Lonnie A. Dement v. Olin-Mathieson Chemical Corporation, E. I. Dupont De Nemours and Company v. Lonnie A. Dement
282 F.2d 76
5th Cir.
1960
Check Treatment

*1 Cir., 1928, Co., Boyer’s L. Sons F.2d 602. Ceiling Ship Halcyon Lines Haenn v. Refitting Corp., 1952,

& U.S. not relevant S.Ct. 96 L.Ed. 318 ship- case the these issues for in that owner’s concurred causing the shoreside contractor

injury employee. to the contractor’s stated, I conclude reasons For the re- should be phase also the case for trial the court below manded to presented. the issues respectfully I must For reasons court refusal from the

dissent grant rehearing petition on the herein. referred to

issue last DEMENT, Appellant,

Lonnie A.

v. COR

OLIN-MATHIESON CHEMICAL al., Appellees. et PORATION DE AND COM duPONT NEMOURS

E. I. PANY, Appellant, al., Appellees. et DEMENT

Lonnie A.

No. 17906. Appeals States Court

United Fifth Circuit.

Aug. 11, 1960.

Rehearing Oct. Denied *2 Kerr, Midland, Tex., L. Ed- William Schall, Wilmington, (Tur- Del.

ward W. Tex., Dyer, Midland, pin, Kerr, & Smith I. counsel), for E. duPont de Nemours & Co. Sneed, and Thomas A. Watts John J. Tex.,

Odessa, for Lonnie A. Dement. Big Little, Spring, Tex., John James Mo., Joplin, Scott, Mathie- W. Corp.. Chemical son Amarillo, Tex., Wilson, Thomas R. A. times the product, case with a useful Wilming- Jr., Carroll,, Laffey, J. potentially extremely John H. materials were Sutton, dangerous. ton, Wilson, (Underwood, Del. Here the Amarillo, Tex., composed Berry, Heare & sel), of coun- gelatin dynamite of sticks of Powder Atlas Co. manufactured Atlas sold Olin *3 under its trademark, cylinder a metal Judge, RIVES, and Before Chief booster by manufactured duPont and an BROWN, and Circuit HUTCHESON Judges. blasting electrical cap manufactured Olin.1 explosives. high All three articles contained dynamite The Judge. inis the form BROWN, Circuit JOHN R. paperboard of hard approximately tubes charge explosion premature of a A two in inches and 24 diameter inches opera- seismograph being prepared for long. Each tube—stick—-is sealed plaintiff severely injured and tions heavy paper at each end. Each “stick” plaintiff sued The killed co-worker. his is permit formed coupling of two or gela- separate manufacturers more sticks. Here five sticks were dynamite, electrical and tin booster joined. charge. blasting composed cap The three articles connected to- “we, are general verdict that defendants, Based gether up seismograph to make jury, each find for the charge. First, a hole is or en- every plaintiff,” one, and larged dynamite by one end judgment for entered a District Court punch. the use of a metal round The appeals as- Plaintiff the defendants. pushed metal booster is form- the hole serting objections many His errors. dynamite ed in the end of the and the largely an assertion that boil down to blasting cap electrical is attached Judge’s charge to the the District Normally booster. this combination erroneously excluded several substantive placed ground in a hole in the and deto- recovery. defendants theories nated an electric current. regardless counter that so-called judgment errors the stand each should explosion, plain- At the time of the defendants was entitled to a di- co-worker, driller, tiff’s as- was did rected verdict because the evidence sembling charge. prac- As their was certainty requisite with indicate tice, they picked up dynamite had and explosion any of what caused the or that caps Company’s powder at the Seismic negligent the defendants magazine morning. Under their regard. practice helper (plain- usual tiff) the driller’s why explosion Just how or oc- couple dyna- would sticks hotly disputed. Plaintiff, together curred mite punch and the driller would helper employed by dynamite driller’s Engineering the Seismic a hole in the and insert assisting Company, was cap. the booster and attach the When drilling charge holes co-worker and assembled, they was charges explosive preparing of for seis- ground lower into a drilled hole in the mographic exploration cap in certain counties dyna- with the and booster end of the operations being In in West Texas. an mite lowered first. The electric usually explosive, dynamite, cap is dis- from wires were snubbed around charged ground causing shock the and then ran to the reel to registered which are waves graph on a seismo- power be connected to the switch and this, and recorded. From infor- dyna- source. Plaintiff had screwed the together mation about earth strata useful in oil gone mite and the driller had exploration get ascertained. is As some- truck to his cap booster and Corporation— defendants were: 1. The Olin Mathieson Chemical Company dynamite cap dynamite. Atlas Powder and seller of — Company— E. I. duPont de Nemours & booster spe- Plaintiff did not detonated an had returned. abrasive when the boost- cap. cifically purposefully pushed er was see booster into the dynamite. position Hence, had squatting driller in a the fault was the pulling dynamite punch dynamite and manufacture was sale of with improper receptacle a short walked in- it out when the means away expected sertion of an feet—to distance booster. In line —about get this, heAs of water. truck to a drink contended that suddenly truck, standing by improperly packaged killing instantly discharged explosives should duPont’s have—like nitramon ex- plosives severely injuring provided driller the plaintiff. contained in cans— receptacle requiring booster *4 a eliminating forceable insertion thus lay ad- witnesses expert and Plaintiff’s problem the of the introduction of abra- what hypotheses to several vance probably sives. happened. theory Plaintiff’s about the booster around revolved of the theories One seems to be this. It was to En- dynamite. Workers Seismic the manufacture and sell a which booster oc- on Company gineering testified pushed was known would have to be into dyna- the they noticed that had casion dynamite a hole in the end of which oily. sticky This covering was mite enlarged necessarily had to be ac- to nitro- indication that an was said the commodate booster. dynamite had glycerine contained leaking. con- a theory Such separated cap and was as to the was that due likely motion two in pressure cap, would set dition to heat the of One, with the explosion. plastic material, of the causes nitroglycerine a was defective since punch- state, the slight during pressure in manual of ing dynamite insertion or the detonated, the of attachment it could have in presence causing unavoidable dynamite an booster with the turn the booster and to grit, abrasive, or as sand explode. an of Plaintiff also contended that dynamite. An- easily the negligently detonate supplied could Olin an outmoded sliding worker’s aof (style ’52) the cap other was that which deteriorated easier dynamite along leaky stick of the hand in the heat and which should have been easily ere-, it could on abrasive with some replaced recalled and cap (style the new safer enough ex- an cause such to ’56). friction ate plosion. that in contends factual Arguing this style being fact used was and that to entitled was which the permit basis credit, the will no evidence conclu- other urged con- regardless the defendants style But sion. of the of the fact that was east doubt cap, plaintiff siderable contends that it was defec- dynamite packaged waxed in a the paper tive. might hot Texas sun which the Typical of the cross of examination sticky. look somewhat make to tend expert kind, questioned in of this cases each of an claimed, This, was corroborated it was was advanced in the theories testimony of —who spot attempt to find the weak un- days’ experience only he three had —that fallacy. derlying addition, In de- dynamite used notice that not did offered'several theories of their fendants morning oily. was was somehow own. One the driller dyna- charge by theory regarding the assembled second detonated lowing al- A pole very to strike a used nature to lower was that mite ground. necessary punch in operation, into holes it was to course, weighed dynamite This, have be of the to to hole the end light contrary booster, plaintiff’s the uni- was testi- insert regarding practice. mony and circumstances withdrawal versal might carry charge. poles punch from with it a film of the distances nitroglycerine easily Also, could in an effort to show that the booster involved, sand, being cap some while handled which caused explosion explode on the blamed the defendants when the booster punch pushed dynamite. used to make a hole in metal was into the was It dynamite. by testimony very possibility offset This is real film that a punching nitroglycerine hole could been released have completed during punching the accident was before of the hole and the punch subsequent itself circumstance that insertion of the booster with found after the accident with intact an dynamite. abrasive could have detonated the directly appearance had that it been case, But if such was the again explosion. involved Here fault was booster, due defect in the conflicting properly solely the evidence was manner Any to resolve. which it was used. issue practice pushing a booster into inventory attempted have not We a too small hole is aimed at the re- and discuss each bit of evidence ceptacle dynamite, for the booster in the record, 1800-page Ins. Travelers Co. not nothing the booster itself. We can find Truitt, Cir., 1960, But 280 F.2d 784. justify implicating duPont. highlights, we have set forth brief- *5 presented Once evidence was of none ly discussed, to demonstrate that as it indicated any that there was defect except duPont, all of the defendants the including in the booster as such— properly issues were re- for the plaintiff’s own which witnesses solve. exonerated duPont—there would be no are, submitting basis however, We convinced that the case to the ipsa theory. even on a no case was the res ever out duPont booster. There was no evidence longer any is There no basis really of kind and con serious may liable doubt that a manufacturer tention that booster persons who no contractual third have suddenly exploded setting off more injury resulting him for relations with powerful explosives. virtually In all fact product in from defects which could his the evidence about came the booster from have been avoided the manufacturer’s Ludwig, plaintiff’s expert Mr. Yon wit of Der exercise due care. International ness, who reiterated several times that Cir., Equipment Croix, rick Co. & 5 there was no fault in as the booster 1957, 216; 241 F.2d Roosth & Genecov such.2 White, 1953, Production Co. v. 152 Tex. only possibility seriously 619, 99; Restatement, advanced S.W.2d Torts perhaps 395; Prosser, Torts, was that the metal had booster One rea § § picked up abrasive, impracticability, some silica for the rule as son is 2. Mr. Von A. No booster, am I correct? A. I find no fault you booster in ture as tended, you or “Q. “Q. “Q. And “Q. the booster as such. improper is now in the [*] v [*] find fault? have no fault of a booster of Is there ** * * * no. ** in its Ludwig [*] [*] [*] such? in * *. the use of a booster such anything packaging A. Is there fault But testified as hands of the A. Not as a manu- [*] [*] [*] For you you I in the manufac- type anything wrong and not in the understand find is in the find with the # [*] [*] purpose follows: with which jurors? [*] [*] [*] in- it, factured that proper A. No. That pened. see, ample. plosive packaging ing cedure only evidence that' would lead me to believe happened. differently ed, “Q. the hole in I find no fault with it. booster would be if the manufacturer Now is in loading There That’s product accepted, standard, explosion its it. in, use, I you that I there * isn’t for the you put don’t believe that nothing stick and then know about? arose out of * only necessity anything question.” * should have done booster, purpose defect problem. [the booster] to indicate it normal I have no wrong about for ex- pushing I could * * * intend- punch- hap- pro- It’s im- ex- inspec- exclusive control. The crit- defendant’s impossibility, of effective if not necessarily goods point which ical time ultimate user tion may carefully made, precise injury. Rather, time of it ob- involve, if not viously safety. probable extraordinary In refers the time the human risk to negligence only many from the occurrence inferred instances fact place. satisfactory event took Ozark v. Wich- inspection examination manufacturing stage. Inc., Cir., 1958, Manor, 252 F.2d ita at would be Cir., 671, rehearing, (on at where Especially this case is that true in casualty 805). grossest 258 F.2d If is a sort only would be of defects ordinary things user. which in the course of visually apparent ultimate negli- absence of not occur duty is As the manufacturer’s gence, an inference it was due to depend tort, it does founded upon negligence the defendant’s is allowable. law of sales intricacies of the Bottling Co., Honea v. Coca Cola privity upon concepts esoteric 143 Tex. 160 A.L.R. 183 S.W.2d duty class to that contract. The extends 1445; Inc., Ozark Manor, v. Wichita expected reasonably persons of exposed supra. Thus, theory grounded justified product to or use the improbability of an accident expertise reliance on the manufacturer’s occurring in the absence of ability. is not Here it technical of causing actor who controlled the forces plaintiff was a mem contested that the Here, entirely the harm. it is expected employees such a ber of class— and, fact, reasonable assume based Indeed, explosives. the de use upon ordinary experience, highly prob- really dispute fendants do not this. charges explosive able that when *6 point departure proof main is normal, contemplated used under circum- required part to show on the prematurely explode stances not of the manufacturer. District Court absence of some serious defect. In plaintiff ruled that was not entitled fact, by such is the evidence offered theory ipsa loquitur of res unexpected defendant. If an ex- proving his case. Without instruc something plosion occurs, seriously has jury theory tions ipsa, on res gone wrong. deny Defendants do not jury general charge on a re simply point this but elsewhere for the general turned verdict for the de explanation. This is into translated disagree fendants. We and reverse. may ipsa terms that res not aid the agree We with Dean Prosser’s state- plaintiff identify since he is unable to injured plaintiff ment. “Since the al- particular explosion cause of the any proof most never has direct what necessarily separated which must be out plant, has occurred in the manufacturer’s any implicate and identified to individual usually he must resort to circumstantial defendant. ordinary case, evidence. In the this rely upon means he must the doc- Here there can be doubt that the ” * * * ipsa loquitur. trine of res explosive charge components of the were Prosser, Torts, 84 at 505. § this As exclusive control of under the the de- pointed out, Court has the doctrine of manufacturing at the critical fendants “ * * * ipsa loquitur res simply is stage. states, As Atlas’ brief “Atlas general facet law that verdicts charged having had com- could may rest circumstantial evidence.” dynamite plete control of the manu- Revlon, Buchanan, Cir., Inc. v. 1959, during by manufacturing it factured 271 Torts, page F.2d Prosser, at 799. See “But,” continues, process.” it “on no 42. § charged could Atlas be with ex- basis control, For ap the doctrine or with clusive control at plicable, blasting all, cap must have been of either the electric by injured instrumentality which, an the booster.” at or defendants con- point time, the critical was within that all must fail because of tend this * ** permitted the in- dence factor that essential since teaching. accept reject But or its causing must strumentality harm probative available management evidence it was in exclusive have been by jury under for consideration miss- cast defendant control of the ing. adequate instructions." necessary way in order it here that Nor is principle But “is another this apply particular ipsa force must for res one saying circumstances ‘the out, held accusing finger identified and must be severed defend- point at the negli- cause of a matter of law to be the liable for held ant if he is to be premature explosion. com- The various re- gence. function This part ponents to be a manufactured quirement caused accident be management dynamite was combination. The one under the instrumentalities and Olin v. Ozark manufactured Atlas for Olin defendant'.” and control of Olin also Manor, supra, at its 52 F.2d sold it under trade-mark. Wichita blasting cap. the electric manufactured refuge Clearly, under not seek Olin could ipsa apply, it For res argument it was musical since this chairs necessary a matter of law the that as implicated that either in the event ex could reach no other conclusion cap negligently de- or casualty cept that the was caused candidly As much is stated fective. particular force. identified It is—as “concerning dyna- brief, in its always question Pre was—a of fact. any, mite, liability, of Olin and if cisely point in Ozark do is identical.” Nor Atlas to Manor, supra, at Wichita F.2d posi- was in better we think Atlas pages 673-674. largely to tion.3 A which is due doctrine City’s expert “The did under- superior inequity party has when one categorically inferentially take knowledge, informa- access to unlimited dispute plain- main theme of critical, tion, control and exclusive at *7 expert probability tiffs’ in all by stage cannot be overcome decisive * * * [compressed pressure] air approach. The whole artificial such an development gave driving explosive to force contemporary law of Texas the water or air first came out as it contrary. in Even in cases is hydrant by opened of the when no combination as there which there is boy. little obviously here, is courts rec- the Texas ognize liability joint expressly actors com- this was not con- “While independent pletely each tradicted, jury and unrelated to was not com- where their con- accept opinion. in circumstances other pelled Con- to injury hypothesis, has caused indivisible which questioned duct cessions accurately apportioned cannot typical examination of of cross an by plaintiff.4 from plus identified Here expert, factual evi- [other] phi- sought indemnity seem bave courts to embraced nor Olin Atlas 3. Neither losophy, in this inherent class of deci- from the If Atlas’ other. or contribution injured sions, it is better position sustained on retrial damages loquitur party ipsa lose of his than that all on the res were cast wrongdoers pay negligent dynamite, several should of of Atlas inference damages respond likely than might he individual- to more have to Olin for separately ly caused. If such has negligent manufacture since there is no jus- standpoint law, anything from of suggestion been did that Olin alter been; by not have if it is the it should tice as delivered Atlas. now, it will not be hereafter. The law v. Sun Oil Co. Robicheaux case of v. East Texas Salt Water Dis- 4. Landers Co., 1952, 251, posal the tortious Where acts 151 overruled. Tex. 248 S.W. produce wrongdoers join complete 731, or more was a two reversal 2d injury is, perhaps majority) injury, (and prior an indivisible rule. Texas appor- words, nature cannot be from its “In other held: our Court §3 injury clearly physical standpoint presented question jury a for the of the three a combination to resolve. caused products. consequences are Where the attempt identify particu devastating human life so and the risk to explosives pre lar defects in the does not products great, so manufacturers being vent the case from for the one designed components which are application ipsa loquitur. of res Ozark may products used other known Manor, Inc., 1958, v. Cir., Wichita 258 5 responsibility in thus evade to come 805; Refining Delavan, F.2d Gulf Co. v. basically explain. what That Cir., 1953, 769, 5 771; 203 F.2d Honea ipsa requires. res doctrine Bottling Co., Coca supra, Cola 183 S. 968, page W.2d at aspect The second of element Our conclusion is that the subsequent acts control—evidence deprived of an essential substantive the- adversely have not intervened to alter the ory recovery. it, Without it was de- instrumentality adequately presents — prived of a basic facet of the rule cir- jury. factual issue for Honea v. Coca proving, cumstantial evidence in or at- Bottling Co., 1944, 272, Cola 143 Tex. 183 tempting prove, part on the 968, S.W.2d 160 A.L.R. 1445. There is of the defendants. jury in sufficient evidence to warrant a pointed As we out Ozark v. Wichita being ference that the materials were Manor, Inc., Cir., 258 F.2d at contemplated normal, used man (on rehearing), this Court has twice ner. That it was for sale in the West approved a form of submission so that area Texas and used there under contem understanding has a usable plated conditions is established suffi legal principle permits, cient evidence the record. The evi compel, finding negligence. does not adequately permits dence to con Ry. Buckles, Cir., Texas Pacific &. Co.v. explosives clude that were handled 257, 263, 232 F.2d see note and Kan- Engineering properly the Seismic City Ry. sas Cir., Justis, Southern Co. v. Company reasonably and manner 267, 270, 232 F.2d see Nothing note have been foreseen. done A.L.R.2d 628. conclusively the driller or the adversely shown to have affected the We think the Court erred also materials. In other words given adverse alter in the instructions in connection instrumentality ation duty of harm was with the to warn of defects view not established as matter inherently dangerous of law. Con of the nature of the sequently, posture, explosives.5 in such a Specifically issue this instruction *8 certainty tioned with reasonable to the 5. The basic instruction was as follows: * * * wrongdoers, wrong- “Now, individual all of applicable the facts, under jointly severally you will be doers held and are instructed that it is law in * * * damages liable the entire and the in- supplies Texas that one who jured party may proceed judgment to subject a chattel for another to use is against separately against liability one or all supplier to to those whom the expect in one suit.” 248 S.W.2d at 784. should to use the chattel with Lamb, Tex.Civ.App.1958, Burns v. the consent of the other or to inbe (error e.), imposes vicinity probable S.W.2d ref. n. r. bodily of its use for liability damage resulting full for all damages on the one by harm and caused negligent party though damage was also the use of the chattel the manner for by person by person done another who was not which and for whose it use negligent; Stores, supplied supplier Leon’s Shoe (1) v. Inc. if the or knows Hornsby, Tex.Civ.App.1957, 306 S.W.2d from the known facts to him should (no history); Kirby 402, 409 writ Lum- likely realize that the chattel is or is Corp. Walters, Tex.Civ.App.1955, dangerous ber for the use for which it (no history); supplied, (2) 277 S.W.2d writ West- and has no reason to Guaranty Dean, Loan ern Co. v. Tex.Civ. believe that those for whose use the chat-

App.1957, (error supplied 309 S.W.2d 857 dangerous ref. tel is condition, will realize its e.). (3) n. r. and fails to exercise rea- sonable care to inform them of its dan- prejudicial expressly not have required been in view other that before of portions against charge.7 Olin or of the could a verdict return required against Atlas, be would satisfy But we are unable to ourselves case, failure, in each to find that this that error was harmless or that the proximate the “sole and to warn was general de- later instruction cured injuries.” in- basic cause of the fects in the first. This cov- instruction 5, supra, struction, a substan- was note specific theory. ered a was The Court paraphrase of Restatement tial of the equally specific requirement in its Torts 388. § return verdict warrant of a against or de- do undertake to either one both The defendants of fendants, justify ei- of an instruction was essential that as to it the correctness finding requiring proximate ther of “sole failure to warn defendant proximate” insist, however, They while the “sole matter cause. As a cause.” liability, technically erroneous, of law substantive Texas on tort it could this was repeated substantially gerous This or of facts condition likely. concerning dangerous same words as make conditions said duty placed to the defendant Atlas. manufacturer The or product supplier manufacturer’s They principally following: persons refer warn such is to dangers “Now, law under the there can be but could existence of reasonably recovery damages injury, expected apparent one or for an be negli- applied but the holds all case.” law those whose obvious as this gent directly acts or omissions con- supra, injury, instruction, causing tributed or united in 6. The note basic ap- jointly severally immediately by specific liable and both to the was followed person injured you plication cap and as follows. are instructed you preponder- if find from a fair caps manufac- that if “This means plaintiff supplied ance was the evidence that by tured and the defendant injured proximate * * * as result of claimed Olin defective as negligence combined by plaintiff storage concurrent or and that one of other, an- caps the defendants with that of under weath- use of the field them, plaintiff or by and that such either er as claimed conditions injuries naturally caps have plaintiff deteriorate, would not be- would cause probably easily resulted to without the more come soft and detonated * * * one of the defendants knew the defendant case, this then that defendant or those or exercise of reasonable care defendants are liable known that conditions should have said might entitled to recover. claimed probably exist, or duty words, applied then “In this there was other part case, simply you obligation de- means on that while * * * only to warn not couldn’t return a verdict fendant Olin each supplied sepa- caps, all those to whom and rate of these defendants for handling also those who would be amount to warn amounts same caps dangers using together, and might said that would be added that when caps you case, the use said take arise the evidence if exercising persons you negli- reasonable care and find under the definitions of *9 forth, prudence gence, use of in the same and the and so that defendants the neg- might up you liable, warn would amount to then it is to so to failure ligence part the the defendant Olin which defendant on determine or which de- ** * you fendants, one, find and be- than and if further if more or all of the defendants, one, the that than all of evidence such if more and whose lieve from negligence by responsible, you the defendant Olin Mathie- was find if the Corporation injuries responsible, the sole it son Chemical was that to the was proximate plaintiff, injuries, cause and or which of the defendant or resulting warn, damages therefrom, that, failed to and from the defendants received, your you plaintiff proximate then verdict that if find the plaintiff against cause, keeping for the was write a verdict is should be the defendant Olin * * you (emphasis respect.” (Em- what phasis find in that supplied.) supplied). Judge (concur- HUTCHESON, ora between Circuit vast distinction ais there ring result). proxi- in the sole proximate and the cause cause.8 judg- mate I concur affirmance of the defendant-appellee, ment as to the du- giv- actually instructions Under the Company. Pont I concur also in the re- as to entirely possible that en, it judgments versal of the remand of jury reached example, the cap, for appellees, the causes for retrial as warning required so was that decision Company Atlas Powder and Olin-Math- warning by give the failure that Corporation, ieson Chemical because of having However, negligence. was Olin in, perhaps of the court inad- re- jury not able this, found vertently erroneously, but none the less because turn a verdict requiring negli- to find requiring them to specific instruction gence defendants was the sole and finding this additional make the proximate injuries. cause of the n “was the proximate cause.” sole and I in, do specifically highlighted repetition concur I dis- This was agree with, language opin- statement in to the identical ion, general “The district court ruled that defendant Atlas. and the 7, theory was not given, su- entitled to the see note later instructions pra, ipsa loquitur res proving modify or alter his undertake to case”. do not they points The appellant upon by specific If statement relied former instruction. appeal (Rec. pp. to, did not 1734- were intended the instructions 1775) any does not of, contain a matter of claim this clear. It concerned make to, ruling. reference importance the- I in substantive find both do not appellant brief ory supporting there of the facts that or in the record have been doubt. When such claim. There is should discus- sion in purposefully specific all of ipsa uses on briefs of a court two “the res loquitur legal principle”, specific occasions a term of unusual in connection with a discussion significance, and substantive such as whether under the evidence a verdict proximate cause,” hold “sole we cannot defendants should have been discussion, directed. however, that the was free to This conclude is not did not directed to a Court mean what was said claim that the district judge having ruling just it, major- or that said said what was ity general make, but, finds he did retracted broad and as stated in appellant’s point 6, terms. to the . claimed error failing of the give court “in in his is, course, way There to demon- charge any requested of the instructions jury may strate not have been * * * as to res significantly affected and a verdict based ipsa loquitur”. upon may not stand. ipsa loquitur “The doctrine res is that as to Our conclusion Atlas * * * simply general a facet must be retried. Olin the case Pont, As du- may that verdicts rest law circum- judgment is affirmed. Revlon, stantial evidence”. chanan, Cir., Inc. v. Bu- 795, 271 F.2d In Reversed and Remanded Part and at 799. judge, recognizing district Affirmed In Part. this and suggesting (1954 Supp.); & §§ Hodges, the formal re- Without Special special Issue in the submission of Submission in finements is- practice perti- (1959); Grey- 22§ under the Texas Texas Southland sues Cotten, 1936, of a case hound Lines nent jury in the submission Tex. 329-330; following court, Tex- 91 S.W.2d federal Panhandle *10 By. Ray, authorities, among others, Fe Co. v. show the & Santa Tex.Civ. (no App.1949, 221 fundamental substantive distinction be- S.W.2d writ proximate proxi- history). tween a cause and sole Negligence Tex.Jur., mate cause. 30-B stating, circumstantial some “There is gave case”, in this evidence evidence, to jury on circumstantial objection ex- and no was made ception taken. points and 45 Appellant, in his complain 266-269) (brief pp. does give requested in- his court’s failure neither 12 and structions Nos. objections exceptions to the his give them the court failure of charge appel- in his brief does nor rules, point required lant, out give why

wherein and failure to

charges error. was reversible C. Petition THE Diesel Tanker A. INC., DODGE, the Mo- Owner of Dodge tor Vessel A. C. Service, Inc.,

Spentonbush Transport Fuel From Limitation for Exoneration Liability. 355,Docket

No. 26084. Appeals Court of States

United Second Circuit.

Argued June 22, 1960. Aug.

Decided