Dulin v. Circle F Industries, Inc.

• Decision Date: 03 August 1977
• Docket Number: No. 76-1393,76-1393
• Citation: 558 F.2d 456
• Parties: Karen DULIN, Administratrix of the Estate of John W. Dulin, Deceased, Weyerhaeuser Company, Don McCormick Painting Company, Hubbell Lighting Division, Harvey Hubbell, Inc., Pass and Seymour, Inc., and William C. Haynes, Appellees, v. CIRCLE F INDUSTRIES, INC., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 456

558 F.2d 456

Karen DULIN, Administratrix of the Estate of John W. Dulin Deceased, Weyerhaeuser Company, Don McCormick Painting Company, Hubbell Lighting Division, Harvey Hubbell, Inc. Pass and Seymour, Inc., and William C. Haynes, Appellees, v. CIRCLE F INDUSTRIES, INC., Appellant.

No. 76-1393.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 12, 1977.

Decided July 5, 1977.

Rehearing Denied Aug. 3, 1977.

E. Lawrence Merriman, Texarkana, Tex. (argued), and David E. Hightower, Texarkana, Tex., on appendix and briefs, for appellant.

John B. Greer, III, Texarkana, Tex. (argued), and William A. Carter, Carrollton, Ky., for appellee Karen Dulin.

George L. McWilliams, Texarkana, Tex., argued and on brief for appellee, Don McCormick Painting Co.,

Before MATTHES, Senior Circuit Judge, and BRIGHT and HENLEY, Circuit Judges.

HENLEY, Circuit Judge.

This multi-party products liability case with respect to which the district court had diversity jurisdiction arises out of the accidental death by electrocution of John W. Dulin, which occurred on September 26, 1973. At the time of his death Dulin and a fellow employee, William C. Haynes, were in the employ of Don McCormick Painting Company of Little Rock, Arkansas, and were engaged in work preparatory to the sandblasting and painting of the interior of an elevated steel water tank located at the Briar Plant of Weyerhaeuser Company in Nashville, Arkansas.

The accident resulted from the malfunction of an electrical assembly that Haynes, the "lead man" on the job, had put together for the purpose of providing illumination for the sandblasting and painting work that was to be done inside the tank. The malfunction was caused by the fact that Haynes, who was not an electrician, had miswired a male plug or connector that he had affixed to one of the two extension cords that were component parts of the assembly that the men planned to use. The miswiring of the male plug caused a metal clamp on a female connector at the other end of the assembly to become electrically energized as it was being held by Dulin, and the current entered Dulin's body causing his death.

The female connector just mentioned had been manufactured and sold by appellant, Circle F Industries, Inc., and the male plug that was miswired had been manufactured and sold by Pass and Seymour, Inc. The female plug was located at what we will call the distal end of the assembly, and the male plug was located at the proximal end.

At the time of his death Dulin was covered by the Arkansas Workers' Compensation Act, Ark.Stat.Ann. §§ 81-1301 et seq., and his surviving widow and minor child were paid benefits under the Act.

Dulin's widow was appointed administratrix of his estate, and in 1974 she commenced this action in the United States District Court for the Western District of Arkansas as authorized by Ark.Stat.Ann. § 81-1340. The original complaint named no defendant other than Circle F, and claimed that Circle F was liable for the death of Dulin on account of alleged negligence and breach of warranties and on the theory of strict liability in tort.

Circle F denied liability. Numerous pleadings, amended pleadings and cross-pleadings were filed, and new parties were brought into the case. Weyerhaeuser became both a principal defendant and a third party defendant. Don McCormick Painting Company and Haynes were named as third party defendants. Another third party defendant was Harvey Hubbell, Inc., the manufacturer of a spotlight that Dulin was undertaking to use when he was killed.

When the case came to trial, plaintiff was asserting claims against Circle F, Pass and Seymour, Inc. and Weyerhaeuser. Circle F and Pass and Seymour were asserting third party claims against Weyerhaeuser, McCormick, Hubbell and Haynes.

The case was tried to a jury on March 15-18, 1976, with Chief United States District Judge Paul X Williams presiding. At the conclusion of the evidence Judge Williams directed verdicts in favor of Weyerhaeuser, McCormick and Hubbell; he denied motions for directed verdicts filed by Circle F, Pass and Seymour and Haynes.

As to the defendants and third party defendants just mentioned, the case was submitted to the jury on plaintiff's negligence theory only, and the jury was told that it could not find against Haynes unless it found against at least one of the principal defendants. The district court declined to instruct the jury on alleged assumption of risk by Dulin and also refused requests by the defendants to instruct the jury with respect to the alleged contributory negligence of Dulin.

The jury returned a verdict against both Circle F and Pass and Seymour but found that they were not entitled to contribution from Haynes. The awards amounted to $125,000.00, and the jury apportioned them between the widow and the minor child.

On March 24, 1976 the district court entered judgment in accordance with the verdict. On April 5 a motion for judgment notwithstanding the verdict filed by Circle F was denied, and Circle F filed a notice of appeal on April 15. Circle F is the only appealing party. ¹

For reversal, Circle F contends that the district court erred in denying its motion for judgment notwithstanding the verdict and also erred in directing verdicts in favor of Weyerhaeuser and McCormick. Circle F contends further that the district court erred when it refused Circle F's request for an instruction on the alleged contributory negligence of Dulin. Circle F does not complain about the dismissal of its claims against Hubbell and Haynes.

There is little dispute about the historical facts of the case, but they need to be stated in some detail.

Don McCormick Painting Company is an Arkansas corporation, all of the stock in which is owned by Don McCormick. McCormick is a painting contractor and engages in industrial painting and related work including the sandblasting and repainting of metal structures such as water tanks.

Sandblasting equipment used by employees of McCormick is powered by compressed air. In industrial painting much use is made of electrical power, including its use for the purpose of illuminating interior work sites such as the inside of a tank. The use of electrical equipment on a job often involves the use of an extension cord or a combination of two or more cords connected together and with the whole assembly being connected to a power source.

An extension cord normally has a "female" connector at one end and a "male" connector at the other end. When a cord is bought new, it comes equipped with plugs or connectors at each end. However, if a cord is used over a period of time, it may become necessary to replace one or both of the plugs or connectors.

Equipment used by McCormick employees is furnished by McCormick, and McCormick maintains a shop in Little Rock where equipment is stored and repaired. The work done in the shop includes replacing defective or worn out plugs ² with new ones. Some extension cords used in industrial work contain three insulated wires, a live or "hot" wire, a ground wire and a neutral wire. Plugs for such wires have three terminals, each of which is supposed to be connected with a corresponding wire in the cord. Thus, when connecting a plug to a cord one wires hot to hot, ground to ground, neutral to neutral. A male plug for a three wire cord has three prongs protruding from it which may be fitted into openings in a female plug.

Probably most if not all three wire cords in use in recent years have their wires "color coded." The insulation of the hot wire is generally black; the insulation on the ground wire is generally green, and the insulation on the neutral wire is generally white or some neutral color. The terminals in three prong plugs are also color coded in a manner that at least roughly corresponds to the colors of the insulation on the wires that make up the cord. Additionally, the shape of a terminal in a plug may indicate to an electrician whether the terminal is a hot terminal, a ground terminal or a neutral terminal.

In connecting a plug to a cord it is highly important from the standpoint of safety that the ground wire in the cord be connected to the ground terminal in the plug. If the ground wire is connected to the hot terminal, the connection may be a source of danger to a user. However, if the ground wire is connected to the ground terminal, other miswirings will not likely constitute a hazard, although they may prevent the circuit from operating.

As we have said before, the work of replacing plugs is generally done in the McCormick shop in Little Rock, and McCormick has testing devices to determine whether a plug has been connected properly. Painters employed by McCormick are not usually electricians, and they are discouraged from undertaking to make repairs on electrical equipment. However, they are not positively forbidden to undertake minor repairs if they feel competent to do so. During the time with which we are concerned McCormick painters had no particular directives as to what to do should they encounter electrical difficulties while on a job a substantial distance from Little Rock.

Both Haynes and Dulin were painters and neither had had any electrical training. In late September, 1973 Haynes had been working for McCormick for about two years and Dulin had been employed for about two months; Don McCormick testified that he considered both men to be good workers. The two had not met more than a few days before the accident with which we are concerned.

Shortly prior to September 25, 1973 McCormick and Weyerhaeuser entered into a contract under the terms of which McCormick undertook to supply all labor, equipment and materials necessary to sandblast and repaint at least the interior of the Weyerhaeuser tank at Nashville which is about one hundred miles from Little Rock. Haynes and Dulin were assigned to do the work, and, as stated, Haynes was the "lead man" on the job.

It was contemplated that the...