Altrichter v. Shell Oil Company
| Decision Date | 18 April 1959 |
| Docket Number | No. 16027.,16027. |
| Citation | 263 F.2d 377 |
| Parties | Frank ALTRICHTER, Appellant, v. SHELL OIL COMPANY, a corporation, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Charles W. Kennedy, Wadena, Minn. (Bradford & Kennedy, Wadena, Minn., were with him on the brief), for appellant.
Joseph B. Johnson, Duluth, Minn. (Reavill, Jenswold, Neimeyer & Johnson, Duluth, Minn., were with him on the brief), for appellee.
Before GARDNER, Chief Judge, and WOODROUGH and VAN OOSTERHOUT, Circuit Judges.
This was an action brought by appellant to recover damages for personal injuries suffered by him while he was in the employ of the R. C. Jones Company, a contractor engaged in repair of concrete paving. The appellee, Shell Oil Company, was the producer and refiner of the oil being used by the contractor in making the paving repairs at the time the appellant received his injuries. We shall refer to the parties as they were designated in the trial court.
As the basis for his cause of action, plaintiff in his complaint in substance alleged that defendant was negligent in preparing and furnishing the oil, and as a proximate result, the oil exploded or escaped from a container in which it was being used, causing injury to plaintiff; that defendant was requested to and undertook to furnish oil that would withstand a temperature of 600 degrees F.; that the oil furnished did not withstand a temperature of 600 degrees F., but exploded and escaped at a temperature considerably less; that defendant knew the purpose for which the oil was required and that the purchaser relied on the skill and judgment of defendant and that defendant warranted that the oil was reasonably fit for the purpose for which it was to be used; that it was not reasonably fit but was defective and dangerous and when applied to the intended use, it exploded and escaped. The complaint contained allegations as to the extent of plaintiff's injuries and other allegations bearing on the amount of his damages. Defendant, by way of answer, denied that it was guilty of any negligence, denied that it had breached any warranty, expressed or implied, and specifically denied that the alleged accident and the alleged resulting injury proximately resulted from any negligence or breach of warranty on behalf of the defendant. The action was tried to the court and a jury.
The basic facts are comparatively simple and without material dispute. Defendant Shell Oil Company sold and delivered to W. B. Thielen certain 53 gallon drums of its product designated in the record as heat transfer oil. Thielen in turn sold and delivered the same to the C. L. Nelson Company. Thereafter, the C. L. Nelson Company, on request of plaintiff's employer for a heat transfer oil, delivered the oil to plaintiff's employer. This product is known in the record as Valvata 85, and is a very thick or heavy residual product. It does not normally boil and has a flash point, the temperature at which combustion takes place on the surface of the oil, of approximately 600 degrees F. On the date of the accident resulting in plaintiff's injuries some four drums of this product, Valvata 85, were poured into an equipment of plaintiff's employer referred to in the record as the asphalt melter. After the heat was turned on for some time, it was found that the asphalt melter was defective in that it had a three inch leak, so that the oil was escaping therefrom. When this was discovered, the asphalt melter was drained, the oil put back into the drums from which it had been taken, and the drums capped. The leak was then repaired by welding and the following day the oil was again taken from the drums and put back into the asphalt melter. The asphalt melter was again lighted, whereupon it apparently functioned normally until it reached a temperature of 440 degrees F., when some three barrels of the oil gushed out of the exhaust vents, striking plaintiff, inflicting serious injuries.
After the drums had been delivered to the contractor, they were in his exclusive possession and control, as was also the asphalt melter. It was the contention of plaintiff that the Valvata 85 contained a foreign or contaminating substance and he introduced testimony of expert witnesses in support of this contention. Of the plaintiff's expert witnesses, one was a mechanical engineer, one was a foreman of plaintiff's employer, and one was a chemical engineer. The chemical engineer, however, had never inspected the machine in question, nor had he made any analysis of the oil. It was the contention of defendant that some foreign substance, probably water, had contaminated the oil after it had been delivered to plaintiff's employer and that this contamination had caused the expulsion. The evidence will be further developed in the course of this opinion.
At the close of all the evidence defendant moved for a directed verdict, which was denied, and the case was submitted to the jury, which in due course returned a verdict for plaintiff for the sum of $27,500. Defendant moved for judgment notwithstanding the verdict, or for a new trial, and in due course, the court denied the motion for judgment notwithstanding the verdict but granted the motion for new trial and set aside the verdict and judgment. A second trial was had, resulting in a verdict for defendant, and the court entered judgment pursuant to the jury's verdict dismissing plaintiff's action on its merits. From this judgment plaintiff prosecutes the present appeal. The case is unique in that it is not contended that the court committed any errors in the second trial of the action, but it is urged that the court erred in granting defendant a new trial following the first trial of the action. The sole issue raised by plaintiff on the appeal is whether or not the court erred in granting defendant a new trial. The ruling on this motion, in the circumstances here present, presented a question of law reviewable on this appeal. If this ruling of the court constituted error as a matter of law, then plaintiff would be entitled on this appeal to have the original verdict and judgment returned and entered on the first trial of the case restored. American Mfrs. Mut. Ins. Co. v. Wilson-Keith & Co., 8 Cir., 247 F.2d 249; Buder v. Fiske, 8 Cir., 174 F.2d 260. In support of his contention that the court erred in granting defendant's motion for a new trial plaintiff makes various contentions but we think we should first consider the applicable law governing the practice in granting a new trial. The court granted a new trial on the grounds of the insufficiency of the evidence. In doing so, the court points out that plaintiff's case is dependent upon the testimony of three expert witnesses. As to this testimony the court in its memorandum opinion and order among other things says:
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