Boeing Company v. Shipman, No. 24588.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: THORNBERRY, Circuit , with whom GOLDBERG, Circuit , joins (concurring specially
• Citation: 411 F.2d 365
• Parties: The BOEING COMPANY, Appellant, v. Daniel C. SHIPMAN, Appellee.
• Docket Number: No. 24588.
• Decision Date: 07 April 1969

411 F.2d 365 (1969)

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

No. 24588.

United States Court of Appeals Fifth Circuit.

April 7, 1969.

411 F.2d 366

Harold F. Herring, Lanier, Shover & Herring, Huntsville, Ala., for appellant.

Edgar E. Smith, Huntsville, Ala., for appellee.

Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, Tex., Strasburger,

411 F.2d 367

Price, Kelton, Martin & Unis, Dallas, Tex., amici curiae

Samuel Langerman, Phoenix, Ariz., E. Wayne Thode, Salt Lake City, Utah, for American Trial Lawyers Assn.

William M. Howell, Jacksonville, Fla., Jones, Jones & Baldwin, Marshall, Tex., for Florida Defense Lawyers Assn.

James E. Clark, Birmingham, Ala., for Alabama Defense Lawyers Assn.

John Capers, Augusta, Ga., for Georgia Defense Lawyers Assn.

W. F. Goodman, Jr., Jackson, Miss., for Mississippi Defense Lawyers Assn.

Before JOHN R. BROWN, Chief Judge, and RIVES^*, WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON and MORGAN, Circuit Judges, En Banc.

AINSWORTH, Circuit Judge:

The importance of formulating a proper standard in federal court to test the sufficiency of the evidence for submission of a case to the jury, in connection with motions for a directed verdict and for judgment notwithstanding the verdict,¹ caused us to place this Alabama diversity personal injury suit en banc.

Shipman, an employee of Boeing, sued his employer for damages under the common law and the Alabama Employers' Liability Act (Tit. 26, § 326, Code of Ala., 1940), as a result of injuries he claims were received in the course of his work at Boeing's Huntsville, Alabama, plant. He was a spray painter and alleged that his employer was negligent in failing to furnish him with a reasonably safe place to work which was not properly ventilated to exhaust paint fumes; also, that he was not furnished with a mask to prevent inhalation of paint, nor with protective

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gloves for the handling of harmful chemicals, and that he was not warned of the dangers of his employment. He contended that he contracted lead poisoning, polyneuritis, dermatitis, and an aggravation of pre-existing bronchitis. Boeing denied any misconduct which might have caused Shipman's injuries and pled contributory negligence and assumption of risk and that the Alabama Workmen's Compensation Act barred an action for damages

In the prior opinion in this case the Court said:

"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." (389 F.2d at 511.)

Boeing's motions for a directed verdict during the trial and for judgment notwithstanding the verdict thereafter were denied by the District Judge, and the decision of a panel of this Court affirmed the lower Court. We hold that the opinion of a panel of this Court in the present case (389 F.2d 507) contained errors of law, which we overrule. Nevertheless, we affirm because the evidence was sufficient to create a question for the jury under the standard we have established, and the District Court, therefore, properly denied the motions for a directed verdict and for judgment notwithstanding the verdict.

We will not restate in detail the critical issues of fact on which Shipman based his case, since they are adequately treated in the original opinion herein, except to say that Shipman had been working for three months as a spray painter for Boeing and testified that the room in which he was working was not properly equipped with an exhaust system, that he was not provided with a respirator mask, that he inhaled paint particles as a result thereof, and that he also incurred injuries to his hands because of the failure to furnish him with gloves. The medical evidence was not conclusive, and the facts relating to the cause of Shipman's ailments were seriously disputed by Boeing. However, there was sufficient evidence of failure to provide a reasonably safe place to work and a face mask and gloves to require submission of the case to the jury under the standard we hereafter promulgate in this opinion.

I.

FEDERAL RATHER THAN STATE TEST IS APPLICABLE

It is well settled in this Circuit that in diversity cases federal courts apply a federal rather than a state test for the sufficiency of evidence to create a jury question.² Reuter v. Eastern Air

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Lines, 5 Cir., 1955, 226 F.2d 443; Revlon, Inc. v. Buchanan, 5 Cir., 1959, 271 F.2d 795, 81 A.L.R.2d 222; Planters Manufacturing Co. v. Protection Mut. Ins. Co., 5 Cir., 1967, 380 F.2d 869; Helene Curtis Industries, Inc. v. Pruitt, 5 Cir., 1967, 385 F.2d 841.³

In Planters, supra, Judge Tuttle exhaustively discussed this issue and pointed out (380 F.2d at 870-871) that although the Supreme Court had not yet resolved the question in favor of the federal test,⁴ that Court had said in Byrd v. Blue Ridge Rural Electric Cooperative, 356 U.S. 525, 538, 78 S.Ct. 893, 901, 2 L.Ed.2d 953 (1958):

"It cannot be gainsaid that there is a strong federal policy against allowing state rules to disrupt the judge-jury relationship in the federal courts."

See also Herron v. Southern Pac. Co., 283 U.S. 91, 51 S.Ct. 383, 75 L.Ed. 857 (1931); Simler v. Conner, 372 U.S. 221, 83 S.Ct. 609, 9 L.Ed.2d 691 (1963).

Federal courts must be able to control the fact-finding processes by

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which the rights of litigants are determined in order to preserve "the essential character" of the federal judicial system. Of course, we do not contend that this control will not affect state-created substantive rights in some cases. Ultimately, however, the integrity of our fact-finding processes must outweigh considerations of uniformity. Herron v. Southern Pac. Co., 283 U.S. 91, 51 S.Ct. 383, 75 L.Ed. 857 (1931); Byrd v. Blue Ridge Rural Electric Cooperative, 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958); Note, State Trial Procedure and the Federal Courts: Evidence, Juries, and Directed Verdicts Under the Erie Doctrine, 66 Harv.L.Rev. 1516, 1525 (1953). Thus, we agree with the original opinion and reaffirm our holding, often repeated, that a federal rather than a state test is the proper one

II.

FELA (FEDERAL EMPLOYERS' LIABILITY ACT) STANDARD FOR SUFFICIENCY OF EVIDENCE IS INAPPLICABLE

In the original opinion in this case the Court held that the standard to be applied by federal courts in diversity cases, to determine whether there is sufficient evidence to submit the case to the jury on motions for a directed verdict and for judgment notwithstanding the verdict, is the same as that in FELA (45 U.S.C. § 51 et seq.) and Jones Act (46 U.S.C. § 688) cases and that the "question has now been settled in this Circuit by the holding in Planters Manufacturing Co. v. Protection Mut. Ins. Co., 5 Cir. 1967, 380 F.2d 869, * * * that federal courts must apply the same standards employed in FELA cases to diversity cases in determining sufficiency of evidence to raise a question of fact for the jury. * * *" (389 F.2d at 513.)⁵ Thus, in the present case the District Judge was obliged under the Planters principle to apply the same standard employed in FELA cases to the alleged negligent acts of Boeing and the extent and nature of Shipman's injuries in determining the sufficiency of evidence to create questions for the jury. The Planters principle, with which we disagree, is expressed as follows: "It is only when there is a complete absence of probative facts to support the conclusion reached that the jury's judgment may be ignored." (380 F.2d at 874.) The Court based this statement upon language in the Supreme Court's decision in Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 590 L.Ed. 916 (1946), anFELA case, in which that Court stated, "Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. * * *" (327 U.S. at 653, 66 S.Ct. at 744.)

FELA cases, however, are statutory negligence actions. The Act provides (45 U.S.C. § 51) that the employer shall be liable for damages "* * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees * * *." of the carrier. The Supreme Court held in Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 508, 77 S.Ct. 443, 449, 1 L.Ed.2d 493 (1957), that in FELA cases there is presented "* * * the single question whether negligence of the employer played any part, however small, in the injury or death which is the subject of the suit. The burden of the employee is met, and the obligation of the employer to pay damages arises, when there is proof, even though entirely circumstantial, from which the jury may with reason make that inference." In Rogers the Supreme Court also said

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(352 U.S. at 506-507, 77 S.Ct. at 448-449)

"Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. Judges are to fix their sights primarily to make that appraisal and, if that test is met, are bound to find that a case for the jury is made out whether or not the evidence allows the jury a choice of other probabilities."

See also Note, Rule 50(b): Judgment Notwithstanding the Verdict, 58 Colum. L.Rev. 517 (1958).

The Supreme Court further said in Rogers (352 U.S. at 506, 77 S.Ct. at 448):

"Under this statute FELA the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought." (Emphasis supplied.)

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