*1 €38 prefabricated sanitary other builders such lath and follow and fire-resistant as practice. in plaster, use barred from could not be Chicago.
building projects in view, In our Court the District People Brew- ex rel. cites Plaintiff also holding plaintiff was correct in failed 156, Ill.App. Kelly, 14 N.E.2d er v. prove inspection issue case the provision 694, made no the where code as as issues. We well on the structural found Court for casement windows. plaintiff, have considered other claims as much admitted casement windows they merit. but we think are without double-hung light and air conventional as judgment Court the District municipality could windows, and held dismissing complaint herein is windows. prohibit use casement not Affirmed. big isus However, before issue is materials. not that in which manner inspection used. materials were certain they not are state that Defendants such, houses,
against prefabricated as point out that other builders operating
prefabricated houses are Page County, such but assert Du doing a manner so such builders inspected. can the “structure” SON, INC., AND VANDERCOOK panels of roof The wall and Appellant, part the “struc- do become houses are delivered on When ture.” right George THORPE, in F. his own constructed, building to be site of for the Accident Insurance Standard Use Benefit of tearing way, other than Company, Appellee. apart, know panels the defendants to No. 19923. framing 1) the lumber size of Appeals United States Court of sections; 2) the and roof in the wall Fifth Circuit. materials quality and condition of Sept. 3) quality of workman- used; hundreds 4) in which ship; the manner 5) made; framing junctions bracing; matters and other corner inspector interested. would be by plain- proposed inspections Spot adequate. to be There not seem tiff would testimony expert that hammer is no sounds, al- holes to drill nail holes superior “equal to” inspection is low County’s Also, spot code. defendant entire side checking removal practical as these sides panel is not aof glued frame and can arrive difficulty. great only with removed inspec- that a visual assert Defendants suggest They impossible.
tion wall off leave the inside could inspection on structural after the until building They point out site. *2 Werber, Howell, C. A.
Charles Steven Jacksonville, Jr., Montgomery, Robert M. Fla., appellee. for Judge, dis- Brown, Circuit John R.
sented. BROWN, Before Cir- CAMERON and Judges, WHITEHURST,
cuit Dis- Judge. trict Judge. WHITEHURST, District brought by plain- This action was complaint tiff in a Five Count to recover damages personal injury for which he proximately claimed from the resulted negligence par- the defendant. ties will as be referred to here in the trial court. alleged First Count that on the day of the accident was while
engaged performance in the of his duties employee The Florida Publish- ing Company, operating he was a certain power printing press driven known and described as a Universal II Vandercook press Test Press. That been had manu- factured installed and maintained (hereinafter the defendant referred Vandercook) to as and sold it to the Union, and Times Vandercook at all knew, reasonably should have press operated known that the would by employees for Times Union of it Thorpe was, was, such as and it itor been, in should have the exer- foreseeable ordinary improper cise of tioning care that func- press in in- result operator jury press thereof. That equipped with on which, a roller press normal printing of newspaper, there was paper attached sheet of of the sort upon print- which Union Times ed; carrying pa- the roller the sheet of revolving per surface moved later- ally from the lefthand end of the machine ways righthand bed point end, all movement of stopped operator the roller so that opportunity per- time and would have Conroy, II, safety necessary Francis P. James form in C. Rina- function of Jacksonville, removing man, Jr., Fla., Harry from the T. roller the sheet Jacksonville, Gray, Fla., Marks, Gray, paper in the course its move- Conroy Gibbs, Yates, Jacksonville, upon & ments the bed across of Fla., counsel, appellant. printed. been had Union, purchased op- from the de- Thorpe the Times July 2, while On Test removing Universal II erating fendant Vandercook a sheet at the press, That the was tested Press. paper roller of the from the functioning factory to be and found cylinder suddenly, rapidly and with- *3 shipment. That it was properly before than re- warning rather retracted, out press by Union in its the Times maining stationary supposed to installed was as it began February press settings 1959. The 11, room on and under the control by plaintiff and the revolving moving used the left- was the to towards and eight catching num- employees, nine in bed, other or the machine hand end of * * * testing etchings pic- ber, Thorpe’s proof of for Thorpe’s left hand. newspaper in used in the injuries proximate of the tures to be result the were designing The en- negligence stories. connection news in so defendant’s graver plate the stop would etch onto a metal press when did not the roller that reproduced picture then righthand and would the ma- to be end of it reached the by the ways. the use test his handiwork proof of bed or chine press. de- The machine so was plain- The Count claimed Second signed in three it could be used injuries proximately caused tiff’s by were manual, ways, e., and i. semi-automatic negligence in so of the defendant the proper accomplished by automatic setting the constructing press roller the the generally the controls. It was of right- stop it reached the when engravers by operated on a semi- the ways. hand end the machine bed of setting, so set automatic it was and alleged negligence of The Count Third injury. plaintiff’s The ma- the time of installing press. the defendant in the op- set for semi-automatic chine when designed the was so that when eration alleged The Fourth Count defendant’s operator place plate to be the negligence maintaining press in so the electric bed, on the switch on the tested right- stop the did not at the roller electrically (the current machine was ways. hand end of the bed pedal powered) press a foot the and alleged that de- Fifth Count the move from the left end roller would impliedly warranted that the fendant right press stop, re- and the end operation and use was safe for maining stationary pedal until the foot intended; purpose which it was the knew, for again pressed and the roller would was reasonably known, should position to its and then return former by operated press would be the stop. employees Union which of the Times one, impliedly Thorpe and warranted was July 2, 1959, plaintiff while in On properly Thorpe that the was to work, placed his on the bed the course correctly designed, and constructed and plate to of the machine etched installed, and for and safe was tested, machine ascertained that the was in which he him in the manner use operation, proper- for semi-automatic set ly using operating press at the was plate paper, attached the inked the injury. of his time causing cylinder pedal pressed objection of the defendant Over right plate over the toward end move permitted, was Count additional an claiming plaintiff press, and when reached of the negligent failure defend- paper cylinder, instead remove the dangerous plaintiff of the warn ant to supposed stopping to do and as was propensities or characteristics done, reversed course had theretofore likely would be in that the roller severely damaging pinioning warning cer- unless retract plaintiff plaintiff’s hand. The dis- thus timely period- tain hospitalized. The defendant was abled ically made. immediately notified the accident was July 1959, 30, repre- service rested case he his When the defendant plaintiff’s employer, arrived and sentative established that had offending thoroughly ma- would back over the travel and forth bed examined stopping, several which the to discover before He unable chine. was operators yo-yo came call action. He undertook cause of the malfunction. His effort to induce a malfunction. January, In same service respect fruitless. representative who examined the had engraver shortly accident, employees machine after continued being again in which thereafter the area on routine use spection trip, un- observed them to malfunction at informed the con malfunctioning predictable would, set times. when tinued again operation, fail semi-automatic it. was unable to examined He *4 right- stopping at machine or function the discover defect in the ex 1 supposed plain press end of as it cause of hand the the erratic behavior. its offending roller do. On occasions the some The machine ceased its erratic 1. “Q. Witness Waldier That would be lever over on the right-hand the side of the machine that Waldier, Now, you says stop familiar or “Q. Mr. are run? it, right. I take with Vandercook Universal “A. the That’s press? test II right. stop “Q. That’s on If it was rath- Yes, “A. sir. er run— than specifically “Q. And now the one that the you press stop “A. If it was on you has, Florida are familiar Times-Union pedal way down all the foot on the the that Yes, with one? pedal, stop the release it would at the “A. sir. front end. you “Q. How have examined your you press “Q. Then when foot press? that again it should come back? company. “A. Twice for the back, “A. should It come correct. company? “Q. Twice for the Now, Waldier, you found no “A. Yes. explanation mechanical stop? failure to you “Q. When was first time ex- it? amined press perfectly “A. worked The when I July 30, “A. I’m I sure it was checked it. have it written down. yon anything wrong find “Q. Did with your understanding “Q. Was it there had adjustments you press on the when been accident? it? examined “A. Yes. adjusted “A. the time I At the time —at July prior “Q. At sometime 30? no, it, I I did checked not. “A. Correct. you change any- did not. “Q. You Did you press “Q. When examined the did thing that time? at you any knowledge at the time as to Actually change anything, “A. no. I press how the reacted had when the ac- tried to determine what caused the ac- cident occurred? I could cident and not. Only they “A. said it came back anything; change “Q. You didn’t is that doing I couldn’t find no reason for it right? so. change anything. “A. I did not get “Q. Wait a We will minute. to that. up anything July there on “Q. Was 30 press, you? You did check did you you press, when checked the find Yes, “A. sir. anything wrong way with the you “Q. Were to find a able mechanical adjusted? maintained or had been explanation coming your for it back in my knowledge, “A. To the best of no. checking? proper working inwas It order as find, no, “A. None I could sir. you far could discern? as right. “Q. All Is a semi-automatic far as I was “A. As concerned that ma- or a short —I mean a half stroke? working chine was well. cycle “A. Half ? standpoint a “Q. From maintenance press supposed “Q. Yes. Is the to re- everything else? right-hand main at end of the bed every standpoint. “A. From clutch, you your when the when release day-to-day from foot when is clutch it on semi- what is the or say automatic? week-to-week month-to-month re- up quirements “A. If the lever semi-automatic of maintenance —-I mean what you cycle. purchaser call it. I call it half should a a user to do proper manner. mal and malfunctioning before six months ñve or Publishing functioning Florida maintained in nor trial,2 thereafter January checked of ’61. When respect your press mainten- your under- presses? was it your it that second time ance, newer one again standing mal- keep had thing that the Well, it main “A. your weekly interval between functioned clean, keep least oiled they develop last examination? should does
if
trouble
again
that,
They
but
“A.
had told me
competent
notify
get
mechanic.
us or
operated
press.
everyday
hadn’t done it
I
mainte-
And
normal
people
according
long
I
lubricating;
while
oiling and
nance consists
press.
operated
I
talked to.
right?
is that
January,
your
long
before'
“Q. A
while
“A. That’s true.
visit, you mean?
you don’t
unusual that
And it is not
nothing
Right.
find
And
could
go
and make
have to
in to it
wrong
and I assumed
with that
things
nature?
of that
just
cams set
didn’t have the
Well,
we
here that
like in these cams
recently?
complaints
talking about,
if
slow
had no
“Q. You
cam,
adjust
down,
but
“A. Pardon?
have to
operator
adjustment
no recent com-
have been
“Q.
plaints
There
is an
*5
supposed make.
?
to
improper
sir,
nothing
No,
I
concerned
“A.
as far
found
as
“Q. You
right.”
press
operating
though?
all
the
the
No, sir,
“A.
I did not.
lubricating
engraver Hopkins
oiling
Now,
of
and
Witness
“Q.
the
press,
be done?
often should that
the
how
you
Now,
ma-
a week would
ever seen this
“Q.
“A.
plenty
once
have
On
Thoi’pe’s
Mr.
before or after
often.
chine either
enough
differently
any
injury
have
when set
seem to
function
“Q. Did the
working
just
you
it,
you have
de-
examined
the
semi-automatic than
oil when
on
parts ?
scribed?
my knowledge.
Yes,
of
“A.
“A. To the best
sir.
any
you
have
note that
you
I mean
don’t
“Q.
that was
tell us when
“Q. Would
something
like
many
oil or
needs
?
and how
times
that?
answer.
a hard
to
No,
ago
say roughly
I
“A.
haven’t.
I
six months
I would
Now,
engage
normal life of one
far end
what is the
didn’t
“Q.
noticed it
again,
presses
and
similar model
and it came back
of those
of
sexxxi-automatic
on
design?
a full run.
and made
say
Oh,
life
many
I
normal useful
“A.
would
on
did it do it
How
years or better.
is 15
occasion?
of
in the life
one of
“Q. Five months
one time.
that occasion
“A. On
relatively short,
presses
these
you
more
ever seen it do it
Have
be almost con-
not?
It would
would it
once?
than
press?
sidered a new
Yes,
“A.
sir.
Yes,
“A.
sir.
you
have
seen
total times
“Q. How
your company
guar-
have a
press,
“Q. Does
way
you
have de-
in this
react
it
respect
what it
antee with
you
that?
if
can estimate
scribed
will do or won’t do?
* * *
say
Oh,
12 or 15.
I’d
‘‘A.
you
by guarantee
“A.
mean
What
long
you
how
it has
tell me
Could
now?
press op-
you have seen the
since
been
you guarantee
press, as far
Do
way?
erate that
you know?
as
way?
“A. Which
any-
far as I know we have—if
“A. As
thing
you
way
where
wrong,
have descx-ibed
it
goes
“Q. The
we will do our best to
stop.
didn’t
fix it.
months,
say
six
Now,
four or
five
I’d
“A.
return to examine the
probably.”
July
months
at a time after
30th?
engraver
my
trip.
regular
Gallimore
Witixess
on
That
I returned
year
later,
half
I
and a
was almost
operated
ever
imagine.
“Q.
machine,
Gallimore,
on
year
semi-auto-
and a half later?
A
Well,
setting
here described
January
’61,
as
matic
it was in
way
operate in a
the machine
and had
believe.
charged
Company
to be
one of due
defendant
remains
and not
Corpora-
care.” Clarkson Hertz
tion, Cir.,
claimed.3
plaintiff there was some show that design approximately thing wrong basically testified 1000 ma with the instrumentality to the one in similar chines or construction here, stopping one had malfunctioned ever used to control and insure the righthand claimed this one did.4 as the roller of at the up “A. That is “A. 415 firm. dercook? “A. “A. That is its “A. E. O. Vandercook. “Q. along made here? O. Vandercook and Son “Q. “Q. “Q. cook, ship “Q. Presumably, then, or that are in transit? “A. The extended “Q. “Q. “A. “Q. “A. Yes. sion probability, here, [*] designated And isWhat Manufacturer, machine? That When Now, sir, Installed Is Very unlikely. What Would [*] to this what those press direct, Essex period install made here presses is, you * * * is right. you you, right. your Vandercook type orders, your occupation, and that place, are a Road, Kenilworth, is there before state did not send someone Mr. Vandercook? are President of are could be called ready residence? some of these and President it is press, are various permanent would your always when it arrives at any and Company? ready when name, please? operate? Mr. be run for an possibility, Sons, Mr. Van- disturbed to you Vander- shipped. resident settings settings a Illinois. of this preci- go? Inc. just E. ing in the same a *7 “Q. give to a n “A. It is a “A. No. í it it? under the “Q. “A. No. We “A. Just ship “Q. “A. One ual sent “Q. guarantee. “Q. turers “Q. separate cover? “A. “Q. precision printing is $ something, of service $ and in when we are in the Is With What And thereafter it would Well, That What Is that written them at Sent contract, And then class price is no direct instruction have about the same service extra or is that included material. along year. guarantee, with the is a Adjustments fine we do on a new machine if it was does the precision press. of the machine? as a $ a it would be and maintenance. with the machine least one free call usual: a service one-year do Vandercook, adjustments? this implied. not machine. [*] press. such guarantee is, anything guarantee? Faulty have of are not critical. guarantee, contract, as a for a tool, course, thing. All area. $ is this man- It is not tbe I am any be faulty part that came workman- include? year. manufac- but it is pursuant given by written speak- would where under is after [*] is it? to addition, posture In to conclude It seems reasonable that factual history poses performance the defend- in- this case a balance of proof ferences. ant in the absence other The fact that the defendant’s danger obliged proof press normally of a and not warn functioned suspect satisfactorily period it had no reason to or foresee for of four a installation, proof not one-half and the which the months cause of after its resumption performance of such establish. malfunctioning, after a season would de- Sixth that Count claims support as well an care inference of due known, knew, have fendant should design safety sup- in its as would the roller of port negli- theory inadequacy warning likely unless retract gence. timely certain applying We said in Florida law support periodically made. To this cases of this kind that: deposition plaintiff offered of the claim president requires defendant whose testi- “Florida law the cir- any negli- mony to show we think failed cumstantial evidence in such a case gent preponderance failure to warn. ‘amounts to a of all your organization, you any the man from Do know of the technicali- right? design ties about insofar as this is con- always regardless. sent, question “A. It is cerned? me ask Let this in- man, you you any designing send in a does he When do do stead: Do usually particu- personnel company show the this for “A. all? buys machine lar establishment No. operate part you engineer? Is that how to the machine? Are job? of his No. “A. “Q. ground? engineering “A. That is You have back- I realize is a this difficult * ** answer, this but is relative- “A. No. “Q. easy ly operate, machines, ap- one to or are there sev- How of these you proximately, eral a man must be aware controls of? * * * very simple. throughout “A. It is the United States? adjusting general type Is these ap- cams which do ac- “A. Of this there is ** * part day-to-day proximately “Q. Now, tuate the brake a thousand. you You maintenance the machine? an- ever had trouble you know; trying grip that if swer am not with the cam of these ma- trip up. something you Is that chines? * * * ** * watch have to ? “A. Never. “Q. Now, again going “A. No. I am to show something presumably That is Sheet No. and I will ask merely right, my should set once then be all information and *8 you, trap Yandercook, question is it? that a regard regard with to those to that sheet. With “Q. However, they right, notations, if are not set we do not know braking system operate by put your will people not cor- whether were in rectly, right? not, assuming they is that but were for the * * * moment, “A. I won’t answer. would that be directed to the understand, then, man, Am I to tighten that maintenance to ‘loosen and
guarantee you regard have with to this the cam’? * * * gentlemen’s agreement type machine is a thing “A. I don’t know. writing? and not in necessary Is it often to correct writing. faulty parts? “A. It is not in * * * guarantee very Is that often exercised “A. Not often. purchasers, Mr. Vandereook? Do know whether not Well, they “A. the stop often go come us to within cams which control the the circular or semi-circular year thing yes some to be corrected. * * * quite often, adjusted That is pre- of this machine are you familar, well, by eye Are cision instruments or sir— feel? operation? right watched this machine in I know wouldn’t at this "A. Yes. time.” 646 ranty plaintiff must can whatever'—the inferences reasonable something wrong show that was the circumstances drawn from press. evi- that it with the He must show end evidence defective. reasonably susceptible was not is dence ” inferences.' equally reasonable to Any made, no matter how Corp., 5 Motors General Smith v. Cir., be, probably will “safe” can and sooner 210, 213. 227 F.2d injury and cause or later malfunction defend that the claim To establish his improperly used, it is maintained or if negligent failing to warn ant was and of cared Proof malfunction for. employees Union Times of the injury not, itself, make in and of does likely danger that the roller Nothing a more shown out case. was warning certain unless without retract adjustments here. timely periodical testimony deposition ly made, the Judge BROWN, (dis- JOHN R. Circuit Stanley D. Vandercook5 witnesses senting). 6
Nastek was submitted. Although extremely testimony contradicts think this We close and I am more than ever re- one plaintiff’s claim than sustains rather experi- luctant differ because timely period- make failure familiarity Judge ence-based WHITE- danger created ical law, I Florida think HURST with jury warned should have defendant which Florida is sustained under verdict Sixth Count. claimed his negli- warranties if not law on so-called wholly failed to thinkWe gence. The extent which Florida of the malfunction the cause establish implied the notion of fitness carries complained, therefore, there he which opinion the recent of Green revealed negligence. this For issue of Fla., 1963, Tobacco Co., v. American motion for think the directed we reason reversing 169, in effect our 154 So.2d granted. have been should verdict decision, v. American initial Green judgment is reversed and Co., F.2d 70. Cir., Tobacco with direction enter remanded cause failed function The by Judgment for the defendant. ought rolling when it not to. back jury Obviouslythe could find that a Judge (concur- CAMERON, Circuit jury could like- should not that. ring specially). this wise conclude that Judge fully in WHITE- I concur improper maintenance or re- result pair. opinion. able HURST’S unaccountably rolls A warning is not fit for the here under case back job To make out tort, theory liability is intended. war- for which it asserted — you sold a Vandercook Model “Q. Have 4. Footnote 5. See press? 2, or No. 2 test Really you employed? sold itself. “Q. Where order, Sons, if that is what Inc. take didn’t “A. Vandercook ** * capacity? mean. In what * * * *9 representative. certain are there cams see. “A. Sales right long the extreme been with Van- down there carriage? How and Sons? dercook Benny. Yes, years are cams. Jack “A. 39 —like servicing long hold or that activate the “Q. Cams which been How right? brake, selling is that State of Florida? in years. “A. About six require periodic ad- “Q. Do those cams done business with the “Q. Have justment? Publishing Company, also known Florida Shouldn’t, no. in Times-Union Jackson- Florida as the you say? not, “Q. Should ville? “A. No.” “A. Yes. Plaintiff’s characteristic caused enough injuries. And Florida that is for regard foreseeability quite Certainly
due Plaintiff was care. range persons
the protected by Florida considers representation.
the fitness respectfully
I therefore dissent. Wesley Asinof, Ga., Atlanta, R. for
appellant. Bobby Milam, Atty., C. Asst. U. S. Atlanta, Ga., Goodson, Charles L. U. S. Atty., appellee. CAMERON, WISDOM, Before CONNER, Appellant, Alvin Grover Judges, DeVANE, Circuit District Judge. America, UNITED STATES Appellee. Judge. CAMERON, Circuit No. question presented by ap- sole this Appeals States Court of United peal conspiring from a conviction Fifth Circuit. taxing liquor violate laws is whether Sept. 19, 1963. the court below committed reversible refusing grant error mistrial “be- by placed answer [an]
cause witness [a] reputation character of the de- fendant evidence without the accused having first done so.” No sufficiency as to raised of the evi- support guilty dence the verdict of jury. rendered prosecutor’s question In answer to the relating to whether the witness knew anything about the defendant before he him, witness, co-conspirator met co-defendant, but not answered: “Oh, I had took it he inwas liquor business from the conversa- tions.” judge promptly The trial instructed the disregard jury answer. general rule that an erroneous admission of evidence is cured excluding the evidence from the con directing jury sideration of the disregard Fahning jurors it. v. Unit States, Cir., 1962, 579; 299 F.2d ed *10 Cir., States, 1955, v. Helton United 338; Simone, 221 F.2d United States Cir., 480; al., 205 F.2d et