Record and brief — Spudnik Equipment Co. v. Garza

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NO.

OCTOBER TERM, 1981

SPUDNIK EQUIPMENT COMPANY,

Petitioner,

SIXTA GARZA, Individually, as

Representative of the Estate of

MIGUEL G. GARZA, Deceased;

ISRAEL GARZA, ESMERALDA GARZA

GALLARDO, ISMAEL GARZA, AND

DAVID LEONEL GARZA,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Wm. J. Brauner Alberto Munoz

P.O. Box 1078 Flores, Sanchez, Vidaurri,

Caldwell, ID 83605 Munoz & Gerra

Telephone: (208) 467-9281 P.O. Box 2128

(Attorney for Petit.oner) McAllen, TX 78501

(Attorneys for Respondents)

Blaine Evans

Elam, Burke, Evans, Boyd

& Koontz

P.O. Box 1559

Boise, ID 83701

Telephone: (208) 343-5454

(Attorneys for Respondents)

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

SPUDNIK EQUIPMENT COMPANY,

Petitioner,

SIXTA GARZA, Individually, as

Representative of the Estate of

MIGUEL G. GARZA, Deceased;

ISRAEL GARZA, ESMERALDA GARZA

GALLARDO, ISMAEL GARZA, AND

DAVID LEONEL GARZA,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

TO THE HONORABLE, THE CHIEF JUSTICE AND ASSOCIATE

JUSTICES OF THE SUPREME COURT OF THE UNITED STATES:

Spudnik Equipment Company, the petitioner

herein, prays that a writ of certiorari issue to review the judg-

ment of the United States Court of Appeals for the Ninth Cir-

cuit entered in the above entitled case on November 27, 1981.

QUESTIONS PRESENTED FOR REVIEW

1. Can the Court of Appeals reverse for error

without examining independent trial court findings which are

determinative?

(a) Does such a procedure violate Rules 52(a)

and 61, F.R.C.P.?

(b) Does such a procedure violate due process?

2

2. Did the Court of Appeals grossiy misapprehend

or misapply Rules 52(a) and 61, F.R.C.P., by failing to examine

independent trial court findings which are determinative?

3. Whether the Court of Appeals has rendered a

decision in conflict with the decision of another federal court

of appeals.

4. Whether the Court of Appeals has rendered a

decision on a matter of Texas law in conflict with a decision of

a Texas Court.

5. Whether the District Court is bound to credit

Speculative Opinion Testimony.

LIST OF ALL PARTIES

All parties are reflected in the caption. There are

no corporations related to Petitioner Spudnik Equipment

Company.

TABLE OF CONTENTS

Page

Questions Presented For Review 1

List Of All Parties 2

Table of Authorities 3

Opionions Below 5

Jurisdiction 5

Constitutional provisions and Federal Rules of Civil

Procedure

Statement of Case

Reasons For Granting Writ 10

1. it Is A Gross Violation of Rules 52(a),

61, F.R.C.P. And Due Process To

Reverse Without Examining Indepen-

dent Bases For A Decision 10

il. The Decision Is In Principle In Conflict

With Decisions of The Court of Appeals

For the Fifth Circuit 17

ili. The Decision Is In Conflict With Texas

Court Decisions 18

iV. A Trial Court Is Not Bound By

Speculative Testimony 21

Conclusion 23

3

Appendix A 24

Court of Appeals Decision App. |

Judgment of District Court App. 5

Findings of Fact and Conclusions of Law,

District Court App. 6

Order Amending Findings of Fact App. 10

Judgment of Court of Appeals App. 11

Order Denying Petition For Rehearing App. 12

TABLE OF AUTHORITIES

CASES

Anderson-Prichard Oil Corporation v. Parker,

245 F. 2d 831, 834, 835 (10th Cir. 1957) 21, 22

Commissioner v. Duberstein, 363 U.S. 278,

290, 291, 4 L.Ed.2d 1218, 1228, 80 S.Ct. 1190 (1960) 1

Dick v. New York Life Ins. Co., 359 U.S. 437, 444-447, 3 L.Ed.2d

935, 941, 942, 79 S.Ct. 921 (1959) 12, 13

Ethicon v. Parten, 520 $.W.2d 527, 532, 533

(Tex.Civ.App. 1975) 20

Gallick v. Baltimore & Ohio R.G., 372 U.S. 108,

9 L.Ed.2d 618, 83 S.Ct. 659 (1963) 13

General Motors Corp. v. Hopkins, 548 $.W.2d 344, 351

(Tex. 1977) 20

Graver Tank Co. v. Linde Air Prod. Co., 339 U.S. 605,

609-612, 94 L.Ed. 1097, 1103-1104 (1949) 13

Guzman v. Pichirilo, 369 U.S. 698, 701-703, 8 L.Ed.2d 205,

207, 209, 210 (1962) 11, 12, 22

Hagans v. Oliver Machinery Co., 576 F.2d 97 (5th Cir.1978) 17

King v. Spencer, 161 A. 103, 105 (Conn. 1932) 22

Lundgren v. Freeman, 307 F.2d 104, 114 (9th Cir. 1962) 14

Martinez v. Dixie Carriers, Inc., 529 F.2d 457, 464

(Sth Cir. 1976) 17

McAllister v. United States, 348 U.S. 19-21, 23, 99 L.Ed. 20,

24-26, 75 S.Ct. 6 (1954) 13

McCaughn v. Real Estate Land, Title & T. Co., 297 U.S.

606-608, 80 L.Ed. 879-881 (1935) 11, 12

Mobil Oil Corp. v. FPC, 417 U.S. 283, 310, 41 L.Ed.2d 72,

96, 94 S.Ct. 2328 (1974) 17

Prendergrass v. New York Life Ins. Co., 181 F.2d 136

(8th Cir. 1950) 14

Reyes v. Wyeth Laboratories, 498 F.2d 1264 (Sth Cir.

1974) 18, 20

Rodgers v. United States, 402 F.2d 830, 833 (9th Cir. 1968) 22

Six Companies v. Highwoy Dist., 311 U.S. 180, 188,

85 L.Ed. 114 (1940) 18

Stoner v. New York Life Ins. Co., 311 U.S. 464, 465, 467,

468, 85 L.Ed. 284 (1940) 18

Technical Chemical Company v. Jacobs, 480 $.W.2d 602

(Tex. 1972) i8, 19

Texas Gas Trans. Corp. v. Shell Oil Co., 363 U.S. 263,

268, 4 L.Ed.2d 1208, 1212, 80 S.Ct. 1122 (1960) 12

Universal Camera Corp. v. National L.R. Bd., 340 U.S.

490, 491, 95 L.Ed. 456, 469 (1950) 17

Webb v. Illinois C.R. Co., 352 U.S. 512, 1 L.Ed.2d 503,

77 S.Ct. 451 (1957) 13

West v. A.T. & T. Co., 311 U.S. 223, 231, 236, 237, 85 L.Ed.

139 (1940) 18

Westinghouse Electric Corp. v. Pierce, 271 S.W.2d 422,

425, 426 (Tex. 1954) 19

CONSITUTIONAL PROVISIONS

Fifth Amendment, United States Constitution 6, 10, 16

STATUTES

28 U.S.C. sec. 1254 (1) 6

28 U.S.C. sec. 1332 6

RULES

Rule 52(a) F.R.C.P. 6, 10, 11, 1%, 14, 16, 17

Rule 61 F.R.C.P. 6, 10, 16, 17

Rule 17, Rules of The Supreme Court 17, 22

TREATISES AND LAW REVIEWS

30 Am.Jr.2d 241, 242, Evidence, sec. 1087 22

Handbook of the Law of Federal Courts, Charles Allen

Wright, 3rd ed. (1976) p. 480, sec. 96 15

Houston Law Review, 1977, “The Law of Strict Tort

Liability In Texas,” James B. Sales and Jim M.

Perdue, p. 76 17

41 Minn. L.Rev. 751 (1957), Charles Alan Wright,

“The Doubtful Omniscience of Appellate Courts” 15

65 The Yale Law Journal 482, Leon Green (1956),

“Jury Trial and Mr. Justice Black” 16

OPINIONS BELOW

The opinion of the United States Court of Appeals

for Ninth Circuit is unreported, and is printed in Appendix A

hereto, infra, page |. The order of the Court of Appeals de-

nying Appellant's petition for rehearing is printed in Appen-

dix A hereto, infra, page 12. The judgment of the United

States District Court for the District of idaho is printed in Ap-

pendix A heroto, infra, page 5. Its findings of fact and con-

clusions of law are printed in Appendix A, infra, page 6, and

an order amending those findings of fact is printed in Appen-

dix A, page 10.

JURISDICTION

The judgment of the United States Court of Ap-

peals ( Appendix A, infra, page 11) for the Ninth Circuit was

entered on November 27, 1981, and was served on defendant

by mail. A timely petition for rehearing was filed on

December 11, 1981, which was denied on January 6, 1982. The

jurisdiction of the Supreme Court is invoked under 28 U.S.C.

sec. 1254(1).

6

CONSTITUTIONAL PROVISIONS AND FEDERAL RULES OF

CIVIL PROCEDURE

The Fifth Amendment to the United States Con-

stitution provides:

“No person shall ... be deprived of ... proper-

ty without due process of law ...”

Rule 52(a), FRCP, provides:

“In all actions tried upon the facts without a jury

... the court shall find the facts specially and

state separately its conclusions of law thereon,

and judgment shall be entered pursuant to Rule

58 ... Findings of fact shall not be set aside unless

clearly erroneous, and due regard shall be given

to the opportunity of the trial court to judge of

the credibility of the witnesses ...”

Rule 61, F.R.C.P., further declares:

“Harmless Error ... The court at every stage of

the proceeding must disregard any error or

defect in the proceeding which does not affect

the substantial rights of the parties.”

STATEMENT OF CASE

This is a wrongful death action under the substan-

tive law of Texas. Miguel Garza died in Texas on April 28,

1974, when a potato piler manufactured by defendant over-

turned and fell on him. R. p. 23 L. 18, 20, par. 11.

Jurisdiction in the District Court was based on

diversity of citizenship, under 28 U.S.C. sec. 1332. Plaintiffs

are citizens of Texas. Defendant Spudnik Equipment Company

is a citizen of Idaho.

The suit was based on strict liability in tort. Trial

was to the Court. The District Court made detailed findings of

fact and conclusions of law, pursuant to which judgment was

entered in favor of the defendant.

The Court of Appeals reversed, holding that,

“... it was reasonably forseeable that the

piler would be operated without outriggers

unless the operator was warned against such

use. The District Court's finding to the contrary is

clearly erroneous ... Spudnik had a duty to warn

... Under Texas Low ... there is a rebuttable

presumption that if an adequate warning had

been give, a user ‘would have read any warning

provided by the manufacturer, and acted to

minimize the risks ...' Spudnik offered no

evidence to rebut that presumption ... Thus the

evidence clearly establishes that had a warning

against operation of the piler without outriggers

been placed on the machine itself, Garza would

have read and heeded such a warning and used

outrigge’s at the time of the accident, thereby

avoiding injury. We therefore conclude that the

district cort's finding that the evidence is insuffi-

cient to establish that a warning would have

reached decedent Garza or prevented the acci-

dent in question is clearly erroneous ... Because

an adequate warning would have prevented the

accident, we further conclude that the failure to

warn was the producing cause of decedent Gar-

za's death.”

The Court of Appeals further noted that,

‘... An expert witness called by Spudnik

testified on cross-examination that the mishap

would not have occurred had the piler been

operated with outriggers.”

in Finding of Fact No. 20 the District Court found:

“That the evidence is insufficient to determine

by a preponderance of the evidence how the ac-

cident happened or the actual cause of the acci-

dent.”

That finding was supported by substantial evidence, and the

Court of Appeals made no finding to the contrary. Monico

Huerta was the only witness to the accident produced at trial.

Tr. pp. 357, 358. Huerta testified there was no load on the

boom or piler when the accident occurred. Huerta, Ist

Deposition, p. 6, admitted in evidence.

Carl Hobbs and Dr. Norval Wardle (a civil engineer

and an expert on farm machine stability, Tr. pp. 415-418) both

testified that the piler could not have tipped over under the

conditions testified to by Huerta. Tr. pp. 317, 318, 320, 321,

323, 339-343, 345, 347, 348, 350, 351, 353, 354, 357, 358, 422,

423-430, 432-442, 463, 490-493. Their testimony was fully cor-

roborated with a stability demonstration of the piler recorded

on video tape, admitted into evidence as Exhibit 3.

Hobbs’ and Wardle’s testimony, as well as the

video tape, clearly show that the piler will not tip over on a

reasonably level surface without a load on the boom, even

without the outriggers on. Tr. pp. 425-427. For the machine to

tip over in the fashion testified to by Huerta would require

some force not shown in the evidence. Tr. pp. 435, 436, 439,

440, 463.

The District Court therefore entered the following

Conclusions of Law:

“4. Even if defendant had been under a duty

to warn against operation of the piler without the

9

outriggers, the evidence was insufficient to

establish that ... the failure to warn was the pro-

ducing cause of Miguel Garza's death.”

“5. The plaintiffs have failed to establish by a

preponderance of the evidence any right to

recover against the defendant.”

The trial court obviously did not believe all of

Huerta’s testimony, and, as the trier of the facts, found that

the plaintiffs failed to prove the actual cause of the accident.

The Court of Appeals’ decision completely ignored that fin-

ding. Its decision does not even mention Fact Finding No. 20,

which is so critical to an understanding of this case.

The district court also made the following findings

of fact:

“18. ... Mr. Garza had been a night foreman

at the Vahising plant and had occasion to see the

potato piler in operation, without outriggers.

19. That someone who had operated a Spud-

nik Swing Boom Piler Model 400, or had seen

such a machine in operation would be aware that

rotation of the boom without attached outriggers

would create some tipping action and that, ab-

sent cautious operation of the machine, such tip-

ping action could conceivably result in the over-

turning of the machine.”

And the Court of Appeals made no findings to the contrary.

Richmond Deposition (admitied into evidence), pp. 6, 8, 19.

“Tipping action” occurs when the boom is rotated.

The tipping action that takes place when the boom is rotated

is gradual, and can be seen and felt by the operator. Tr. p.

344. When tipping action occurs, it is quite noticeable. Tr. p.

353, 397. Furthermore, the boom can be rotated through ten

to fifteen degrees from the point at which tipping action

begins, before the machine will tip over (assuming there

10

were a load on the boom). Tr. p. 353. Dr. Wardle testified that

the machine's tipping action is sufficiently noticeable that the

operator can tell when it is taking place, Tr. pp. 442-444, and

the operator,

“... would surely have an appreciation of this

problem” (Tr. p. 445)

The tipping action becomes noticeable to the operator at

around fifteen to twenty degrees from straight ahead, Tr. p.

456, which would be ct ieast fifteen degrees before it would

tip over, even under Flanagan's (expert for plaintiffs)

testimony. Since each turn of the crank moves the boom

about 1.21 degrees, that fifteen degrees would require over

twelve revolutions of the hand crank. Tr. 340, 349, 350.

There was thus much substantial evidence that the

danger was obvious, and there was substantial evidence to

believe that the piler could not have turned over in the man-

ner testified to by Huerta, and there was therefore good

reason not to credit Huerta’s testimony.

REASONS FOR GRANTING WRIT

I.

IT IS A GROSS VIOLATION OF RULES 52(a), 61, F.R.C.P.,

AND DUE PROCESS TO REVERSE WITHOUT EXAMINING

INDEPENDENT BASES FOR A DECISION

This case involves much more than sufficiency of

the evidence. The issue here is whether the Court of Appeais

has a duty to examine alternative findings of fact which in-

dependently support the judgment, before reversing for er-

ror. Defendant-Petitioner submits that it is arbitrary not to do

so, and a violation of Rules 52(a) and 61 F.R.C.P., as well as

due process, not to do so.

The trial court made a finding of fact that plaintiff

had failed to prove actual cause of the tipping and accident.

This was based on conflicting evidence, and there is certainly

substantial evidence in the record to support the trial Court's

finding. The decision of the Court of Appeals is thus not only

erroneous, but so flagrantly ignores (and even fails to

discuss) the aforementioned fact finding, as to bring into

1

serious question the role of the trial court and the appellate

court in determing fact issues. Traditionally in our legal

system, the trial court or jury is given great deference in

determing fact issues, as the appellate court has no oppor-

tunity to view the demeanor of the witnesses, nor to weigh

the evidence, and determine the truthfulness of the

witnesses. A refusal to credit testimony cannot be considered

as clearly erroneous. The determination of credibility is for

the trial court. Guzman v. Pichirilo, 369 U.S. 698, 701-703, 3

L.Ed.2d 205, 207, 209, 210 (1962).

Where trial has been by a judge without a jury, his

finding's of fact must stand unless clearly erroneous. Rule

52a. F.R.C.P. This rule applies also to factual inferences from

the basic facts. Commissioner v. Duberstein, 363 U.S. 278,

290, 291, 41.Ed.2d 1218, 1228, 80 S.Ct. 1190 (1960). A Court of

Appeals has no power to weigh evidence and make its own

findings of fact. McCaughn v. Real Estate Land, Title & T. Co.,

297 U.S. 606-608, 80 L.Ed. 879-881, (1935). In McCaughn a jury

was waived, and trial was to the Court in an action to recover

estate taxes paid. The trial court found:

“* ., the plaintiffs have failed to show that the

motive for this transfer ... was not of the sort

which leads to testamentary disposition, and

consequently have failed to meet the burden of

proof place: upon them ...’ ”

The Court of Appeals reviewed the evidence, concluded that

the transfer was not made in contemplation of death, and

reversed the judgment. The Supreme Court reversed, and

reinstated the trial court's decision, holding:

“The instant case is controlled by the

established rules relating to appellate review in

actions at law where a jury trial has been waiv-

ed. ... Where a general verdict is found by the

trial court, it has the same effect as the verdict of

a jury. The appellate court cannot pass upon the

weight of evidence. ... plaintiffs’ exceptions to

the conclusions of law of the trial court, and to

the refusal of the court to reach other conclusions

as requested, raised no question save the one of

law, whether the court's verdict was whiolly

without evidence to sustain it. That question does

not appear to be substantial. the ultimate ques-

tion for the decision of the trial court was one of

fact and its general verdict was conclusive. The

Circuit Court of Appeals was without authority to

weigh the evidence and to make its own

findings.”

Here also the trial court found on conflicting evidence that the

plaintiffs failed to carry their burden of proof, and found the

evidence insufficient to establish the cause of the accident.

The trial court further found that the danger of tipping was

obvious. The Court of Appeals reviewed the evidence and

reversed, holding that the defendant breached its duty to

warn. Defendant does not on this appeal dispute whether it

breached a duty to warn. But, as the trial court so lucidly con-

cluded, in Conclusion of Law No. 4, the plaintiffs were still re-

quired to prove the cause of the accident, and they failed to

do that. The Court of Appeals completely ignored the District

Court's Finding of Fact No. 20,

“That the evidence is insufficient to determine

... how the accident happened or the actual

cause of the accident.”

To do so was erroneous under Rule 52(a), F.R.C.P., and a

gross violation of established judicial procedure. Guzman v.

Pichirilo, supra 369 U.S. 698; a decision to credit or not credit

testirnony cannot be considered clearly erroneous. The deter-

mination of credibility is for the fact finder, be it judge or jury.

McCaughn v. Real Estate Land, Title & T. Co., supra, 297 U.S.

at 608; Dick v. New York Life ins. Co., 359 U.S. 437, 444-447, 3

L.Ed.2d 935, 941, 942, 79 S.Ct. 921 (1959) (Diversity jury case

was reversed by Court of Appeals for insufficient evidence.

Supreme Court reversed); Texas Gas Trans. Corp. v. Shell Oil

13

Co., 363 U.S. 263, 268, 4 L.Ed.2d 1208, 1212, 80 S.Ct. 1122

(1960) (Held: Court of Appeals exceeded appropriate scope of

judicial review); Webb v. Illinois C.R. Co., 352 U.S. 512, 1

L.Ed.2d 503, 77 S.Ct. 451 (1957) (Court of Appeals reversed

FELA case for insufficient evidence of negligence to go to

jury. Supreme Court reversed); Graver Tank Co. v. Linde Air

Prod. Co., 339 U.S. 605, 609-612, 94 L.Ed. 1097, 1103-1104

(1949); McAllister v. United States, 348 U.S. 19-21, 23, 99 L.Ed.

20, 24-26, 75 S.Ct. 6 (1954). Gallick v. Baltimore & Ohio R.G.,

372 U.S. 108, 9 L.Ed.2d 618, 83 S.Ct. 659 (1963).

In the diversity case of Dick v. New York Life Ins.

Co., supra, 359 U.S. at 4: 4-4447, the Court held:

“The Court of Appeals ... stated that “[ojne

can believe that even an experienced hunter

might accidentally shoot himself once, but the

asserted theory that he could accidentally shoot

himself first with one barrel and then with the

other stretches credulity beyond the breaking

point.” ...

... the Court of Appeals ... committed its basic

error in resolving a factual dispute in favor or

respondent ...

... the district judge, who was intimately con-

cerned with the trial and who has a first-hand

knowledge of the applicable state principies,

believed that the case should go to the jury.

Under all the cirucumstances, we believe that he

was correct and that reasonable men could con-

clude that the respondent failed to satisfy its

burden of showing that death resulted from

suicide.

Reversed.”

The Court's reasoning in Graver Tank Co. v. Linde Air Prod.

Co.,

14

supra, 339 U.S. at 609-611, is also applicable:

... Proof can be made in any form through

testimony of experts or others versed in the tec-

nology; by documents, including texts and

treatises; and, of course, by the diclosures of the

prior art. Like any other issue of fact, final deter-

mination requires a balancing of credibility, per-

suasiveness and weight of evidence. It is to be

decided by the trial court and that court's deci-

sion, under general principles of appellate

review, should not be disturbed unless clearly er-

roneous. Particularly is this so in a field where so

much depends upon familiarity with specific

scientific problems and principles not usually

contained in the general storehouse of

knowledge and experience. ...

It is not for this Court to even essay an in-

dependent evaluation of this evidence. This is the

function of the trial court. And, as we have her-

tofore observed, “To no type of case is this . . .

more appropriately applicable than to the one

before us, where the evidence is largely the

testimony of experts as to which a trial court may

be enlightened by scientific demonstrations. ...

the trial judge. ... viewed motion pictures of

various welding operations and tests and heard

many experts and other witness.”

That is exactly the situation here. This was a Court tried case.

The Seventh Amendment to the Constitution precludes re-

examination on appeal of facts decided by a jury. Rule 52(a),

F.R.C.P., was designed to give the same scope of judicial

review in law cases tried to the Court, as in jury trials. Lun-

dgren v. Freeman, 307 F.2d 104, 114 (9th Cir. 1962). in

Prendergrass v. New York Life ins. Co., 181 F.2d 136 (8th Cir.

1950), the Court astutely observed,

15

"... The existence of any doubt as to whether

the trial court or this Court is the ultimate trier of

fact issues in nonjury cases is ... detrimental to

the orderly administration of justice, impairs the

confidence of litigants and the public in the deci-

sions of the district courts, and multiplies the

number of appeals in such cases.”

To the same effect, see Handbook of the Law of Federal

Courts, Charles Alan Wright, 3rd ed. (1976), p. 480, sec. 96; 41

Minn. L.Rev. 751 (1957), Charies Alan Wright, “The Doubtful

Omniscience of Appellate Courts”. Professor Wright in this

latter article, states:

“For a good many years my colleague, Leon

Green, has been pointing out that:

Probably the strangest chapter in American legal

history is how in the short period of the last fifty

or seventy-five years, the same period during

which trial courts were losing most of their

power, the appellate courts have drawn unto

themselves practically all the power of the

judicial system.

in a recent statement of his views Dean Green

has observed, with much justification:

The trial judge is not much more than a trial

examiner, while the jury simply satisfies the

public and professional craving for

ceremonial -- the necessity tor dealing with

simple matters as though they were

freighted with great significance.

16

The principal means by which appellate courts

have obtained such complete control of litigation

has been the transmutation of specific cir-

cumstances into questions of law. Subtle rules

about presumptions and burden of proof,

elaborate concepts of causation and considera-

tion and the rest, have been devised in such a

way that unless the appellate judge handling the

case is a dullard, some doctrine is always at hand

to achieve the ends of justice, as they appear to

the appellate cour?.

Dean Green's analysis seems to me

unanswerable. The purpose of the present article

is to call attention to certain recent

developments which add further support to his

thesis. Within the last decade the appellate

judges have become bolder. No longer do they

hide their assumption of power beneath an

elaborate doctrinal superstructure. Instead to-

day's appellate courts are inventing new pro-

cedural devices by which their mastery of the

litigation process can be made direct rather than

devious.”

See also 65 The Yale Law Journel 482, Leon Green (1956),

“Jury Trial and Mr. Justice Black.”

The District Court found that the plaintiffs failed to

prove the cause of the accident, and that the danger was ob-

vious. (See argument, infra, on applicable substantive law).

Therefore, if the District Court erred, as the Court of Appeals

held, in finding no duty to warn, the error was harmless,

under Rule 61, F.R.C.P.

This point was made in defendant's brief filed in

the Court of Appeals, but that Court did not even discuss the

point in its decision. The Court of Appeals so completely ig-

nored those findings of fact, that they are not even mention-

ed in the Court of Appeal’s decision. The procedure followed

by the Court of Appeals is in gross violation of Rules 52(a) and

61, F.R.C.P., as well as due process.

17

Intervention by the Supreme Court is called for

when the Court of Appeals misapprehends or grossly misap-

plies the correct standard of review. Mobil Oil Corp. v. FPC,

417 U.S. 283, 310, 41 L.Ed.2d 72, 96, 94 S.Ct. 2328 (1974);

Universal Camera Corp. v. National L.R. Bd., 340 U.S. 490,

491, 95 L.Ed. 456, 469.

The Court of Appeals should be required to look at

alternative findings of fact which are determinative, before

reversing for error. Such an examination seems required by

Rule 51(a), Rule 61, and by due process. Rule 17, Rules of the

Supreme Court authorizes review on certiorari when a

federal court has so far departed from the accepted and usual

course of judicial proceedings, as to call for an exercise of

this Court's power of supervision. That is applicable in this

case.

"

THE DECISION IS IN PRINCIPLE IN CONFLICT WITH DECISIONS

OF THE COURT OF APPEALS FOR THE FIFTH CIRCUIT

The District Court found that the danger of tipping

was obvious. There is no duty to warn in Texas if the danger is

obvious. Martinez v. Dixie Carriers, Inc., 529 F.2d 457, 464

(Sth Cir. 1976); Hagans v. Oliver Machinery Co., 576 F.2d 97

(Sth Cir. 1978); “The Law of Strict Tort Liability In Texas,”

James B. Sales and Jim M. Perdue (1977: Houston Law

Review), p. 76.

The Court of Appeals did not even discuss this

issue, nor did it mention the District Court's finding that the

danger was obvious. The decision in this case is inconsistent

with the two Fifth Circuit decisions, both of which involved

Texas jaw, and both of which were cited to the Court of Ap-

peals.

18

i.

THE DECISION IS IN CONFLICT WITH TEXAS COURT DECISIONS

A federal court must follow substantive state low

in a diversity of citizenship case. West v. A.T. & T. Co., 311

U.S. 223, 231, 236, 85 L.Ed. 139, (1940); Stoner v. New York

Life Ins. Co., 311 U.S. 464, 465, 467, 468, 85 L.Ed. 284, (1940);

Six Companies v. Highway Dist., 311 U.S. 180, 188, 85 L.Ed.

114, (1940). Those decisions further hold that this rule applies

to intermediate state court decisions, as well as those in the

states’ highest courts.

The Court of Appeals in this case held, citing

Reyes V. Wyeth Laboratories, 498 F.2d 1264 (Sth Cir. 1974),

that there is a rebuttable presumption in Texas that if an ade-

quate warning had been given, a user would have read any

warning provided by the manufacturer, and acted to minimize

the risk. That is correct, but that rebuttable presumption does

not authorize a recovery in the absence of sufficient evidence

to prove the cause of the accident, as was found by the trial

court.

It is significant that Reyes relies on Technical

Chemical Company v. Jacobs, 480 S.W.2d 602 (Tex. 1972), in

applying the rebuttable presumption. But here the Court of

Appeals uses the presumption to prove a fact not authorized

by Reyes or Technical Chemical Company. The presumption

simply dispenses with the need to prove that the user would

have read a warning and acted to minimize the risk. But the

Court went further in this case and held that the failure to

warn was the producing cause of the accident. This was done

without discussing the trial court's finding that the plaintiffs

failed to prove the cause of the accident.

Such a failure appears to be quite arbitrary, for

the District Court cited Technical Chemical Company in its

decision, on this very issue, concluding:

19

“Even if defendant had been under a duty to

warn against operation of the piler without

outriggers, the evidence is insufficient to

establish that ... the failure to warn was the pro-

ducing cause of Miguel Garza's death. Technical

Chemical Company v. Jacobs ...”

in Technical Chemical Company, as here, there

were credibility problems with the plaintiff's principal

witness. The Texas Supreme Court specifically held that even

where the rebuttable presumption applies, the plaintiff must

still prove that the defect (failure to warn) was the cause of

the injuries. 480 S.W.2d at 606. The Court then held:

“The jury in this case refused to find that

Technical Chemical’s failure to warn was a pro-

ducing cause of Jacobs’ injuries, and we are

unable to say that Jacobs established as a matter

of law that it was a producing cause ...”

So this issue was for the fact finder. The decision in this case

is inconsistent with Technical Chemical Company, cited by the

& strict Court, and with Westinghouse Electric Corp. v. Pierce,

271 S.W.2d 422, 425, 426 (Tex. 1954). This latter case is

precisely in point:

“Plaintiff's suit was founded on the theory

that this warning was inadequate to inform him

of the danger in using the lamp. The warning

could not, as a matter of law, have been inade-

quate unless a direct warning against the use of

the lamp in the manner in which plaintiff used it

would have prevented his injury. In other words,

if the use of the lamp in the manner in which

plaintiff used it did not result in injury to him,

there was no duty on the defendant to warn

against use in that manner and the failure to so

warn could not have been a proximate cause of

the plaintiff's injury. It therefore became a

critical issue in plaintiff's case whether plaintiff

was injured as a result of using the lamp in the

manner in which he said he used it. His pleading

and testimony was to the effect that he sustained

his injury while sitting at a distance of four or five

feet from the lamp for a period of about five

minutes. The testimony of his expert witnesses

was that he could and probably did sustain his in-

jury from use of the lamp in that manner. He had

no pleading or testimony that his injury resulted

from use of the lamp in any other manner. On the

other hand, the evidence offered by the defen-

dants was directly to the contrary --that he could

not and did not sustain his injury from use of the

lamp in that manner. A jury finding that he did

would have led to the necessity for a further fin-

ding whether the warning, above quoted, was

adequate. A jury finding that he did not rendered

issues on adequacy of the warning wholly im-

material.”

The case at hand reaches this Court in the same posture. The

trial court found, on substantial evidence, that the accident

could not have happened as Huerta said it happened, just as

the jury found in the above case.

In reaching its decision, the court in this case cites

Reyes v. Wyeth Laboratories, 498 F.2d 1264, 1280, 1281 (5th

Cir 1974); General Motors Corp. v. Hopkins, 548 S.W.2d 344,

351 (Tex. 1977); Ethicon v. Parten, 520 S.W.2d 527, 532, 533

(Tex. Civ. App. 1975). It is important to note that in each of

those cases the Court was affirming a jury verdict in f- or of

the plaintiff. In each of those cases the jury, as arbiter of the

facts, found causation. In none of those cases was there a

reversal after the jury found there was no proof of causation.

And, in fact, a thorough review of those decisions reveals

some discussion of the issue of causation, and shows that this

issue is for the jury or trial court to determine as the fact

finder where the evidence is in conflict.

Petitioner submits that the Court has misapplied

Reyes, and has misapprehended the Texas requirement of

causation.

21

IV.

A TRIAL COURT IS NOT BOUND BY SPECULATIVE TESTIMONY

The Court of Appeals apparently relied on

speculative testimony elicited on cross-examination from

defense expert, Dr. Wardle, to establish the cause of the acci-

dent. On cross-examination, Wardle said, Tr. p. 83:

“Q. If they hadn't taken them off, Mr. Garza

would be olive today?

A. That's my opinion, yes.”

That testimony did not relate to a concrete fact, but was

speculative and conclusory, and was not binding on the

District Court. In Anderson-Prichard Oil Corporation v.

Parker, 245 F.2d 831, 834, 835 (10th Cir. 1957), the court ruled:

“The testimony of neither the plaintiff nor his

father constituted an admission of fact which

would bring it within the foregoing rule.

Although they appeared to be convinced that the

gas leak was through the perforations, they ex-

pressed only their opinions, which did not have

the effect of a statement of fact. The facts are not

peculiarly within their knowledge, but were of

such nature that they could be mistaken, and are

nor more conclusive than the testimony of any

other witness. The evidence was not such that

the court was compelled to accept it as true.”

To the same effect see Guzman v. Pichirilo, supra,

369 U.S. 698, 701-703; King v. Spencer, 161 A. 103, 105, (Conn.

1932), cited in Anderson-Prichard; 30 Am.Jur.2d 241, 242,

Evidence, sec. 1087.

The Court's reliance on such speculative opinion

ignores two things: (1) The danger was obvious, which

negates any duty to warn, and (2) the producing cause of this

accident has not been proved, as the court so found, and as

Dr. Wardle himself so testified elsewhere.

It would appear that the Court of Appeals con-

sidered the trial court to be bound by such speculative opinion

testimony. This was error. A judge in a bench tric! does not

have to believe a witness, just as a jury does not have to

believe a witness. A refusal to credit testimony cannot be

considered clearly erroneous. The determination of credibili-

ty is for the fact finder. Guzman v. Pichirilo, supra, 369 U.S.

698, 701-703. Such error is of substantial importance to all

litigants in the Federal Courts, for it utterly deprives the trial

court of its legitimate role in determining he credibility of

witnesses, in weighing the evidence, and in determining

what inferences to draw from the facts. The idea that a party

is bound by all the testimony of any witness called by that

party was long ago discredited. Rodgers v. United States, 402

F.2d 830, 833 (9th Cir. 1968).

The Court of Appeal’s refusal to allow the district

Court to reject such speculative opinion testimony is a gross

departure from the accepted and usual course of judicial pro-

ceedings, and calls for an exercise of this Court's power of

supervision under Rule 17, Rules of the Supreme Court.

CONCLUSION

WHEREFORE, Petitioner prays that a writ of cer-

tiorari be granted.

Respectfully submitted,

WM. J. BRAUNER, P.A.

Wm. J. Brauner

WM. J. BRAUNER

Attorney for Petitioner

CERTIFICATE OF MAILING

| hereby certify that a true and correct copy of the

foregoing Petition was mailed, postage prepaid, by first class

mail, to the following:

Alberto Munoz

Flores, Sanchez, Vidaurri, Munoz & Guerra

P.O. Box 2128

McAllen, Texas 78501

Blaine Evans

Elam, Burke, Evans, Boyd & Koontz

P.O. Box 1559

Boise, Idaho 83701

Attorneys for Respondents, this 22. day of March, 1982.

Wm. J. Braune:

WM. J. BRAUNER

Attorney for Petitioner

a

App. 1

DO NOT PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SIXTA GARZA, individually, as Representative

of the Estate of Miguel G. Garza, Deceased;

ISRAEL GARZA, ESMERALDA GARZA

GALLARDO, ISMAEL GARZA, and DAVID No. 80-3110

LEONEL GARZA, D.C.

Plaintiffs-Appellants, (No. 4-76-21

vs. MEMO-

SPUDNIK EQUIPMENT COMPANY, et. al., RANDUM

Defendants-Appellees.

Argued and Submitted — September 9, 1981

Decided — November 27, 1981

Appeal from the United States District Court

for the District of idaho

Marion J. Callister, District Judge, Presiding

Before: PREGERSON and CANBY, Circuit Judges, and

KELLAM, * District Judge.

Appellants, citizens and residents of Texas, and heirs of

Miguel Garza, brought this wrongful death action based on

strict liability in tort against the idaho manufacturer of a

potato piler that overturned and crushed the decedent Garza.

Appellants contend that the potato piler, as originally sold,

was unreasonably dangerous because the manufacturer,

Spudnik Equipment Company (Spudnik), failed to warn users

that the equipment could, under certain circumstances, over-

turn if operated without stabilizing outriggers. The parties

agree that Texas law governs this diversity suit filed in

federal court under 28 U.S.C. §1332. The district court, after

*Honorable Richard B. Kellam, Senior United States District Judge,

Eastern District of Virginia, sitting by designation.

App. 2

a bench trial, entered judgment in favor of Spudnik. The

court ruled that Spudnik had “no duty to warn against opera-

tion of the piler without outriggers” and thet even if such a

duty existed, the evidence was insufficient to establish that

“the failure to warn was the producing cause of Miguel Gar-

za's death.” Appellate jurisdiction is based on 28 U.S.C. §

1291. We reverse.

FACTS

On April 28, 1974, Miguel! Garza suffered a fatal injury

when a Spudnik Model 400 “swing boom potato piler” tipped

over and crushed him. The accident occurred on the premises

of Garza's employer, Vahlising Inc., in Hildalgo County,

Texas. The piler has a conveyor-belt that travels on a 30-foot

boom. The boom can be pivoted by using a handcrank. Ac-

cording to eyewitness testimony, Garza, while standing at

the side of the piler’s chassis, was swinging the boom around

to load potatoes onto a truck. As the boom swung ovt, the

wheels affixed to the piler’s chassis lifted off the ground, and

the equipment toppled onto Garza. An expert witness called

by Spudnik testified on cross-examination that the mishap

would not have occurred had the piler been operated with

outriggers.

The piler, when originally sold to a Denver company in

1969, was equipped with stabilizing outriggers fastened to

the chassis by use of a “double nut system. The outriggers

could be raised to move the piler and could also be removed

to transport several pilers by truck. When Vahlising purchas-

ed the piler in late 1972 or early 1973, the outriggers had been

removed. Neither Spudnik’s sales literature nor the piler’s

operating manual contained any warning that the piler could

overturn without outriggers, and no notice of this danger ap-

veared on the machine itself.

DISCUSSION

Texas has adopted the rule of strict liability in tort set forth

App. 3

in Restatement (Second) of Torts § 402A. Borel v. Fibreboord

Paper Products Corp., 493 F.2d 1076, 1087 (5th Cir. 1973). A

manufacturer or supplier who places a defective product, i.e.,

an unreasonably dangerous product, into the stream of com.

merce is strictly liable in tort if a user or consumer sustains in-

juries as a result of that defect. Reyes v. Wyeth Laboratories,

498 F.2d 1264, 1272 (5th Cir. 1974); General Motors Corp. v.

Hopkins, 548 S.W.2d 344, 351 (Tex. 1977); Technical Chemical

Co. v. Jacobs, 480 S.W.2d 602, 604 (Tex. 1972); Ethicon Inc. v.

Parten, 520 S.W.2d 527, 532 (Tex.Civ.App. 1975).

We must first determine whether Spudnik had a duty to

warn users of the piler that it could overturn if operated

without outriggers. Under Texas law there are three

categories of product defects, any one of which, if proved,

can be grounds for holding a manufacturer strictly liable in

tort. A product may be rendered defective by a defect in

manufacture, a defect in design, or a failure to warn of a

dangerous product characteristic. Ethicon Inc. v. Parten, 520

S.W.2d at 532. if a manufacturer knows or should know that a

product's characteristics create an unreasonable risk of harm

to a user or consumer, then the manufacturer is under a duty

to give adequate warning of such danger. Bristol-Myers Co.

v. Gonzales, 561 S.W.2d 801, 804 (Tex. 1978); Crocker v. Win-

throp Laboratories, 514 $.W.2d 429, 433 (Tex. 1974); Lopez v.

Aro Corp., 584 S.W.2d 333, 335 (Tex. Civ. App. 1979).

Because of the danger posed by the inherent instability of a

piler with a 30-foot boom, Spudnik’s president, the designer

of the piler, included outriggers in the design and manufac-

ture of the equipment. As stated above, the outriggers were

designed to be removable to facilitate transporting several

pilers by truck. But without adequate warning that the

outriggers are an essential safety mechanism, they might,

after removal, be misplaced or simply laid aside as an un-

necessary accessory. Thus we conclude that it was

reasonably foreseeable that the piler would be operated

without outriggers and since such a use was reasonably

foreseeable, we conclude that under Texas law, Spudnik had

a duty to warn of this dangerous characteristic.

App. 4

Before a manufacturer can be held strictly liable in tort, it

must also be shown that the product's defect, here the failure

to give an adequate warning, was the producing cause’ of the

user's injury. Reyes v. Wyeth Laboratories, 498 F.2d at 1280,

1281; General Motors Corp. v. Hopkins, 548 S.W.2d at 351;

Ethicon v. Parten, 520 $.W.2d at 532, 533. Where use of a

defective product results in the user's death, testimony as to

whether the user would have read a warning is speculative at

best. Under Texas law, however, there is a rebuttable

presumption that if an adequate warning had been given, a

user “would have read any warning provided by the manufac-

turer, and acted so as to minimize the risks.” Reyes v. Wyeth,

498 F.2d at 1281.

Spudnik offered no evidence to rebut that presumption.

The evidence s!\ows that Garza was of above-average in-

telligence and suffered from no condition that would hove in-

terfered with his ability either to read a warning or to act on

it. Thus the evidence clearly establishes that had a warning

against operation of the piler without outriggers been placed

on the machine itself, Garza would have read and heeded

such a warning and used outriggers at the time of the acci-

dent, thereby avoiding injury. We therefore conclude that the

district court's finding that the evidence is insufficient to

establish that a warning would have reached decedent Garza

or prevented the accident in question is clearly erroneous.

in summary, we conclude that under the rule of strict liabili-

ty in tort as applied in Texas, Spudnik had a duty to warn

against use of the piler without outriggers. Because an ade-

quate warning would have prevented the accident, we fur-

ther conclude that the failure to warn was the producing

cause of decedent Garza's death. REVERSED and REMANDED

for determination of damages.

'Under Texas law, producing cause hos been defined as “an efficient, ex-

citing or contributory cause, which, in a natural and continuous sequence,

caused in whole or in part the occurrence or injuries, if any, in question,

and but for said cause the occurrence or injuries would not have occurred.”

General Motors Corp. v. Hopkins, 535 S.W.2d 880, 687 (Tex.Civ.Aps. 1976).

App. 5

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

U.S. DISTRICT COURT

DISTRICT OF IDAHO

fe M

FEB 1 - 1980

SIXTA GARZA, individually, as JERRY L. CLAPP, Clerk

Representative of the Estate of

MIGUEL G. GARZA, Deceased; ®Y Deputy

ISRAEL GARZA, ESMERALDA GARZA

GALLARDO, iISMAEL GARZA, DAVID

LEONEL GARZA, Civil No. 4-76-21

JUDGMENT

Plaintiffs,

-VS-

SPUDNIK EQUIPMENT COMPANY and

SPUDNIK POTATO EQUIPMENT

COMPANY,

Defendants.

This matter was heard by the Court, sitting without a

jury, on January 7 through January 9, 1980. Evidence was

received, argument had, and the case submitted. The Court

has heretofore entered formal Findings of Fact and Con-

dlusins of Law favorable to the defendant.

NOW, THEREFORE, IT IS ORDERED, ADJUDGED and

DECREED that judgment shall be, and the same is hereby,

entered in favor of the defendant and against the palintiffs.

Neither party shall recover costs.

DATED this ______._ day of January, 1980.

MARION J. CALLISTER

UNITED STATES DISTRICT JUDGE

App. 6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

U.S. DISTRICT COURT

SIXTA GARZA, Individually, as DISTRICT OF IDAHO

Representative of the Estate of PERS Dio ccvccccccescasseses M

MIGUEL G. GARZA, Deceased; FEB 1 - 1980

ISRAEL GARZA, ESMERALDA GARZA

GALLARDO, ISMAEL GARZA, DAVID JERRY L. CLAPP, Clerk

Plaintiffs, Civil No. 4-76-21

-vs- FINDINGS OF FACT

AND

SPUDNIK EQU!PMENT COMPANY CONCLUSIONS OF LAW

SPUDNIK POTATO EQUIPMENT

COMPANY,

Defendants.

This matter came on for trial before the Court at Boise

in this District on January 7, 1980, and continued through

January 9, 1980. The Court, having heard the evidence and

the arguments of counsel, and the matter having been finally

submitted, the Court does hereby find the facts and state

separately its conclusions of law thereon, and directs the en-

try of the appropriate judgment as follows:

FINDINGS OF FACT

1. The plaintiffs are citizens and residents of Hidalgo

County, Texas.

2. The defendant Spudnik Equipment Company is a cor-

poration organized and existing under the laws of the State of

tdaho, with its principal place of business at Pocatello, idaho.

3. That the matter in controversy as to each plaintiff

exceeds $10,000.00, exclusive of interest and costs.

4. That the decedent, Miguel Garza, was born on

September 11, 1927.

5. That Miguel Garza was married to Sixta Garza on

August 26, 1950, in Elsa, Texas.

App. 7

6. That Miguel Garza and Sixta Garza had four

children, only one of whom was a minor (israel Garza) at the

time of Miguel Garza's death. The birth date of israel Garza is

June 18, 1956.

7. That Miguel Garza was Filled on April 28, 1974, in

Hidalgo County, Texas, when a potato piler he was operating

overturned on top of him.

8. That at the time of his death, Miguel Garza was

operating a Spudnik Swing 800m Piler, Model 400, Serial No.

354, manufactured by Spudnik Equipment Company of

Blackfoot, idaho, without any outriggers attached.

9. That decedent's employer in Hidalgo County, Texas,

was Vahising, Inc.

10. That on or about November 26, 1969, Spudnik Equip-

ment Company sold to R Squared Company, f.o.b. Blackfoot,

idaho, the potato piler involved in this action. That said sale

occurred in the ordinary course of business of Spudnik Equip-

ment Company.

11. That the potato piler was sold for use in stacking

potatoes in storage.

12. That there is no evidence in the record, nor was any

produced at trial, showing how many times or under what cir-

cumstances ownership of the potato piler changed hands

after it was purchased by R Squared Company and before it

was purchased by Vahlising, inc.

13. That Swing Boom Piler, Model 400, Serial No. 354,

was sold with outriggers attached, as were ail potato pilers

having a boom length of over twenty-four feet.

14. That the outriggers were fastened to three pad eyes

welded onto the potato piler by use of a double nut system.

The outriggers could be raised to move or “trail” the piler.

The outriggers could also be removed to transport several

pilers by truck.

15. That at the time the machine was placed in com-

merce, that potato piler, Serial No. 354, Model 400 was not

unreasonably dangerous to life or limb as constructed with

outriggers attached when used for the purpose for which it

was built or for any use that could reasonably be anticipated

by the defendant.

App. 8

16. That the potato piler was altered and modified after

it had left the control of the defendant. The outriggers had

been removed and the speed of the conveyor belt had been

slowed down by substituting a 48-tooth sprocket for the

original 24-tooth sprocket. As a result, the load on an

operating boom could be twice that anticipated by the

manufacturer.

17. That the defendant did not foresee and could not be

expected to have foreseen that the outriggers would have

been permanently removed or that the machine would be

operated without outriggers. Purchasers of potato pilers

could be expected to understand the operation of such

machines and the advisability of retaining the outriggers.

18. That the decedent, Miguel Garza, was a person of

above-average intelligence who had worked for several

years in the handling of farm products. That Mr. Garza was an

experienced “line foreman” who had supervised groups of up

to 120 workers. Mr. Garza had been a night foreman at the

Vahising plant and had occasion to see the potato piler in

operation, without outriggers.

19. That someone who had operated a Spudnik Swing

Boom Piler Model 400, or had seen such a machine in opera-

tion, would be aware that rotation of the boom without at-

tached outriggers would create some tipping action and that,

absent cautious operation of the machine, such tipping action

could conceivably result in the overturning of the machine.

20. That the evidence is insufficient to determine by a

preponderance of the evidence how the accident happened

or the actual cause of the accident.

21. That the evidence is insufficient to establish by a

preponderance of the evidence that in 1969, when the potato

piler in question was built and sold, that the knowledge of the

trade or the manner of the construction of the machine was

such as to require any warning to be given pertaining to the

use of the machine without outriggers.

.22. That the evidence is insufficient to establish by a

preponderance of the evidence that, had the defendant given

any warning to the original purchaser of the machine, such

warning would have been passed to the decedent, or his

employer or have prevented the accident in question.

App.9

CONCLUSIONS OF LAW

1. This Court has proper jurisdiction of the subject mat-

ter and the parties by virtue of 28 U.S.C. § 1332.

2. The potato piler in question was not unreasonably

dangerous or defective by reason of its design at the time it

was placed in commerce.

3. Since the potato piler was not unreasonably

dangerous, the defendant was under no duty to warn against

operation of the piler without outriggers. The lack of warning

did not subject the users to an unreasonable risk of harm.

4. Even if defendant had been under a duty to warn

against operation of the piler without the o:triggers, the

evidence was insufficient to establish that an adequate warn-

ing given would have reached Vahlising, Inc., or decedent, or

that the failure to warn was the producing cause of Miguel

Garza's death. Technical Chemical Co. v. Jacobs, 480 S.W. 2d

602 (Tex. 1972).

5. The plaintiffs have failed to establish by a

preponderance of the evidence any right to recover against

the defendant.

Accordingly, judgment should be entered against the

plaintiffs and in favor of the defendant. Each party is to bear

its own costs.

DATED this _____ day of January, 1980.

MARION J. CALLISTER

UNITED STATES DISTRICT

JUDGE

App. 10

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

U.S. DISTRICT COURT

SIXTA GARZA, Individually, as DISTRICT OF IDAHO

Representative of the Estate PER GB cecccccccccsessecss M

of MIGUEL G. GARZA, Deceased:

ISRAEL GARZA, ESMERALDA GARZA van oF < See

GALLARDO, ISMAEL GARZA, DAVID JERRY L. CLAPP, Clerk

LEONEL GARZA, By Deputy

Plaintiffs, Civil No. 4-76-21

ORDER

-VS-

SPUDNIK EQUIPMENT COMPANY

and SPUDNIK POTATO EQUIPMENT

COMPANY,

Defendants.

Plaintiffs having moved to amend Findings of Fact and

Conclusions of Law and enter judgment for the plaintiffs, and

the Court having considered the same;

NOW, THERFORE, IT IS ORDERED that the Findings of

Fact be amended as follows:

Finding of Fact No. 10 shall be modified to add at the

end thereof that: “R Squared Company was known by defen-

dant to be engaged in the sale of farm machinery.”

Finding of Fact No. 13 shall read as follows: “That

Swing Boom Piler, Model 400, Serial No. 354, was initially sold

with outriggers attached, as were all potato pilers having a

boom length of over twenty-four feet. The outriggers were at-

tached to give additional stability and safety to the machine.”

IT IS FURTHER ORDERED that in all other respects, the

motion is denied.

DATED this ______ day of February, 1980.

MARION J. CALLISTER

UNITED STATES DISTRICT JUDGE

App. 11

UNITED STATES COURT OF APPEALS

For The Ninth Circuit

SIXTA GARZA, Individually, as

Representative of the Estate of

MIGUEL G. GARZA, Deceased; ISRAEL

GARZA, ESMERALDA GARZA GALLARDO, 80-3110

ISMAEL GARZA, and DAVID LEONEL No.

GARZA, DC CV 4-76-21 MJC

Plaintiffs-Appellants,

-vs-

SPUDNIK EQUIPMENT COMPANY, et al.,

Defendants-Appellees.

APPEAL from the United States District Court for the __

District of ____ IDAHO (Pocatello)

THIS CAUSE came on to be heard on the Transcript of

the Record from the United States District Court for the

District of ____ IDAHO (Pocatello)

___ and was duly submitted.

ON CONSIDERATION WHEREOF, It is now here ordered

and adjudged by this Court, that the

judgment of the said District Court in this Cause be, and

hereby is ____ reversed and remanded.

Filed and entered ____ November 27, 1981

A TRUE COPY

ATTEST

JAN 20 1982

Clerk of Court

by:_Oscar (illegible)

Deputy Clerk

App. 12

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SIXTA GARZA, Individually, as

Representative of the Estate of

MIGUEL G. GARZA, Deceased; ISRAEL

GARZA, ESMERALDA GARZA GALLARDO,

ISMAEL GARZA, and DAVIDE LEONEL

GARZA, FILED

JAN 06 1982

Clerk U.S. COURT OF

APPEALS

* No. 80-3110

ORDER

Plaintiffs-Appellants,

SPUDNIK EQUIPMENT COMPANY, et al.,

Defendant-Appellee.

Before: PREGERSON and CANBY, Circuit Judges, and

KELLAM,* District Judge

Appelants’ petition for rehearing is denied.

* Honorable Richard B. Kellam, Senior United States District Judge, Eastern

District of Virginia, sitting by designation.