Nowell By and Through Nowell v. Universal Elec. Co., 85-4128
| Decision Date | 25 June 1986 |
| Docket Number | No. 85-4128,85-4128 |
| Citation | 792 F.2d 1310 |
| Parties | 20 Fed. R. Evid. Serv. 1306 Donald Joe NOWELL, II By and Through his Mother and Next Friend, Pamela Mae NOWELL; Pamela Mae Nowell, and the Estate of Donald Joe Nowell, By and Through Pamela Mae Nowell, Administratrix, Plaintiffs-Appellees, v. UNIVERSAL ELECTRIC COMPANY, Defendant-Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Intervenor-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Thomas A. Bell, Robert S. Addison, Daniel, Coker, Horton & Bell, Jackson, Miss., for defendant-appellant.
Francis H. Hare, Jr., Hare, Wynn, Newell & Newton, Alva C. Caine, Birmingham, Ala., Edward A. Williamson, Philadelphia, Miss., for plaintiffs-appellees.
Glenn F. Beckham, James E. Upshaw, Greenwood, Miss., for intervenor-appellee.
Appeal from the United States District Court for the Southern District of Mississippi.
Before JOLLY, HILL, Circuit Judges, and HUNTER, * District Judge.
Defendant, Universal, appeals from a judgment for plaintiff-appellee entered after a jury returned a general verdict in her favor following an extended trial. Although we have concluded that Universal was not entitled to have the case taken from the jury, we conclude that the trial court's conflicting jury instructions constitute grounds for a new trial. We therefore Reverse and Remand.
This diversity suit, controlled by Mississippi substantive law, concerns a suit in which Donald Joe Nowell, the plaintiff's decedent, was seriously injured and subsequently died. The injury and death were caused by the explosion of a fifty-five gallon drum he was attempting to modify with an acetylene torch. Nowell worked for Wendell Edwards, owner of Edwards Tractor Company, as a mechanic and welder. Edwards occasionally supplied customers with insecticide spray rigs made from emptied drums.
Universal makes small electric motors. All four of its plants regularly purchased 55 gallon drums of Isonel 472, a varnish-like substance which they used to coat or insulate the wires in the manufacturing process. The original supplier of these drums did not require them to be returned. It was necessary for Universal to dispose of empty drums. The day before the accident, Donald Joe asked Edwards to get him some drums to modify into a spray rig for a tractor. Edwards called Harry Reynolds, an employee of Universal and made arrangements for the purchase of three empty drums ($1.50 each). Edwards picked up the drums, loaded them on a truck, and brought them back to his shop. Universal contends that the injury occurred one day later. This is disputed. Universal's receipt to Edwards established that he picked up the drums on April 29, 1981, and the hospital records reveal that Donald Joe was admitted at 10:40 on the morning of April 29, 1981. Several days after the explosion, Edwards disposed of the drum by placing it in a disposal location where it was apparently gathered in by garbage collection. In consequence, it was not available for inspection by either side after the suit was filed. Both Edwards and Mrs. Nowell viewed it on several occasions immediately following the accident. There is evidence in the record that there were other drums in the yards (purchased from others than Universal) that Donald Joe could have been working on at the time of the explosion.
Plaintiffs filed a wrongful death action against Universal, claiming that Universal was liable for negligence in failing to exercise reasonable care regarding the dangerous condition of the drum including a failure to warn and failure to eliminate the unreasonable risk of harm posed by the used drums. The jury returned a general verdict in the amount of $1,000,000. The trial court entered judgment after denying appellant's post trial motions.
Universal insists that the district court erred in denying its motion for judgment n.o.v. In reviewing a denial of judgment n.o.v., we must look at all the evidence in the light and with all reasonable inferences most favorable to the party opposing the motion. Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) (en banc).
[I]f there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied.... [I]t is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.
Because only a general verdict was returned, our review of the judgment is hampered. In this posture it is impossible to tell which of three theories of liability was adopted by the jury. 1 Plaintiffs argue that it would be inappropriate to enter a verdict for the defendant in consequence of a challenge of error affecting only the duty to warn issue. We do not agree. A general verdict is acceptable in a case alleging multiple theories of liability, only if each of the several theories is sustained by the evidence and legally sound. Smith v. Southern Airways, Inc., 556 F.2d 1347 (5th Cir.1977), Jones v. Miles, 656 F.2d 103, 106 (5th Cir.1981).
Defendant is not correct in his repeated assertions that the Nevertheless, this court would be compelled to vacate the judgment, set aside the general verdict, and grant judgment n.o.v. if defendant is correct in its contention that Universal owed no duty to warn either for the reason that Donald Joe or his employer, Edwards, knew of the danger presented by the drum.
Following the Boeing mandate, it is clear that the district court was eminently correct in denying the motion for judgment n.o.v. Whether or not Donald Joe or Edwards had knowledge of the specific hazard and of the particular safeguards which were necessary to avoid the specific risk was a question of fact properly submitted to and resolved by the jury verdict. There is no evidence that Donald Joe had ever encountered or had any knowledge of the specific risk associated with the subject drum, viz. an empty drum that had contained Isonel 472 or any similar varnish type substance. In point of actual fact, what Donald Joe knew was wrong. Edwards was not a trained technician or otherwise possessed of specialized expertise. Basically, he owned a business with one full time and one part time employee that sold new and used tractors and did repair work. He rarely had occasion to need and use empty drums. We conclude and reiterate that the trial judge rightly denied defendant's motion for a directed verdict and let the issue go to the jury. It follows that the denial of a motion for a judgment n.o.v. was proper. With respect to the judge's denial of a motion for a new trial pegged on the insufficiency of the evidence, we are bound by an "abuse of discretion" standard. In light of the evidence outlined above, we find no such abuse here.
Universal argues that if this court finds (as it has) that substantial evidence supported the jury's verdict, it is entitled to a new trial on the grounds that the district court erred in certain of its charges and evidentiary rulings.
Challenging specific evidentiary rulings, Universal contends that the trial court erred by admitting into evidence the Ashland Safety Data Sheet and the deposition of the Ashland chemist. This contention presupposes that recommendations concerning proper precautions for handling empty drums of xylene, a component of Isonel 472, have no relevant bearing on the safeguards for disposing of an empty drum of Isonel. This supposition is incorrect. The data sheet and the deposition of the chemist were admissible as evidence of the known and foreseeable hazards posed by the drum that exploded. Dr. Ball's testimony to which the defendant also objected addressed recognized safety procedures to be utilized in disposing of empty Isonel 472 or xylene drums and was most relevant.
Plaintiffs filed a motion in limine to exclude any evidence regarding Pamela Mae Nowell Manning's remarriage. Universal responded arguing the motion should be denied due to Campbell v. Schmidt, 195 So.2d 87 (Miss.1967). In Campbell, a wrongful death case, the Supreme Court of Mississippi noted:
[T]estimony showing any change in the conditions on which the suit is based is competent as against the rights of the person or persons affected; therefore, we hold that testimony may be introduced to show the remarriage of the widow, after the death of the husband, for which the suit is brought. Berner v. British Commonwealth Pac. Airlines, 230 F.Supp. 240 (S.D.N.Y.1964); Rogow v. United States, 173 F.Supp. 547 (S.D.N.Y.1959); Jensen v. Heritage Mut. Ins. Co., 23 Wis.2d 344, 127 N.W.2d 228 (1964).
The district judge denied the motion subject to certain reservations, stating:
The evidence of remarriage will be admissible only on the question regarding the damages recoverable for the loss of contribution to the support of Pamela Nowell and the loss of sex, companionship, services and society for her. The jury will be instructed properly on this issue at the conclusion of the case.
Now, the evidence is not admissible on the matter of the financial needs of the plaintiff or her son.
We now cite pertinent inquiry and response as to the remarriage:
Q May it please the Court. Mrs. Manning, you have testified that you have remarried since the tragic death of Donald Joe Nowell?
A Yes, sir.
Q What is your present husband's name?
A Wendell Manning.
Q And where do you and he live now?
A We live in Winston County in the Mars Hill Community. It's about fifteen miles out of Philadelphia, towards Kosciusko off of Highway 19.
Q You do live with Mr. Manning now?
A Yes, sir.
Q And your son lives with you and he?
A Yes, sir.
Q What...
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