Barber v. General Elec. Co., s. 79-1918

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Citation648 F.2d 1272
Docket Number79-1926,Nos. 79-1918,s. 79-1918
PartiesPaul S. BARBER, an Individual, Plaintiff-Appellant, v. GENERAL ELECTRIC COMPANY, a New York Corporation, Defendant-Appellee. WESTERN FARMERS ELECTRIC COOPERATIVE, an Oklahoma Corporation, and Employers Casualty Corporation, an Oklahoma Corporation, Intervenor.
Decision Date11 May 1981

Robert S. Baker and John S. Oldfield, Jr., Baker, Baker & Wilson, Oklahoma City, Okl., for plaintiff-appellant.

B. J. Cooper, Cooper, Stewart & Elder, Oklahoma City, Okl., for defendant-appellee.

Before SETH, Chief Judge, and BARRETT and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

The question which is here presented is whether the trial court erred in granting defendant's motion for summary judgment in a personal injury case which grew out of a high voltage transformer explosion in the course of its being installed.

The occurrence took place on May 27, 1976. The transformer was being installed by the plaintiff Barber and other employees of Western Farmers Electric Cooperative at a Western Farmers sub-station. General Electric had manufactured the transformer at Rome, Georgia and had shipped it to Anadarko, Oklahoma by rail in 1974. Western had stored it for two years. It had been moved to the installation site in May of 1976. During installation there was a malfunction. This caused pressure to build up inside the transformer. A further result was the expulsion of insulating oil through a pop-off valve. There was a protective system which would have caused fuses to blow and turn the circuit off, but it failed to function. Just prior to the explosion Barber had been standing under the pop-off valve, and was covered with the expelling oil. He claims that he was blinded by the oil and while he ran from the vicinity of the expelling oil, he fell and seriously injured himself. Barber's cause of action was based on two theories of strict liability in tort, namely manufacturer's product liability and breach of implied warranty of merchantable quality fitness for its intended use.

General Electric sued Western Farmers Electric Cooperative as a third-party defendant. Employers Casualty Corporation, the Workmen's Compensation carrier, intervened. It alleged a subrogation interest as against General Electric. It also realleged plaintiff Barber's theories of recovery.

The trial court entered summary judgment in favor of General Electric and against plaintiff Barber.

I. The Order of Dismissal

On July 23, 1979 the plaintiff filed a motion for entry of a voluntary non-suit or dismissal without prejudice pursuant to Rule 41(a)(2) of the Rules of Civil Procedure. This was granted. But the following day the court held a hearing to consider General Electric's motion to vacate the motion to dismiss and at the same time to grant defendant's motion for summary judgment. The trial court granted both of these motions. Judgment for the defendant was entered, and it is the propriety of this ruling which is the subject of appeal.

The surrounding facts insofar as they appear in the record are as follows:

Barber filed his complaint on December 1, 1977. General Electric filed its answer on December 22, 1977. Plaintiff then served interrogatories on General Electric on March 7, 1978. General Electric served plaintiff with interrogatories on March 8, 1978. Employers Casualty filed a motion to intervene on March 17, 1978. Both sets of interrogatories were answered. On June 6, 1978, the court entered a protective order having to do with documents and materials produced by the defendant for plaintiff's use. General Electric produced some 25 documents for plaintiff's use.

General Electric filed a third-party complaint against Western Farmers on June 20, 1978. A jury trial was requested. The third-party defendant, Western Farmers, filed an answer to the General Electric complaint on July 10, 1978. Pretrial proceedings were held during October and November, 1978. General Electric served Western Farmers with interrogatories in December, 1978, and served Western Farmers with a request for production of documents, etc. on January 8, 1979. Other motions were filed by Western Farmers, until on January 23, 1979, General Electric filed its motion for summary judgment against plaintiff Barber.

There were further pretrial proceedings on February 20, 1979. Plaintiff filed a brief in answer to that of General Electric. This was in opposition to General Electric's brief in support of summary judgment motion. It was on July 23, 1979 that plaintiff sought to dismiss the complaint without prejudice. No notice of the request was given to General Electric or Western Farmers or to any other party. The trial court granted the plaintiff's motion on July 23, 1979. General Electric orally moved to vacate that motion on July 24, 1979, after it received notice of the judgment. Following a hearing the court set aside the plaintiff's motion for dismissal and granted the motion of General Electric for summary judgment. The motion of Western Farmers for summary judgment was held in abeyance pending the appeal of the grant of summary judgment in favor of General Electric.

Under Rule 41(a)(1) an action may be dismissed by the plaintiff up to the time of filing of an answer or a motion for summary judgment. After that time, the court has discretion to order dismissal under Rule 41(b). Also, under Rule 60(b) the court has the power to set aside its judgment for one of several reasons. In the face of extensive discovery it would be an abuse of discretion to grant a voluntary dismissal such as the plaintiff filed. We do not perceive any abuse of discretion in the vacating of the voluntary dismissal. Nor do we see any loss of jurisdiction.

When a motion to dismiss without prejudice is considered, the important aspect is whether the opposing party will suffer prejudice in the light of the valid interests of the parties. 5 Moore's Federal Practice (1979), p. 41-59. General Electric was not given an opportunity to be heard. It was entitled to be heard when it moved to vacate the order of dismissal. The trial court acted within its discretion in holding that it would be unjust to uphold its previous judgment, especially in view of the extensive preparation and expense in connection therewith. See, e. g., Gulf Italia Company v. American Export Lines, 263 F.2d 135 (10th Cir. 1958), cert. denied 360 U.S. 902, 79 S.Ct. 1285, 3 L.Ed.2d 1254.

II. Propriety of The Granting of Summary Judgment

Plaintiff contends that Western Farmers justifiably relied on General Electric's ability to warrant the integrity of the system which was contained in that part of the transformer which was designed, manufactured and sealed in their Rome, Georgia plant. His additional allegation is that Western Farmers relied on a statement in General Electric's Transformer Instruction Manual which stated that "transformers are normally shipped completely assembled, liquid filled and ready to install." Also contended is that the transformer was not "ready to install" or "completely assembled," and that the fire was caused by a defective terminal board, loose or unconnected wires into the terminal board, or a combination of both.

The position of General Electric is that the terminal board was not faulty and that any loose connections into the terminal board occurred after the transformer arrived at Anadarko, Oklahoma. General Electric points to the fact that the transformer was under Western Farmers' control for two years prior to the accident; that the transformer was inspected by Western Farmers at the time it was delivered to Anadarko and nothing was found wrong at that time; that employees of Western Farmers inspected it again prior to its being moved to the installation site; that Western Farmers employees admit that they did not inspect the terminal board connectors on the main tank compartment side of the transformer (where the explosion occurred), although this inspection was recommended by General Electric in its Installation and Maintenance Instruction Manual.

Another point which is advanced by General Electric is that the main tank compartment of the transformer had not been "sealed" by General Electric, since the manual specifically recommended inspection, and the term "sealed" is defined (in Black's Law Dictionary) as "fastened so as to be closed against inspection." Barber responds to this by saying that after General Electric filled the compartment with insulating oil, the top of the compartment was "sealed" by means of a plate that was belted down and was "air tight" according to General Electric publications.

General Electric emphasizes that plaintiff has not come forward with any evidence which shows that any defect was present in the transformer when it left General Electric's hands in 1974. There are simple answers to this assertion. One is that circumstantial evidence is present in the substantial discovery. The other answer is that the summary judgment motion was presented in the midst of the discovery stage of the case.

The legal standards applicable to this products liability case are to be found in Kirkland v. General Motors Corp., 521 P.2d 1353 (Okl.1974), as follows:

1. It must be shown that the product was the cause of the injury;

2. It must be shown that the defect existed in the product at the time it left the manufacturer;

3. It must be shown that the defect rendered the product unreasonably dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchased it, with ordinary knowledge common to the community as to its characteristics.

General Electric maintains that Barber has failed to present any evidence which has established all of the above listed elements. It argues that there is no evidence that the defect existed at the time that it left General Electric. General Electric also argues that an ordinary utility...

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