Franks v. National Dairy Products Corporation

• Decision Date: 08 August 1969
• Docket Number: No. 26441.,26441.
• Citation: 414 F.2d 682
• Parties: Jody E. FRANKS, Plaintiff-Appellee, v. NATIONAL DAIRY PRODUCTS CORPORATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

414 F.2d 682 (1969)

Jody E. FRANKS, Plaintiff-Appellee, v. NATIONAL DAIRY PRODUCTS CORPORATION, Defendant-Appellant.

No. 26441.

United States Court of Appeals Fifth Circuit.

July 10, 1969.

Rehearing Denied August 8, 1969.

William L. Garwood, Austin, Tex., J. Fraser Humphreys, Jr., Memphis, Tenn., for appellant, National Dairy Products Corporation; Graves, Dougherty, Gee, Hearon, Moody & Garwood, Austin, Tex., Lawler & Humphreys, Memphis, Tenn., of counsel.

Don L. Davis, Byrd, Davis, Eisenberg & Clark, Tom H. Davis, Austin, Tex., for plaintiff-appellee.

Before THORNBERRY and AINSWORTH, Circuit Judges, and DAWKINS, District Judge.

THORNBERRY, Circuit Judge:

This is an appeal from a judgment of the district court awarding damages to plaintiff-appellee for injuries caused by an "explosion" of shortening manufactured by appellant. Appellant argues that reversible error was committed on two points: (1) The trial court's findings were clearly erroneous because based on insufficient evidence and because induced by an erroneous view of the law; and (2) the district erred in admitting alleged hearsay evidence. We affirm.

Appellee Jody Franks was the owner and operator of Jody's Big Burger drive-in restaurant. Franks had purchased Kraft's Red Label shortening for use in his deep-fry cooker since 1958 and was using that brand at the time of the accident in August, 1963. Red Label is manufactured by appellant, National Dairy Products Corporation, and is widely distributed for commercial use. On August 7, 1963, Franks decided to drain his deep-fry cooker of the shortening that had been in it for about three days, and to re-fill it with fresh shortening. Following his usual procedure, he turned off the fryer and let it cool for about three or four minutes. He then drained the shortening into an empty Red Label container that he had washed out several days earlier. After talking to a customer for a few minutes, Franks walked over to the can of shortening. As he reached over the can to see if all the grease had been drained, the hot grease splattered with a loud noise, covering his hands, arms, face and shoulders.

I.

The case was tried to the court, and the judge held appellant liable for the injuries caused by the splattering grease under Section 402A of the Restatement of Torts, as embodied in the applicable Texas substantive law. See McKisson v. Sales Affiliates, Inc., Tex.Sup.Ct.1967, 416 S.W.2d 787. The trial court found that appellant was engaged in the business of selling Red Label shortening; that appellee was an intended user, one the manufacturer should have reasonably expected to use its product; that appellee negatived improper use or handling; and that appellee negatived causes of the accident other than the product's own defective condition.¹ Appellant argues that the last two findings are clearly erroneous under the evidence and the applicable principles of law.

Under Rule 52(a) of the Federal Rules of Civil Procedure, findings of fact by the trial court will not be set aside on appeal unless they are clearly erroneous. The appellate court is not to substitute its judgment for that of the trial court where there is substantial credible evidence to support the court's findings. Sanders v. Leech, 5th Cir. 1946, 158 F.2d 486. The lower court's findings may be reversed as clearly erroneous only when "the force and effect of the testimony considered as a whole convinces that the finding * * * does not reflect or represent the truth and right of the case," Sanders v. Leech, supra, or when the reviewing court is left "with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 1948, 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746. Findings of fact may also be set aside if they were induced by an erroneous view of the law. Chaney v. City of Galveston, 5th Cir. 1966, 368 F.2d 774. Our inquiry, then, is whether the trial court's findings were (1) based on substantial evidence, and (2) based on a proper view of the law.

Appellant contends that there is no — or at least insufficient — evidence of a defect in its product which was the cause of the "explosion" and resulting injuries to appellee. There was expert testimony to the effect that shortening itself could not explode and that the only logical explanation for the splattering of the grease was that it contained a foreign element, such as water. The witness explained that water can "superboil," that is, remain in a liquid state at a temperature above 212 degrees, and that when it finally does turn to steam it does so very rapidly and violently, causing an "explosion" and loud noise. Thus if even a small amount of water were in the shortening, its transition from liquid to steam might cause an explosion that would splatter the grease.

Appellant essentially argues that there must have been water or a similar liquid in the can of drained shortening or else there would have been no explosion. Since water particles are usually present in refrigerated foods, appellant implies that water from a piece of food in the drained grease caused the explosion. Or perhaps, insists appellant, there was water in the can before the shortening was drained into it. Since the plaintiff has the burden of proving that the product has been properly handled and has not been substantially changed since it left the manufacturer's hands, appellant argues that appellee had the burden of proving that there was no water in the hot grease and that he failed to meet that burden. There was, however, testimony by the appellee which tended to negate the presence of foreign elements in the shortening. Appellant's handbook recommended that the shortening be filtered through a mechanical device or several thicknesses of cheesecloth every day. Appellant's expert testified that a can of Kraft shortening, properly drained, could last almost indefinitely. Appellee used as a strainer a metal screen filled with holes approximately 5/32 of an inch in diameter, and he normally replaced used shortening with new shortening every four days. Further, appellee testified that the can was dry when he started to drain the grease into it on the night of the incident in question. On the basis of this evidence, the trial judge found that appellee had negatived improper use or handling and that there was no water or foreign liquid in the container at the time of the explosion.

It is not our task to re-try the facts of the case; this is especially true where the lower court's findings are based on oral testimony and the trial judge has viewed the demeanor and judged the credibility of the witnesses. Bryan v. Kershaw, 5th Cir.1966, 366 F. 2d 497. It does not help appellant that its expert witness testified that the explosion could not have occurred but for the presence of water or a similar liquid. The trial court was not bound to accept the opinion of the expert witness but, rather, had a right to use his own common sense and experience and to draw all reasonable inferences from the physical facts and occurrences. Cf. Remington Arms Co., Inc. v. Wilkins, 5th Cir.1967, 387 F.2d 48. Having reviewed the record, we hold that the trial court could have reasonably concluded from the evidence that the appellee negatived improper use or handling and that he negatived causes for the explosion other than the product's defect (by showing that there was no water in the hot grease), and therefore we must uphold his findings on those matters.

Appellant further argues that the district court's findings were clearly erroneous because induced by a mistaken view of the law. More specifically, appellant claims that it was improper for the trial court to infer a defect in its product merely on the basis of the circumstantial evidence offered at the trial because by so doing the trial judge in effect shifted the burden of proof to the defendant to explain just how and why the explosion occurred, and applied the doctrine of res ipsa loquitur or its equivalent to a case to which it could not properly be applied, under Texas law. In essence, appellant alleges that a specific defect was not proved and therefore, under the applicable law, appellee was not entitled to a recovery.

Admittedly, a specific defect was not proved, and the trial court's reasoning on the finding of a defect is evident in the following language:

Under the Jakubowski Jakubowski v. Minnesota Mining & Mfg. Co., 1964, 42 N.J. 177, 199 A.2d 826 reasoning, it is further necessary for the plaintiff to negative causes of the explosion other than the product's defective condition. It appeared from the testimony that there could have been three possible causes for the...