Simpson Timber Co. v. Parks

• Decision Date: 06 January 1967
• Docket Number: No. 19673.,19673.
• Citation: 369 F.2d 324
• Parties: SIMPSON TIMBER CO. and Grace Line, Inc., Appellants, v. Ezra PARKS, Appellee. SIMPSON TIMBER CO., Appellant, v. GRACE LINE, INC., et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

369 F.2d 324 (1966)

SIMPSON TIMBER CO. and Grace Line, Inc., Appellants, v. Ezra PARKS, Appellee.

SIMPSON TIMBER CO., Appellant, v. GRACE LINE, INC., et al., Appellees.

No. 19673.

United States Court of Appeals Ninth Circuit.

November 9, 1966.

Rehearing Denied January 6, 1967.

COPYRIGHT MATERIAL OMITTED

Kenneth E. Roberts, of Mautz, Souther, Spaulding, Kinsey & Williamson, John R. Brooke, of Wood, Wood, Tatum, Mosser & Brooke, Portland, Or., for appellants.

John R. Brooke, of Wood, Wood, Tatum, Mosser & Brooke, Nathan J. Heath, of Gray, Fredrickson & Heath, Philip A. Levin, of Pozzi, Levin & Wilson, Portland, Or., for appellees.

Before CHAMBERS, BARNES, HAMLEY, JERTBERG, MERRILL, KOELSCH, BROWNING, DUNIWAY and ELY, Circuit Judges.

ELY, Circuit Judge:

A longshoreman stowing cargo was injured when he stepped through the packaging on a bundle of doors. The Simpson Timber Company manufactured the doors. In filling an order for an exporter it was required to package the doors for shipment overseas. The doors were cut to leave openings for glass. The manufacturer packaged the doors in a stack forty-two inches high, with the window openings aligned so that a well was formed. A cardboard cover was wrapped around the center of the stack leaving the solid edges of the doors exposed but concealing the interior cavity. The cardboard-bound stack was then bound with two steel straps and wooden chocks fastened along one side to permit the stack to be handled by a forklift tractor. The completed bundle appeared to consist of solid wooden doors wrapped in a protective cardboard cover. When the bundle rested on its chocks the concealed well created by the window openings extended vertically through the package from top to bottom. The manufacturer gave no warning that the card-board cover concealed a well, by notice on the package or otherwise. Printing on the package identified the contents as "fine doors," and stated that the cardboard cover was not to be removed until the doors were unpacked for installation.¹ Simpson delivered the doors to the dock for the exporter. The exporter, who was in fact the shipper here, arranged that Grace Lines, Inc. convey the doors overseas in one of its ships, and the shipowner made a contract with an experienced stevedoring company for the loading of the ship's cargo. Longshoreman Parks was employed by the stevedoring company. The bundles were loaded without incident until the topmost layer was sought to be placed in the square of the hatch. Dunnage was not placed upon the bundles of doors. Since the bundles did not precisely and firmly fit within the square, the expert loaders chose to stabilize the top-most layer by placing sacks of flour between the bundles. In furtherance of this decision, Parks stepped upon the bundle carrying a sack of flour weighing one-hundred pounds. The cardboard cover did not withstand the weight, and the forty-two inch fall resulted.

The longshoreman filed an action in the Oregon state court. The shipowner and Simpson were named as defendants. Upon petition by both defendants, the action was removed to the District Court (28 U.S.C. § 1441), where jurisdiction rested on the basis of diversity of citizenship and the requisite amount in controversy. 28 U.S.C. § 1332. The shipowner interpleaded the stevedoring company (the longshoreman's employer) as a third party defendant. Each of the three defendants made claims against the other. The main action was tried before a jury, it having been agreed that the indemnity claims would be determined by the judge following the jury verdict. The jury returned a verdict against Simpson and the shipowner. The district judge granted the shipowner indemnity from Simpson and denied Simpson indemnity from the stevedoring company. Simpson and the shipowner appeal. Our court derives its jurisdiction from 28 U.S.C. § 1291.

A panel of our court heard this appeal and affirmed the trial court. One of the panel dissented.² A petition for rehearing was granted, and the court determined that the appeal should be heard en banc.

There are three contentions which have commanded our principal attention. Both Simpson and the shipowner urge that the verdict and judgment award excessive damages to Parks.³ Simpson presents two other main points, (1) that the district judge erred in denying its motion for a mistrial,⁴ and (2) that an instruction given to the jury was prejudicially erroneous as to it.

The majority here holds that Simpson's point (2) is well taken and requires reversal. Since, upon remand, there must be a retrial, there is no need to review the contentions as to events which may not reoccur.

After the evidence had been given, Simpson moved for a directed verdict in its favor. It argued that it was under no legal duty to conduct inquiry as to stresses to which its package would be subjected because of stevedoring practices of which it had no knowledge. It reaffirmed its position in objecting to an instruction given to the jury as follows:

"If you find from a preponderance of all of the evidence before you that Simpson Timber Company knew, or in the exercise of reasonable care should have known that workmen might walk on said packaged doors, and if you further find that the manner of packaging the doors created a dangerous situation and that a reasonably prudent person under the same or similar circumstances would have supplied some reasonable form of weight bearing support over the hole so that a workman could not step through the cardboard into the hole or would have warned workmen of the danger who might walk on the doors in some manner of the hole underneath the cardboard in some reasonable means, and that the defendant failed either to supply reasonable weight bearing support or some reasonable warning, then such failure, if there was a failure, would be negligence on the part of the Simpson Timber Company." (Emphasis supplied.)

It is this instruction which the majority determines to have been erroneous. Under the facts as they appear, it embraced a principle which we cannot accept.

The instruction permitted the imposition of liability upon Simpson if the jury should determine that Simpson, before it delivered its doors to the dock, knew of the stevedores' practice of walking upon packages of cargo. This was proper. Used as a floor, or walking surface, the bundle of doors was a trap. If Simpson delivered the bundle with knowledge that it would likely be walked upon, then it might reasonably be held negligently to have breached a duty to the stevedores, including Parks. Simpson vigorously urges that there was insufficient evidence to support a finding that it had prior knowledge of the working practice. Upon careful review of the record, the majority concludes that Simpson's position in this respect is not well taken. It was shown that Simpson had a plant in the City of Portland and a warehouse in the waterfront area. For years Simpson had annually shipped 16,000 to 18,000 doors overseas (less than four percent of its volume), and its plant manager visited the warehouse an average of once every week or ten days. The plant manager testified that he had been on the dock and seen the holds of ships, and that he had "wondered" how cargo was moved to portions of the hold away from the hatches. From these circumstances, with reasonable inferences which might be drawn therefrom, the trier of facts could, in the majority's opinion, find sufficient basis for a determination that Simpson did, in fact, have knowledge of what is said to be the common working practice of longshoremen engaged in the stowing of cargo.

The instruction, however, also authorized the fixing of liability upon Simpson if the jury should determine that Simpson "in the exercise of reasonable care should have known that workmen might walk on said packaged doors * * *." Implicit in the instruction is the principle, believed by our majority to be incorrect, that Simpson had the legal duty to make inquiry as to the working practice of those who might handle its product.

If a common stevedoring practice exists in a particular port, no difficulty should be encountered in learning of it. If a manufacturer or shipper is obliged to be aware of it and is not, it would hardly seem possible that he could successfully maintain that he exercised reasonable care.

Our problem, then, is generally concerned with the extent of the duty which rested upon Simpson, as manufacturer and packager, as to those whom it might reasonably expect would handle its product in the course of exportation. Put another way, to affirm the judgment as against Simpson would require affirmative answer to the question, may the manufacturer and packager of an article which is not inherently dangerous be justly held liable to a longshoreman who sustained injury, while loading the package aboard a vessel, as a result of using the package for a peculiar purpose not intended, anticipated, or known to the manufacturer?

An affirmative answer would, in turn, establish a principle, too far-reaching and onerous in application, that one who packs an item for shipment is burdened with a legal duty to ascertain the customary working practices of stevedores in any port which the purchaser, a shipper, or transporter might select for loading and embarkation. Acceptance of this proposition would require unprecedented extension of doctrines which impose liability upon manufacturers and a departure from those recognized tort rules which require no more than that a manufacturer packing his goods for shipment shall exercise ordinary care to eliminate hazards which are known⁵ to him.

There is no authority which the majority is able to interpret as affording precedent for the imposition of the extended duty which was applied against Simpson in the case at hand. Long established and especial principles are justly applicable in so-called products liability cases wherein the product is inherently dangerous or harmful....