La-Tex Supply Co. v. Fruehauf Trailer Div., Fruehauf Corp.
| Decision Date | 25 June 1971 |
| Docket Number | No. 71-1304.,71-1304. |
| Citation | 444 F.2d 1366 |
| Parties | LA-TEX SUPPLY COMPANY, Plaintiff-Appellant, v. FRUEHAUF TRAILER DIVISION, FRUEHAUF CORPORATION, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Otto A. Ritter, Longview, Tex., William M. Howell, Jacksonville, Fla., Ronnie Posey, Longview, Tex., for plaintiff-appellant; Ritter, Nichols & Posey, Longview, Tex., of counsel.
Richard Grainger, Mike A. Hatchell, Tyler, Tex., Marion R. Shepard, Jacksonville, Fla., for defendant-appellee; Ramey, Brelsford, Flock, Devereux & Hutchins, Tyler, Tex., of counsel.
Before COLEMAN, SIMPSON and RONEY, Circuit Judges.
La-Tex Supply Company (La-Tex), the plaintiff below and appellant here, turned over its trailer-tank, used to deliver propane gas, to Fruehauf Trailer Division, Fruehauf Corporation (Fruehauf), the defendant below, for servicing and repairs. Fruehauf delivered the trailer-tank to Britt's Machinery and Welding Company (Britt's) of Bossier City, Louisiana, for de-gassing and steam cleaning without prior permission from La-Tex. Britt's employees removed the gas, steam cleaned the inside of the tank, whereupon it was pulled to Fruehauf's place of business and returned to a La-Tex driver. The driver drove the tank to the La-Tex refinery, filled it with propane and proceeded along his delivery route. As the rig reached downtown Carthage, Texas, the driver noticed gas spilling from the rear of the tank, but before he could reach his cutoff valve the propane ignited and exploded causing property damage to several surrounding business establishments and destroying the La-Tex tank truck. La-Tex sued claiming that the cause of the gas leak and resultant explosion was moisture left in the tank by the sub-contractor Britt's. Fruehauf defended on the dual grounds that it was not responsible for the negligence of an independent contractor (Britt's) and on the further ground of La-Tex's claimed contributory negligence in failing to close the valve properly. The jury found for Fruehauf. La-Tex appeals on several grounds, none of which appear to us to be meritorious and we accordingly affirm.
At the conclusion of the evidence it was learned by court and counsel that one of the regular jurors might need to be excused in order to attend a funeral on the following day. The jury was advised by the court of this fact. He stated that he would allow the alternate juror to go with the other jurors into the jury room but cautioned the alternate juror not to participate in the deliberations unless and until the regular juror was excused. Despite this caution the alternate, a lady juror, made at least one remark during the course of the jury's deliberation, when she entered into a colloquy between several of the regular jurors, including the foreman, saying: "Let's listen to the foreman". This was made to appear by affidavits of several jurors submitted in connection with the motion for new trial below. We are cited Rule 47(b) of the Federal Rules of Civil Procedure, the Supreme Court decision of Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, the Fourth Circuit case of United States v. Virginia Erection Corporation, 4 Cir. 1964, 335 F.2d 868, and several other cases in support of La-Tex's position that prejudicial error occurred below. We do not consider any of the authorities cited as applicable, since the procedure followed with respect to the...
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Schwarz v. Folloder
...within the sound discretion of the trial court and may only be reversed for an abuse of that discretion. La-Tex Supply Co. v. Fruehauf Trailer Division, 444 F.2d 1366, 1368 (5th Cir.), cert. denied, 404 U.S. 942, 92 S.Ct. 287, 30 L.Ed.2d 256 (1971); 9 C. Wright & A. Miller, Federal Practice......
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