Houston v. Herring

• Decision Date: 04 November 1977
• Docket Number: No. 75-3847,75-3847
• Citation: 562 F.2d 347
• Parties: Mildred F. HOUSTON and M. C. Houston, Plaintiffs-Appellants, v. Wayne HERRING, Individually, et al., Defendants, Jay Buchbinder Industries, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 347

562 F.2d 347

Mildred F. HOUSTON and M. C. Houston, Plaintiffs-Appellants, v. Wayne HERRING, Individually, et al., Defendants Jay Buchbinder Industries, Defendant-Appellee.

No. 75-3847.

United States Court of Appeals Fifth Circuit.

Nov. 4, 1977.

John L. Hunter, Arvis V. Cumbest, Pascagoula, Miss., for plaintiffs-appellants.

John M. Roach, Joel W. Howell, III, Jackson, Miss., for defendants.

Appeal from the United States District Court for the Southern District of Mississippi.

Before COLEMAN and TJOFLAT, Circuit Judges, and RUSSELL, ^* District Judge.

PER CURIAM:

Appellant brought this diversity action to recover for damages sustained when she tripped over the tubular bar connecting a table and bench at a McDonald's hamburger franchise in Pascagoula, Mississippi. All defendants save the manufacturer of the table unit were dismissed. Judgment for the defendant was entered on a jury verdict. Appellant complains that the trial court erred in granting defendant's instructions 6, 7, 8 and 10, ¹ stating that if plaintiffs failed to prove negligence on the part of defendant the jury must enter a verdict for defendant.

The manner of giving instructions is a procedural matter which is controlled by federal decisions, not state law. Seltzer v. Chesley, 512 F.2d 1030 (9th Cir. 1975). In reviewing the trial court's instructions to the jury, we must consider the charge as a whole. There is no harmful error if the charge in general correctly instructs, even if one portion is technically incorrect. Troutman v. Southern Ry. Co., 441 F.2d 586 (5th Cir. 1971). However, erroneous instructions are not cured by correct instructions in other portions of the charge when "the charge leaves us with substantial and ineradicable doubt whether the jury has been properly guided in its deliberations." Kyzar v. Vale Do Ri Doce Navegacai, S. A., 464 F.2d 285, 290 (5th Cir. 1972), cert. denied, 410 U.S. 929, 93 S.Ct. 1367, 35 L.Ed.2d 591 (1973). See also Seltzer v. Chesley, supra at 1035; Fitch v. Missouri-Kansas-Texas Transportation Co., 441 F.2d 1 (5th Cir. 1971). "The test is not whether the charge was faultless in every particular but whether the jury was misled in any way and whether it had understanding of the issues and its duty to determine those issues." Borel v. Fibreboard Paper Products Corp.,493 F.2d 1076, 1100 (5th Cir. 1973).

The four instructions that appellant complains of emphatically and erroneously required a finding of negligence as a prerequisite to a verdict in her favor. Even though appellants' instructions on the theory of strict liability in tort were also submitted to the jury, the two theories of recovery are similar, and the jury may well have thought that strict liability would not lie unless a defective article was negligently engendered. These conflicting instructions created sufficient opportunity for jury confusion that a new trial must be granted.

REVERSED and REMANDED.

* Of the Southern District of Mississippi, sitting by designation.

1 The pertinent parts of these instructions, to each of which appropriate objection was made below are:

6. If . . . the Plaintiffs have failed to prove their charges of negligence against the defendants by a preponderance of the credible evidence in this case, then it is your sworn...