Revlon, Inc. v. Buchanan
| Decision Date | 24 November 1959 |
| Docket Number | No. 17670.,17670. |
| Citation | 271 F.2d 795,81 ALR 2d 222 |
| Parties | REVLON, INC., Appellant, v. Mrs. R. H. BUCHANAN, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Ben Weinberg, Jr., James M. Roberts, T. J. Long, Atlanta, Ga., for appellant.
Newell Edenfield, Atlanta, Ga., for appellee.
Before HUTCHESON, CAMERON and JONES, Circuit Judges.
The main question presented by this appeal is whether there was sufficient evidence to justify the lower court in submitting to the jury the question of the liability of appellant Revlon for the injuries suffered by appellee, plaintiff below, from the "explosion" of a bottle of deodorant lotion manufactured by appellant. The charge of the trial court is not brought before us and we therefore indulge the presumption that the court correctly instructed the jury as to all questions of law raised by the pleadings.
Plaintiff was injured when a bottle of deodorant, manufactured by Revlon and purchased by plaintiff from a retail dealer about three weeks before, "exploded" when she was squeezing it gently and examining it to ascertain why none of the lotion would come out when she applied the usual pressure. She testified that the plug in the end of the bottle was expelled with great force and that it disintegrated into fragments, and that some of the lotion and some solid objects struck her eyes. She was attended by four doctors and was disabled for quite a period of time, and Revlon does not contend that the verdict of $3,000 returned by the jury was not justified by the evidence of injury.
She placed on the stand an expert whose testimony evidently believed by the jury, warranted the conclusion that the preparation was offered to the public in a container having a plug or stopper which, when the small hole in its center would become clogged by the coagulation of its contents, would be likely to be expelled with great force by the pressure which would ordinarily be exerted in an effort to use the preparation. The testimony of the expert was based in part upon his analysis and study, by the use of suitable instruments, of some of the pieces or fragments of the plug or stopper, which plaintiff testified blew out of the end of the polyethylene bottle.
Revlon placed its experts upon the stand and they, too, based their testimony tending to exonerate Revlon, to some extent, upon their examination of these pieces or fragments. The admissibility of the fragments into evidence and the weight of the testimony by which they were identified constitute the main thrust of Revlon's argument for reversal, although it assigns a number of errors alleged to have been committed by the court below.1
Because of the importance with which appellant invests it, we consider first, in some detail, the reception in evidence of the fragments of the bottle stopper. Plaintiff did not see where these fragments went at the time of the explosion, and did not go back to her home for some weeks thereafter. She instructed her maid, either directly or through her husband, to gather up the fragments or pieces of the plug and to preserve them for her. Later, the maid delivered to her directly, or through her husband, from three to seven pieces or fragments of what appeared to be polyethylene, stating at the time that she had gathered them from the portion of the room to which she had been directed by plaintiff.
Some testimony as to these fragments was given by the plaintiff herself. She had no personal knowledge of where they came from, but her testimony was not only not objected to, but she was submitted to a spirited cross-examination which led back to the question of the fragments and their recovery at least six times. In fact, the statement attributed to the maid was not brought out on her direct examination.2
When she was taken on cross-examination she answered one of appellant's questions stating that she saw the fragments within the next day or two — She was further questioned by Revlon's attorney at great length about claimed discrepancies between her testimony concerning the fragments and what she had stated when her deposition had been taken; and the attorney asked her directly what the maid had said.3
The same questions were repeated on other occasions and the attorney was apparently developing this phase of the testimony to the fullest in an effort to demonstrate to the jury that plaintiff did not have an accurate recollection concerning the fragments or that she was not telling the truth about them. No objection at all was made to the evidence at any time while the witness was on the stand or while the plaintiff's case was being developed.
When Dr. Miller was called as an expert and was questioned in detail about the fragments he had examined, no objection was made to his testifying.4 Revlon did not raise any question about the admissibility of the evidence in specifying its errors upon which its appeal would be predicated and did not mention in its brief such a contention as one of the errors to be argued.
After the case had been argued and submitted to us Revlon filed a request for correction and supplementation of the record, which request we granted. By this supplement it is shown that, after all of the testimony was in and the court had called for argument to the jury, appellant moved orally to strike the testimony of Dr. Miller concerning the fragments and to strike the testimony of Mrs. Buchanan "with reference to the fragments and, indeed, to strike all testimony with reference to the fragments on the ground that there is no connection showing where the fragments came from." The court below responded that what the maid had said would be stricken, but denied the residue of the motion, stating that there were sufficient circumstances independent of the maid's statement to warrant the jury in finding that the fragments the maid turned over to plaintiff were those which had come from the bottle she was attempting to use.
In a supplemental brief, appellant excuses its failure to object earlier on the ground that it was not aware until the close of the evidence that "the only evidence connecting the fragments of plastic with the bottle of deodorant allegedly injuring the appellee was the testimony of the appellee of what her maid told her." We do not find that the record supports this contention. Plaintiff had made out her case by the testimony of herself and two witnesses. Defendant had placed four witnesses on the stand including experts, one of whom gave his opinion that the fragments submitted to him had not been involved in an explosion, but had been cut with a sharp instrument. Thereupon Dr. Miller was offered by plaintiff in rebuttal, and defendant placed one more witness besides the plaintiff on the stand in surrebuttal before the motion to strike was offered.5
It is clear that, under federal practice, a litigant may not deal thus with the court and with his adversary. The general rule is that 3 Am.Jur., Appeal and Error, § 350, p. 95.
The matter of objections, which, as this Court has pointed out more than once, is now covered by Rule 46 F.R. Civ.P., 28 U.S.C.A.,6 has been held by us to be substantial: "Rule 46 of the Federal Rules of Civil Procedure * * * requiring a party to make known his objections and grounds therefor is not a mere technicality, but is of substance in the administration of the business of the courts."7
The importance of timely objection assigning specific ground is obvious. The cases cited hold clearly that the reason for the attempted exclusion of the evidence must be stated. This is so in order that the court may remove the objection itself, or that the litigants may have a chance to make other proof for that purpose. A reading of the cross-examination of the plaintiff here leads strongly to the assumption that the cross-examiner felt that he was gaining more by facing the plaintiff with inconsistent statements she had made about the gathering and preservation of the fragments than he would have by objecting to the admissibility of the testimony.
This, in addition to the fact that most of the objectionable testimony was brought out by the appellant itself, demonstrates that the argument of appellant on this point is without merit. We agree also in the statement made by the trial court that the circumstances of the recovery and preservation of the small pieces was sufficient to support a jury finding that they were, in fact,...
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