Dement v. Olin-Mathieson Chemical Corporation

• Decision Date: 06 October 1960
• Docket Number: No. 17906.,17906.
• Citation: Dement v. Olin-Mathieson Chemical Corporation, 282 F.2d 76 (5th Cir. 1960)
• Parties: Lonnie A. DEMENT, Appellant, v. OLIN-MATHIESON CHEMICAL CORPORATION et al., Appellees. E. I. duPONT DE NEMOURS AND COMPANY, Appellant, v. Lonnie A. DEMENT et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

282 F.2d 76 (1960)

Lonnie A. DEMENT, Appellant, v. OLIN-MATHIESON CHEMICAL CORPORATION et al., Appellees.

E. I. duPONT DE NEMOURS AND COMPANY, Appellant, v. Lonnie A. DEMENT et al., Appellees.

No. 17906.

United States Court of Appeals Fifth Circuit.

August 11, 1960.

Rehearing Denied October 6, 1960.

William L. Kerr, Midland, Tex., Edward W. Schall, Wilmington, Del. (Turpin, Kerr, Smith & Dyer, Midland, Tex., of counsel), for E. I. duPont de Nemours & Co.

John J. Watts and Thomas A. Sneed, Odessa, Tex., for Lonnie A. Dement.

James Little, Big Spring, Tex., John W. Scott, Joplin, Mo., for Olin Mathieson Chemical Corp. R. A. Wilson, Amarillo, Tex., Thomas J. Laffey, Jr., John H. Carroll, Wilmington, Del. (Underwood, Wilson, Sutton, Heare & Berry, Amarillo, Tex., of counsel), for Atlas Powder Co.

Before RIVES, Chief Judge, and HUTCHESON and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

A premature explosion of a charge being prepared for seismograph operations severely injured the plaintiff and killed his co-worker. The plaintiff sued the separate manufacturers of the gelatin dynamite, booster and electrical blasting cap which composed the charge. Based upon the general verdict that "we, the jury, find for the defendants, each and every one, against the plaintiff," the District Court entered a judgment for the defendants. Plaintiff appeals asserting many errors. His objections largely boil down to an assertion that the District Judge's charge to the jury erroneously excluded several substantive theories of recovery. The defendants counter that regardless of any so-called errors the judgment should stand as each of the defendants was entitled to a directed verdict because the evidence did not indicate with requisite certainty what caused the explosion or that any of the defendants were negligent in any regard.

Just how or why the explosion occurred is hotly disputed. Plaintiff, a driller's helper employed by the Seismic Engineering Company, was assisting a co-worker in the drilling of holes and preparing of explosive charges for seismographic exploration in certain counties in West Texas. In such operations an explosive, usually dynamite, is discharged in the ground causing shock waves which are registered on a seismograph and recorded. From this, information about earth strata useful in oil exploration is ascertained. As is sometimes the case with a useful product, the materials were potentially extremely dangerous. Here the charge was to be composed of sticks of gelatin dynamite manufactured by Atlas but sold by Olin under its trademark, a metal cylinder booster manufactured by duPont and an electrical blasting cap manufactured by Olin.¹ All three articles contained high explosives. The dynamite is in the form of hard paperboard tubes approximately two inches in diameter and 24 inches long. Each tube — stick — is sealed by heavy paper at each end. Each "stick" is formed to permit coupling of two or more sticks. Here five sticks were joined.

The three articles are connected together to make up the seismograph charge. First, a hole is made or enlarged in one end of the dynamite by the use of a metal punch. The round metal booster is pushed in the hole formed in the end of the dynamite and the electrical blasting cap is attached to the booster. Normally this combination is placed in a hole in the ground and detonated by an electric current.

At the time of the explosion, the plaintiff's co-worker, the driller, was assembling the charge. As was their practice, they had picked up dynamite and caps at the Seismic Company's powder magazine that morning. Under their usual practice the driller's helper (plaintiff) would couple the sticks of dynamite together and the driller would punch a hole in the dynamite and insert the booster and attach the cap. When the charge was assembled, they would lower it into a drilled hole in the ground with the cap and booster end of the dynamite being lowered first. The electric wires from the cap were snubbed around the charge and then ran to the reel to be connected to the switch and power source. Plaintiff had screwed the dynamite together and the driller had gone to his truck to get a booster and cap and had returned. Plaintiff did not specifically see the booster and cap. The driller in a squatting position had the punch in the dynamite and was pulling it out when the plaintiff walked a short distance away — about 18 feet — to the truck to get a drink of water. As he was standing by the truck, suddenly the explosives discharged instantly killing the driller and severely injuring the plaintiff.

Plaintiff's expert and lay witnesses advance several hypotheses as to what probably happened.

One of the theories revolved around the dynamite. Workers for Seismic Engineering Company testified that on occasion they had noticed that the dynamite covering was sticky and oily. This was said to be an indication that nitroglycerine contained in the dynamite had separated and was leaking. Such a condition would set in motion two likely causes of the explosion. One, with the nitroglycerine in such a state, the punching of the dynamite or the insertion of the booster with an unavoidable presence of an abrasive, such as sand or grit, could easily detonate the dynamite. Another was that the sliding of a worker's hand along the leaky stick of dynamite with some abrasive on it could easily create enough friction to cause such an explosion. Arguing against this factual basis which the jury was entitled to credit, the defendants urged that considerable doubt was cast by the fact that the dynamite is packaged in a waxed paper which the hot Texas sun might tend to make look somewhat sticky. This, it was claimed, was corroborated by the testimony of the plaintiff — who had only three days' experience — that he did not notice that the dynamite used that morning was oily.

A second theory regarding the dynamite was that by the very nature of the operation, it was necessary to punch a hole in the end of the dynamite to insert the booster, which was the universal practice. The withdrawal of the punch might carry with it a film of nitroglycerine which could easily be detonated by an abrasive when the booster was purposefully pushed into the dynamite. Hence, the fault was the manufacture and sale of dynamite with an improper receptacle or means for insertion of an expected booster. In line with this, plaintiff contended that the dynamite was improperly packaged and should have — like duPont's nitramon explosives contained in cans — provided a receptacle for the booster not requiring a forceable insertion thus eliminating the problem of the introduction of abrasives.

Plaintiff's theory about the booster seems to be this. It was negligence to manufacture and sell a booster which was known would have to be pushed into a hole in the end of dynamite which necessarily had to be enlarged to accommodate the booster.

The theory as to the cap was that due to heat and pressure the cap, made of a plastic material, was defective since with any slight manual pressure during attachment it could have detonated, in turn causing the booster and dynamite to explode. Plaintiff also contended that Olin negligently supplied an outmoded cap (style '52) which deteriorated easier in the heat and which should have been recalled and replaced by the safer new cap (style '56). Olin contends that in fact a style 56 was being used and that the evidence will permit no other conclusion. But regardless of the style of the cap, plaintiff contends that it was defective.

Typical of the cross examination of an expert in cases of this kind, each of the theories advanced was questioned in an attempt to find the weak spot or underlying fallacy. In addition, the defendants offered several theories of their own. One was that somehow the driller detonated the assembled charge by allowing it to strike a pole used to lower the charge into the holes in the ground. This, of course, would have to be weighed in the light of plaintiff's contrary testimony and circumstances regarding the distances of the poles from the charge. Also, in an effort to show that the booster and cap were not involved, some of the defendants blamed the explosion on the metal punch used to make a hole in the dynamite. This is offset by testimony of the plaintiff that punching of the hole was completed before the accident and the circumstance that the punch itself was found intact after the accident with no appearance that it had been directly involved in the explosion. Here again the evidence was conflicting and properly was for the jury to resolve.

We have not attempted to inventory and discuss each bit of evidence in this 1800-page record, Travelers Ins. Co. v. Truitt, 5 Cir., 1960, 280 F.2d 784. But we have set forth these highlights, briefly discussed, to demonstrate that as to all of the defendants except duPont, the issues were properly for the jury to resolve.

We are, however, convinced that no case was ever made out against the duPont booster. There was no evidence of any kind and really no serious contention that it was the booster which suddenly exploded setting off the more powerful explosives. In fact virtually all the evidence about the booster came from Mr. Von Ludwig, plaintiff's expert witness, who reiterated several times that there was no fault in the booster as such.²

The only possibility seriously advanced was that perhaps the metal booster had picked up some abrasive, such as silica sand, while being handled which caused the dynamite to explode when the booster was pushed into the dynamite. It was a very real possibility that a film of nitroglycerine could have been released during the punching of the hole and the subsequent insertion of the booster with an abrasive could have detonated the dynamite. But if such was the case, the fault was not due to any defect in the booster, but solely to the manner in which it was used. Any issue as to...