2d Damages Sec. 319 (1965). Here, the trial judge determined punitive damages not to be recoverable. Therefore, any evidence of OKC's financial condition should have been inadmissible. However, the record shows that, on direct examination, an employee of OKC testified about the present status of the Corporation--it had been liquidated and was proceeding in bankruptcy. (T.Vol. VII, pp. 171-76). We must now decide whether OKC "opened the door" to cross-examination by Whiteley concerning its financial condition. We hold that it did.

The recognized rule in this Circuit is that:

[I]f a party interjects into a case incompetent evidence tending to establish immaterial or unrelated facts, he cannot complain on appeal that his adversary subsequently offered and was permitted to introduce the same kind of evidence .... even though under other circumstances the testimony [elicited by the adversary party] would be inadmissible. A party, having himself opened the door to evidence which is inadmissible ... cannot complain that thereafter the court in the exercise of its sound judicial discretion permitted the opposite party to introduce other testimony bearing upon the field of inquiry, even though under different circumstances the testimony would be subject to valid objection of inadmissibility.

United States v. Regents of New Mexico School of Mines, 185 F.2d 389, 391 (10th Cir.1950). See also United States v. Bessesen, 445 F.2d 463, 470 (7th Cir.1971), cert. denied, 404 U.S. 984, 92 S.Ct. 448, 30 L.Ed.2d 368 (1971); United States v. Lowe, 234 F.2d 919, 922 (3d Cir.1956); 1 J. Wigmore, Evidence Sec. 15 (3d ed. 1940).

The introduction of evidence by OKC concerning its current corporate status was clearly trial strategy to show its impecunity, intended to mitigate damages. After a careful review of the record, we hold that OKC did "open the door" to this subject matter, which allowed Whiteley to cross-examine the witness to contradict the evidence of OKC's "poor boy" status. 3 We refuse to reverse a lower court decision on appeal when the appellant complains of possible error which he himself induced. See Sanders v. Buchanan, 407 F.2d 161, 163 (10th Cir.1969). The admission of rebuttal evidence rests within the sound discretion of the trial court. United States v. Posey, 647 F.2d 1048, 1052 (10th Cir.1981); United States v. Smurthwaite, 590 F.2d 889, 891 (10th Cir.1979). We do not find any abuse of discretion by the trial court.

II.

Next, OKC contends that certain evidence concerning a subsequent accident at its yard was improperly admitted. OKC argues that this evidence was both irrelevant and hearsay. OKC again urges that this evidence was a cause of the excessive verdict. The alleged "evidence" in question was introduced to the jury by Whiteley at opening statement, 4 on direct examination, 5 and on redirect examination on recall of Mr. J.D. Sewell. 6

a. Relevancy

OKC contends that the remoteness in time of the subsequent accident renders evidence of it irrelevant, and any probative value it...

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