Glass v. United States Rubber Company, 9263

• Decision Date: 06 September 1967
• Docket Number: 9264.,No. 9263,9263
• Parties: Nettie A. GLASS, Administratrix of the Estate of Billy Morrison Glass, Deceased, Appellant, v. The UNITED STATES RUBBER COMPANY, a corporation, Appellee. David A. GRAMMER, Administrator of the Estate of Burl Ronald Suther-land, Deceased, Appellant, v. The UNITED STATES RUBBER COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

382 F.2d 378 (1967)

Nettie A. GLASS, Administratrix of the Estate of Billy Morrison Glass, Deceased, Appellant, v. The UNITED STATES RUBBER COMPANY, a corporation, Appellee.

David A. GRAMMER, Administrator of the Estate of Burl Ronald Suther-land, Deceased, Appellant, v. The UNITED STATES RUBBER COMPANY, a corporation, Appellee.

Nos. 9263, 9264.

United States Court of Appeals Tenth Circuit.

September 6, 1967.

George T. Harris, Albuquerque, N. M. (Modrall, Seymour, Sperling, Roehl & Harris, Albuquerque, N. M., on the brief), for appellant Nettie A. Glass, administratrix, etc.

Willard F. Kitts, Albuquerque, N. M., for appellant David A. Grammer, administrator, etc. A. H. McLeod, Albuquerque, N. M. (Keleher & McLeod and Russell Moore, Albuquerque, N. M., on the brief), for appellee.

Before PHILLIPS, LEWIS and HILL, Circuit Judges.

ORIE L. PHILLIPS, Circuit Judge.

These are wrongful death actions brought by Nettie A. Glass, as administratrix of the estate of Billy Morrison Glass, deceased, and David A. Grammer, as administrator of the estate of Burl Ronald Sutherland, deceased,¹ against the United States Rubber Company.²

Before the commencement of these actions, such administratrix, in behalf of her decedent, and such administrator, in behalf of his decedent, had brought a wrongful death action against Stratoflex, Inc., and others in the District Court of Bernalillo County, New Mexico. Those actions were consolidated for trial and resulted in a judgment on jury verdicts in favor of Stratoflex.

The instant actions were consolidated for hearing, and the trial court held that the state court judgment was a bar to each of them, under the doctrine of res judicata, and entered a judgment dismissing such actions. Each of the personal representatives has appealed.

In Henderson v. United States Radiator Corporation, 10 Cir., 78 F.2d 674, 675, the court said:

"The doctrine of res judicata embodies two main rules which may be stated as follows:

"(1) The final judgment or decree of a court of competent jurisdiction upon the merits concludes the parties and their privies to the litigation, and constitutes a bar to a new action or suit upon the same cause of action either before the same or any other tribunal.

"(2) Any right, fact or matter in issue and direcly adjudicated, or necessarily involved in the determination of an action before a competent court in which a judgment or decree has been rendered upon the merits, is conclusively settled by the judgment therein and cannot again be litigated between the same parties and their privies, whether the claim, demand, purpose or subject-matter of the two suits is the same or not.

"The principle of the first rule is referred to as `bar by former judgment,\' and the second as `conclusiveness of judgment.\'"³

It is a well established general rule that to constitute an estoppel under the doctrine of res judicata, the action in which the judgment was rendered and in which it is asserted as a bar must be between the same parties or their privies.⁴ In the instant cases there was no showing that Stratoflex and the Rubber Company were privies. However, the trial court applied the estoppel by judgment rule, holding that such cases fell within an exception to the general rule, above stated.

The facts out of which the instant actions arose are these:

On and prior to September 11, 1962, Marjorie Barrett, dba Monte's Star Truck Stop, owned and operated a cafe, facilities for storing propane gas and selling it at retail, and other facilities at her truck stop, located on U. S. Highway 66 in Bernalillo County, New Mexico. The propane gas facilities consisted of a storage tank of 12,000 gallon capacity, two pumps with connecting hoses for delivery of gas to retail purchasers, an electric motor, a two-inch hose with means to connect it with the storage tank and with a truck tank for delivery of propane gas from the truck tank to the storage tank, and a small hose to be connected with the truck tank and the storage tank to equalize the vapor pressure between them. The two-inch hose had an inner tube made of neoprene, which is a synthetic rubber, reinforced with one braid of fabric cord and one braid of carbon steel wire mesh, and an outer covering of rubberized material.

The propane storage and dispensing facilities were furnished and installed by Arrow Gas Company.⁵ The two-inch hose was manufactured by the Rubber Company for Stratoflex. In Stratoflex's catalog it was identified as No. 225 and will hereafter sometimes be referred to as the No. 225 hose here involved.

On September 11, 1962, Glass and Sutherland were employed by Arrow as drivers and operators of one of Arrow's tank trucks, used to transport and deliver propane gas to retailers thereof. On that day they were engaged as such employees in the delivery of propane gas from the truck tank into Barrett's storage tank at the truck stop. On arriving at the truck stop they connected the No. 225 hose here involved with the truck tank and the storage tank and commenced the delivery of propane gas into the storage tank. They then went into the cafe, about 100 feet distant from the point of delivery. Shortly after they entered the cafe, they heard a loud whoosh and immediately ran to the truck. Soon after they reached it, the propane gas, which was escaping from a rupture in the No. 225 hose here involved and producing the whoosh sound, caught on fire and each of them suffered severe burns from which he died.

Stratoflex furnished the Rubber Company with description standards for the No. 225 hose here involved, which set forth the performance requirements for such hose, as to bursting pressure, which was 1,400 pounds per square inch, working pressure, which was 350 pounds per square inch, diameter, bend radius, tolerances, and the like, but it left the materials to be used, the design, and the actual method of construction to the manufacturer. In other words, Stratoflex made certain end result requirement standards, but left to the Rubber Company the determination of the design, the materials to be used, the means and methods to be followed to attain such requirement standards, and the carrying out of the actual construction.

Stratoflex made pressure tests on hoses like the No. 225 hose here involved, selected from shipments received by it from the manufacturers thereof. However, it did not test all of the hoses in a shipment. It left to the manufacturer the testing of each individual hose. Manufacturers of hoses like the No. 225 hose here involved test each such hose they manufacture.

A catalog of Stratoflex,⁶ which described the No. 225 hoses, was introduced in the state court actions. It sets forth the construction of the No. 225 hoses, as follows:

"Hose construction; Seamless synthetic rubber inner tube, reinforced with one braid of fabric cord, one braid of high tensile wire and covered with a synthetic rubber cover;"

and the identification markings as follows:

"Identification; a continuous green marking strip parallel to the hose axis and consisting of manufacturer\'s code initial, `Stratoflex 225-size\' and date of manufacture repeated every 18 inches or less." (Italics ours.)

The evidence established that the No. 225 hose involved in the instant actions was stamped by the Rubber Company with the initials "U.S.R." — the initials of the United States Rubber Company — and the word "Stratoflex." It is a reasonable assumption that there was also stamped on such hose its size (two inches)⁷ and the date of its manufacture, and that all of the above markings were repeated every 18 inches or less, throughout the length of such hose.

The causes of action against Stratoflex, set up in the original complaints in the state court cases, were all predicated on the premise that Stratoflex was the manufacturer of the hose.

By the second cause of action in his complaint in the state court, Grammer, as administrator, sought recovery against Stratoflex. At the pretrial conference he was permitted to amend paragraph 4 of Count One of such second cause of action to read as follows:

"That the Defendant STRATOFLEX, INC. negligently manufactured and designed said hose, or in the alternative, stands in the position of the designer and manufacturer of said hose; that said Defendant negligently failed to warn of the unreasonable dangers associated with said hose, and was further negligent in the furnishing of a defective product not suitable for the purpose for which it was sold."

While the record in the state court does not show a like amendment by Glass, as administratrix, of the third and fourth causes of action of her complaint in her state court action in which she sought recovery against Stratoflex, setting up such alternative grounds for recovery, it is quite clear that the consolidated actions in the state court with respect to the claims asserted against Stratoflex were tried on the alternative grounds or theories that Stratoflex either manufactured the No. 225 hose here involved or held itself out as the manufacturer of such hose. That is clearly shown by the court's instructions, as we shall presently show.⁸

In the consolidated cases in the state court, the court instructed the jury in part as follows:

"24. You are instructed in this connection, that if you find that Stratoflex 225 hose was so labeled, advertised and marketed by the defendant as to lead those who use it to believe that it was the product of Stratoflex, Inc., then the defendant is subject to the same duty as though it were the actual manufacturer."

The state court also instructed the jury with respect to the duties of the manufacturer of a hose like the No. 225 hose involved in this action in substance as follows: That he "must have sufficient technical knowledge" of a product he manufactures "to form a reasonably accurate judgment as to whether the product is made under such procedures as are necessary to insure a reasonably safe finished product"; "that a...