Lairsey v. Advance Abrasives Co., 75--1222
| Citation | 528 F.2d 991 |
| Decision Date | 19 March 1976 |
| Docket Number | No. 75--1222,75--1222 |
| Parties | Quincy LAIRSEY and Frances Lairsey, Plaintiffs-Appellants, v. The ADVANCE ABRASIVES COMPANY, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Edward E. Boshears, J. S. Hutto, Brunswick, Ga., for plaintiffs-appellants.
J. Thomas Whelchel, Brunswick, Ga., Joseph A. Sherman, Kansas City, Mo., for defendant-appellee.
Appeal from the United States District Court for the Southern District of Georgia.
Before BELL, * THORNBERRY and MORGAN, Circuit Judges.
This appeal results from a trial in the Southern District of Georgia of a diversity case. Plaintiff was injured by an explosion of a grinding wheel at his place of employment in Brunswick, Georgia. Alleging negligence alone, he brought an action for damages against the manufacturer of the wheel. The jury found for the defendant. In his present appeal, 1 plaintiff alleges that the district court made an erroneous charge concerning the doctrine of res ipsa loquitur. We find no error and affirm.
In his appeal, plaintiff complains of a portion of the court's charge. The disputed portion states,
Now if it has not been satisfactorily shown to you what caused the break of the grinding wheel and if the cause remains a mystery to you, unless it has been shown to your satisfaction the wheel broke because of the alleged negligence of the defendant, there could be no recovery.
Immediately thereafter, the court gave a concededly correct res ipsa loquitur charge.
Plaintiff alleges that the 'mystery' portion of the charge was erroneous because he was relying on the doctrine of res ipsa loquitur. Under plaintiff's theory, res ipsa is applicable only when the actual cause of the accident is unknown--'a mystery.' Plaintiff contends that the mystery charge required a finding of an actual event of negligence for him to recover and, therefore, was inconsistent with res ipsa.
In determining whether there was error, the charge must be viewed as a whole. Delancey v. Motichek Towing Service, 427 F.2d 897 (5th Cir. 1970). Had the charge stated only that if the cause of the accident was a mystery there could be no recovery plaintiffs would be correct in alleging error. 2 The charge, however, contains more. Plaintiff's position ignores the qualifying phrase 'unless it has been shown to your satisfaction the wheel broke because of the alleged negligence of the defendant.' In short, the mystery charge applied only if the jury did not find the defendant negligent. Immediately after the mystery charge, moreover, the court properly instructed the jury that they could infer negligence of the defendant by res ipsa. In Georgia, the law is well established that res ipsa is merely a method of demonstrating defendant's negligence. Parker v. Dailey, 226 Ga. 643, 645, 177 S.E.2d 44 (1970); Macon Coca Cola Company v. Chancey, 216 Ga. 61, 67, 114 S.E.2d 517 (1960). While the court's charge would have been clearer had the mystery discussion been omitted, we feel that properly read the charge means that if the jury found there was insufficient evidence of the negligence on defendant's part, including any evidence that might have been provided by the doctrine of res ipsa, then the plaintiff should not recover.
* This opinion was...
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