Green v. Edmands Co., 80-1080

• Decision Date: 13 March 1981
• Docket Number: No. 80-1080,80-1080
• Parties: William Edward GREEN, Plaintiff-Appellant, Texas Employers' Insurance Assn., Intervenor-Appellant, v. The EDMANDS COMPANY, et al., Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 286

639 F.2d 286

William Edward GREEN, Plaintiff-Appellant Texas Employers' Insurance Assn., Intervenor-Appellant, v. The EDMANDS COMPANY, et al., Defendants-Appellees.

No. 80-1080

Summary Calendar.

United States Court of Appeals Fifth Circuit.

March 13, 1981.

Baron & Cowley, Jack Barry Cowley, Dallas, Tex., for Green.

Sharp, Ward, Rass & McDaniel, T. John Ward, Longview, Tex., for T.E.I.A.

Nichols & Parker, Rex A. Nichols, Longview, Tex., for defendants-appellees.

Appeals from the United States District Court for the Eastern District of Texas.

Before HILL, GARZA and THOMAS A. CLARK, Circuit Judges.

THOMAS A. CLARK, Circuit Judge:

Plaintiff in this action, William Edward Green, brought suit against The Wanskuck Company and its division, The Edmands Company (hereinafter "Edmands"), pursuant to diversity jurisdiction in the United States District Court for the Eastern District of Texas. Plaintiff sought relief under Texas' doctrine of strict liability, alleging that a machine designed and manufactured by Edmands was defective, unreasonably dangerous to plaintiff, and that such defective condition had caused plaintiff's injuries. The jury returned a unanimous verdict on November 16, 1979, finding in answer to interrogatories that, (1) defendants' product was defective, unreasonably dangerous to plaintiff, and that the defective condition was a producing cause of the accident in question, (2) $80,000 would fairly and reasonably compensate the plaintiff for the injuries he sustained as a result of the accident and (3) plaintiff assumed the risk of the occurrence in question. The court then concluded from the third interrogatory that Green and the intervenor, Texas Employers' Insurance Association, would take nothing by reason of their suit. From this judgment plaintiff Green now appeals. We reverse in part, and remand.

Green was employed as a machine operator by Aluminum Corporation of America (ALCOA) at its Scottsville, Texas, plant. The plant, which produces electrical conduit cable, first employed the plaintiff in May, 1973, as a helper in the Finishing Department, and approximately a year and a half prior to the accident, Green was transferred to the job of "heavy machine operator." On February 7, 1977, Green serviced a machine designed, manufactured, and sold by the defendant. The machine, known in the industry as a "four-wire heavy duty twisting machine," twisted electrical fibers together in a fashion analogous to a spinning wheel to form one single electrical cable.

The machine was purposefully designed to require gear changes in order to vary the diameters of the cables produced from the electrical fibers. In order to change the diameter a machine operator was expected to first loosen the central gear with a wrench, and then, placing both hands around the sharply-pronged circumference, to pull the gear down and off the first shaft, lift it up, and place it on the top of a second shaft. Because the gearbox was located within a few feet of the floor, the machine operator was required to kneel on the ground in order to achieve visibility and leverage. On the day of the incident appellant Green followed exactly this procedure in order to vary the diameter of the cable width.

The gear in question weighed 52 pounds and was coated with oil from the machine's oil bath lubrication system. At the time of the injury appellant loosened the gear with an Allen wrench, placed his hands around the circumference of the gear, and began to pull it downward along the shaft. As he pulled, the gear slipped off the end of the shaft, fell to the ground, and crushed Green's left ring finger.

Believing that he had severed his finger, appellant sought immediate attention from ALCOA's company physician, Dr. Cash. Cash sewed off the artery and then stitched the severed skin back together. Following this primary care, appellant underwent surgery on three occasions, and following the second surgery, developed blood clots in his left leg and was treated for phlebitis. Shortly after the operation to remove blood clots from appellant's leg, Green's surgeon, Dr. John Adams, referred appellant to a psychiatrist in Shreveport, Louisiana, Dr. William Wilkinson, who treated Green for "severe depression" for approximately two years. Between January, 1978, and May, 1978, while under Wilkinson's supervision, appellant was hospitalized for treatment of the depression.

Appellant originally brought suit against The Edmands Company in two counts, one in negligence and one in strict liability. At the close of the evidence, however, the court refused to instruct the jury on the negligence count as requested by appellant. Furthermore, over counsel's objection, the court instructed the jury that if appellant had assumed the risk of using appellee's product, appellant would not be entitled to recover for his injuries.

On appeal we are faced with the following questions:

(1) Whether the trial court committed reversible error in refusing to submit appellant's requested jury instructions for recovery based on negligence?

(2) Whether there was insufficient evidence, as a matter of law, to justify the submission of the assumption of risk instruction to the jury?

(3) Whether the trial court's formula for discounting future damages was more stringent than the law required?

(4) Whether the trial court committed reversible error in refusing to admit evidence of appellant's auxiliary employment benefits?

The trial court refused to grant appellant's requested instructions in negligence on the ground that there was insufficient evidence as a matter of law to justify the submission of the issue to the jury. Having carefully reviewed the record, including the transcript from trial, we agree with the trial judge. The transcript reveals that appellant tried his suit and introduced evidence based, primarily if not entirely, upon a theory of strict liability. Having failed to receive the expected results below, appellant may not now claim reversible error on the ground that a negligence instruction should have been submitted to the jury when insufficient evidence was presented at trial to justify such a submission.

Although appellant designates three separate witnesses as having introduced evidence of an industry-wide standard of care, we do not find this claim supported by the transcript. A careful reading of the testimony of appellant's witnesses, John Gustafson, Gerald Rennell, and Perry Zetterlund, yields little testimony which could be construed to establish a violation of the standard of due care. We are further persuaded by appellant's opening statement to the jury, where counsel stated:

I have requested a jury in this case, because I want people like you to decide the justice in this case for Mr. Green. I want you to decide whether this machine was defective, and unreasonably dangerous. That is the whole issue.

Tr. Trans., 17-18.

We conclude that appellant failed to introduce sufficient evidence to justify a negligence instruction to the jury.

Turning next to the question whether there was sufficient evidence to justify the submission of an assumption of risk instruction to the jury, we find appellant's position meritorious. "The function of the reviewing court with respect to instructions is to satisfy itself that the instructions show no tendency to confuse or mislead the jury with respect to the applicable principles of law." ¹ Applying this principle to the facts before us, we agree that the submission of the instruction on assumption of risk was not justified by the evidence. The internal inconsistency of the interrogatories suggests that the instructions had the effect of misleading the jury with respect to the ultimate issue of liability, and the minimal requirements for a finding of assumption of risk were unsupported by the evidence.

Assumption of risk is, of course, a proper defense to a strict liability suit. This court, in a diversity appeal, is required to apply the law of the forum in considering the substantive right under which the case is brought, ² and the Texas Supreme Court clearly established in Henderson v. Ford Motor Co., 519 S.W.2d 87, 90 (Tex.1975), that "the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under this Section (§ 402A of the Restatement Second, Torts) as in other cases of strict liability."

In 1967 Texas extended the tort theory of strict liability set forth in § 402A to defective products which cause physical harm to persons. ³ Because appellant brings suit under § 402A, we are bound to apply the rulings of the Texas courts which have interpreted and applied that provision. In Maxey v. Freightliner Corp., 623 F.2d 395 (5th Cir. 1980), ⁴ this court, in a diversity appeal originating in Texas, considered a suit which had been brought on behalf of the children of a truck driver who was killed when the fuel tanks on a tractor trailer he was driving ruptured and ignited. The district court set aside the jury's verdict that plaintiffs' decedent had assumed the risk by use of the manufacturer's product on the ground that assumption of risk was unsupported by the evidence. The Fifth Circuit affirmed, setting forth the standards which governed its determination:

Knowledge of...