Boeing Company v. Shipman

• Citation: 389 F.2d 507
• Decision Date: 11 January 1968
• Docket Number: No. 24588.,24588.
• Parties: The BOEING COMPANY, Appellant, v. Daniel C. SHIPMAN, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

389 F.2d 507 (1968)

The BOEING COMPANY, Appellant, v. Daniel C. SHIPMAN, Appellee.

No. 24588.

United States Court of Appeals Fifth Circuit.

January 11, 1968.

COPYRIGHT MATERIAL OMITTED

Harold F. Herring, Lanier, Price, Shaver & Lanier, Huntsville, Ala., for appellant.

Edgar E. Smith, Humphrey, Lutz & Smith, Huntsville, Ala., for appellee.

Before RIVES and GODBOLD, Circuit Judges, and HUGHES, District Judge.

RIVES, Circuit Judge.

This diversity, personal injury action requires us to stop and review to some extent the standards to be applied in ruling on motions for directed verdict and motions for new trial grounded on insufficiency of the evidence to support a verdict.

The employee Shipman claimed damages against his employer Boeing, under the common law and the Alabama Employers' Liability Act,¹ for alleged injuries received in the course of his work for Boeing. His work under this employment lasted for less than three months, i. e., from December 18, 1964 to March 8, 1965. He charged his employer with negligent or wanton failure to furnish him with a reasonably safe place to work in that he was required to spray paint in a room not adequately ventilated to exhaust the fumes and particles of paint, that he was furnished no mask to prevent inhalation, that he was required to handle harmful chemicals without the protection of gloves, and was not warned of the dangers of his employment in such circumstances. He averred that this negligent or wanton misconduct proximately resulted in his contracting lead poisoning, polyneuritis, dermatitis, and an aggravation of his pre-existing bronchitis. He alleged a gradual injury by reason of inhalations and absorptions of paint fumes and other chemicals which brought his action outside of the State's workmen's compensation act requiring an accident.²

Boeing pleaded in defense that it was not guilty of any misconduct which proximately caused injuries to Shipman, contributory negligence, assumption of risk, and that the Workmen's Compensation Act barred Shipman from maintaining an action for damages.

After a full trial,³ Boeing's motion for directed verdict was denied, the jury returned a general verdict for Shipman, assessing his damages at $10,000.00, and judgment was entered on that verdict. Later the court denied Boeing's motion for judgment notwithstanding the verdict and, in the alternative, for a new trial.

On appeal, Boeing asks us to review each of the court's rulings. Thus, the broad question presented for decision is the sufficiency of the evidence to sustain the verdict.

The critical issues of fact were whether Boeing failed to furnish Shipman a reasonably safe place to work, and, if so, whether such failure proximately resulted in injury to Shipman. Shipman testified that he had had some, but not much, experience with spray painting before this employment; that he was employed as a "special projects mechanic"; but that Boeing required him to spray paint for nearly all of the three months of his employment. He was furnished a spray booth equipped with an adequate exhaust system. However, on occasions, he testified that he was directed by his superior not to have the exhaust fan on. His explanation, "because we were getting dust on the finished products," was excluded on Boeing's motion. Most of the pieces of material were too large for the booth and were painted in an area within the shop marked by a painted yellow line on the floor which was some 12 or 13 feet wide and some 14 or 15 feet long. The shop, in which other employees worked, contained machine tools and welding equipment and was some 85 feet long by 23 feet wide. Boeing introduced a mass of testimony to show that the shop was equipped with an adequate heating and air conditioning system and some six openings. However, Shipman testified that when he sprayed paint ontside the booth the fumes and particles of paint would not be carried away. "It would go over all the shop. I mean naturally it would fog more closer to the area to the gun because it will go to settling as it goes away, but the fan would not carry it away if you were out of the booth." In this Shipman received some corroboration from a fellow employee. Shipman testified that such gloves as were furnished to him had holes in the fingers or were plastic gloves, the seams of which would open up; that he asked his supervisor for a respirator mask and gloves, but they were never furnished. Boeing's testimony went to show that there was no need for Shipman to use a mask because the ventilation was adequate, but that masks were readily available to Shipman, and that three pairs of safety gloves were available to him.

There was a mass of additional evidence as to the safety of the place to work, which we find to be accurately summarized on pages 4 to 16 of the appellant's brief. The appellee does not dispute appellant's statement, but files a statement (appellee's brief, pp. 2-4) "supplemental in nature since appellant has set forth a rather lengthy statement in its brief."

On the issue of proximate cause of Shipman's injuries, two physicians were introduced by the plaintiff, neither of whom testified to more than a possibility that his ailments were causally connected with his working conditions. Shipman testified that before starting this work he had worked regularly and had no physical disabilities except a back injury, a slight cough and a chest pain; that by the last day he worked, his hands had become completely sore "up halfway to my elbows" and "actually bleeding on the parts. I would have to take paper and pick up parts because they were bleeding on the parts." On his last day of work, and for several preceding days, he got sick and vomited when he was in the paint shop area. He went home about 4 o'clock P.M. to rest a while and return later to complete a rush job. At home he again vomited, later fainted, and was taken to the hospital where Dr. Huber diagnosed his ailment as "Polyneuritis, etiology unknown." Dr. Huber testified that polyneuritis is "a condition affecting the various functions of a nerve supplying a group of muscles" and that its causes are numerous, including toxic substance. Dr. Huber further testified:

"* * * that the bronchitis he had for some years was aggravated by mainly two factors, chronic cigarette smoking, which he had done for a number of years, and that it was probably aggravated temporarily by substances he might inhale at work. This would include, not necessarily chemicals, but dust or any type of substance that he breathed, something that he breathed in that wasn\'t supposed to be there, from dust to most anything else."

Dr. Morton, whose specialty was psychiatry and neurology, testified that, "The diagnosis was psychoneurosis, anxiety state was made. This was based on the history, my neuropsychiatric examination, and, number two, exposure to toxic fumes was based on the history." Shipman's wife confirmed her husband's testimony as to the condition of his hands and his other physical symptoms, and testified as to a change in his personality.

"A. He has become more nervous with things that the children would do, and at times quite cross with them for their noise. And sometimes maybe he would feel bad, and they would disturb him while he was reading, or listening to the news, or something of that sort; and that is the biggest thing I know, he seems more nervous, and not as considerate of our feelings as he had been."

On the question of Boeing's alleged misconduct, the evidence is weak, especially in view of the short time that Shipman worked for Boeing. The evidence as to causal connection between the claimed unsafe conditions of Shipman's place of work and the ailments which he suffered can be held sufficient to sustain the jury's verdict only by the application of an extremely liberal standard.⁴

We come then to examine the standards to be applied on motion for directed verdict and on motion for judgment notwithstanding the verdict, and the standard to be applied on motion for new trial and on appellate review of the denial of such a motion.

Standard to be Applied on Motion for Directed Verdict and on Motion for Judgment Notwithstanding the Verdict.

On the question of whether the court is to look only to the evidence favorable to the party against whom the motion for directed verdict (request for affirmative charge in Alabama) is made, or whether it is to consider all of the evidence, the Alabama courts are firm in their holding that all of the evidence must be considered, though viewed in its most favorable aspect to the party against whom the motion is directed.⁵ On the other hand, in a Federal Employer's Liability Act case, the United States Supreme Court has held that: "It is the established rule that in passing upon whether there is sufficient evidence to submit an issue to the jury we need look only to the evidence and reasonable inferences which tend to support the case of a litigant against whom a peremptory instruction has been given." Wilkerson v. McCarthy, 1949, 336 U.S. 53, 57, 69 S.Ct. 413, 415, 93 L.Ed. 497.

In Alabama a scintilla of evidence of negligence requires submission of the issue to the jury.⁶ In Reuter v. Eastern Air Lines, 5 Cir. 1955, 226 F.2d 443, 445, 446, we held that

"In diversity cases, therefore, even since Erie, the scintilla of evidence rule prevailing in Alabama and in some other states has no application in the federal courts.6

6. See Herron v. Southern Pacific Co., 283 U.S. 91, 51 S.Ct. 383, 75 L.Ed. 857; White v. New York Life Ins. Co., 5 Cir., 145 F.2d 504, 509; 5 Moore\'s Federal Practice, 2d ed., Sec. 38.10; 2 Barron & Holtzoff Federal Practice, Sec. 1075, p. 759; cf. Pierce Consulting Engineering Co. v. City of Burlington, 2 Cir., 221 F.2d 607, 610.

"In determining whether there is sufficient evidence to take the case to the jury, a federal judge performs a judicial function and is not a mere automaton. Gunning v. Cooley, 281 U.S. 90, 93, 50

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