Petition for Writ of Certiorari — National Molasses Co. v. Beebe

Supreme Court brief1967

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INDEX,

Page

OPINIONS OF THE Courts , 0 ere eiveneennes ae

JURISDICTION ........ seecccscccescccccetecsivescecsoces 2

ConsTITUTIONAL Provisions ee EEPEE: POOR TPA Pe

Questions PRESENTED... Ae Sede beouae peas Seem. lero 4

STATEMENT OF THE CASE .......... Lsedueais ieusgeweas 5

REASONS RELIED’ UPON FOR ALLOWANCE OF THE WRIT ...... 13

First Point. The District Court Lacked Jurisdiction ab ‘

“Initio in This RL Gvtactccask coe keccuweedaweres 13

Sensi Point. The Lower Court and the District Court

Violated This Court’s Mandate to Apply ; the Law of

- the Locus of the Alleged. Accident Which, in This

Case, Is the Commonwealth * Pennnytvante, Which —

They Failed to Do aN Vedheepeedanwasendeness 1S_

Third Point. There Is a Flagrant Decisional Conflict.

Between the Circuits and Within the Third Circuit

Regarding the Application of Substantive and Pro-

-cedural Law to Cases Involving Similar Points of Law

Demanding a Rectification by This Honorable Court

So as to Provide a Uniformity of Application of These —

Questions Which in the Interest of Justice Affect,

Litigants on a National Scale. prammeerettTisiaeess |

INDEX (Continued).

APPENDIX: k ei be - Page>

: ' Judgment of the U. S. District Court . . seks sovscesic 1A

Order of the U.S. District Court ied pecnkbanen's Be of eee |

Opinion of the U! ‘S$ District Court ot Se ececeesecegene 4A

Opinion of the U, S.C. A03 ..eseeeeeee eseausevesss 16A .

Order of the n6.¢ A. 3 Denying Petition for Rehearing 22A -

Onder of U. S. C. A. 3! Staying Issuance of Mandate . _ BA ”

| Judgment of U.S.C. A,3 - Ewe ener yeava desc oune_ ee

Letter of Transmittal ...........sseeeeeeeee onnsepeei | 25A

Requests for Admissions Under Rule % ;........ geeses | 26A__ Ss

. eer * 7

| \

e Ose, /

er a

eer g CRT

TABLE OF CASES CITED.

Page

Actastol v. National Savings & Trust ©, C.. Pm 1956, 244

i ) Rare Chesoenvecneleenbededrecsvaceseet 33

Andrews, appellant v. Smith, et ux., 324 Pa. 455 ....... 003 (27

*Atlantic Greyhound Corporation v. McDonald, Cc. C -A. North |

Carolina 1942, 125 F. 2d 839... es pesceunasiutiuneds 32

Atlas Life Ins. Co. v. W. I,-Sotthern,.Inc., 306 U. S. 563,

CODED * ccc snatSectitccieceveds Cinsennvsepesseutes 13

Berry v. U-S., 312 U.S. 450 0... 0.eee sete. jeneuevecheee 33

: _-Bisson v. John B. Kelly,-Inc., apint., 314 St Sear 25 -

Bohner, aplnt. v. Eastern Express, Inc., 405. Pa. 463 .. veseeee | 23

_ Brown v. Fennell, 155 F. Stipp. 424 (D. C. Pa. 1957) ..:.... 15

Cadillac Motor Car Co. v. Johnson, 221 Fed. 801 ......:..... - 25

_ City of Indianapolis v. Chase ‘Nat. at of City of ~— York,

; «SOU Be WE assy aisdse whi temechswondepevecocdeeves 14

Clapp v. Sterns & Co. (D. C. N. y. 1964), 229 F. Supp. 305 13

Com. v.°Pierce, 138 Mass. 165, s.c., 52 Am. Rep. 264 ...... 27

Conway v. Philadelphia Gas Works Company; 336 Pa. n- 24

Cooper v. Reading R. R., 370 Pa. 192 ...... satetnnsveedes 21

Corabi v. Auto Racing, Inc., 264 F. 2d 784 (C.C. A. Pa. 1959) 15

Curtis v. A. Garcia y Cia, 272 F. 2d 235 (C. C. A. 3rd 1959) . 18

’ , Cuthbert. v. Philadelphia, apint., 417 Pa. 610 2.0... .0:scs0000, 25

Dahlstrom v v, Shrum, Se PU EE add vexsddesuerncccence 27 .

Dorofey, apint. v. Bethlehem Steel Co., 407 Pa. 288 .. citer? tae

Doyle v. Atlantic, 357 Pa. 92 ....... eteeevetoucst an Ze Sik 24

Druding v. Philadelphia, 374 Pa. 202 .........0..ceeeseees 20

Dunn v. Atlantic Refining Company, apint., 391 Pa. 65 . 27

‘Erie R. R. Co. v. Tompkins, 304 U. S. 64, 82 L. Ed. 1188, 58 :

me ee Miaheeds ere

Faulks, apint. v. Fischer, 349 Pa. 485.2... 0.6. ¢eccccoeees 29

Federoff v., Harrison Construction Company, 362 Pa. 181 . 25.

Fowler v. Baker (D. C. Pa. 1940), 32 F, ~_— 783 (deeviee - ae

Fritch v. Atlantic, 307 Pa. 71 ...0i.. cee eeeccccelecccece, As.

Gliden Co. v. Zdanok, 370 U. S. 530, 8 L. Ed. 2d 671 (1962) 14.

~ ;

TABLE OF CASES CITED (Continued).

Green v. Independent Oil Co., 1964, 44 Pa. 477, 201 A. 2d

OE. Uickevsnsekeun ch cone tedesesbvess sacsedesieveedd, 18"

Griffith v..United Air Lines, Inc., 416 Pa. 1 so ccecoesseses 32

Guaranty Trust Co. of New York v. York, 326 U. S. 99, 65

oe a. | or whbewses 15, 17

Howard Johnson of Kingsport v. The City ‘of Kingsport (D. C.

Tenn. 1963), 192 F.2d 211 ......0ceeececeeeees se ee.

Irwin Sav. & Tr. Co. v. Penna. R. R: Co., applt,, 349 Pa. 278 16

Jackson v. Wilson. Corpdtation, 243 F. 2d MBpin sc esceeees 32

Julien v. Sarkes Tarzian, Inc., 352 F. 2d 845 (C. A. Ind. 1965) 15.

Kane v. Federal Match Corporation, 5 Fed. Supp. 507. ...... 29

Kimble v. Mackintosh Hemphill a ae 16

Klaxqn Co. v. Stentor Electric Mfg. Co., 313 U. S. 487 ....15, 17

Kline v. Moyer, 1937, 325 Pa. 357, 191 Atl. 43 « eck 7, is .

Kotal y. Goldberg, 375 ‘Pa: 297 ......0Bsccceruccsccsees 28

Kronk, aplnt. v. West-Penn Power Co., 422 Pa. 458° Kesteave. -ae

Koelsch v. Phila. Co., 152 Pa. 355 ........ceceeueeeensess © 2

"Lebeck v. Jarvis et al., 250 F. 2d 285 .........eeeeeeecees 27

Lonzer v. Lehigh Valley R: R. Co., 196 Pa. 610 :....... epee 20

MacDoigall v. Penna. Power &. Light Co., 311 Pa. 387 .. ot ae

- MacPherson v. Buick Motor Co., 217 N. Y. 382 ........... - £2

Maize, admr. apint. v. Atlantic Ref. Co., aplnt., 352 Pa. 51 ...24, 22

Mantin v. Broadcast Music, Inc., 244 F. 2d 204 (C..C. A. Cal.

1957) weeseceees SEs ASUAE SA LENWeKeebesiekenvevetes 15.

Marrazzo v. Scranton Nehi Bottling Co., 422 Pa. 518 tankers sae

McClaren, admrs. v. G. S: Robins, 349 Mo. 653......... ee ae

McNello v. a B. Kelly, bare 283 F. 2d % (C.C. A. Pa. |

ae Berar ei edhs sereeevadacee< ae

McShan v. Sherill, 283.F. 2d 462 (9C. C. A. 1960) ......... 14

Meddock v. National Transit Company, 105 Pa. Super. 553 . 24

_ Meyonberg v. Pa. R. Co., C.C. A. New Jersey 1947, 165 F. 2d

50 COCO CCOH OHH OOHEEE TSO COE OCS ad COeeeCeeoeecece RC e086 33

»\ iat, apint. v. Gienn, 393 Pa. 360 eee Iie 20

ie...

_\ TABLE oF CASES CITED (Continued).

7 :

: Page :

“Miller v. Hickey, Mme We. SBF 5. oviccccne th Sai ea? Cisaeonwan , B

Mission Insurance Co. v. Brown, 207 F. Supp. 18 (1962) , 14

. Moffa v. Perkins Trucking Co., 200° F/ POD TE vieccccess: &

Moidel v. Peoples Natural Gas Comparfy, 397 Pa. 121 ...... 23

Montgomery Ward v. Duncan, 311 U. S. 250 ............ wee) ae

_ Myra Foundation v. U. S., 267 F. 2d 612 :.... ee beamed ate: aa

“O'Connor v. United States, 269 F. 2d 578.002. ........... 6, 30.

‘Patific Nat. Ins. ‘Co. v. Transport Ins. Co., 341 F. 2d 514

(1965); cert. denied, 381 U. S. 912, 85 Supreine Ct. 1536,

WORN Te WE bisicceker celeste. 14

- Palsgraf v. Long Island’ Railroad, 248 N. Y. 339, 162 N.E.

| Oe CE, car ibebetesecvieeesesls Le Ms 21+, 26,27

-Park- Horn v. Adlib Associates Inc., 345 F. 2d 173 °(1965) . 14

- Pass. Ry. Co. v. Trich, 117 Ta GOW tsb envilbonsccdescsk wo ” 16

- Pemberton v. Colonna, 189 F. Supp. 430, aff'd 27 F. 2d 220

(D. MG Wi OE benev bs tc Li oueeueec ed Cacco c. 15°

’ Peterson System, ‘Ine. v. Morgan, 224 F, Sp wey (D. C. Pa. |

cae, SOE ne ye eee i ae Ne 14

- Pickering v. Corson, C. ot A. Illinois, 1940, 108.F. 2d 546 . 32

_ Pryor v. Chambersburg Oil .& Gas Co., 376 Pa. 521... 1eeee 23, 24

Republic of Iraq y. First Nat. Bk. Lof Chicago, 382 U. S. 982

(1965), 15 L. Ed. 2d 556 ........ sands ieieperaice:

Robb v. Glylock Corporation, 384 Pa. 209 ee ia 28

'. Rodriguez v. Brunswick Corp., 364 F. 2d 282 (1966) ....... 19

Samuel Silvers v. Maryland Casualty Co., 239 F. 2d 865 (3

C.C. A. 1956) .......... REPT TP r eer one 14

"Sano v. Pennsylvania R: R. Co., 282 F. 2d 936, C/A. 3rd 1960 32,

- Smullin, appint. v. Harenski, 106 Pa. Super. 453 ...... vecce 28

Tadbury v. Dairyman’s Co-op fawn 110 F. Supp. 738 (D. C. |

Pa. |1954) °..... Su94 0004 gH 0Nen bekesevetcobobwuenul 13

- Texaco-City Service Pipeline Company. v. Aetna Casualty .. .

and Surety. Co. oe a teen achis 2d.144 ...... “<<. we

TABLE OF.CASES CITED (Continued).

| Page

Thomson v. Gaskill, 315. U. S. WB siden: Perr ereeee os “14

United: States v. 363 Cases More or Less Mountain Valley” :

Mineral Water, D. C. Arkansas 1956, 143 F. Supp. 219 . 32

Valente v. ” Lindner, 340 Pa. 508... ne pe ert Pam 21

Waschak v. Moffat, 379 Pa. 441 ...........ceeeeeee ee ae

. Williams, et ux., apints. v. Barbaretta, et ux., 359 Pa. 488 ..:.. 18

Wilson v. American Chain and Cable yonene: 364 F. 2d 558 .

SES ent Het oe ra cme ete less On. irae toy are eae 19

‘ Woods Vv. National Life and ‘Accident Insurance Co., GS A

We TO, OG, A so got cnn ere

+. | *

STATUTES AND AUTHORITIES CITED.

2 Nera a or | es 7 Page

Py R: C. P. $e) .....--5:. deo PATE eee ea aunoed 33

F. RoC. P..5O(D) 22. ecTe cece ee ecece Peree ry 6, 31, 32, 33

eHolmes, “The Common Law” .............0- Ee ee 28

Judicial Code 24(1), 28 U. S.-C. A. 4331, ct 900. 2.0.0 saa Oe

Pennsylvania Statutory Construction Act, May 28, 1937, P. L.

_ 1019, ‘Sections 551 and BE anit re a ae aa 15

Survival Act of Pa. 1949, April 18, P. L. 512, Article VI,

Secs. 601-603,'20 P. S. 320.603 ............ ehawes wat

ae ty eee rreres pereaaneeaaias . @

U. S. Constitution: ' | ,

| il the SIE v0 5 Nauriusesoioesetans a eeoee 3

So so rucclesevacsvoesxres Jonna 3

Wrongful Death Act, April 15, 1851, P. L. 669. Sec. 19 as °

amended 12 P. S. 1601, Act of April, 26, 1855 P. L. 309

Sec. 1,,12 P. S. 1602, June 7, 1911 P. L. 678 Sec. 1, and |

April 1, 1937 P. L. 196 Secs. 1, 2, 20, 22,23, 35, 36,45 15

/ , ° ’ . | S

: .

ERE LS PR Aaa CUM SSIs Toe —

IN THE

Supreme Court of the United States

OcToBER Tenm, 1966..

——

No. .

e NATIONAL MOLASSES ‘COMPANY,

_ Petitioner,

| DAVID B. BEEBE, ADMINISTRATOR OF THE Esrare OF

RICHARD C. KLINE, Deceasep,

Respondent,

HIGHLAND TANK AND MANUPACTURIN G

COMPANY

Qo a aD

P. W. MOYER, ‘Laiiiaiese AND. AS THE z Survivine PaRTNER~ .

or F. M. & P. W. MOYER

‘EASTERN —_—— FARMERS E: ACHAN GE.

- PETITION FOR A WRIT OF CERTIORARI TO THE

_ UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT.

‘To the Semon the Chief Justice and Associate Justices |

| of. the Supreme Court of- the U nited States:

| Petitioner, National Molasses Company, hereinafter

referred to as: “‘National’’ reapocttally prays that a writ

2: Petition for a Writ of Certiorari

- of certiorari issue to review the final judgment of the United .

States Court of Appeals for the Third Circuit entered on

February 24, 1967 affirming: the judgment of the United

States District Court for the Eastern District of Pennsyl-

‘vania and the Appeal docketed in the said Jourt of Ap-

peals as No. 16097 and the Order of the Court of Appeals

denying rehearing entered on March 27, —

OPINIONS OF THE COURTS BELOW.

The Opinidh of the United States District Court, dated

June 17, 1966 is not reported in — Fed. Supp. — (infra

p.4A). The Court of Appeals for the Third Circuit filed an

Opinion dated February 24, 1967 which is not recorded at

— Fed. 2d. —‘ (infra p.16A).* The Court of Appeals for

the Third Circuit did not file an Opinion denying the Peti-

tion for Rehearing by National.

JURISDICTION.

The judgment of the Court of Appeals was entered on

“February 24, 1967 (infra p. ‘24A). The ‘Order denying

the Petition for Rehearing was entered.on March 27, 1967

(infra p. 22A). The jurisdiction of this Court is invoked

under the Constitution of the United States and 28 U. S. C.

Sec. sare).

* Comnedt for Petitioner has been advised by Judge Luongo’s

Office, the Trial Judge, that the opinion of the United States District ~

Court dated June 17, 1966 will not be reported in the Federal

‘Supplement (infra p. 4A). Petitioner has been further .advised

by the Clerk of the Court of Appeals for the Third Circuit that: the

Court is withholding the insertion of its opinion in the Federal Re- .

porter 2d Series pending the present Appeal to this Honorable Court.

—

SRS tenant ore

Petition for a Writ of Certiorari ve ie

_CONSTITUTIONAL PROVISIONS INVOLVED.

U.S.C. Constitution—art, 3, Sec. 2, OL. 1.

Article 3, See. 2, Cl. 1 of the United States Constitution.

reads, inter alia, as follows: :

“Sec. 2.. The judicial power shall extend to all

cases in Law and Equity arising under thé Constitu-

" tion, the law of the United States . . . between citi-

-zens of different States...” 2,

. °

U. 8. C. Constitution Amendment VII--Civil Trial

‘*In suits at common law, where the value in contro-

versy shall exceed twenty dollars, the right of trial by jury

shall be preserved, and no fact tried by a jury, shall be

otherwise reexamined in any Court of the United States, -:

than according to the rules of the common law.’’ 7

4. | Petition for a Writ of Certtorart

| y - QUESTIONS PRESENTED.

Question No. 1.

In a suit by a-plaintiff in behalf of the estgte of a de-

cedent and the surviving spouse :and allege@ty dependent

child under the Survival and Wrongful Death Act of Pern-

‘sylvania respectively in the Federal Courts where diversity

of citizenship is alleged to be the basis of jurisdiction, is

it not mandatory that the plaintiff clearly and concisely

‘set forth the averment of diverse citizenship rather than °

residence and does he not have the burden of proving the

same? Moreover, is it not mandatory for the District Court

and every court of federal jurisdiction thereafter to inquire

into the jurisdictional question sua sponte at any and every

stage of the litigation, especially where the jurisdictional

issue was raised in Petitioner’s answer to the complaint

and specifically brought to the attention of the Court below

in the Petition for Rehearing?

Question No. 2.

Did not the decision of the learned Court below, affirm-

ing the judgment of the District Court, violate the mandate

of this Oourt in failing to apply the substantive decisional

and statutory law of the Commonwealth of Pennsylvania,’

which, if it had done so, would have precluded the respond-

ent’s case against the Petitioner from being submitted to

the jury and/or would have resulted in an exoneration

from liability of the Petitioner? 7

Question No..3.

- Is din not a flagrant decisional coriflict between the

cireuits and within the Third Circuit regarding the applica-

tion of substantive and procedural law to cases involving

similar points of law demanding a rectification by this Hon-

orable Court so as to provide a uniformity of application

of these questions which iu the interest of justice affect

litigants on a arian scale?

Petition for a Writ of Certiorari

STATEMENT OF THE CASE.

Plaintiff attempted to institute a diversity suit against

Highland Tank and Manufacturing Company, hereinafter

called ‘‘Highland’’, P. W.: Moyer, individually and as the

surviving partner of F. M. & P. W. Moyer, hereinafter

called ‘‘Moyer’’ and National Molasses Company, herein-

after called ‘‘National’’ under the Pennsylvania Wrongful

Death and Survival Acts (15a-20a). However, he neither

_ averred nor proved diversity of citizenship.

' . Highland joined the Plaintiff ’s decedent’s employer,

Eastern States Farmers Exchange, otherwise known as

Agway, as a ‘Third-Party Defendant and N ational cross-

claimed .against Eastern (36a). | Cities

Initially cross-claims were filed by the Defendants,

inter se, but were subsequently withdrawn without preju-

dice (31a, 38a, 43a, 301a, 302a). - meat Se:

As will be revealed by the Plaintiff’s Complaint (15a)

(Respondent herein) after stating that he was the Adminis- __,

trator of the Estate of Richard €. Kline, Deceased; he -

, averred he resided at 302 West Holly Avenue, Pitman, New

Jersey. He never averred that he was a citizen of the Stdte

of New Jersey and never proved the same since he did not ae

. appear at trial of the issue. The deceased and the surviving

spouse and children were residents of the State of Penn.

sylvania at the time the action was commenced and the

Plaiptiff averred that National was a. Pennsylvania corpo-

tion at the time suit was commenced. The Complaint was

‘amended concerning a liability question but no change in

the averment was made regarding residence or, citizenship.

. . Bee 2a, lt

Defendant-Petitioner, National, in. its Answer (21a)

raised the question inter alia of the Court’s jurisdiction over

the person and the subject matter and specifically demanded

proof at the trial of the issue of the allegation of diversity -

and moreover, it never changed its position by stipulation,

‘

6 Petition for a Writ of Certiorari

formally or informally, consent, admission, waiver, estoppel,

or conduct smce and under the law would not be permitted

todoso.? —_.,

At the close of the ‘Plaintiff’s case, the trial Judge

granted Highland’s and Moyer’s motions for directed ver-

dicts under F. R. C. P. 50(b) but denied a similar motion

by National (401a)..

The trial resumed as to Plaintiff v. National and Na-

tional v. Eastern and a jury returned a verdict against

National in the sum of $306,975.00 under the Wrongful

Death Act. and $72,000.00 under the Survival Act and a

verdict in favor of National against Eastern in no mone-

tary amount for such contribution as permitted by the law,

later remitted to $300,000.00.

_ There was no explanation as to how, why, or under

what circumstances the $300,000 ‘figure was arrived at nor

- it was to be allocated between the Plaintiff’s two sepa-

— a

an ties se of damage in the case at bar, especially where

the evidence on future loss of wages was speculative, 302a . |

and ‘303a. Moreover, both principal and interest must be

completely dissipated or exhausted within decedent’s life

-expectancy, O’Connor v. United States, 269 F. 2d 578, at 584.

Viewing Plaintiff-Respondent ’s évidence from the

posture of verdict winner, these facts were iceman which

_.. give him every reasonable inference:

Highland has been in the business of fabricating

- storage tanks since 1946. - In 1955 it fabricated a molasses

storage tank for Eastern for use at Eastern’s York, Penn- §

2. Several years after’ the litigation commenced and after the

bn Statute of Limitations had run on_both causes of action, Respondent-

laintiff abortively attempted to get a stipulation in his Pre Trial

‘i concerning diversity of citizenship by alleging that the plain-

tiff-Respondent was a citizen and resident of New Jersey, but no

defendant agreed to the request made, including the Petitioner herein,

_ and no ruling was made on the subject by the District Court. Peti-

tidner retained its original position of demanding proof of diversity

of citizenship set forth in its original Answer which it did not need

to amend and ignored the request in its Pre Trial Memo.

- business. “ :

| Petition for a Writ of Certiorari i

sylyania premises. It had manufactured approximately

_ forty to fifty similar molasses storage tanks for Eastern.

(Luckenbill 89a, 156a). , SLA ide ea ee

Eastern, which was the employer of the Plaintiff’s -

decedent at the time pertinent to this litigation, was at.

the time in the business of selling molasses and mixing it”

with various types of grains to be used by farmers for

animal and poultry food (196a, 197a, 198a). Eastern had —

.a separate division which supervised the construction and -

installation of its many storage, tanks {408a, 404a) at their

various lotatiqns aswell as‘ the handling of many. other

facets of its diverse business. It had chemists. and engi-

neers to conduct experiments in connection with its busi-

ness and for consultation concerning the design, installa-

tion and cledning of tanks storing the molasses used in its -

The ‘particular tank involved in this litigation which

was located at the York Service Center was installed in.

coneréte under the floor of one of its buildings. A metal

_ Plate ‘in the floor-had to be removed to gain access to the

tank. The tank was approximately five and one-half feet

in diameter and twenty-four feet long; it had an eighteen

- Inch opening at the top, a two inch venting pipe and one

or two three inch pipes (97a, 98a, 99a, 100a).. It also had

a removable filter screen (187a, 188a, 199a) which could ‘be

removed from the outside for cleaning purposes. . The over- ©

all design for the tank was submitted to Highland, made by |

Kastern’s engineers and chemists (403a, 405a) and con-

structed by Highland to meet these specifications (404a,

4052). Highland had built approximately thirty to forty

other similar tanks for Eastern each according to specifi-

cations supplied by Eastern (403a, 405a). No accident such

as the instant one occurred as the result of the storage of

molasses or cleaning of tanks at these other locations. ©

In 1957 the York Center ‘tank was cleaned for the first |

time. Eastern had informed its employees of the normal, |

_ safe procedure to be followed in ¢leaning the tank. The

8 + Petition’ for a Writ of Certiorari

padi on cleaning the tank were to. adopt the following

_ procedures:

1. Remove the cighteen inch covering. the evening

before the cleaning; i

2. Fill the tank with water and then pump it out;

3. Put a safety rope around the man entering the

tank; and

- 4, Place a fan at the opening to blow air into the

tank. - |

This eressbine was virtually’ identical with the pro-

‘cedure recommended by Plaintiff’s alleged expert, Mr.

Bradley, who also stated he would use this procedure even

if the tank had a self-contained venting system (313a, 316a,

' 317a). It was also developed by fireman Halpin that be-

cause the tank was below the floor level it was mandatory

for anyone entering the tank to use a self-contained oxygen

mask such as a Chemox readily © available on the open

* market. @

When this tank was cleaned. i in 1957 some of the sug-

gested procedures were followed without any unusual re-

sult, as a matter of fact the man cleaning the tank, Mr.

Holtzapple, remained in the tank for three fo four hours

with no ill effects whatsoever (229a, 181a). At the time in

question the same product in relatively the same amount’

was in the tank as on the day of the fatal occurrence to.

Mr. Kline. Moreover, in 1957 the tank was aired over night,

'. a fan was blowing air into it, the pump was on and the slush _

of the residue was being agitated and pumped out, whereas ~

on August 16, 1960, when Messrs. Holtzapple and Kline

"were injured and the latter died, the safety procedures

aforesaid were not utilized (235a, 236a). |

: It transpired that before Mr. Luckenbill, Manager of

Kastern’s York operation went on vacation in August of

1960 he gave his fellow supervisor, Mr. Chinault, vague

verbal general instryctions that the tank would have to ‘be

Petition for a Writ of Certiorari . ao

‘cleaned (101a, 102a). No specific time was fixed for. the

'. commencement of the operation, There .is a definite con-

tradiction which is irreconcilable between Messrs. Chinault

and Holtzapple concerning whether the cover of the eighteen

inch opening, which Plaintiff’s counsel. and expert has

designated as a manhole cover, was taken off the night be-

fore the so-called cleaning .operation was to commence

: (234a, 181a) or on. the morning when it was supposed to

‘begin (195a, 196a). It is undisputed, however, in the Plain-

tiff’s evidence that Mr. Holtzapple testified that on the

morning when they were to begin to clean the tank at about

7 A. M., one hour before the normal 8 A. M. start, a bolt

securing the. cover to the opening which was unscrewed -

accidentally fell in the tank or was knocked in by the

oa garden hose used to fill the tank with water before: it was

to be pumped out (221a, 222a). Nothing had to be done

to retrieve this small bolt. However, Mr. Chinault, East-

erm’s supervisor, erroneously decided that the bolt would

' damage the expensive pumping machinery and ordered Mr.

_ Holtzapple, a man five feet five or six inches and about one

hundred fifty pounds, to go into the tank to retrieve the

bolt (188a, 199a, 235a). Mr. Holtzapple was consciously

concerned because he detected a strong odor which smelled

like sulphur rather than molasses. He waited for approxi-

mately fifteen minutes before deciding to enter the tank

(230a, 234a, 235a). He was afraid of the danger involved

.and that he might lose his life (239a). Notwithstanding -

this fact he was ordered to enter the tank by-his supervisor,

Mr. Chinault (235a, 230a, 231a). Mr. Holtzapple procured

a wooden ladder from somewhere on the premises (222a)

and entered the tank without any of the safety precautions :

being used (231a, 232a). iio, “eat

While he was in the tank someone suggested using the

blower on the feed truck located at the platform nearby

to blow fresh air into the tank but-this was not done at this

time but utilized subsequently (232a). Mr. Holtzapple was _

10 : i Petition for a Wr of Certiorart

on his hands and knees. groping in the residue of the

molasses for the bolt with his face about eighteen inches

_ from the bottom of the tank, -After some time he felt faint

‘and attempted to come up the ladder and out of the tank.

For: some unaccountable fashion he became wedged and

could not get out or be pulled out! ‘by his" supervisors,

Messrs. Stiffler and Chinault (177a, 178a).

Plaintiff’s decedent, Mr. Kline, a trainee of Eastern

for some six weeks, and a graduate of Penn State Univer-

sity and not assigned to the operation with which Messrs.

Chinault and Holtzapple. were engaged, came on the scene _

and became aware of the situation of Mr. Holtzapple-in the

tank (178a, 179a; 202a). It is unclear whether Mr. Holtz-

apple was conscious or unconscious while in the tank. He

was conscious when fireman Halpin entered the tank: twenty

or more minutes later because he was haere: and holler-

ing for help (223a).

After the Plaintiff’s decedent, Mr. Kine; was on the.

scene he was. either sent or went voluntarily a distance of

one hundred twenty-five yards for some rope (191a, 418a).

He ran this distance and returned with a rope. Stanley

May, another employee, tried to help Mr. Holtzapple and.

Mr. Kline by entering the tank with an ammonia mask but

after feeling uncomfortable he came out (192a). Mr. Kline

entered the tank in some undetermined fashion since the

ladder had been removed after Mr. Holtzapple entered the

tank. Within a matter of seconds he lost consciousness and

was later found by a fireman lying face down i in the mo-

__ lasses.

The fire iste was called and arrived ten minutes

later. The fireman found Mr. Holtzapple lying on his back

vomiting and hollering for assistance, and Mr. Kline un-

conscious with his face partially covered by molasses.

There was no rope in the tank until’a fireman brought one

down and used it to secure around each man as he was re-

- moved. Holtzapple after a period of convalescence re:

: covered completely. Kline was dead within moments after

Petition fora Writ of Certiorari . 11

he entered the tank: The Death Certificate listed the cause

of death as diffuse hemorrhagic pneumonitis from noxious

fumes (Halpin 159a, 168a),.- —— Sa pe

Following this fatal accident the tank was cleaned by

-. an independent septic tank cleaning company which ster-

ilized its instruments and siphoned off the material in

question without anyone entering the tank and no one from

Kastern has entered the tahk to clean it since 1960. It is —

- undisputed that there is no need to do so-as the tank works

properly by merely. removing and cleaning the. screen

from the outside. Moreover, there has never been any

proof of contamination by the failure. to clean and there

has been no.change in the maintenance or design of the -

tank either before or after the accident. Apart from the -

fact that the tank can be cleaned efficiently and properly

from the outside by siphoning the material off (Luckenbill

89a, 156a).. ay hie

.-.,° Following the time of the filing of post-trial Motions

~ by National to vacate and set aside the judgments in favot

' of the Plaintiff under the Wrongful Death and: Survival

Acts and in favor of Respondents Highland and Moyer and ©

from the refusal to grant a similar Motion by National at - .

the end of the Plaintiff’s case and at the end of the case -

in chief, the matter was briefed and orally. argued follow-

. ing. which the Learned District Court, J udge dismissed all

.of National’s Motions except as to excessiveness in which

he requiréd the remittitur aforesaid! | ie

_- Following rendition of the judgment and dismissal of |

the Appeal, National took a timely appeal to the United

States Court of Appeals for the Third Circuit which was

briefed and orally argued and resulted in affirmance of the

judgment of the District Court upon the Opinion. of the

Court of ‘Appeals set-forth infra p. 16A. ea

Following this; your Petitioner filed 'a Petition for Re-.

hearing in which it set forth not only its original grounds

for Appeal. but additional ones. and raised a question -con-

cerning the jurisdiction of the Court which had never been |

12 Petition for a Writ of Certiorari

_ inquired into by the Court of Appeals or the District Court

..covered in the Pretrial Conference or other conference.

Despite the fact that the Plaintiff has the burden to conelu-.

theretofore even though such question. :was. raised in the

Petitioner’s Answer. The matter was never discussed or

- sively establish jurisdiction and the Court should inquire

into it sua sponte and that jurisdiction cannot be atquired

nor created. by waiver. or estoppel, the Court of Appeals for

the Third Circuit in violation of the Constitution, the Statu-

tory laws of the United States and this Court’s rulings did '

_. not even grant your Petitioner a rehearing on*the question

raised at this level i in its Petition. 7 present Petition was

then filed,

susesremnnetpenmantnendl

Petition for a Writ of Certiorari ~ = 13.

_ REASONS RELIED UPON FOR ALLOWANCE

aii OF THE WRIT. |

| | First Point. . sree

_ The District Court Lacked Jurisdiction ab Initio.

It is the duty of a federal court to determine ‘a ques-

tion of its jurisdiction sua sponte though not raised by

either party. Atlas Life Ins. Co. v. W. I. Southern, Inc.,

- 306 U.S. 563 (1939). : es

In the instant case,. the plaintiff, who neyer testified, | -

merely averred in his Complaint that he was a resident

but not that he was a citizen. of New J ersey. Moreover,

when the Complaint was -amended four years-later no

change or attempt was made to indicate or claim that the

plaintiff was a citizen or domiciled in New Jersey which is

‘ mandatory to obtain jurisdiction in a federal court.

‘While artifically created diversity h4s been tolerated

in federal courts, its semblance. must be“averred and

proved. Here there was merely an abortive attempt to

artifically create diversity in order to confer jurisdiction

on the federal court for reasons best known to the plain-

tiff, however the jurisdictional issue is fatally defective

because of the lack of proper averment and proof, both: «

of which are crucial and essential and cannot-be inferred.

The_averment of residence is not the equivalent of an

averment of citisenship for the purpose of jurisdiction in *

‘the United States Courts. Texaco-City Service Pipeline

Company v. Aetna Casualty and Surety Co. (8 C. C.- A,

. 1960), 283 F. 2d 144,145. “See also Tadbury v. Dairyman’s

Co-op Assn., 110 F. Supp. 738 (D. C. Pa. 1954) ; Fowler v.

Baker (D. C+Pa. 1940), 32 F. Supp. 783; Clapp v. Sterns

& Co. (D. C. N. Y. 1964), 229 F. Supp. 305. ’ .

The plaintiff has the burden to show that the feder.

district court has jurisdiction which he hak unquestionably

' 14, Cae Petition for a Writ of Certiorari '

failed to do in this case. pr lee System, Ine. v. Morgan,

224 F. Supp. 957 (D. C. Pa. 1963); Samuel Silvers v.

Maryland Casualty Co., 239 F. 2d 865 (3 C. C. A. 1956).

The Court of Appeals for the Third Circuit held that

the question of jurisdiction can be raised at any time and

that it cannot ‘be conferred by waiver or estoppel. Samuel

Silvers v. Maryland Casualty Co., supra. See also McShan

v. Sherill, 283 F. 2d 462 at 464 (9 C. C. A. 1960). Juris-

diction may ‘not be conferred by consent and lack of juris-

diction of the subject matter cannot be waived by the -

parties or ignored by the court. Pacific Nat. Ins. Co. v.

Transport Ins. Co., 341 F. 2d 514 (1965), cert. denied, 381

U. S. 912, 85 Supreme Ct. 1536, 14 L. Ed. 2d 434. :

Jurisdiction of the federal court under the Constitu-

tion and the laws of the Unitéd States must be disclosed

on the face of the Complaint. This was not done in this

case. See Howard Johnson of Kingsport v. The City of

Kingsport (D. C. Tenn. 1963), 192 F. 2d 211.. The rule is

SO stringent that the United States Courts are ‘required

to raise all questions of jurisdiction on their own Motions

should the parties fail to do so,’ and applies with equal

force to the lesser question of the presence or absence of

jurisdictional amounts in what otherwise would be diversity

cases. Mission Insurance Co. v. Brown, 207 F. Supp. 18

(1962); Park Horn v. Adlib Associates Inc., 345 F. 2d -

~ 173 (1965). ,

- The policy of the Statute covering jurisdiction in the

United States District Court in diversity of . citizenship

' cases, in accordance with the provisions of the United

States Vonstitution, calls for strictissimi juris. See Judi-

cial Code 24(1), 28 U. S. C. A. ‘1331, et seq.; Thomson v.

Gaskill, 315 U. S. 442; Gliden Co. v. Zdanok, 370 U. 8. 530,

8 L. Ed. 2d 671 (1962) ; Republic. of Iraq v. First Nat. Bk.

of Chicago, 382 U. S. 982 (1965), 15 L. Ed. 2d 556; City of |

ay “Indianapolis v. Chase Nat. Bk. of City of New York, 314

U.S. 63. . y

'- Tt is to be‘noted that the cases interpreting the issue of

jurisdiction hold that ‘‘Residence’’ and ‘‘citizenship’’ are

eek dan di.

Petition for a Writ of Certiorari 15

not the same thing for the purpose of federal diversity _

jurisdiction. Mantin v. Broadcast Music, Inc., 244. F. 2d

204 (C. C. A. Cal. 1957). Cf. Brown v. Fennell, 155 F.

Supp. 424 (D. C. Pa. 1957). However, ‘‘citizenship’’ and

‘‘domicile’’ are synonymous... Pemberton v. Colonna, 189

F. Supp. 430, aff’d 290 F. 2d 220 (D. C. Pa. 1960).

_ The perplexing problem as to when diversity must be

' determined has been resolved by judicial fiat. Cases -hold

that the time’when diversity is determined is the date when

suit is begun: Julien v. Sarkes Tarzian, Inc., 352 F. 2d 845

(C. A. Ind. 1965); Corabi v. Auto Racing, Inc., 264 F. 2d

_ 184 (C. C. A. Pa. 1959) ; McNello v. John B. K ely} Tne., 283 —

_ F.2d 96 (C. C. A. Pa. 1960). ’

| . ee Oe Second Point.

The Lower Court and the District Court Violated This: -

Court’s Mandate to Apply the Law of the Locus of. the

Alleged Accident Which,.in This Case, Is the Common-

wealth of Pennsylvania, Which They Failed to Do.

The decision of the court below affirming the judgment —

of the District Court violates the mandate of this court in

Erie R. R. Co. v. Tompkins, 304-U. S. 64; Klaxon Co. v.

Stentor Electric Mfg. Co., 313 U.S. 487 and Guaranty Trust

Co. of New York v. York, 326 U. S. 99 because on every

crucial issue of substantive law the District Court and the

court below arbitrarily refused to apply the law of Penn-

sylvania which would have exonerated the Petitioner from

_ liability to the Respondent and creatéd a species of liability

unknown in the Commonwealth of Pennsylvania and/or at

common law. The violation of the substantive law was not

only decisional law but-statutory law as well. See Wrongful -

Death Act of Pennsylva ia, the Survival Act and the Statu-

tory Construction Act. Wrongful Death Act, April 15,

‘ 1851 P. L. 669 Sec. 19 as amended 12 P. 8. 1601, Act of.

April 26, 1855 P. L. 309, See. 1, 12 P. g. 1602, June 7, 1911

P. L. 678 Sec. 1, and April 1, 1937. P. L. 196 Sees. 1, 2, 20, 22,

16 «CO Petition for D aad rit of Certiorart

23, 35, 36, 45. Survival Act of Pa. 1949, April 18, P. L..

512, Article VI, Sees. 601-603, 20 P. S. 320, 603. Pennsyl-

vania Statutory Construction Act, May 28, ers P. L. 1019,

Sections 551 and 592.

We respectfully suggest that an sian of this

record will e&tablish that the Courts below have not applied —

the Pennsylvania decisions in reaching their judgments. °

Negligence of itself does not create liability. Back

of the negligent act or failure to act must be sought and

found a duty to the person injured, the observance of which

would have averted or avoided the injury: See Kimble v.

Mackintosh Hemphill Go., 359 Pa. 461 at 472.

Where, in the pronouncements by the appellate courts

of Pennsylvania, do we find such a duty as was imposed upon

National in this case to warn concerning certain properties

of its product under certain circumstances of which it was

completely unaware? It has been stated in a number of

ways, but where, in this case is the orbit of duty devolving

upon National to warn that by no stretch of the imagination

could it possibly foresee the bizarre, careless, negligent and

wanton actions of Eastern and its employees which were

solely productive of the end result of the harm? This is

not the foreseeable harm which is contemplated by the

Pennsylvania decisions. See 494a-495a. :

In Irwin Sav. € Tr. Co. v. Penna. R. R. Co., applt., 349

Pa. 278 at 284, Mr. Justice Drew, quoting from Pass. Ry. Co.

v. Trich, ila Pa. 390, 399 said:

oa . To impose such a standard of care as re-

quires, in the ordinary affairs of life, precaution on the

part of individuals against all the possibilities which

may occur, is establishing a degree of responsibility

quite beyond any legal limitations which have yet been

declared.’’ |

An examination of this record ition and after the fatal

occurrence and an ‘examination, we respectfully suggest, of

alf of the decisions extant i in this entire country does not dis-

A Rea Ree A ag i. no Wy

‘Petition for a Writ of Certiorari rn

close any fatal occurrence similar to the instant one. If this

conclusion is correct, in half a century of the storage of bil-

lions of gallons of molasses, how can it be said that National

could foresee such an. eventuality as took place herein?

Ergo, if National could not in its experience have possibly

foreseen the contingencies which, in combination with one

another, produced the end result herein, then it must be ex-—

onerated from liability under the Pennsylvania law which

we know must be applied in accordance with the mandate in

Erie R. R. Co. v. Tompkins, 304 U. 8. 64, 82 L. Ed. 1188, 58.

S. Ct. 817 (1938) ; Klaxon Co. v. Stentor Electric Mfg. Co.,

313 U. S. 487; Guaranty Trust Co. of New York v. York, 326

U.S. 99, 65'S. Ct. 1464 (1945).

The Learned Court below very cogently recognized this

in its Opinion (infra at Page 4) that if Eastern had ap-

preciated the nature and extent of the danger, any warning

_by National would have been superfluous and National’s |

failure to warn would not even‘have been a causa sine qua

non. . Cf. Green v. Independent Oil Co., 1964, 414 Pa. 477,

201 A. 2d 207; Kline v. Moyer, 1937, 325 Pa. 357, 191 Atl.

43. See testimony of Prebluda, 497a, et seq,, Stiffler, 401a,

et seq.; Hastern Service Center Manual .P 25-737a, which

the Court below overlooked. « :

The Court below then goes on to say ‘‘But there is no

evidence here that Eastern had such actual knowledge”’.

With this statement we must humbly and respectfully: take

sharp issue. We'challenge the propriety of this statement

for the reason that the record conclusively reveals that

Eastern had qualified chemists-and engineers in its employ

_ and, in fact, the decedent, as his high school, and university

records printed in the appendix indicates, was a competent -

certified agricultural chemist. See Bradley, Cross.332 and

333a; See 19a printed in plaintiff’s appendix at'77b.

The expert produced by the respondent, Mr. Bradley,

stated unéquivocally that it was common knowledge even

to uncertified farmers that pdm sti from the storage

of molasses. Therefore, Eastern did have such knowledge.

18 °° _— Petition for a Writ of Certiorari

Moreover, thé record indicates that they were “conducting

experiments for the fermentation of molasses to produce

--COz. “Thus, National’s alleged failure to give its customer, ps

Eastern, which Was more expert than it, a warning which

the Pennsylvania law does: not require in non-dangerous

chattels, instrumentalities or substances, would be a futile

act. Neither the law nor equity has ever required in Penn-

sylvania the doing of a useless act. Williams, et ux., aplnts.

v. Barbaretta, et ux., 359 Pa. 488 and the cases’ therein.

In fact, in this case, the record will graphically reveal

that the jury in its perplexity asked for another or supple-

mentary charge by the Trial Court in order to equate the

expertise of National and Eastern as suppliers. See 728a

to-730a re jury’s question and court’s supplemental charge.

After the additional charge the jury found that Eastern ©

was gyilty of negligence which was the proximate cause of

the accident. Since the Trial Court had never in its original

or supplementary charges instructed the jury on the sub-

ject of concurrent causes it cannot be reasonably inferred

by this Court or the Courts below that the jury’s finding of

guilt on the part of Eastern was on any other basis than

_ your petitioner suggests. Otherwise this Court, as did the

Court below, indulges in speculation as to what went |

through the minds of the jury which this Court below has

previously frowned upon in Curtis v. A. Garcia y Cia, 272

F. 2d 235 (C. C. A. 3rd 1959).

The affirmance of the decision below cannot rest upon

Green v. Independent Oil Co. or Kline. v. Moyer, supra.

We note with some degree of satisfaction that the

Learned -Court below at pages 4 and 5 of its Opinion sug-

gests that National’s failure to give its customer, Eastern,

its superior knowledge could constitute one of the legally

responsible causes of the accident and that Eastern’s

failure to discover the danger, if any, on its own and

provide safeguards. may also have been such negligence

as would-be a basis for‘imposing contribution on Eastern.

We a wad ‘ask iad should this: decision be Linnea

ea eM ET ee ee eto er

Petition for a Writ of Certiorari = = =—-19

to rest upon what can only in the English language be ‘

speculations or possibilities? ’ :

». «- «No one has ever said that these facts are the jury’s con-

clusions and without interrogating them, how can it be said

that these were the foundations of the jury’s conclusions

without asking the individual ‘members of the panel? ‘

- We respectfully suggest that we cannot find a distine-

-. tion between the instant situation and that envisioned by

the Court below in Wilson v. American Chain and Cable

Company, 364 F. 2d 558 (1966) and Rodriguez v. Bruns-

wick Corp., 364.F. 2d 282 (1966), where the Court reversed

because of faulty instructions re.intervening and super-

seding cause which the Trial Court in this case refused to

even charge on. br

Not only was the negligence of Eastern herein an inter-

_ vening and superseding cause but the jury was left ‘with no

guideposts on the subject of either concurrent negligence or

intervening and’ superseding cause when the Learned

Trial Court specifically refused to charge on the subjects.

This deprived National of due process and a true jury trial.

_ As we pointed out previously, there must be evidence

direct’ or circumstantial upon which logically the fact’

finder’s .conclusion must be based. This means that the

evidence. presented by the plaintiff must be such that by |

reasoning from it without resort to prejudice or guess-

work, the jury could reach the conclusion sought’ by the |

plaintiff. While it is true that the plaintiff did not have

to prove with mathematical exactness that the accident

. could only have been caused in one manner to the exclusion

of all other possibilities; he must eliminate those other

causes, if any, as were fairly suggested by the evidence.

Marrazzo v. Scranton Nehi Bottling Co., 422 Pa. 518.

_ Phe Death Certificate, P14-735a, does not list Kline’s

cause of death as COz. Moreover his fellow employees,

exposed to the same conditions, did not die or suffer serious

injuries and neither Holtzapple nor May ever testified that

they were overcome by COz nor were there medical or

hospital records offered to establish this.

20 Petition for a Writ of Certiorart —

Had this mandate of the Pennsylvania Supreme Court

been followed. in the determination of this issue, the case

could never have been submitted to the jury because of the

variety of possible and probable causes deducible from the

competent evidence. These include, but are not limited to,

construction and location of Eastern’s tank, lack of proper

‘ equipment, supervision. and instructions, ete. —

We. fail to see\any requirement that National warn in

this case particularly when the deposition of its Vice-

President, Mr. Joseph Cohen, introduced in the record by

the plaintiff indicates a complete lack of knowledge on

National’s part as to any dangerous propensities on the —

part of its product or any need for cleaning the storage

tanks at any time in any particular way that would involve

a situation such as did give rise to the fatality in this case.

In Pennsylvania there is no distinction, as the Courts below

believe, between actual knowledge and constructive notice

in assessing liability and an examination of the Charge of

the Court below readily discloses this. .705a. The same

standard must be applied to Eastern.:

_ No one has satisfactorily explained why the décedent

could violate the orders of his superior and enter the tank

knowing the danger involved where there was no necessity

to do so, without accepting the hazard, Lonzer v. Lehigh

Valley R. R. Co., 196 Pa. 610. See testimony of Stiffler.

If the law of Pennsylvania is applied with regard to

contributory negligence or assumption of risk as stated in

Dorofey, aplnt. v. Bethlehem Steel Co., 407 Pa. 288; Drud-_ .

ing v. Philadelphia, 374 Pa. 202; Middleton, aplnt. v. Glenn,

393. Pa. 360; and Kronk, aplnt. v. West Penn Power Co.,

422 Pa. 458, the plaintiff cannot recover. To try to excul-

pate him from his obvious contributory negligence and

assumption of risk under the doctrine of a rescue mission

will bear close scrutiny. In any rescue mission there must

be imminent danger and an opportunity for the rescuer to

escape unharmed. Neither of these facts are present. in

- this case. The Trial Court and the Court below errone-—

_ Petition for a Writ.of Certiorari — 21

ously applied the rescue deckine. See Cooper v. Reading

R. R., 370 Pa. 192; Valente v. Lindner, 340 Pa. 508.

We respectfully suggest that in order to fasten liability

on National in this case, a new species of liability has been

created, without precedent, unknown .at the common

law and presently unknown under the statutory or de-

cisional law of the Commonwealth of Pennsylvania. We

cannot find anything but generalities which have been used

to submit the liability of Natf®nal-to the j jury or thereafter

to support its verdict. is

We are not dealing with a dangerous substaned or - dan-

gerous instrumentality i in this ¢ase oh the subject of mo-

lasses which is not a manufactured product but which was

merely imported and distributed by National, without

change in form or substance or without adding anything.

‘In Maize, admr. aplnt. v. Atlantic Ref. Co., aplnt., 352-

Pa. 51 at rage 06, the Supreme Court of Pennsylvania

stated:

‘‘This court has laid down the rule that. anyone who is

_responsible for the existence of any dangerous instru-

mentality or substance with which persons are likely to

come im contact must ‘impose a measure of. con trol that

is adequate to the protection of human eat from it.’’

(Emphasis supplied. )

The court in Maicze,, supra, cited with approval Mac- |

Dougall v. Penna. Power & Light Co., 311 Pa. 387, and.

Koelsch v. Phila. Co., 152 Pa. 355. -In the latter case there

. were injuries resulting from the explosion of ngtural gas.

and in the former, injuries from contact with a fuse box.

See also McClaren, admrs. v. G. 8. Robins, 349-Mo. 653,

wherein a plaintiff suffered injuries by being overconie by

fumes from the use of -carbon tetrachloride. |

In Maize the court further commented that while no ;

absolute standard of duty in dealing with such agencies

- ean be prescribed, it is safe to say in general ternis that

every reasonable precaution suggested by experience and

‘the known dangers of the subject ont to be taken.

22 Petition for a Writ of Certiorari

This record reveals that the plaintiff has failed to prove

. by competent evidence that National had any reason to even

suspect by its experience that a hazard existed as to human

beings cleaning tanks when no such situation had ever come

to its attention, directly or indirectly. How could it be ex-

pected to safeguard against a contingency about which it

had no knowledge.and could not have known by constructive

notice as its only experience, as this record reveals, was that

‘there was no need to clean the storage tanks and certainly’

not by a human being entering it under the circumstances.

_ How then can a duty be imposed on. N, tional to warn or -

forewarn of something of which it was not cognizant? It -

_ -could not have become aware through customary methods -

employed by itself or others in the trade or by text books,

publications, trade journals or other media open to it. The |

_ reason National never had an injury or fatality was because

it was not guilty like Eastern i in the storage of its product. |

In Pennsylvania the law is clear and unequivocal that

where you have a dangerous substance you must label and

warn. No such imposition has been placed on the substance

molasses. Contact with molasses is not dangerous.

We know there is a duty to warn concerning the dan-

gers inherent or lurking’ in high tension wires, dyn- mite,

gasoline, wild beasts and things of that nature. ,

| ‘In Maize v. Atlantic Ref. Co., supra, it was held

‘‘The power of the court, to mould or amend verdicts

of juries is established by repeated decisions; Iven’s

Appeal, 33 Pa. St., 237; Haycock v. Greup, 57 Td. 438 ;

Byrne v. Grossman, 65 Id. 310; Smith v. Meldien, 107 .

Id. 348.. It was contended, however, that this power is

\ confined to corrections made at the time the verdict

is rendered. This is not the law.” :

‘And the eourt inquired rhetorically: ‘‘Must the court

be forever chained to an error merely because the sun has

— down upon it?’ :

Petition- Lead a Writ of Certiorari oe ae

In this connection may we state. parenthetically that

the Supreme Court of Pennsylvania held in Bohner, aplnt.:

v. Eastern Express, Inc., 405 Pa. 463 at.471 that no'verdict ‘

entered contrary to the weight of the competent evidence

can stand no matter how many trials must be granted to

effectuate the ends of justice.

In Smullin, applnt. v. Harenski, 106 Pa. Super. 453, it

| _ was stated:

'.**Where the intention of the jury is. plain} the. court

may mold the verdict into form — to the re-

quirements of the law.’’

It would indeed take a Solomon in this case to‘ascer-

tain apon what basis the jury reached its verdict in favor |

_ of the plaintiffs against National and in favor of National

against Eastern in the light of the original and supplemen- ~

tal charges. -This is particularly true when you consider

that the jury never even had a. rudimentary charge on the

subject of concurrent negligence or intervening and super-

seding cause and therefore presumably, without being cog-

nizant of the legal implications of these factors, could not

have taken them into consideration. Ergo, how can the

Court below, and we respectfully state this, say that the

jury dispensed in its second verdict with the principles. of

intervening and superseding cause and adopted concurrent -

causes to justify its findings when the jury, untrained in

the law and uninstructed by the court, had not the slighttet are

idea of the principles involved.

If a jury cannot speculate upon issues to reach its ver-

dict, how, then, we respectfully inquire, can a, trial jurist

or an appellate court justify speculation on its part? The

jury found Eastern an expert. ,

The Supreme Court of Piessiiteeniis has held that

natural gas and oil constitute dangerous products or in-

strumentalities. See Moidel v. Peoples Natural Gas Com-

-pany, 397 Pa, 121; Pryor v. Chambersburg Oil & Gas Co.,

24 - Petition for a Writ of Certiorari

376 Pa. 521; Waschak v. Moffat, 379 Pa. 441; Meddock v.

National Transit Company, 105 Pa. Super. 553; Conway

v. Philadelphia Gas Works Company, 336 Pa. 11. Even in

these cases the Court has used the following language:

In Meddock v. National Arona iia ti supra, the.

court said: : eo

“The burden was upon vlaintiff Qa show negligence. :

. The mere fact that oil was escaping did met ereate a

prima — — 08 the a areal

court held: 336 Pa. 11.

“While a gas ‘company is under a duty to exercise the ©

highest degree of care oe the product to its

customers, there can be no recovery in a case of this

‘character unless there is clearly established some act

of tiegligence on its part which results in injury’ to

plaintiff. .This is the rule.of our We and has often .

been -repeated.”’ =

In. Waschgk v. Moffat, supra, the: following language

was used:

. On the contrary, since ‘the emission of gas was. not

caused by any act of defendants and arose merelysfrom

the normal customary ise of their land without neglix._

_gence, recklessness or ultrahazardous conduct it was

wholly unintentional, and no liability : may — be

- imposed on: defendants.

Doyle v. Atlantio, 357 Pa. 92 holds that i in making Sdliveston

of gasoline, Atlantic was justified i in assuming and acting. ~

~ upon the assumption that the facilities provided for the .

storage of the gasoline were’safe and nonhazardous.

' In Fritch v. Atlantic, 307 Pa. 71, the deliverer of. gaso-

line is under no duty to inspeet the storage facilities of the

>. vendee. These principles should apply here and eomyete

National. afd

ae ee ee eet OL ee

Petition for a Writ of @ertiorart . - 25

So, even with dangerous subjects negligence has to be

proven by a breach of a,duity which is non-existent here.“

The only exception to the rule in Pennsylvania involves

blasting operations as exemplified by Federoff v. Harrison.

- Construction Company, 362 Pa. 181. _ - ere

_ In'Cadillac Motor Car Co. v. Johnson, 221 Fed. 801 it

was stated that common usage of the business is a test of

‘ negligence but not a conclusive test. Where, in this record, |

has there been any departure from the customary conduct |

,of the business in which National or its competitors was

engaged and where js the evidence that any other supplier -

of molasses warned or was compelled to warn its customers?

Moreover, what trade journal, text book, or other authority

suggests this procedure? —~ ©

It was held in Bissen v. John B. K elly, Inc., aplnt; 314.

Pa. 99, ‘‘The defendant breached a duty imposed by law; not

a duty superimposed by contract.” |

a We most respectfully. challenge anyone to reveal statu-

tory or decisional law imposing a duty on National which it

breached in this case. The liability of National herein can-

not be predicated upon the purpose for which its product

was sold to Eastern. National had no duty and certainly no

control; as the evidence reveals; over the manner in which

its otherwise pure product was stored and the yeason for so

‘e« doing. To ‘have imposed a duty on it to this effect when -

¢. astern was in exclusive control of the premises and the

product ‘would be both unconscionable and -unreasonable. .

Mr. Justice Cardozo recognized this in the ancient case of

MacPherson. v. Buick Motor Co., 217 N. Y. 382. nae

The respondent in this case failed to prove his cause of |

action against National and the case should not have been :

submitted to the jury. | ay

In Cuthbert v. Philadelphia, aplnt., 417 Pa. 610 at 614

the court stated: a oe

| ‘Nevertheless, it remains a principle so fundamental

_ 48 to require no authority that the mere existence of’

negligencé and the occurrence of injury are insufficient

26.

Petition for a Writ of Certiorari.

to impose liability upon anyone. There remains to be

proved the vitally important link of causation:

Flagiello v. Crilly, 409 Pa. 389, 187 A. 2d 289 (1963):

Harrison v. Pittsburgh, 353 Pa. 22, 44 A. 2d 273

(1945) ; Philadelphia & R. R. Co. v. Spearen, 47 Pa.

300 (1864); Drill v. Genetti, 200 Pa. Superior Ct. 471,

190 A. 2d 185 (1963) ; and, Hillelson v. Renner, 183 Pa.

Superior Ct. 148, 130 A. 2d 212 (1957). And plaintiff

has the burden of proving this link, that the defend-

“ant? s negligence was the proximate cause of his injury:

‘Cushey v. Plunkard, 413 Pa. 116, 196 A. 2d 295 (1964) ;

Loeb v. Allegheny County, 394 Pa. 433, 147 A. 2d 336

(1959) ; or of proving evidence from which a reasonable

inference arises, that the defendant’s. negligence was

the proximate cause of the injury: Zilka v., Sanctis’

Construction, Inc., 409 Pa. 396, 186 A. 2d 897 (1962).

On the other bend, it is not necessary that plaintiff

- prove with mathematical exactness that the accident

could only have been caused in one manner to the

exclusion of all other possibilities (Finney v. G. C.

Murphy Co., 406° Pa. 555, 178 A. 2d 719 (1962), but

fairly suggested by the{fevidence: Lescznski v. Pitts-

burgh Rys.-Co., 409 Pa. 102, 185 A. 2d 538 (1962);

-Foley v. Pittsburgh-Des Moines Co., 363-Pa. 1,:68 As 2d

517 (1949) ; Stauffer v. Railway Tere Agency, Inc.,

355 Pa. 24, 47 A. 2d 817 (1946); Cohen v. Penn Fruit

Co., 192 Pa. Superior Ct. 244, 159 A. 2d 558 (1960).

‘And it is the duty of the trial court to determine

whether or not this requirement has been met im the

; | first mstance before the issue can be submitted to the

jury: Idlette v. Tracey, supra.’ (Emphasis supplied.)

In Palsgraf v. Long Island Railroad, 248 N. Y. 339, 162

_N. E. 99 (1928) Mr. Justice Cardozo said:

. “The risk reasonably to be perceived defines the duty

to be obeyed, and isk imports relation ;. It is risk to ;

‘he must eliminate those other causes, if any, as were -

y I

eseeRs 64, eee

‘

4 : dap siete

arg teh lath Nona din assim sea aii eh ttt | tila

: Petition for a Writ of Certiorari - : 27

another or to others within the range of apprehension.”

See 494a-495a.. : :

_ The reasoning in Palsgraf, supra, has been adopted‘in

Pennsylvania in Dahlstrom v. Shrum, 368 Pa. 423 when‘ it

stated at Page 290: *

‘*The test of negligence is whether a wrongdoer could

have anticipated and foreseen the likelihood of harm

to the injured person.’’ See Lebeck v. Jarvis et al.,

250 F. 2d 285. . ae

By this standard, its own experience in the trade and

‘elsewhere and the bizarre facts of the. occurrence. Na-

tional could not possibly have foreseen any harm to the

decedent and should be exonerated. — a

What Mr. Justice-Holmes, when a judge of the Supreme —

Court of Massachusetts, said in the case of Com. wv. Pierce,

' 138 Mass. 165, s.c., 52 Am. Rep. 264, on the subject of

_hegligence, is applicable to this case: ‘‘Knowledge of the

dangerous character of a thing is only the equivalent of

foresight of the way in which it will act. If the thing is

generally supposed to be universally harmless, and only a

specialist would foresee that in a given case it would do

damage, a person who did not foresee it and who had no

warning would not be held liable for the harm... .”?.

. (Emphasis supplied. ) This: language was adopted as the

law of Pennsylvania in Andrews, appellant v. Smith, et ux.,

324 Pa. 455. No one can dispute that molasses, per se, is

harmless. Contrast this with Dunn v. Atlantic Refining

Company, aplnt., 391 Pa. 65.

Since National’s product’ was a safe one in contrast to

the dangerous instrumentalities and substances heretofore ©

* suggested and since it had no control or the right to decide |

the manner or means of the storage facilities or any part of

the conduct or procedures to maintain or clean the tanks,

and since it had no notice of any dangers, it had every right

to rely upon the assurance of safety through Eastern’s per-

formance of its mandatory duty to provide its employees

ee Petition for a Writ of Certiorars

with a reasonably safe place to-work. This is particularly

true where, as the record will reveal, National was neither

requested for advice nor made any representation concern-

ing its product or the safety thereof and where neither East-

ern nor its employees were misled or lulled into any false

sense of security by a misrepresentation of safety by an

otherwise dangerous .instrumentality. - Robb v. Glylock

Corporation, 884 Pa. 209. Logic and-common sense dictate .

that it would have been unnecessary for Eastern'to seek

advice from National since Eastern’s manager, Mr. Lucken-

. bill, admitted that Eastern had chemists and engineers in

its organization with whom he could have consulted at. all

times during his managerial function at York. 142a, 143a.

It must be borne’ in mind that National simply sold its

product for human and animal consumption and it was

admitted it was fit for this purpose. - 148a. This discharged

‘National’s liability.

Former Mr. Justice Holmes in: “The Common Law’’,

page 145, says:

“Most liabilities in tort . . . are founded on the in-

fliction of harm: which.the defendant had a. reason-

able opportunity to avoid at the time of the acts

or omissions which were its proximate cause.”’

How can it be said that National, which was never ad-

vised by Eastern that it would or had used a man to enter

its storage tanks to clean the residue of molasses, have had

a reasonable opportunity to avoid an alleged danger of.

which it was not cognizant and could not foresee? This is

_ true where, as here, Eastern had exclusive control of the

premises and the product and should have been made. to

‘come forward with the evidence.. See Kotal v.. Goldberg;

375 Pa. 297; Miller v. Hickey, 368 Pa. 317.

. This is a classical example of why Eastern should have

“been compelled to come forward with the evidence to

establish why it was not solely and exclusively at fault. No

.such burden was cast upon it. by the court below. In this

Petition for a Writ of Certiroari _ 29 |

connection we would like to-point. out the case of Faulks,

aplnt. v. Fischer, 349 Pa, 485 at 487 where it was held:

‘‘The rule that an employer must warn his employee: ‘

of any dangers to which he will be exposed is appli-

cable only if the employer himself Kas or should have

knowledge of such dangers, if the employee is ignorant

thereof, and if they are not the subject of common

knowledge, or patent to a person of his apparent mtel-

ligence and experience: Wagner v. Jayne Chemical

_ Co., 147 Pa. 475, 479, 23 A. 772, 773; Corcoran v. Wana-

maker, 185 Pa. 496, 39 A. 1108; Purdy v. Westinghouse

. Electrie & Manufacturing Co., 197 Pa. 257, 260, 47 A.

237, 238; Roszina v. Howard Gas Coal Co., 251 Pa. 298,

302, 96 A. 716, 717; Baumgartner v. Pennsylvania B. R.

Co., 292 Pa. 106, 110, 111, 140 A. 622, 624; Rice v. -

Kring, 310 Pa. 550, 555, 165 A. 833, 835.?? (mphasis :

supplied.)

By the foregoing standard, National es be aii

ated as a matter of law if the law of Pennsylvania i 18 ap+

plied,

It cannot be disputed that Eastern, which was engaged |

over a long period of time in purchasing and the storage of. ©

blackstrap molasses purchased not only from National but:

other sources as well, certainly must be presumed to be

familiar with the dangers latent ‘as well as patent ordi-

narily accompanying the business in which it. is engaged,

Kane v. Federal Match Corppration, 5 Fed. Supp. 507, and

when you further consider, as the unrebutted testimony of

Dr. Prebluda reveals, it had chemists and engineers in its

organiation and attended meetings on.the subject matter of

this litigation and engaged in experimental forced fermenta-

tion processes, it certainly was aware that under certain

circumstances molasses would be subject to the emanation —

of COz in storage under the conditions prevailing herein

and could have prevented any harmful exposure to its em-

ployees: . See. Prebluda, Ns T.. 928 to.963° inclusive.

wnt ne alent tere 3

30 | Petition for a Writ of Certtorars

Third Point.

There is a ‘Flagrant Decisional Conflict Between the Cir.

cuits and Within the Third Circuit Regarding the.

Application. of: Substantive and Procedural Law to

Cases Involving Similar Points of Law Demanding a

Rectification by This Honorable Court So as to Pro-

vide a Uniformity of Application of These Questions

‘Which in. the Interest of Justice Affect Litigants on a

National Scale.

The issue of deduction of tine to reach the proper

net worth reduced to its present value was decided adverse

_ to the Petitioner despite a recerit case directly on point

producing a conflict between the Circuits on an extremely

‘important issue, national in scope. This Learned Court,

despite ‘its involvement in more important national and

international issues, still, we respéctfully suggest, should

consider the issues ‘herein since these are not isolated mat-

ters and it is important. that there be uniformity so that

a man does not win or lose on the East or West Coast

because of the caprice of the jurist at the particular locale”

. or because of his interpretation of what the law is or

ought to be or his disagreement with a reported case on

this point. See O’Connor v. United, States, 269 F. 2d 578

and Moffa v. Perks Trucking Co., 200 F. Supp. 183 at 188,

Where. itis stated:

_ **We are‘aglso asked to decide vidisthee income taxes

should be taken from the deceased total salary before

‘ computing what part of his earnings would reasonably

be expect d to go to the benefit of his wife and child.

t such a deduction should be made. It has

been said that future taxes are too uncertain to admit

of advanced computation. But is wholly unrealistic to

‘ suppose that, at any time within the limits of the. years

the deceased could reasonably have been expected to-

live, either the discontinuance or substantial reduction

2 : Ld .

peat ineienasietinenns ceammmenmtememneniteate ann tein nan OR |

Petition for a Writ of Certiorari 31

of Federal Income Taxes would occur. The deceased,

‘as a salaried employee, never had in his own hands the

amount withheld from his earnings for Federal In-

come Tax purposes; and his wife and child could have

no direct benefit from that part of his earnings.. While

mathematical certainty is not possible, any more than

if is ina prognosis of life expectancy'and future earn- |

' Ings, nevertheless, an estimate may be made based

generally on current rates, from which there should be

computed the future income of the deceased after pay-

ment of Federal Income Taxes rather than before. The

compensatory nature of the right to damages under the

Tort Claims Act requires such consideration of Fed-

eral Income Taxes; the plaintiff-appellee can recover

only for losses sustained. . There is also’ an implica- _.

tion that ‘take home’ pay is considered the proper

basis of earnings onthe issue of damages in Oklahoma.

‘Magnolia Petroleum Co. v. Sutton, 1953, 208 Okl. 438, .-

257 F. 2d 307; Note, ‘Wrongful Death and Survival ©

Actions’; 6 Okla. L. Rev. 384,386 (1953).”

We respectfully request this Honorable Court to look

~ at the legislative history of Rule 50( b) which was to replace

a cumbersome procedure theretofore in effect and to look at . -

the cases hereinafter cited revealing that other Circuits do

not enforce a stringent rule that the motion under 50(b),

i which is merely to acquaint the court with the issues in-

enforced as was done in the instant case. |

The denial of National’s motion for judgment n.o.v. in

this case renders the practice of law in the Federal Courts

an obstacle course with booby traps more complex than |

ancient common law pleading and penalizes a litigant for the ~

inadvertance or excusable neglect of counsel, such as here,

regardless of the distractions which emanate from heated .

litigation. -. ie see 3 abi

volved and why they: should not be submitted to a jury, be

ee lh ee

32 Petition for a Writ of Certiorari

The Supreme Court of Pennsylvania has seen fit even ©

. to scrap tempararily the law of stare decisis where justice

required it even though it meant the abandonment of a long’

line of substantive law and to’the same effect charitable .

defense. Griffith v. United Air Lines, Inc., 416 Pa. 1.

It was held in Pickering v.“Corson, C. C. A. Illinois,

1940, 108 ¥. 2d 546 that the presentation by a defendant at

_ the close of the plaintiff’s case of a formal written motion

for a directed verdict accompanied with an oral statement

of the precise ground therefor complied with these rules. .

_ >. In United States v. 363 Cases More or Less Mountain.

Valley Mineral Water, D: C. Arkansas 1956, 143 F. Supp.

_, 219, it was held, while it is better practice for a directed

verdict ‘to be in-writing an oral statement of the grounds _

for the motion is sufficient. Moreover, even a motion .for

judgment as of non-suit which was made in accordance with

North Carolina practice was treated as a motion for a di-

rected verdict at the conclusion of the evidence. Atlantic

Greyhound Corporation v. McDonald, C. C. A. North Caro-

lina 1942, 125 F. 2d 839.

When you consider that a motion for new trial is. in-

dependent of a motion for judgment notwithstanding the

verdict and is governed by different principles, you wonder

why National is not entitled to a new trial regardless of how

stringently Rule 50(b) is interpreted in this case. See Jack-

son. v. Wilson Corporation, 243 F. 2d 212. See 54a.

It is respectfully suggested that if this Honorable Court

will examine the circumstances of this case and apply the

rule laid down in Woods v. National Life and Accident In-

‘surance Co., C. A. Pa. 1965, 347 F. 2d 760, and Sano »v.

Pennsylvania R. R. Co., 282 F. 2d 936; 938 C. A. 3rd 1960

where, by analogy, the court permitted the substitution of a

motion other than under 50(b) to have the same. effect,

therefore, why should National be penalized in this case

when it fulfilled the requirements of the rule. See Myra —

Foundation v. U. S., 267 F. 2d 612 and Murphy letter to

J udge Luongo, 809a. ;

- Petition for a Writ of Certiorari 33

It is puzzling why such emphasis is placed upon the

niceties of making and renewing motions under 50(b) in the

" light “of Ackerholt v. National Savings & Trust Co.,.C. A.

1956, 244 F. 2d 760 which permits a directed verdict upon

. the opening statement of counsel.

It was held in Meyonberg v. Pa. R. Co., C. C. A. New

Jersey 1947, 165 F. 2d 50, that a motion for non-suit and

judgment of non-suit would be treated as a motion for a di-

rected verdict and judgment entered upon a directed verdict _

respectively in accordance with sub-division (a) of Rule 50.

It cannot be too strongly emphasized in this case that

after National renewed its motion for a directed verdict at -

the conclusion of its case against the plaintiff, which ‘the

court below informed the jury was a separate and distinct

trial from the action ‘by National over against Eastern, it —

. did not introduce any evidence and therefore did not waive

its right to have the renewal of its motion decided. It was

~ not until the plaintiff introduced rebuttal evidence, which is

not within the contemplation of this rule, that National

abortively attempted to offer sur rebuttal. —

Rule 50(b), which does not even require the motion to

be in writing, was adopted for the purpose of speeding liti-

gation, advising the court and opposing counsel of the issues

involved and preventing unnecessary retrials. It merely

renders unnecessary a request for the reservation of a -

question of law or a formal reservation and in addition it

adds nothing of substance to the rights of litigants hereto- .

fore existing through‘g more cumbersome procedure.”’

Montgomery Ward v. Dundgn, 311 U.S. 250; Berry v. U. 8.,

312 U. S. 450.

SCttCté«‘ Petition for a.Writ of Certiorart

CONCLUSION.

| Wuererorg, itis respectfully submitted this case merits

the judgment of this Court and it is further respectfully

suggested. that unless this judgment is reversed the Consti-

tutional provisions referred to herein may be ignored with

\ impunity and there will be erosion of the mandates of this

q \.. Court and the highest Appellate Tribunals of the various .

states to say nothing of the confusion and chaos resulting

. from a lack of uniformity. |

Respectfully submitted,

| Josepu J. Murpuy, -

: | Vincent C. VELDORALE, ©

- Tomas Byrneg, JR., ©

. Marx D. Atspacn, - .

cs May aoe te Counsel for Petitioner. \ ;

Se en ae

Appendix.

JUDGMENT OF THE U.S. DISTRICT COURT.

Before Luonao, J.:. —

'* Anp Now, to wit: November 19th, 1965, in accordance

with the Verdict, it is. : :

OrpereD that Judgment be and is hereby entered in

favor of ‘Plaintiff, David B. Beebe, Administrator of the

Estate of Richard C. Kline, Deceased, and against the De-

fendant National Molasses Company, on Plaintiff’s -Claim

under the Pennsylvania Wrongful Death Act in the sum:

of Three Hundred Six Thousand Nine Hundred Seventy-

Five and 00/100 ($306,975.00) Dollars,-and on Plaintiff’s

Claim under the Pennsylvania Survival Act in the sum of

Seventy Two Thousand Two Hundred and 00/100 ($72,-

200.00) Dollars, together with costs, and it is :

Furruer Orperep that Judgment be and is hereby en-

‘tered in favor of National Molasses Company and against

Eastern States Farmers Exchange for contribution as al-

lowed by law, and foal

By agreethent of the parties,.the cross-claims of High-

land Tank and Manufacturing Company, Paul W. Moyer, -

individually and as the surviving partner of F. M. and

P..W. Moyer, and National Molasses“Company, against

each other, be and the same are hereby marked Withdrawn,

The Court having granted the motions of Highland

. Tank and Manufacturing Company and Paul W. Moyer,

Individually and as the surviving partner of F. M. and

P. W. Moyer, for directed verdicts under Rule 60, it is

(1A) i

24 * - Judgment of U.S. District Court

- Orperep that Judgment be and ‘is hereby entered in _

‘iin of Highland Tank‘and Manufaeturing Company and —

Paul W. Moyer, Individually and as the Surviving partner

of F. M. and P. W. Moyer, and against the Plaintiff, David

B. Beebe, Administrator of the Estate of Richard c. ‘Kline,

Decsaged, and it is

3 Vieadanis Orperep that the Cross-Claim of ‘Highland

Tank and Manufacturing Company against Eastern States

. Farmers Exchange and the Third-Party. Action of -Paul ;

-* W. Moyer, Individually and as the surviving partner of

F. M: and P. W. Moyer, against Eastern States. Farmers

' Exchange, be and the same are heveby Dismissed.

a gi By THE COURT:.

“Amttsr: , 2

_fs/ P. J. amen .

. Deputy Clerk.

* Order of U.S. District Court 3A

ORDER OF THE U. 8. DISTRICT COURT.

‘Anp Now, this 17th day of June, 1966, upon considera-

tion of the Motions of National Molasses Company, it is

1; The Motion to Set Aside Directed. Verdict in Favor

' of Highland Tank & Manufacturing Company and P. W.

Moyer, individually and as the surviving partner of F. M.

. & P.. W. Moyer, is Dentzp;

_ 2. The Motion for J udgment N. O. V. is Denmp; and

| 8. The Motion for New Trial is Deyrep, provided plain- .

tiff shall, within thirty (30) days. from the date hereof, file

a remittitur.of the amounts of the awards in excess of

. $300,750. Upon failure to file such remittitur within the -

time specified, the Motion for New Trial is Granren, limited

to damages only. ~ .

SS ALFRED . Luonco, J.

4A - Opinion of U.S. District Court

OPINION OF THE U. S. DISTRICT COURT.

Luonéo, ry e June 17, 1966.

Plaintiff’s. decedent lost his life while attempting to

extricate a fellow employee from an underground molasses.

tank. The fellow employee had collapsed in the tank while

preparing to clean it. Contending that decedent’s death.

was the result of the negligence of others, plaintiff brought

this action under the Pennsylvania Wrongful Death and

the Survival Acts. He joined as defendants the National

- Molasses Company (National) which had supplied the

molasses, the residue of which necessitated the cleaning

opération; Highland Tank & Manufacturing Company

(Highland), the maker -.of the tank in which the molasses

had been stored; and P. W. Moyer, individually and as

the surviving partner of F. M. & P. W. Moyer (Moyer),

who had installed the tank some years before. ‘ Decedent’s ’

employer, Eastern States. Farmers Exchange (Eastern)

was joined as a third-party defendant. In addition, the |

original defendants’ filed cross-claims against each other °,

seeking indemnity and/or contribution in the event that

plaintiff secured a verdict against one or another of them.

At the conclusion of the plaintiff’s caseé all the original

defendants moved under Rule 50 for directed verdicts in

their favor. Prior to the court’s announcemerit of its

rulings.on those motions, all three defendants withdrew

of record the cross-claims against each other. The court

“then granted the Rule 50 motions of Highland and Moyer

but denied National’s. The jury subsequently returned a

verdict in. favor of plaintiff and against National assessing

the damages in the Wrongful Death action at $306,975 and

the damages. in the Survival action at $72,200.. The jury

also-found in fayor of National in the third-party proceed-

ing against Eastern. Judgment has beer entered in ac-

cordance with the verdicts, Before me now are several

post trial motions.

r . ary eae A a nmr bh pte et ss hilar cite

Opinion of U.S. District Court BA

I. Derenpant Nationau’s Motion to Set Asiwe Directep

Verpicts in Favor or H1GHLAND AND Moyer.

It is quite apparent that the Federal Rules of Civil

Procedure ‘‘. . . contain no provision under which a de-

fendant can recover judgment against a co-defendant ex-

cept by way of a cross-claim filed pursuant to” Rule .

13(g), . . .’’ Ragland v. Swindell Dressler Corp., 186

F. Supp. 769, 770 (W. D. Pa. 1960) ; Broadway & Ninety-

Sixth St. Realty Corp. v. Loew’s, Inc., 23 F. R. D. 9, 11-12

(S. D. Ny Y. 1958). Since National withdrew its ecross-

claims against its co-defendants Moyer and ‘Highland, it

‘lost whatever standing. it may have had to challenge the

rulings directing verdicts in their favor. Its belated ex-

planation that the agreement of the defendants to with-

draw the cross-claims was merely to remove surplusage

--has no support in fact! or in law. | “4

_ The motion of National to set aside the directed

verdicts in. favor of Highland and Moyer will be denied.

II. Mortons or Derenpanr Nationa ror JUDGMENT |

‘. N. O. Voanv/or New Tru.

"A. Motion for Judgment N. O. V.

. At the outset, plaintiff argues that any motion for

judgment n.o.v. is precluded by National’s failure to comply

with Rule 50(a) of the Rules of Civil Procedure in that

it did not move at the close of all the evidence for a

directed verdict in its favor. The point is well taken. It

is apparent from the trial record that although National

moved for a directed verdict at the close of the plaintiff’s.

ease and again at the end of its own principal case, it failed

to renew ‘its motion again even though plaintiff offered

- additional evidence in rebuttal and National itself offered

evidence in surrebuttal. /

1. Counsel for Moyer and for Highland categorically refuted -

that as the reason for the withdrawal of the cross claims.

6A . Opinion of U.S. District Court

“The failure of the defendant to move for a directed.

verdict against the plaintiff . . . at the close of: all

the evidence foreclosed its right to raise... . any

issue as to the sufficiency of the evidence and also its

right to move for judgment notwithstanding the -

verdict... . This Court and others have uniformly

Keld that the introduction of evidence after the denial

of a motion for directed verdict constitutes a waiver

of the error, if any, in the denial unless the motion

“Ys renewed at the close of all the evidence.’’ Gebhardt °

v.Wilson Freight Forwarding Co., 348 F. 2d 129, 132

(3d Cir. 1965). (Emphasis supplied.) See Brandon

. v. Yale & Towne Mfg. Co., 220 F. Supp. 855 (KE. D. Pa.

1963), aff’d per curiam, 342 F. 2d 519 (3d Cir. 1965).?

' Although the mbtion for judgment n.o.v. must and will be

- denied-because of this procedural deficiency, nevertheless

I have. considered National’s motion for judgment n.o.v.:

and have concluded that it would, in any event, be denied

on the merits.

The Gane are these: ,

Sometime in the-early morning of August 16, 1960,

plaintiff’s decedent, Richard C. Kline, reported to work at

the Eastern States Farmers Exchange in York, Penn-

_sylvania, where he had been employed as a management

trainee for approximately two months. At the time of his —

arrival, preparations were already underway to clean an

underground molasses storage tank situated on the prem-

ises. The cleaning operation had hardly beguri when a

fellow. employee of Kline’s, one Wayne . Holtzapple,

_ dropped a bolt into the tank. ' Fearing that the loose object

.2. In its. brief National suggests that by submitting a point for

binding- instructions it satisfied its burden under Rule 50(a). “[T]he

defendant would ‘have us attribute to . . . its point for charge

. . the effect and import of a motion for a directed verdict under

Fed. R. Civ. P, 50(a). This we cannot-do. When a rule is so lucid

in its Janguage and emphatic in its conditions, it is beyond our power

to relax its strictness without violating the. Seventh Amendment.”

Brandon v. Yale & Towne Mfg. Co., supra, a 861.

Opinion of U.S. District Court 7A

might somehow become lodged in a filter pump attached to

the tank, Holtzapple descended into the tank to retrieve

it. Shortly after his. entry he collapsed. Seeing Holtz-

apple’s predicament, Kline ran to another part of the

premises, obtained a rope, returned with it and descended

into the tank to attempt to remove Holtzapple. Almost

immediately after descending into the tank, Kline col-

lapsed. <A third employee, Stanley May, also attempted

- to render aid, but had to be assisted from the tank when

‘he had difficulty in breathing. The York Fire Department

was summoned.and both Kline and Holtzapple were re-

moved, unconscious, from the tank. Holtzapple survived,

but Kline did not. Plaintiff introduced testimony from

duly qualified experts that death resulted from the in-

halation of. poisonous carbon dioxide gas which had been

given off-by the molasses stored in the tank. -

1. Duty of Suppliers Under Pennsylvania Law.

Defendant National does not seriously dispute the oper-

ative facts as recited above, rather, it argues that under the ‘

law of Pennsylvania those facts’do not entitle plaintiff to

relief. I cannot-agree. §. | oa

Under the law of Pennsylvania

‘*... . one who supplies a product to another and

knows or should know that the foreseeable use is dan-

__: . 3..At trial plaintiff introduced Kline’s death certificate which

listed the cause of death as “diffuse acute hemorraghic pneumonitis.”

- At oral argument on the pending motions defendant National con-

tended that that finding is presumed to be the cause of death. That

is not the law. Death certificates gre “‘. . . at best . . . only

prima facie evidence of any fact thefein stated and are open to ex-

‘planation:and contradiction by an oposing party.’” Castor v. Ruffing,

178 Pa. Super. 124, 128.1955). In the instant case not only did

plaintiff's experts testify that carbon dioxide poisoning caused Kline’s

' death, but so did Dr. Prebluda, defendant’s expert. In addition, Dr.

- Aaronson, who was called by plaintiff, noted that although the cause

“ of death as listed on the death certificate was not technically meaning-

_ ful to him as a physician, he believed it to be consistent with his own .

expert opinion as to how Kline died. '

SA Opinion of U.S. District Court

gerous to human life unless certain precautions are

taken, and who realizes or should realize that the user

will not in the exercise of reasonable vigilance recognize

the danger, is under a duty to warn the user of such.

consequences and to advise proper precautions.’’ Prit-

chard v. Liggett € Myers Tobacco Co., 295 F. 2d 292,

299 (3d Cir. 1961) (applying Pennsylvania law) ;

Maize v. Atlantic Ref. Co., 352 Pa. 51 (1945) ; Resrate-

- MENT, Torts § 388 (1934).* See also, Roberts v. United

States, 316 F. 2d 489 (3d Cir. 1963). eh

' Plaintiff’s experts testified that molasses ferments and

exudes carbon dioxide gay which can cause serious injury

and even death to persons breathing it. The gas is par-

ticularly dangerous when stored in an enclosed tank similar

to that used by Eastern since the gas is heavier*than air and

tends to accumulate at the bottom of the tank, just above

the level of the molasses, and is not carried off by normal

and the overhead vent with which this tank was fitted.

There was ample testimony in this case from which the

"jury could find that defendant National was a supplier of.

molasses and thus held to the standard of an expert (see’

Guffie v. Erie Strayer Co., 350 F. 2d 378 (3d Cir. 1965)) ;

dangerous properties of the product with which it was deal-

ing. National had been in the molasses business for almost

50 years. It had numerous storage terminals throughout

the country from,yhich it supplied thousands of customers

with molasses each year. Its own expert acknowledged that

a company in the business of supplying molasses would |

. 4. Tn his brief and at oral argument counsel for National argued

that § 388 of the Restatement of Torts has not been adopted in Penn-

sylvania. It'has. See, e.g., Ebbert v. Phila. Elec. Co., 330 Pa. 257

(1938) ;.Lambert v. Richards-Kelly Constr. Co., 348 Pa. 407 (1944) ;

Foley v. Pittsburgh-Des Moines Co., 363 Pa. 1 (1949); Ostrowski

v. Crawford Door Sales Co., 207 Pa, Super. 424 (1966). - |

Opinion of U.S. District Court » 9A

know that molasses, under appropriate circumstances, will

‘ferment and give off poisonous carbon dioxide gas. Finally,

_ there was testimony from plaintiff’s experts that informa-

tion concernin® the specific properties of molasses was

readily available from a number of sources.

- Under all these circumstances it was for the jury to

say whether National’s failure to warn® Eastern. of the.

dangers inherent in the storage of molasses constituted

negligence. National contends that it was justified in‘ as-

suming that whatever dangers may have attended the

“storage of molasses would be equally apparent to Eastern

and, therefore, it was not necessary for National to give

any warning. .This, too, was a question for the jury. There

was evidence that Eastern’s employees were unaware of the

danger of production of carbon dioxide from fermentation

of molasses. There was testimony by Dr. Aaronson, a_

pathologist, that this dangerous property of molasses.is not

generally known. The jury could therefore conclude that

National had no reason to believe that those it knew would

come in contact with its product would be aware of the

danger of handling it.

2. Superceding Cause.:

Assuming arguendo that it’was negligent in its failure:

~ to warn its customers of the hazards of molasses, National

. Maintains that it is nevertheless entitled to judgment n.o.v.

since its conduct was not the proximate cause of decedent’s -

death. It argues that its own negligence was superceded by

the negligence’ of Kline’s employer who, N ational contends,

should have been aware, not only of the ‘risks involved in

the cleaning of a molasses-storage tank, but also of proper

emergency procedures to be followed in case of an accident.

‘In short, it contends that were it not for Eastern’s negli- |

5. National made no attempt to ‘prove that it had issued an

warnings or advised any precautions concerning the product which

it was supplying. Its position throughout was that’ no warning was

necessary.

10A Opinion of U.S. District Court

gence, Kline pane not have lost his life i in the attempt to

~yescue Holtzapple.

The doctrine of superceding cause in aan National’s

argument finds root provides as follows:

‘‘Where a second actor has become aware of the exist-

ence of a potential danger created by the negligence of

‘an original tort-feasor, and thereafter, by an inde-

dependent act of negligence, brings about an accident,

. the first tort-feasor is relieved of liability, because the

condition created by him was merely a circumstance of

the accident and not its proximate cause. Where, how-

+ ever, the second actor does not become apprised of such

danger until his own negligence, added to that of the

existing perilous: condition, has made the accident i-

‘ evitable, the negligent acts of the two tort-feasors are *

contributing causes and proximate factors in the hap-

pening of the accident and impose liability upon both

of the guilty parties.’’ Kline v. Moyer & Albert, 325

Pa. 357, 364 (1937).

In the instant case, Eastern was no doubt negligent and

the jury so found. The evidence supports a finding that

' Eastern’s negligence consisted of the failure to take reason-

_ able precautions for the safety of others after Holtzapple

collapsed, and perhaps the evidence also supports. a finding!

that Eastern was negligent in failing to learn what, wit

reasonable diligence, it should have found out about th

properties of molasses. But there is no evidence that East-

ern actually knew of the danger created by National’s mis-..

conduct prior to its own independent acts of negligence.

Without evidence on the crucial element of prior knowledge

on the part of Eastern, the questidn of superceding cause

. was not a proper one for submission to the jury. Rodgers

-v. Yellow Cab Co., 395 Pa. 412, (1959) ; Shimer v, Bangor -

- Gas Co., 410 Pa. 92 (1963) ; See Eldredge, Culpable Inter-

- vention as Superceding Cause, 86 U. Pa. L. Rev. 121, 126-

- 35 (1937 )e

* @

Opinion of U.S. District Court TA

3. Assumption of Risk and Contributory Negligence.

Defendant’s final argument on its motion for judg-

ment n.o.v. is that the issues of assumption of the risk

and contributory negligence, which were submitted: to the

jury, should have been decided adversely to plaintiff as a

matter of law. There is no merit in this contention.

It is well established that one who is injured or killed

in an attempt to. effect a rescue under emergency condi-

‘tions -is usually entitled to a jury determination as to

whether or not he was guilty of assumption of the risk or .

~ eontributory negligence. Corbin v. Phila., 195 Pa. 461

- (1900); Toner v. Pa. R. R. Co., 263 Pa. 438 (1919); De-

Gregorio v. Malloy, 356 Pa. 511 (1947); Guca v. Pittsburgh

Rys. Co., 367 Pa. 579 (1951). See Restatement (Seconp),

Torts § 496 (1965). There was ‘nothing in, the instant case

to justify a departure from that rule. Defendant’s reli-

ance on Valente v. Lindner, 340 Pa. 508 (1941), is -mis-

placed since ‘‘. [i]Jn that case [contrary to this one]

there was not shown to have been an emergency.’’ De-

Gregorio v. Malloy, supra, p. 516:

The inotion for judgment n.o.v. will be denied:

B. Motion for New Trial.

- At the time of his death, Richard C. Kline was married

and had a seven-month-old child; eight months later a sec-

ond child was born. In the three years immediately after

her hushand’s death, Mrs. Kline was twice remarried. The

children are now supported, at least in ‘part, by her third

husband.

1. Evidence of Widow’s Remarriage.

At trial, defendant National sought, to wing the fact

’ of remarriage to the attention of the jury to mitigate the

damages it might be required to pay. It alleges that the

court’s refusal to allow it to do so was error. While'there __

wae 2

"a . . .

‘ .

12A Opinion of U.S. District Court

are no Pennsylvania cases precisely. on point,® it seems to

be almost universally accepted that evidence of the type ~

National sought to put before the jury in the instant case.

is inadmissible either because it contravenes the well ac-

cepted rule that rights under the@Wrongful Death and

Survival Acts are fixed at the time of death, or because it —

is irrelevant to the issues being tried. Johns v. Balt. &

Ohio R. R. Co., 143 F. Supp. 15 (W. D. Pa. 1956), aff’d

per curiam, 239 F. 2d 385 (3d Cir. 1957); Reynolds v.

Willis, 209 A. 2d 760 (Del. 1965); Bunda v, Hardwick,

138 N. W. 2d 305 (Mich. 1965). To the contrary is Jensen

v. Heritage Mutual Ins. Co., 127 N. W. 2d 228 (Wise. 1964).

. much as it relied in part upon-Sipes v. Mich. Cent. R. R. Co.,

‘204 N. W. 84 (Mich. 1925), which has been recently over-

ruled. See Bunda v. Hardwick, supra. Evidence of Mrs.

Kline’s remarriage was properly excluded. - oo }

A — _—e——

2. Improper Conduct of Trial Judge.

‘Defendant’s next point is difficult to categorize. . Its

counsel ‘has not directly accused the court of bias and

prejudice, and he has not proceeded by affidavit under 28

U.S. C. A. § 144 to disqualify for bias and prejudice, but

he has, in the most: general terms, accused the court of —

' being something less than impartial, of ‘‘creating an atti-

tude of sympathy”’ for the widow and children .and an

'. “attitude of hostility’’ against the defendant National and

its counsel. He has pointed to nothing in particular in the

record, he has instead made a general charge, in his brief,

that the court made ‘‘caustic comments”’’ and participated

too much in the questioning of witnesses. At oral argu-

‘ment, he added that the court, during the course of the

6. It should be noted that in Philpott v. Pa. R: R.Co., 175 Pa;

Pa. 570 (1896), the defendant had requested the court below ta, °

charge that the jury could take into account ‘the fact that plaintiff ha

remarried after her husband’s death. The point was refused. After -

a verdict for the plaintiff, defendant appealed and the judgment was. -

affirmed, no mention being made of the disputed point.

. ™ .

Mv 2 . 5

PERE MALI a FOG ABELES SIDR a ee EEE Ua me oe

wa tha, Regi

‘ 5 : Fe

Opinion of U.S. District Court * 138A

: triak by a grimace or a look of annoyance here, and a

sharp word there, exhibited an attitude of. hostility. toward

defendant’s counsel. Since fo mention was made by coun-.

sel at the time of the alleged occurrences, and since no

statements were made by him on the record at: any time

to indicate the particular point during the trial at which

these alleged incidents occurred, it is most difficult, if not...

impossible, to come to grips with and to answer such

charges. Counsel’s explanation of his failure to note of

record the alleged incidénts at the time: they occurred, i.e.,

to avoid incurring the court’s displeasure, is not worthy of °

an attorney of his unquestioned: courage and experience at

the bar. A more reasonable explanation for counsel’s fail-

ure is that he was more disappointed with the size of the

verdict than with the conduct of the tial judge. I am not

persuaded that the size of this verdict was attributable in

any degree to the court’s attitude or demeanor. and reject

this as a ground for new trial.

3. Excessiveness of Verdict.

Finally, defendant argues ‘that’ the jury ’s veediet in

the instant case was excessive’ and should be set aside.

Mindful of the admonition that ‘‘[a] court should not set

aside a verdict on the ground that it is excessive unless

it is so high as to shock the conscience,”’ Foresman v. Pepin,

71 F. Supp. 772, 775 (E.. D.-Pa. 1946), aff’d per curiam,

161 F. 2d 872 (3d Cir. 1947), I am*nevertheless constrained

to agree that the total of this verdict is demonstrably

excessive.

Richard C. Kline, died i in August of 1960. At that time

he was being paid a salary of $90 per week and $10 per week. .

7. As’ a corollary to its position that the jury’s award of dam-

ages in the ifstant case was excessive, National contends that it was

error for the court to refuse«to charge the jury that any award it

might make should take into account federal income taxes. There

is no substance to this argument. . Girard” Trust Corn Exchange ;

Bank v. P.. bi C., 410 Pa. 530 (1963).

14a. Opinion of US. District Court

for expenses. He spent ‘approximately $3 to $5 weekly on

himself. There was testimony, uncontradicted, that had

a ~~Khne been still working at Eastern at the time of trial,

some 544 years : after the accident, he would have been earn-

ing between $8,000 and $10,000 per year and that ultimately .

he would have earned twice that much with the company.

In addition to the evidence on salary and future earn-”

ings, there was other testimony concerning the character,

determination, ability and leadership potential of Kline .

from which I can only conclude that he must have indeed

been‘a rare human being. Finally, there was testimony that

the decedent Kline was ‘in excellent health and came from.

a family where longevity was the rule.

Even assuming an average’ loss under the Wrongful

Death.and the Survival Acts (after deduction for main-

tenance) of $7,250 per year for the 514 year period between

the date of death andthe date of trial, those losses, together

with the funeral bill of $1,200, would total approximately .

$39,250, leaving approximately $340,000 of the awards at-

' tributable to future losses.* It is obvious that the interest

. alone'on this lump sum, computed at 6% as required by

Pennsylvania law (Murray v.-P. T. C., 359 Pa. 69 (1948); __

Gregorius v. Safeway Steel Scaffolds Co., 409 Pa.: 578

(1963)) would produce a return of more than the $20,000 a

year which the evidence established as the peak of Kline’s

_ future earning potential. ‘And this, of course, makes no

allowance for Kline’s own maintenance, or for the periodic

escalation of: his earnings until the achievement of his peak

poténtial, or for the exhaustion of the principal of the fund.

It is clear, therefore, that the total of the awards here were

“ excessive. In my view, taking into account the. foregoing

factors, and viewing the evidence in-the light most favor-

able to the plaintiff,-an award for future losses under the ~

Wrongful Death and the Survival Acts in the total amount

_ of $261,500 is supportable. This, together with the $39,250

8. There-was no claim for damages for pain and suffering. .-

hm nitaidcctiiceicscinci

Opinion of U.S. District Court ae 15A

earlier referred to as a supportable award for losses. to the

date of trial, would result in a total award of $300,750.

Unless, therefore,, the plaintiff. files a remittitur of the

amounts in excess of $300,750 within thirty days from the

date hereof, a new trial will be awarded limited to damages

only. The remittitur should be apportioned to the Wrong-:

ful Death and the Survival actions in the same proportions.

as the amounts awarded by the jury’ ’s verdict bear to the ‘

- whole. -

ORDER. on Peery

AND Now, this 17th day of June, 1966, upon den. |

tion of the Motions of National Molasses Company, it ‘is.

ORDERED car ;

AL. The Motion to Set Aside Directed Verdicts i in Favor-

of Highland Tank & Manufacturing Company and P. W..

Moyer, individually and as the surviving — of F. M. &

P. W. Moyer, is Dentep;" . ~

o\\

2. The Motion for J udgment N.O.V. is Sian and \

3. The Motion for New Trial is DenIeD, provided plain-

tiff shall, within thirty (30) days from the date hereof, file

a remittitur of the amounts of the awards in excess of _

$300,750. Upon failure to file such remittitur within the

time specified, the Motion for New frie i is GRANTED, limited

to damages only. |

s/ Aurrep L. Luonao, J. |

“

¥.

16A = | Opinion of U.S.C.A. 3

OPINION OF THE UNITED STATES coURT OF

s _ APPEALS FOR THE THIRD CIRCUIT. °

‘(Filed February 24, 1967)

Argued December 21, 1966

Before: Bices, Hastie and SEITZ, Circuit Judges.

By Hastie, Circuit Judge.

- National. Molasses Co., one ‘of the defendants in a

diversity action under the Peunsyivania Wrongful Death

and Survival Acts, is here appealing from a $300,000

judgment.

The decedent, Richard Kline, was an employee of

third-party defendant Eastern.States-Parmers Exchange,

a cooperative which sold various commodities, including

black strap molasses, to farmers for agricultural use. For

’anumber of years Eastern had bought its stock of molasses - -

from National, a large importer and nationwide wholesale

distributor of black strap molasses. . To store molasses thus

purchased from National for resale, Eastern had. con-

structed the tank involved in this case under the floor of one *

of its buildings. _The evidence showed that: Kline was

killed by the inhalation of carbon dioxide when he entered

- the almost empty tank in an effort to rescue a fellow em- |

ployee who had been overcome while moving about the

floor of the tank in activity preliminary to cleaning it. _

' The original complaint was filed against National and

- two other concerns which had been involved in the con-

struction or installation of the tank. The decedent’s em-

-_ ployer Eastern was brought into the action by National as

a third-party defendant... _ .

The case was tried to a jury. At the conclusion of the

plaintiff’s case the court: denied, National’s motion for a.

directed verdict. However, it granted similar motions by

the two defendants involved in the construction and in-

\ s

.to that ruling.

Opinion of U.S.C.A. 3

stallation of the tanks and they are not parties

appeal. eae A. }

The trial resulted in a jury. verdict against Natiggs

in the amount of $306,975. under the Wrongful Death “as

and $72,000 under the Survival Act. “The jury also foufd

that National was entitled to contribution 8 Eastern.

National then moved’ for judgment notwithstanding the

verdict in the principal action and for‘ new-trial. The

court denied these motions, but with the proviso that the

plaintiff should remit the amount by which the’ total re-.

covery exceeded $300,750. Such a remittitur was filed and

final judgment was: entered accordingly. ‘This appeal

followed. : ‘* | fing Me

The denial of judgment n.o.v. is our first coricern.

_After verdict, the appellant moved ‘for judgment in accord-

ance with its earlier motidn.for a directed verdict. The

trial court denied this relief on the ground that the appel-

lant had failed to comply with the requirements of Rule 40,

Federal’ Rules of. Civil Procedure. The court added that

in its view the motion must also fail’‘on its merits. os

We agree that the appellant’s failure to comply with

Rule 50 precluded the granting of judgment in its favor

notwithstanding-the-verdict-against it. The record shows

that at the close of all the evidence the appellant failed to

renew motions it had made at earlier stages of the litigation

for a directed verdict. And judicial power exists under.

Rule 50(b) to grant judgment notwithstanding the verdict

only when a motion for a directed verdict has been made

at the conclusion of all the evidence and, in legal contempla- i

tion, the quéstions thus raised have been reserved for subse-

quent determination. We have repeatedly held, very re-

cently in Gebhardt v. Wilson Freight Forwarding Co., 1965,

348 F. 2d 129, 132 ‘that the introduction of evidence after

the denial of a motion for a direeted verdict constitutes a

waiver of the error, if any,-in the denial unless the motion

is renewed at the close of all of the evidence’’. We adhere

7 @

18A Opinionof U.8.C.A. 3.4

| We come now to various alleged trial errors, upon

which National has based its motion for a new trial. -

- . The plaintiff undertook to prove that the appellant, a .

corporation long engaged in the-business of importing, ~

storing and selling millions af gallons of molasses annually,

was chargeable with knowledge that molasses in a storage

tank ferments and creates carbon dioxide, a heavy suffocat- .

ing gas which often accumulates.in- high concentration in

the*lower part of the air space above the molasses. More-

over,garbon dioxide is odorless and colorless and thus may

' present an unsuspected hazard to a. person -entering: a

molasses storage tank to clean or repair it, or for any

other purpose. On the other hand, decedént’s employer,

Eastern, was a cooperative which handled and sold ay

farmers a great variety of products suitable for agric

needs. There was evidence that*neither Eastern nor its.

employees did in fact’ appreciate the risk of a deadly

accumulation of carbon dioxide in its molasses storage tank

and that ‘National should have realized the likelihood that

this would be the case and should have -warned- Eastern of

National gave no such warning. At the same

‘ time if-was contended that Eastern, though ignorant of

dangers inherent in molasses storage, was negligent in fail-

ing to acquaint itself with those dangers, in adopting i im-

_ proper procedures in cleaning, its tanks and in failing to

provide emergency safeguards. °

The jury found both National and Eastern negligent,

since in addition to imposing liability on-National, it re- -

turned a-verdict for National against Eastern on the third-.

_ party claim for contribution.’ . However, National contends

that the jury should have been instructed that National,

_ even though negligent in not warning. Kastern, would nat be

‘liable if Eastern was also negligent in -not learning of the

danger and in not properly safeguarding operations in and

1. The plaintiff did not sue Eastern, presumably because, under -

the workmen’s compensation scheme, it would not be liable in a com-

- mon law.action for negligence causing its employee’s death.

* Opinion of U.S.C.A.3. \* 19K

about the tank. In other words, National sought an instruc- *

tion that if negligence by Eastern was a responsible cause

of the accident, that negljgence constituted a supersedifig

cause and relieved National of liability.

It is type that; if Eastern had appreciated the nature

and extent of the danger any warning by National would

_ have been superfluous, and National’s failure to warn would

-not even have been a causa sine qua non. Cf. Green v. Inde-

pendent Oil Co., 1964, 414 Pa. 477, 201 A. 2d 207; Kline v.

Moyer, 1937, 325 Pa. 357, 191 Atl. 43. But there is no évi-

dence here that Eastern had such actual knowledge. Thus,

National’s failure to give its regular customer Eastern the

benefit of its superior knowledge could: constitute one of

the legally responsible causes of the present accident, even

though Eastern’s failure to discover the danger o en

initiative and provide safeguards may also have > ;

negligence as would provide a proper basis for imposing on —

Eastern an obligation of coftribution that was enforceable

in National’s third-party proceeding against it. Cf. Duck-

worth v. Ford Motor Co., 3d Cir., 1963, 320 F. 2d 130. We

find no error in the court? S handling of this aspect of the

case. ) ’

Several additional. cutiiilane tian been advanced con-

cerning the proof and the amount of damages. The jury

returned a verdict against National in the amount of

$306,975 on the Wrongful Death claim: and $72,200 on the

__—Survival claim, an aggregate award of $379,175. On motion

for a new trial, the court found this verdict excessive and

ordered a new trial unless the plaintiff should file ‘‘a remit-

titur of the amounts in excess of $300,750 . [to] be ap-

the same proportions as the amounts awarded by the jury’s

verdict bear to the whole’’. Such.a remittitur was filed and

the: awards now stand reduced accordingly. .

The appellant’s principal point in this connection seems

to be that the-prospective future earnings of the deceased

‘were improperly conjectural because neither actuarial -

20A Opinion of USCA. 3

testimony nor any ‘table of life expectancy was introduced

_in evidence. However, ‘there was evidence. that the dece-..

dent’s grandfathers died at the ages of 75 and 72, and his”

grandmothers at 72 and 68. There also was evidence of the

decedent’s ‘sound health and clean and wholesome living

until the mishap in suit terminated his very promising life

‘ at age 21. There also was clear and informative evidence

of his past and prospective earnings. This was sufficient

for a jury determination of damages.. Cf. Benson v. Altoona

é L. VE. Ry., 1910, 228 Pa. 290, 77 Atl. 492. After con-

sidering this evidence and the amount of the verdict the

- court directed remittitur as set out above. It was the court’s

view that the total sum awarded substantially exceeded the

present value of the lifetime net earnings tgat could ration-

ally ‘be predicted for the decedent. We ¢annot say either |

that the evidence was insufficient to support the reduced.

award or that it required the court to permit the original

verdict to stand. Cf. Russell v. ‘Monongahela Ry., 3d Cir.,

1958, 262. F. 2d 349.

‘It is also urged on this appeal that the siiinithaldibaad

_ of the remittitur between the Wrongful: Death claim and

' .the Survival claim was arbitrary: However, it is admitted '

that the decedent: died almost immediately .and without

pain or oumtoring, Almost all of both awards represented

the jury ’s estimate of the present worth of probable life- ~

time net earnings after the subtraction of probablé expen-

ditures for personal maintenance, and the relative amounts

awarded on Wrongful Death and Survival claims repre-

sented the jury’s judgment of the decedent’s likely alloca-

tion of that total between support for dependents and ac-

cumulations, if he had lived.. The court concluded that

some $80,000 of the total awards could not be justified by

the evidence upon which an estimate of future net earnings

had to be made. At the same time, the court respected the

jury’s allocation of anticipated overall net earnings between

family, tite and accumulations = voquamg that the

adn

- no claim against either of these

_ preserved for review, National has no standing now to

Opinion of USCA. 3 feo epee 21a

$80,000 reduction of the total award based upon veiiiniiien

future earnings be allocated ‘between Wrongful Death and.

_- Survival awards in‘ the same proportion as the original

_. jury awards on these claims bore to each other. This was.

logical and * proper and merits appellate sancfion.

- Finally, National has asked us to consider whether the

‘ trial court’s action in dismissing the plaintiff’s action as

"against two other parties involved in the construction and

installation of the tank was correct. But the plaintiff, the

claimant against those partiés in the original action, has

not appealed their dismissal. And, though the record shows

that National at one time cross-claimed against these co-

defendants, the record also shows that all cross-claims

among the defendants were voluntarily dismissed. Since

d,-defendants has been

challenge their dismissal, *

The appellant also complains of other alleged errors

in trial rulings. We have examined all of. these conten-

tions. and find no reversible error. *

The judgment will be affirmed. P

224 Order of U.S.C.A. 3 Denying Rehearing

ORDER OF THE UNITED STATES COURT OF AP-

PEALS FOR THE THIRD CIRCUIT DENYING

PETITION FOR REHEARING. oe ie

. Present: Sraney, Chief Judge; and Biees, McLavexuin;

‘Katopner, Hastie, Smita, FreepMan and Szrrz, Circuit

Judges.

. ¥ 7

The petition for rehearing filed by Nationat Mouasses

Company, Appellant in the above entitled case having been

‘submitted to the judges who participated i in the decision of

- this court and to all the other. available circuit judges’ of

the circuit in regular active service, and no judge who con-

curred in the decision having asked for rehearing, and a

majority of the circuit judges of the circuit in regular active 3 .

service not having voted for rehearing by the court in bane, .

the petition for rehearing is denied.

“By THE COURT,

/s/ Waraiane H. Hasem,

? Judge..

Date: March 27, 1967.

, » .

NaN Bia ne amin Gee ieee hates

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lasagna ips NAG these et:

aN AAs Wee ers

Dated: April 18, 1967.

a - . : » - was ee ee ee : ; agp ae

eth a ;

j Order of U.S.C.A. 3 Staying Mandate. + 23A

3 : . ¢

ORDER OF THE “UNITED STATES COURT OF AP.

PEALS FOR THE THIRD CIRCUIT STAYING IS-

SUANCE ‘OF MANDATE. ares )

Pursuant to Rule 36(2) of this Couit, it; is ohou > 3)

. that issuance of the mandate in‘ the above ca be, and it

4/ is mereny stayed until May 1, 1967.

‘acim H. Hisrr,

— Ctrcutt Judge. -

248° Judgment of US.C.A.3

JUDGMENT OF THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT.

Present : Brass, Hastie and Szrrz, Circuit Judges.

_ This cause came on to be heard on ‘the record from .

the United States District Court for. the Easterif District

of Pennsylvania and was argued by counsel.

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment.of the said Dis-

trict Court, filed November 19, 1965, as reduced by judg- ~

ment filed June ¥ 1966, be, and the same is hereby affirmed,

with costs. °

ated ATTEST :

THomas F, Quixy,

February 24, 1967.

Letter of Transmittal * 25A - “f

LETTER OF TRANSMITTAL.

' Decuert, Prick & RxHoaps

Sixteenth Floor, Three Penn Center Plaza

‘Philadelphia, Pa. 19102 |

heels: = March 15, 1965 |

_ Edward C. German, Esquire

1507 Packard Building

_ Philadelphia, Penna. 19102 : ;

a ae Peter P. Liebert, 3rd, Esq. —

1320 Packard Building

ny Philadelphia, Penna. 19102

Joseph J. Murphy, Esquire e

‘Suite 1525 aa

~ Two Penn Center Plaza ~~. oo

Philadelphia, Penna. 19102 ~- .«

OP hee ». Highland Tank d Mfg. Co, et ah.

Gefitlemen |

I enclose herewith Plaintiff’s Requests for Admissions

directed to Highland Tank and Manufacturing Company,

National Molasses Company and F. M. Moyer and P. W.

Moyer. I also enclose two copies of Plaintiff’s Second

Amended Pre-Trial Memorandum. The —. of these

ee are ed filed of record.

Very truly yours,

Gaten J. Waits, JR.

| Galen J. White, Jr.

ATW :jto .

Enclosures |

C3 Richard J. van Roden, maguire

264 - . Requests for Admissions

IN THE - ; es.

UNITED STATES DISTRICT COURT |

For THE HastTeRN Distaicr OF PENNSYLVANIA. .

Civ, Aeron No. 30080.

DAVID B. BEEBE, fener OF THE ee oF

RICHARD C. KLINE, Derceasep,

d v.

HIGHLAN D TANK AND MANUFACTURING COM-

. PANY,

AND

F. M. MOYER anp P. W. MOYER, Inprvmvatiy np as’ -

_ Co-PARTNERS Trapinc anD Doine Business AS F. M.

| AND ‘P. W. MOYER,

AND | |

NATIONAL MOLASSES COMPANY,

EASTERN STATES FARMERS EXCHANGE.

REQUESTS FOR ADMISSIONS UNDER RULE 36.

Plaintiff, Davi B. Bezsz, Administrator of the Estate

of Richard C, Kline, Deceased, requests that defendants

Highland Tank and Manufacturing Company, National

Molasses Company and F. M. Moyer and P. W. Moyer,

individually and as co-partners trading and doing business

. as F. M. and P. W. Moyer, within ten (10) days of the .

- service of these..requests make the following admissions :

Requests for Admissions 278

1. That. on the date of the institution of this suit de-

. fendant Highland Tank and Manufacturing Company was ~

a corporation incorporated under the laws of the Common-

"wealth of Pennsylvania and had its principal place of busi-

not in New Jersey.. ?

2. That on the date of the institution of this suit de-

fendant National Molasses Company was a corporation in-

corporated under the laws ‘of the Commonwealth of. Penn-

sylvania, and had its principal place of business at Oreland,

Montgomery County, Pennsylvania, and not in New Jersey.

3. That on the date of the institation of this suit de- .

fendant F’. M. Moyer and P. W.. Moyer were adult individ-

uals residing in York, York County, Pennsylvania, and

were co-partners trading and doing business as F. M. and

P. W. Moyer with their principal place of business in York, —

York County, Pennsylvania, and. not in New Jersey.

Gorpon W. GERBER,

-Gordon W. Gerber,

1600 Three Penn Center ‘i

Philadelphia, Penna. 19102,

_ Attorney for Plaintiff.

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