Juhnke v. Eig Corporation, 24394.

• Decision Date: 06 August 1971
• Docket Number: No. 24394.,24394.
• Citation: 444 F.2d 1323
• Parties: Donald F. JUHNKE, Plaintiff-Appellant, v. EIG CORPORATION, a corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

444 F.2d 1323 (1971)

Donald F. JUHNKE, Plaintiff-Appellant, v. EIG CORPORATION, a corporation, Defendant-Appellee.

No. 24394.

United States Court of Appeals, Ninth Circuit.

July 6, 1971.

Rehearing Denied August 6, 1971.

Urban L. Roth (argued), of Poor, McKenzie, Roth, Butte, Mont., for appellant.

R. D. Corette, Jr. (argued), of Corette, Smith & Dean, Butte, Mont., for appellee.

Before CHAMBERS and DUNIWAY, Circuit Judges, and McNICHOLS, District Judge.

McNICHOLS, District Judge:

Donald F. Juhnke (hereinafter Juhnke or appellant) lost the sight of his left eye as the result of the discharge of a tear gas gun manufactured by the appellee EIG Corporation (hereinafter EIG or appellee). He sued for damages for his personal injuries. This appeal is from a judgment on a jury verdict for the appellee and from a denial by the trial court of a motion for directed verdict, motion for judgment n. o. v. and motion for new trial.

Jurisdiction below rested on diversity of citizenship, 28 U.S.C. § 1332. We have jurisdiction by virtue of 28 U.S.C. § 1291.

Appellant was employed by the Federal Aviation Agency at Butte, Montana. On the day of his accident he reported for work at 8:00 A.M., intending to engage in an aircraft familiarization flight. He went to an office desk which apparently was shared by a number of employees and opened a drawer to obtain a needed form. In the desk was the tear gas gun in question which had been inadvertently left there that morning by another employee who had completed her shift. The gun was approximately the size and shape of a large fountain pen or a pocket size flashlight, was silver in color and bore no readily discernible warning or indication that it was other than a flashlight or a fountain pen. Juhnke removed the article from the drawer, held it up so as to be able to see it, and in experimenting with it, activated the trigger device which caused an explosion and an emission of tear gas which struck his face and eye, ultimately leading to the loss of vision in the left eye.

It was undisputed that EIG had imported the gun in question along with several thousand others, which had apparently been manufactured to EIG's specification in Japan. For the purpose of this appeal, it is tacitly agreed that EIG was in legal effect the manufacturer of the gun and subject to whatever liability was attributable to the manufacturer.¹

The complaint below alleged that the gun was defective in design and manufacture and was an inherently dangerous instrumentality. By answer these contentions were put in issue and affirmatively it was contended that Juhnke was contributorily negligent and that intervening and/or unforeseen acts of third parties proximately caused the injury or otherwise insulated the defendant from liability.

At the close of the evidence plaintiff moved for a directed verdict on the issue of liability, which motion was taken under advisement and later denied. The first alleged error is based on the denial of this motion, in conjunction with a follow-up motion for judgment notwithstanding the verdict made appropriately after trial. The trial judge in his formal order summarized the state of the evidence in this language:

"* * * Looking at the evidence in the light most favorable to the defendant, there presents itself a substantial question as to whether the lack of a warning on the tear gas gun constituted a defect and if so, whether this was the proximate cause of the plaintiff\'s injuries or whether the conduct of Pat Thompson (the co-employee and owner of the tear gas gun, who left it in the drawer) was an independent intervening cause and therefore the sole proximate cause of the injury. Under the circumstances of this case these questions are for the fact finder and even if strict liability was the law of Montana, a directed verdict for the plaintiff would have been improper and therefore to grant plaintiff\'s motion for judgment notwithstanding the verdict would be improper."

For all practical purposes a motion for directed verdict and the subsequent motion for judgment notwithstanding the verdict are measured by the same standards as the latter is merely a renewal of the former. Standard Acc. Ins. Co. of Detroit, Mich. v. Winget et al. (9th Cir. 1952) 197 F.2d 97; Dun & Bradstreet, Inc. v. Miller (5th Cir. 1968) 398 F.2d 218. Only in an exceptional case will the...