Hageman v. Signal LP Gas, Inc., 73-1110.

Citation486 F.2d 479
Decision Date31 October 1973
Docket NumberNo. 73-1110.,73-1110.
PartiesSharon HAGEMAN, Admx. of the Estate of Donald Hageman, Plaintiff-Appellee, v. SIGNAL L. P. GAS, INC., Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)



Frank Seth Hurd, Weston, Hurd, Fallon, Sullivan & Paisley, Cleveland, Ohio, on brief, for defendant-appellant.

Edward M. Swartz, Boston, Mass., James A. Hutton, Bryan, Ohio, on brief, for plaintiff-appellee.

Before WEICK, CELEBREZZE and MILLER, Circuit Judges.

CELEBREZZE, Circuit Judge.

Plaintiff-appellee was awarded damages by a jury in the amount of $532,832.02 for the death of her husband, Donald Hageman. The decedent suffered severe burns on June 20, 1967 as a result of an explosion of liquified petroleum gas which had passed unburned through a defective hot water heater. He died five and one-half hours later. At the time of his death he was 26 years old and the father of four children; he was an auto mechanic and operated his own trash route. Appellant Signal was the supplier of the gas to the Hagemans. The original complaint alleged damages arising from the wrongful death of decedent. The complaint was subsequently amended to include an allegation of damages for five and one-half hours of conscious pain and suffering in the amount of $225,000. The Rheem Manufacturing Company, a co-defendant and the manufacturer of the hot water heater in the Hageman's home settled, during the course of the trial, Appellee's claim for $350,000. This amount was allocated to the conscious pain and suffering. At the same time, the claim for the wrongful death was dismissed against Rheem and the claim for pain and suffering was dismissed against Appellant Signal. The trial proceeded to a verdict and judgment against Signal for the wrongful death claim.

Appellant first contends that its motion for a directed verdict should have been granted by the District Court. Appellant's argument on this question is unpersuasive. In its motion for a directed verdict, Appellant did not state the specific grounds for its request as required by Rule 50(a) of the Federal Rules of Civil Procedure.1 We must consider the motion, then, as a general motion for a verdict in Appellant's favor. Rochester Civic Theatre, Inc. v. Ramsay, 368 F.2d 748, 752 (8th Cir. 1966). Our review of the record reveals more than sufficient evidence to send the question of Appellant's negligence to the jury. We will, however, briefly touch on one or two of Appellant's arguments. It is contended that since Appellant had complied with the Ohio statute dealing with the amount of odorant to be applied to liquified petroleum gas,2 it could not have been negligent as a matter of law. However, Ohio adheres to the rule that compliance with a statute does not preclude a finding of negligence by the jury. Variety Iron & Steel Works Co. v. Poak, 89 Ohio St. 297, 106 N.E. 24 (1914). Appellant also contends that it conducted the customary sniff test to determine if the odorant was present. On this question, the rule in Ohio is that conformity to customary methods or conduct is not conclusive on the question of negligence but is a circumstance to be weighed with other factors. Thompson v. Ohio Fuel Gas Co., 9 Ohio St.2d 116, 224 N.E.2d 131 (1967). As we have previously held, industry standards are not binding on the issue of negligence. Schaeffer v. Michigan-Ohio Navigation Co., 416 F.2d 217, 222 (6th Cir. 1969). Other arguments are raised by Appellant to support its contention that a directed verdict should have been granted, but we find them lacking in merit as they involve questions properly submitted to the jury.3

Signal also contends that it was improper for the District Court to permit the plaintiff to amend its complaint to include the allegation of conscious pain and suffering for the reason that the cause of action for pain and suffering was barred by Ohio's two-year statute of limitations, Ohio Rev.Code § 2305.10. At the time Appellee amended its complaint, more than three years had elapsed after the statute of limitations had expired. Under Rule 15(c) of the Federal Rules of Civil Procedure, "whenever the claim . . . asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading." Rule 15(a) provides that "leave to amend shall be freely given when justice so requires." Thus, it would appear that the amendment was properly permitted by the District Court.

It is argued, however, that the amendment related to a new cause of action and included new legal theories of recovery and did not, therefore, come within Rule 15. Under Ohio law, an action for pain and suffering is a cause of action separate and distinct from a wrongful death action. Klema v. St. Elizabeth's Hospital of Youngstown, 170 Ohio St. 519, 166 N.E.2d 765 (1960); Karr v. Sixt, 146 Ohio St. 527, 67 N.E. 2d 331 (1946). In Klema, supra, the Ohio Supreme Court said:

"Although originating in the same wrongful act or neglect, the two claims are quite distinct, no part of either being embraced in the other. One is for the wrong to the injured person, and is confined to his personal loss and suffering before he died, while the other is for the wrong to the beneficiaries, and is confined to their pecuniary loss through his death. One begins where the other ends, and a recovery upon both in the same action is not a double recovery for a single wrong but a single recovery for a double wrong." 170 Ohio St. at 521, 166 N.E.2d at 768, quoting St. Louis, Iron Mountain & Southern R. R. v. Craft, 237 U.S. 648, 658, 35 S.Ct. 704, 59 L.Ed. 1160 (1915).

Some courts have held that an amendment setting up a new cause of action will not relate back to the date of the original complaint, but will be governed by its own date. Standard Oil Company of California v. Perkins, 396 F.2d 809, 814 (9th Cir. 1968), reversed on other grounds, 395 U.S. 642, 89 S.Ct. 1871, 23 L.Ed.2d 599 (1969), rehearing denied, 396 U.S. 871, 90 S.Ct. 36, 24 L. Ed.2d 126 (1969); Commissioner of Internal Revenue v. Rieck, 104 F.2d 294 (3d Cir. 1939), cert. denied, 308 U.S. 602, 60 S.Ct. 138, 84 L.Ed. 504 (1939). We have previously held that an amendment adding another party is a new cause of action which cannot be added after the time limitation has expired. United States v. Western Casualty & Surety Co., 359 F.2d 521 (6th Cir. 1966). But where the parties are the same, we think the better rule is that an amendment which adds another claim arising out of the same transaction or occurrence does relate back to the date of the original complaint. See Bufalino v. Michigan Bell Telephone Co., 404 F.2d 1023, 1028 (6th Cir. 1968), cert. denied, 394 U.S. 987, 89 S.Ct. 1468, 22 L.Ed.2d 763 (1969); Martin v. Virgin Islands National Bank, 455 F.2d 985 (3rd Cir. 1972); Woods Exploration & Producing Co. v. Aluminum Company of America, 438 F.2d 1286, 1299 (5th Cir. 1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 701, 30 L.Ed.2d 736 (1972); Scalise v. Beech Aircraft Corp., 47 F.R.D. 148 (D.Del. 1969); 3 Moore's Federal Practice, Section 15.153 at n. 9. We believe that the amendment was properly permitted by the District Court. The original complaint alleged that the decedent's death resulted from a failure to adequately odorize the gas and to warn decedent of the proper safety precautions to be taken with respect to the gas. The amended complaint alleged additionally that the violation of state and federal statutes and the furnishing of gas for a defective hot water heater caused decedent's death and pain and suffering prior to death. The claims in the amended complaint arose out of the same occurrence set forth in the original complaint — the explosion which occurred in the decedent's basement. Several elements may be considered in determining whether to permit an amendment. Undue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment are all factors which may affect the decision. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Delay by itself is not sufficient reason to deny a motion to amend. Middle Atlantic Utilities Co. v. S. M. W. Development Corp., 392 F.2d 380 (2d Cir. 1968). Notice and substantial prejudice to the opposing party are critical factors in determining whether an amendment should be granted. Williams v. United States, 405 F.2d 234 (5th Cir. 1968); Strauss v. Douglas Aircraft Co., 404 F.2d 1152 (2d Cir. 1968). Here, Appellant was aware of the fact situation upon which the amended complaint was based. The decedent's injuries resulted from exactly the same circumstances as did his death. There has been no showing of any prejudice by Appellant. It filed no motion for a continuance to answer the amended complaint and its answer was filed within a few days of the filing of the amendment. In Green v. Wolf Corp., 50 F.R.D. 220 (S.D.N.Y.1970), the Court said:

Defendants contend that they will be prejudiced if plaintiff\'s motion is granted. Substantial prejudice to an opposing party in the event of an amendment is a sufficient basis for a denial of leave to replead. Indeed, this is the usual area upon which courts focus when considering whether to permit an amendment. Citations omitted. However, defendant\'s claim of prejudice in this case appears insubstantial.
Defendants aver that they have conducted this litigation thus far on the basis of the claims asserted in the original complaint. This may be assumed, but defendants do not go beyond this statement to demonstrate what real prejudice arises from this state of facts. For example, no showing is made of what delay aside from the time required to file an answer will ensue if

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