Guidry v. Kem Mfg. Co.

• Decision Date: 06 July 1979
• Docket Number: No. 77-1492,77-1492
• Parties: Michael J. GUIDRY, Plaintiff, v. KEM MANUFACTURING COMPANY, Defendant. DRACKETT PRODUCTS COMPANY et al., Defendants-Third Party Plaintiffs-Appellants, v. KEM MANUFACTURING COMPANY et al., Third Party Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 402

598 F.2d 402

Michael J. GUIDRY, Plaintiff, v. KEM MANUFACTURING COMPANY, Defendant.

DRACKETT PRODUCTS COMPANY et al., Defendants-Third Party Plaintiffs-Appellants, v. KEM MANUFACTURING COMPANY et al., Third Party Defendants-Appellees.

No. 77-1492.

United States Court of Appeals, Fifth Circuit.

July 6, 1979.

Harry McCall, Jr., Corinne Morrison Hopkins, Lloyd C. Melancon, New Orleans, La., for Drackett Products Co.

Wood Brown, III, New Orleans, La., for Kem Manufacturing Co.

James H. Drury, New Orleans, La., for Baudouin et al.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GODBOLD, Circuit Judge, SKELTON ^*, Senior Judge, and RUBIN, Circuit Judge.

ALVIN B. RUBIN, Circuit Judge:

Invoking diversity jurisdiction, an injured user brought a products liability suit against two manufacturers whose chemicals for clearing plumbing drains harmed him when they were inadvertently mixed together in a kitchen sink. The trial court required the jury to return a special verdict as authorized by Rule 49(a), Federal Rules of Civil Procedure, by answering separate interrogatories relating to the plaintiff's claims against each defendant and additional questions arising out of the cross-claims for contribution and indemnity brought by one defendant against the other. The resulting judgment in favor of the plaintiff against one defendant has been satisfied after remittitur. The defendant cast in judgment, however, contends that the jury's answer concerning its cross-claim for contribution against the other manufacturer was inconsistent with its answer concerning that manufacturer's liability to the plaintiff, and seeks reversal of the judgment entered by the trial court denying contribution. Because we agree that the jury's answers were inconsistent and can find no reasonable resolution for the apparent inconsistency, we reverse and remand for a new trial on the cross-claim.

I.

Michael Guidry, who was employed by the Archdiocese of New Orleans to do maintenance work at the Jesuit Church in downtown New Orleans, poured Thermakem, a drain cleaning product made by Kem Manufacturing Co., into a sink drain. The liquid in the drain erupted, seriously injuring him. The jury found that the accident occurred when Thermakem was unintentionally mixed with Drano, a drain cleaner made by Drackett, that was already in the sink. ¹

The stage was set for the accident when one of the church cooks used Drano in an effort to clear a troublesome drain on the evening of Saturday, March 4, 1972. When the drain clogged again on Monday, a priest asked Guidry to attend to it, but said nothing about the efforts made on Saturday. Guidry used Thermakem for the job. The eruption that resulted burned him severely and caused a significant impairment of his vision. He sued both Kem and Drackett, and Drackett cross-claimed against Kem seeking indemnity on the basis that Kem was actively negligent and it was only passively negligent; it urged alternatively that Kem was a joint tort feasor responsible under Louisiana law for contribution. The pre-trial order briefly mentioned the demand for contribution and indemnity. It simply noted that Drackett listed as a contested issue of law whether it was entitled to recover from third-party defendants.

At the trial no mention was made of the theory that Drackett and Kem might be joint tort feasors; Drackett put its energies into efforts to defeat the plaintiff and, if it lost, to recover the total judgment from Kem on the basis that Kem owed it indemnity. There was no instruction whatever on contribution and no objection to its omission.

On the basis of the jury's answers to special interrogatories, the court entered judgment for Guidry with respect to his claims against Drackett, and against Drackett with respect to its claims against Kem. Drackett appeals only the judgment entered by the trial court rejecting its claims for contribution from Kem.

The first interrogatory to the jury was in connection with Guidry's claim:

1. Was the product supplied by defendant Kem Manufacturing Company (Kem) defective, or did defendant Kem breach its implied warranty or negligently fail to warn plaintiff, in a manner which was a proximate cause of injury to plaintiff Mr. Guidry?

The answer was "No." The jury, however, answered affirmatively a similar interrogatory concerning Drackett. Therefore only Drackett was cast in judgment to the plaintiff. The jury awarded Guidry $1,500,000 against Drackett and that judgment, after its remittitur to $711,417.81, has been satisfied.

Because counsel and the court focused their attention on the indemnity issue, the interrogatory to the jury with respect to the cross claim asked:

7. Was third-party defendant Kem Manufacturing Company actively negligent in a manner which was a proximate cause of injury to plaintiff?

The jury answered "Yes." Thus the answers to questions 1 and 7 are apparently inconsistent: Kem was "actively negligent in a manner which was a proximate cause of injury" to Guidry (No. 7), but its product was not "defective" nor did it "breach its implied warranty or negligently fail to warn plaintiff, in a manner that was a proximate cause of injury" to him (No. 1). Despite the evident problem created by those answers neither party requested resubmission of any question to the jury. ²

Drackett urges that appearances are deceiving and that, correctly interpreted, the answers to the two questions can be reconciled; alternatively it contends that the contribution issue was omitted, hence was to be decided by the court.

II.

Most civil jury cases in federal courts have been, and still are, resolved by a general verdict. After receiving the court's instructions, the jury weighs the facts in light of the court's instructions and renders a verdict for the plaintiff or the defendant. Judges and lawyers and all laymen who have thought about the process know that this permits the jurors to import notions of lay justice, to temper legal rules and to render a verdict based on their consciences and their ideas of how the case ought to be decided without strict compliance with the rules laid down by the court. This flexibility is a deliberate part of the jury system, and is sanctioned so long as there is sufficient evidence to support the verdict regardless of the judge's agreement or disagreement with the outcome. If the trial judge is convinced that the result is contrary to the verdict that reasonable people would have reached, Cf. Trawick v. Manhattan Life Insurance Co., 5 Cir. 1971, 447 F.2d 1293, he may grant a new trial. In most instances of course, he abides by the verdict of the jury.

Rule 49 makes available alternate procedures that may be adopted by the trial judge to focus the jury's attention on the factual issues: a general verdict accompanied by answers to interrogatories about particular issues in the case (Rule 49(b)); or, dispensing altogether with the general verdict, submission of the various fact issues to the jury in the form of questions with the answers forming a special verdict on each (Rule 49(a)). See generally 5A Moore's Federal Practice PP 49.02-49.06 (2d ed. 1977); 9 C. Wright and A. Miller, Federal Practice and Procedure: Civil §§ 2505-13 (1971). The latter procedure was chosen by the trial court here.

The special verdict permitted by Rule 49(a) is a splendid device for clarification of jury verdicts and for focusing the jurors' attention on the disputed facts without the possible confusion that may result from a lengthy charge concerning the different legal rules that would apply if the jury reaches one factual conclusion rather than another. Therefore, we have repeatedly and frequently praised its use. See, e. g., Gainesville Utilities Department v. Florida Power & Light Co., 5 Cir. 1978, 573 F.2d 292, 294 n.3, cert. denied, 439 U.S. 966, 99 S.Ct. 454, 58 L.Ed.2d 424; Cormier v. Rowan Drilling Co., 5 Cir. 1977, 549 F.2d 963, 967; American Oil Co. v. Hart, 5 Cir. 1966, 356 F.2d 657, 659 and n.5; See also Brown, Federal Special Verdicts: The Doubt Eliminator, 1968, 44 F.R.D. 338; Wright, The Use of Special Verdicts in Federal Court, 1965, 38 F.R.D. 199. However, like all fine tools, it must be skillfully employed and its successful use requires the careful attention of counsel for all parties as well as of the court to be certain that the questions are framed to avoid the possibility of inconsistent answers. This case demonstrates the problems that arise if it is used without the requisite care.

Under the state practices that constituted the models for Rule 49(a), the form of the question was the "hardest point of the practice." Moore, supra, P 49.03(2) at 2210. The rule mandates no particular form for the questions, stating only that they shall be "susceptible of categorical or other brief answer," or that the court may "use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate."

As Chief Judge John R. Brown has noted, the Rule 49(a) special verdict is not "an error-proof, thought-proof, mechanical device. It has its pitfalls, nearly all due to its virtues. Its capacity for precision, excision of fact and legal issues, is at once its danger area. For nothing is so wrong as imprecise precision nor so glaring as conflicting precision." Brown, supra, 44 F.R.D. at 349. Its very accuracy makes it unsuitable for indifferent use; unless carefully aimed the questions miss the target completely.

The rule itself provides insurance against one hazard: the necessity that the jury decide every element of recovery or defense lest the verdict remain incomplete and indecisive. If counsel do not timely request that an issue be submitted to the jury, it may be resolved by the court. If the court fails to make a finding, "it shall be deemed to have made a finding in accord with the judgment on the special verdict." F.R.Civ.P. 49(a).

It is critical,...