Stubblefield v. Johnson-Fagg, Inc., 9172.

• Decision Date: 02 June 1967
• Docket Number: No. 9172.,9172.
• Citation: 379 F.2d 270
• Parties: James STUBBLEFIELD and Maryland Casualty Company, a Corporation, Appellants, v. JOHNSON-FAGG, INC., a Corporation, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

379 F.2d 270 (1967)

James STUBBLEFIELD and Maryland Casualty Company, a Corporation, Appellants, v. JOHNSON-FAGG, INC., a Corporation, Appellee.

No. 9172.

United States Court of Appeals Tenth Circuit.

June 2, 1967.

Gus Rinehart, Oklahoma City, Okl. (Jay B. Stringer, Mt. Vernon, Ill., and David J. Morrison, Oklahoma City, Okl., on brief), for appellants.

William S. Hall, Tulsa, Okl. (Green, Feldman & Hall, Tulsa, Okl. on the brief), for appellee.

Before MURRAH, Chief Judge, and PICKETT and HICKEY, Circuit Judges.

HICKEY, Circuit Judge.

Appellee, an Oklahoma corporation, received an emergency order for Polish Rod Liners from General Oil Field Supply Company, Olney, Illinois. An employee of appellee packaged the liners in a cardboard box, binding the carton with steel straps which were applied by means of an instrument which could be adjusted to vary tension. The carton was shipped to General Oil Field's Store in Mount Vernon, Illinois, and arrived in the same condition as it left appellee's factory. The appellant, General's store manager, had opened many such cartons in the past, and as was his custom, severed the strapping with pliers. One of the straps flew up, struck appellant's eye and blinded it.

Appellant filed a complaint in the Federal District Court for the Northern District of Oklahoma seeking damages on two theories, negligence and a breach of warranty. Appellee's answer was a general denial and in the alternative alleged contributory negligence.

After considering interrogatories answered by the appellee together with stipulations of fact¹ admitted by both parties, the court granted summary judgment for the appellee. This appeal is from the granting of that judgment, and makes two separate and distinct attacks.

The first ground of attack is that the case was not ripe for summary judgment because additional proof was required to establish whether a negligent degree of tension was placed on the metal band. This assertion is made in spite of the fact that the record indicates that both parties agreed the submitted stipulations contained all provable facts.

Rule 56, F.R.Civ.P., recognizes interrogatories as proper instruments establishing facts as well as their probative value. Zachry v. O'Brien, 378 F.2d 423 (10 Cir., 1967).

This court has not heretofore considered the application of stipulations under Rule 56, F.R.Civ.P., however, the District Court of Kansas considered them in Becker v. Safelite Glass Corporation, Inc., 244 F.Supp. 625, 632 (1965). This Court has said, "The trial court may not disregard the facts stipulated to by the parties or require evidence to support them. Citations omitted." United States v. Sommers, 10 Cir., 351 F.2d 354, 357 (1965). We regard them as admissions specifically designated in the rule. The use of interrogatories and stipulations in deciding the motion under Rule 56 was proper. Therefore, all provable facts were established and the case was ripe for summary judgment. Lopez v. Denver & Rio Grande Western Railroad Co., 277 F.2d 830 (10 Cir. 1960).

The second ground of attack is the court's determination of the law. The reply brief of appellant directs itself exclusively to this matter and argues in terms of products liability.

We recognize the fluid position of the law in the field of products liability.

The theory of recovery based on negligence must be considered in terms of Illinois law because the injury occurred in that state.² In its most recent pronouncement, the Illinois court considered the American Law Institute's Restatement of the Law of Torts § 402(a), cited to us in the briefs, and clearly pointed out the rapid development of the law on this subject. It seems clear that Illinois has not adopted an absolute strict liability, but has said, "Such liability does not, of course, make * * * seller * * * an absolute insurer. The plaintiffs must prove that their injury or damage resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer's control. See Tiffen v. Great Atlantic and Pacific Tea Co., 18 Ill.2d 48, 162 N.E.2d 406."³

The admitted facts establish that similar cartons containing similar products had been shipped and received between the parties on a number of occasions and that the packaging in this specific instance was accomplished in the ordinary method hereinbefore used. There is no...