Symons v. Mueller Company

Decision Date22 January 1974
Docket NumberNo. 73-1425.,73-1425.
Citation493 F.2d 972
PartiesLeda Mae SYMONS et al., Plaintiffs-Appellees, v. MUELLER COMPANY, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Jerry M. Ward, of Hampton & Ward, Great Bend, Kan., for defendant-appellant.

Gilbert G. Lundstrom, of Woods, Aitken, Smith, Greer, Overcash & Spangler, Lincoln, Neb. (Patrick F. Kelly, of Render, Kamas & Kelly, Wichita, Kan., on the brief), for plaintiffs-appellees.

Before HILL, BARRETT and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

This is an action growing out of a fire and explosion resulting from a gas leakage which occurred at the home of George A. Schields on March 22, 1969.

The action was first filed in state court against Mueller Company and the Liberal Gas Company, but following a dismissal as to Liberal Gas Company, the action was removed to the United States District Court for the District of Kansas where it was tried to a jury on December 27, 1971, and verdicts covering all of the damages suffered were returned in favor of the plaintiffs. Subsequently, motions for new trial and for judgment notwithstanding the verdicts were filed and were overruled by the trial court.

Defendant-appellant Mueller Company is the manufacturer of a service valve which is designed to connect the gas main to the service lines running to the home or other outlet of the user. Some time prior to the incident in question the gas company had replaced a gas main on the street adjacent to the plaintiff's home. In the course of installing the new main, six or seven service valve tees manufactured by Mueller Company were installed. According to the testimony of the Liberal Gas Company the service valve tees were tested at the time of installation, and at that time they held the required pressure. Subsequently, about a year after the installation, October 1968, a routine inspection was conducted and no leaking gas was detected. This was approximately six months prior to the date of the explosion. Following the explosion a further inspection was made and the presence of natural gas was detected. Subsequent to this it was found that the service valve tee was leaking at the point where it connects with the service line to the plaintiff's home. On examination it was discovered that the service valve tee, the equipment in question here, had a damaged thread at the end where the service line connection was made.

The plaintiffs' theory, supported by expert testimony, was that the threads had been damaged in the course of manufacture. Plaintiffs' expert testified that a torn second thread, a deformed first thread and a burred thread, all of which occurred during the manufacture, resulted in the joint connection failing to tighten properly under normal torque pressure and, as a consequence, gas was able to leak from this joint. Plaintiffs' further theory was that the gas which leaked moved laterally underground through loose dirt to the plaintiff's house, that the ingredient which produced the odor dissipated and that the concentrations of gas produced the explosion.

The defendant's testimony was that the defect in the service tee valve, if any, was caused by faulty installation. In fact, defendant's testimony was that the condition of the threads would not prevent the tightening of the tee valve. Another theory of Mueller is that it had a right to anticipate that the gas company in installing the valve would notice any defect which was present and reject the valve or install it so that it would not leak gas.

The principal issue in the case is whether the trial court erred in submitting to the jury the theory of strict liability, it being the defendant-appellant Mueller's contention that Kansas law required the cause to be tried on a negligence basis. Mueller contends that the court erred in refusing to grant its motion for a directed verdict and for judgment notwithstanding the verdict. First, because of the lack of evidence to support plaintiffs' theory that the explosion was caused by gas leaking from the service valve tee. Second, that the trial court erred in failing to determine that the acts or omissions of the gas company were the sole cause of the plaintiffs' injuries and damages since the gas company had installed the valve and maintained and inspected it, and thus, if the valve caused the damage, responsibility for its failure was on the gas company and not Mueller. Third, appellant contends that Kansas has not adopted the strict liability doctrine upon which the case was tried and it was therefore error to submit the cause to the jury on this theory. It is also contended that the giving of a covenant not to sue Liberal Gas Company and Hartford Accident and Indemnity Company, its insurer, constituted a release of a joint tortfeasor which resulted in the release of Mueller. Still another contention of Mueller is that the court erred in allowing counsel for plaintiffs to mention the pending action for indemnity by Mueller against Liberal Gas.

The court instructed the jury that plaintiffs were relying on the theory of liability known as implied warranty or strict liability, which theory arises by operation of law and as a result of public policy which seeks to protect the buying public from inherently injurious or dangerous products which are defective. The court continued that the basis for this doctrine was that the manufacturer undertakes special responsibility toward members of the public who may be injured by the product. The court further stated that Mueller Company could be held liable only if the jury found from a preponderance of the evidence that 1) it was engaged in the manufacture of the service valve tee; 2) it was in a defective condition when it left control of Mueller Company; 3) the service valve tee was expected to reach and did reach the Liberal Gas Company in the condition in which it was sold; 4) the particular service valve tee was defective and was unreasonably dangerous to the plaintiffs on their property; 5) the service valve tee was the proximate cause of the explosion which produced the damages. The jury was also told that the fact that the Liberal Gas Company may have contributed to the cause of the explosion was not to be considered by the jury. If the defect in the service valve tee was also a proximate cause of the explosion and the subsequent injuries, the court explained that there could be more than one proximate cause. Mueller challenges the submission of this theory to the jury and contends, as we have explained above, that the submission was not justifiable under the law of Kansas.


The defendant argues that the evidence at trial was insufficient, whereby a motion for dismissal or directed verdict should have been granted. It is true that there was not evidence presented to establish that the main or the service line was leaking prior to the date of the explosion, but this does not constitute a deficiency in the proof. There was testimony that the service valve tee was leaking at the time of its inspection. Although the inspection was 60 days after the explosion, there is nevertheless a natural inference that since there was a gas explosion obviously caused from leakage, and since the leak at the service valve tee is the only leak which could account for the explosion, that this was the cause. Such deduction is logical and thus sufficient.

The question whether the service valve tee was defective when it was released by defendant-appellant is a more difficult question, but here again there was expert testimony that the defective threads caused the leak. The trial court had had some concern about this question prior to the presentation of the expert testimony of the witness Young. However, judging from the court's order denying the post-trial motions, it would appear that it had no doubt concerning the adequacy of the evidence to support the judgment. We refer to the following comments:

. . . Resolution of defendant\'s liability in this case required the jury to determine basically three issues: (1) whether the explosion was caused by a leak in the gas line; (2) whether a defect in the service tee was the cause of the gas leak; and (3) whether the service tee was defective when it left defendant\'s plant. None of these complex, technical issues was wholly susceptible of direct proof. Consequently, both sides were forced to place primary reliance on the testimony of expert witnesses. Plaintiffs\' experts established that the service tee was defective when it left defendant\'s plant, that the defect caused a leakage of gas, and that the leak caused the explosion. Defendant\'s experts, true to form, disputed nearly all the testimony of plaintiffs\' experts. This being the case, a directed verdict or a judgment notwithstanding the verdict would clearly be erroneous . . .


Little remains to be said on the judge's denial of appellant's motion for judgment n. o. v., which asserts that there was insubstantial evidence upon which a jury could have based a verdict for the plaintiffs, and that the verdict was founded on speculation and conjecture rather than upon reasonable and permissible inferences from basic facts.

Judgment n. o. v. (or directed verdict) under Rule 50, F.R.C.P. is appropriate in very limited circumstances. Such a motion calls for a decision withdrawing a case from jury consideration, or overruling a jury determination already made. Such an action is appropriate only when ". . . the evidence and all the inferences to be drawn therefrom are so patent that minds of reasonable men could not differ as to the conclusions to be drawn therefrom." Taylor v. National Trailer Convoy, Inc., 433 F.2d 569, 571 (10th Cir. 1970) and cases cited. All such evidence and inferences evaluated in this regard must be construed in the light most...

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