Doss v. Apache Powder Company

• Decision Date: 03 September 1970
• Docket Number: No. 27521.,27521.
• Citation: 430 F.2d 1317
• Parties: Charles E. DOSS et al., Plaintiffs-Appellees, v. APACHE POWDER COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

430 F.2d 1317 (1970)

Charles E. DOSS et al., Plaintiffs-Appellees, v. APACHE POWDER COMPANY, Defendant-Appellant.

No. 27521.

United States Court of Appeals, Fifth Circuit.

July 24, 1970.

Rehearing Denied and Rehearing Denied September 3, 1970.

W. O. Shafer, James M. O'Leary, Shafer, Gilliland, Davis, Bunton & McCollum, Odessa, Tex., for defendant-appellant.

John J. Watts, Odessa, Tex., for plaintiffs-appellees.

Before THORNBERRY, GODBOLD and MORGAN, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied September 3, 1970.

GODBOLD, Circuit Judge:

This is an appeal from a judgment entered in the Western District of Texas against Apache Powder Company for damages for personal injuries to three persons and the death of a fourth in an accidental explosion of Apache dynamite in Texas. We reverse and remand for a new trial.

When the explosion occurred the dynamite was on a truck of C. H. Brockett, Inc., which used dynamite in recovering casings from oil wells. Those injured and killed were employees of Brockett. The chain of circumstances from manufacture to explosion were these. Apache manufactured the dynamite at its plant in Arizona. Within four months after manufacture, in sales completed at the plant, it sold dynamite to Mrs. Genevieve Randol, a dealer of Odessa, Texas. Mrs. Randol transported the dynamite from Arizona to Texas in her own trucks and stored it in magazines owned by her in Texas. She sold some of it in Texas to Brockett.

Brockett stored its dynamite in its own magazine until needed, then it would be placed on a Brockett truck to be hauled to job sites. Brockett made its last purchase of dynamite from Mrs. Randol around 30 to 45 days prior to the explosion. The dynamite which exploded was two and a half years old.

Dynamite is made of nitroglycerine mixed with inert matter. Plaintiffs contended that the dynamite on the Brockett truck had deteriorated because of improper transportation and storage and due to the passage of time since its manufacture, resulting in the nitroglycerine separating from the inert material, making the dynamite more sensitive to heat. The dynamite caught fire and exploded. Plaintiffs contended that the fire may have been caused by an under-inflated tire on the truck becoming overheated.

Numerous theories of recovery were submitted to the jury, including negligence by virtue of violation of an Arizona statute, strict liability, breach of warranty, res ipsa loquitur and specific acts of negligence. A verdict was returned for the plaintiffs in the amount of $397,200.

1. The charge on the Arizona statute.

The trial court reversibly erred in giving the following charge, duly objected to, based on an Arizona statute relating to manufacture and sale of explosives.

First, presenting the Plaintiff\'s theory of the case to you, you are instructed that this is a suit brought under statutory law, to-wit: The Statutes of Arizona, as well as a suit brought by Plaintiffs for breach of an implied warranty, and in addition to this, the Plaintiffs in this cause have sued for negligence at common law in many different respects, and it is necessary that the Court in this Charge give you the applicable law, first with reference to the statutory action that is brought. It is provided by Section 27-322, Sub-section (B), Arizona revised Statutes, as follows: "No nitroglycerin, nitro, blasting powder or other high explosives shall be sold or used after twelve months from the date of manufacture." It appears without dispute that the sale of the dynamite involved in this explosion was completed in Arizona and hence the law of Arizona is controlling here.

You are therefore instructed by the Court that if you find that a Statute of Arizona has been violated with reference to the sale of the dynamite which was sold in Arizona, then in such event, you will find that the Apache Powder Company was guilty of negligence as a mater of law, if you find that this law was designed as a safety measure and because there is a potential danger in the use of dynamite over one year of age.

If you further find and believe from a preponderance of the evidence that it was the purpose of the Arizona Legislature in the passing of such statute to protect users and purchasers of dynamite, such as the plaintiffs herein, and Wayland Smith the decedent, from damages and injuries, and if you believe that it was passed for the safety of those using explosives, you will therefore find from a preponderance of the evidence, if you so find, whether or not the statutory negligence of the Defendant, as a result of the violation of the statute, if you have so found, was a proximate cause of the damages suffered by each of the Plaintiffs, as that term has been defined herein, and if you so find said negligence, if any, and said proximate cause, if any, then you will find for the Plaintiffs.

The charge was erroneous in several respects. None of the dynamite was as much as twelve months old when sold by Apache to Randol in Arizona. Thus Apache did not breach the Arizona statute by any sale in Arizona.

If any sale of over-age dynamite occurred it took place in Texas when Randol sold to Brockett. Apache could have no responsilbity from the making of that sale unless Randol was its agent, or unless Texas law made Apache responsible for the acts of its independent dealer engaged in selling dynamite. Because of these possibilities of vicarious liability of Apache, we must discuss whether the Arizona statute could affect the Texas sale.¹

In this diversity action, we are bound to apply the law of Texas, including its conflict of laws rules. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Under that law, an action for products liability is one in tort and not in contract. Helene Curtis Industries, Inc. v. Pruitt, 385 F.2d 841 (5th Cir. 1967); McDevitt v. Standard Oil Company of Texas, 391 F.2d 364, 369 n.7 (5th Cir. 1968). Under Texas choice of law rules, in tort cases, the lex loci delicti governs. Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182 (Tex. 1968).

The last paragraph quoted above from the charge appears to say that the purpose of the Arizona legislature goes along with the dynamite wherever it travels, so that an injured Texas user of Arizona dynamite sold in Texas more than a year after its manufacture is entitled to recover against the manufacturer because of the Arizona one-year rule. This is incorrect. The Texas law articulating the consequences of a sale of dynamite in Texas is concerned with Arizona law to the extent only, if at all, that Texas may have incorporated it into its own law. Rights created by a foreign statute will be denied enforcement in Texas unless the Texas statute law creates a similar right. State of California v. Copus, 158 Tex. 196, 309 S.W.2d 227, cert. denied, 356 U.S. 967, 78 S.Ct. 1006, 2 L.Ed.2d 1074 (1958); Moore v. Bramlett, 415 S.W.2d 526 (Tex.Civ.App., 1967). We are referred to no Texas law forbidding the sale of aged explosives, and we have discovered none.²

Arguably, Arizona policy relating to dangerous materials manufactured or initially sold within its borders, as exemplified either in its statutes or its nonstatutory law, could be so compelling that Texas might give effect to it in determining whether under Texas law there are Texas-imposed duties the breach of which would give rise to liability in Texas. In such event Texas would not be giving extraterritorial effect to Arizona law but employing Arizona law as a useful tool in deciding what its own law should be.

The plaintiffs refer us to nothing in Texas jurisprudence, and we find nothing, which would indicate that Texas has incorporated into its law the Arizona one-year policy, or that it follows a rule that with respect to Texas sales of dynamite the maximum allowable safe age shall be that prescribed by the state of its manufacture.

The plaintiffs assert that the lex loci rule, having been repudiated or qualified in a number of jurisdictions, is no longer good law anywhere. This ignores the recent Marmon decision. Appellee's argument that Marmon was decided by a close vote and that two new justices have come to the Texas Supreme Court since that decision was handed down, so that it should be regarded as overruled, ignores the principle of stare decisis, disregards the fact that many jurisdictions have chosen to retain the traditional rules when litigants urged that such rules be discarded³ and asks the federal courts to second-guess the highest court of a state as to matters of state law.

A staggering multiplicity of other grounds are asserted as error in the charge and in admission of evidence. We discuss some of them which might arise at another trial.

2. Charges

The availability under Texas law of the doctrine of res ipsa loquitur against the manufacturer of dynamite has been settled in Dement v. Olin-Mathieson Chemical Corp., 282 F.2d 76 (5th Cir. 1960), subject to our later decision in Helene Curtis, supra. Whether intervening acts of others and the passage of time are sufficient to show alteration or change in condition of the dynamite after manufacture is for the jury. Dement, supra at 83.⁴

The trial judge charged that dynamite is an inherently dangerous product and that it was the duty of Apache to warn the dealer (Mrs. Randol) and her employees and Brockett and "the users of the product" of any inherent dangers in the use of dynamite which the plaintiffs did not know or in the exercise of reasonable care could not have discovered, and that the duty to warn was nondelegable and could not be discharged by giving of warnings to a dealer or distributor. This was not, as claimed by defendant, a charge of absolute duty to warn since it contained, albeit in a somewhat confusing manner, the qualification as to dangers of which the plaintiffs knew or should have known.

The charge was erroneous in requiring that the warning actually be brought home to the...