Altrichter v. SHELL OIL COMPANY

• Decision Date: 09 April 1958
• Docket Number: Civ. No. 1891.
• Citation: 161 F. Supp. 46
• Parties: Frank ALTRICHTER, Plaintiff, v. SHELL OIL COMPANY, Defendant.
• Court: U.S. District Court — District of Minnesota

161 F. Supp. 46

Frank ALTRICHTER, Plaintiff, v. SHELL OIL COMPANY, Defendant.

Civ. No. 1891.

United States District Court D. Minnesota, Fifth Division.

April 9, 1958.

Bradford & Kennedy, Charles W. Kennedy, Wadena, Minn., for plaintiff.

Reavill, Jenswold, Neimeyer & Johnson, Joseph B. Johnson, Duluth, Minn., for defendant.

DONOVAN, District Judge.

Diversity of citizenship and the amount of damages sued for make this a federal case. The matter is now before the Court on motion by plaintiff for a new trial.

The case was previously tried to court and jury at the May 1957 Term and plaintiff had a verdict for $27,500. A new trial was granted by the first court, who among other things in his memorandum order said:

"I conclude that the verdict is contrary to the clear weight of the evidence and must be set aside."

The case was ably tried by counsel who were post graduates of the first trial of 510 pages of transcript.

The jury at the second trial returned a verdict for defendant on January 20, 1958. Preparatory to the second trial the Court in the instant case presided at a pre-trial conference. All problems having to do with the case were discussed. Trial briefs were thoughtfully provided by counsel. Theory of trial, issues, facts and law were reviewed as customary in chambers. After resting at the second trial the evidence and law were again considered. Requests to charge, and the Court's general charge, were reviewed.

By briefs and oral argument counsel earnestly urges twenty-six assignments of error, which are summarized by counsel in these words:

"Plaintiff contends that the charge misled the jury, that the verdict is contrary to the evidence, and that the interests of justice require a new trial."

A helpful understanding of plaintiff's criticism of charge and verdict may be arrived at by a statement of the facts and issues which as developed in the case at bar are almost identical to those in the first trial.

On September 26, 1956, plaintiff was employed by a road contractor as a laborer in connection with repairs to a Minnesota highway. The employer is not a party to the instant case. During the course and scope of his employment plaintiff met with an accident causing personal injury and disability. His work required him to operate a melter, used to reduce asphalt to a fluid state for pouring in cracks developed in the hard-surfaced highway at or near Benson, Minnesota. To aid in this process the employer designed and built a double boiler type of contraption 50½ inches wide, 65 inches long and 4 feet high, mounted on a semi-trailer. The asphalt would be placed in one boiler and transfer oil (herein termed Valvata 85) in the second boiler and heat (by means of propane burners in a flue) would be applied.

The particular melter here involved, prior to its preparation for use on the day in question, had been idle, and stored in the employer's yard with vents covered, but otherwise exposed to outside atmospheric conditions, for about eleven months. That is, from October, 1955, when it was drained for storage, to September 24, 1956, when it was taken to Benson, Minnesota, the melter was out of service. On September 24, 1956, plaintiff checked the melter and tried it out for use. This consisted of pouring the required amount of Valvata 85 from original containers into the melter. Then the propane burners were turned on to heat the Valvata 85 at about 40 degrees per hour. When heated to about 150 degrees, a small leak was observed in the rear of the melter. The process of heating was thereupon discontinued, the Valvata 85 was removed from the melter and it was repaired by welding the defective part. When repairs had been completed, the Valvata 85 was restored to the melter and reheated to 300 degrees, on September 25, 1956, and then heating was discontinued until the next day. The melter was then again placed in operation on September 26, 1956.

Plaintiff's evidence was to the effect that a solvent, phenol and cresol, was mixed with the crude oil in the manufacturing process of Valvata 85. That the boiling point of water is 212 degrees F.; the boiling point of phenol is 361 degrees F.; the boiling point of cresol is 396 degrees F. On the day previous to the accident, the employer's man Fischer last observed the temperature to be about 400 degrees. There was no gurgling such as might accompany a boiling fluid, and when Fischer was about fifty feet from the melter, the explosion or expelling of the hot oil occurred. The clothes of plaintiff were saturated with the oil as he was standing with his back to the melter and about 30 feet distant therefrom.

There is no dispute but that Valvata 85 had been used in the melters for several years prior to the accident and that nothing untoward in the way of the accident here had ever occurred before. On occasions when water found its way into the melter its presence was observed at 250 degrees Fahrenheit or less because of the boiling point of water. The employer and his employees had no advance knowledge of the happening of the accident or the cause thereof.

The theory of plaintiff at trial was that defendant furnished the transfer oil which was represented as capable of withstanding temperatures of up to 600° Fahrenheit, but which, as used at the time and place in question, exploded at 440°. That in furnishing the oil for the purpose for which it was intended and used, defendant was negligent in failing to warn the users of the oil of the dangers attendant upon subjecting it to the temperatures attained, and in failing to so process or manufacture the oil so as to permit it safely to absorb temperatures up to 600° when placed in the melter and subjected to the customary heat.

Plaintiff contends that during five years of use of Valvata 85, heated to 600° in the same or comparable melters, there had never been an explosion or gushing of oil, as in the instant case; hence there must have been some inherent and dangerous substance in the oil used on the day in question unknown to plaintiff and his employer, which could not be discovered by a reasonable inspection, and which was the negligent and proximate cause of the accident.¹

Defendant contends the Valvata 85, as manufactured and marketed by it and used by plaintiff's employer at the time in question, was free from any deleterious substance or defect that would in any manner cause the accident and resulting injury to the plaintiff. Defendant further contends that the occurrence of the accident was not due to negligence of defendant. Defendant claims that plaintiff's injuries and disability arose out of and were solely caused by the negligence of plaintiff's employer in permitting moisture and water to accumulate in the melter while in said employer's possession and control, and while exposed to atmospheric conditions over a period of some eleven months immediately prior to its use and the discharge of hot oil on the person of plaintiff. In other words, as between the plaintiff's theory of negligence as the cause, and defendant's theory of freedom from negligence, the jury necessarily was dependent on conjecture in arriving at the proximate cause of the accident, and, under such circumstances, a jury may not be permitted to guess as between two clearly persuasive theories consistent with the evidence adduced in the matter of connection of proximate cause with the accident.²

1. Is the verdict and judgment contrary to the evidence?

Plaintiff argues it is, and in so doing challenges the weight and sufficiency of the evidence. This challenge requires that the evidence must be viewed in a light most favorable to the prevailing party. The jury, having found in favor of the defendant, the Court must accept as true all facts which the evidence reasonably tended to prove. Defendant is entitled to all favorable inferences which may reasonably be drawn from the evidence and circumstances proved. It must be assumed that the jury resolved all conflicts in favor of defendant.³

In this diversity case the substantive law of Minnesota controls.⁴

As between oil, water or other agencies, which caused the accident? It should be observed that plaintiff's theory of cause required the presence of water and solvent in combination at the top of the melter. Also, the possibility of the presence of a causative agency in the oil was once weakened by the pouring of defendant's sealed product in the melter the day before the accident, and finding the melter defective by leaking, the oil was then removed, replaced in the original containers, and following necessary repairs, the oil was again poured back into the melter, heat applied to 440° Fahrenheit and then the accident occurred. Thus conjecture and speculation are enhanced and play an important part in the unfortunate drama of September 26, 1956. Plaintiff contends the oil was harmful. Defendant contends the oil was safe for the purpose used. The situation is reduced to an expulsion of hot oil injuring plaintiff. A prima facie case against defendant, plaintiff contends. But the showing of the attendant circumstances of water or moisture, or fluids other than oil in the melter following exposure to climatic conditions for months and the necessity for repairs the day before the accident, may well have destroyed the essence of plaintiff's evidence.⁵ Expert testimony is intended to assist the jury in arriving at a correct conclusion, not to substitute the opinion of the expert for that of the jury. Perhaps plaintiff relied too much on that type of evidence.

In my opinion the evidence supports the verdict returned by the jury.

2. Is the verdict contrary to law?

The remaining assignments of error will be discussed and disposed of under this heading. Plaintiff's twenty-six assigned errors may be reduced to his counsel's clear analysis of the two trials which, as quoted from oral argument, is this:

"* * * in the second trial we proved everything we did at the first trial, and more. *

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