Petition for Writ of Certiorari — Reynolds Metals Co. v. Yturbide

Supreme Court brief1958

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Text

-_Supeeine Court

‘of tive Gnited States

REY NOLI

‘PAULA M

_ REYNOLI

Vv.

Vv ERLA M

REYNOLI

Vv.

Or tobi r Term. #958 —

814

9S METALS COMPANY, Petitioner, |

ARTIN YTU RBIDE, Responde nt. =

»S METALS COMPANY, Petitioner,

ARTIN, Respondent, i‘

»S METALS COMPANY, _ Petitioner, ae

PAUL L MARTIN, Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

KING, MILLER, ANDERSON, NASH & YERKE

CLIFFORD

* FREDRIC A. YERKE,

N. ain JR.

American Bank Building, wontend $5, Oregon

Attorne

: are Ht H.

STAV B.

. we TOBIN

ys for Petitioner

McCONNELL

MARGRAF

LENNON ..

Reynolds Metals Building, Richm« ind, Virginia -

Of Counsel for Petitioner

COURT OF si aries we THE NINTH CIRCUIT

7 ‘ SUBJECT INDEX |. +- h :

; . PAGE

Opimions Below 2

J ° ~

Jurisdiction 2

“Questions Presented Fg 5]

~~ a ie ae ees aN VEL IEEL eee PP 3

Statement of the Cases ; aus rv 20. 4

A. Preliminary Statement 4

_ Bo Summary of Facts pense ~-

» } . . % . % °

(. Jurisdiction ‘. q

Reasons Relied Uport for the Allowance of the Writ + Qy

Argument : i Pa a =~ eS

1 The decision Of said court thdt the doctrine of res ipsa .

; loquitur should be applied to’the facts in these cases is

> s’ in conflict with the applicable law. of the -State of

1 A peace cates ect fee a fee

A. Unless an inference of negligence was raised by

the doétrine of res ipsa loquitur. there was ,no

evidence that petitioner was negligent 10)

. - @ Fe te .

a. 1. The uncontradicted evidence showed that peti-

; lioner used the greatest possible care in mini.

_- 4. ‘mizing the emission of ‘fluorides 10

2. Fhe uncontradicted evidence showed that no

* injury to human beings from the amounts of

- fluorine emitted was remotely foreseeable 17

: B. The doctrine of res ipsa loquitur did not apply. 24

: 1. The requirément that the accident be “such

as in the ordinary course of events Apes not.

happen. if those who have the management

use ordinary.care” was not satisfied . 6

. ; aie

R , 2. Yhe evidence was uncontradicted as to \the

giuse of respondents’ glleged injuries: &@.. 47

a diaie ea eis

eg 2

. 7 os SUBIFCT INDEX: —¢ Cotttinued :

2 . . ; is '°

3. Even if res ipsa loquitur applied. petitioner

rebutted the resulting inference by uncontra

di¢ted testimony of due care | ae

Hf The decision. vf said court that the scope of examina |

————————

A. secs Paul Martin and Verla Martin waive “d

their, privilege to object to. the ee

Doctors Hills and Proctor.

B. The error was prejudicial ¢ to petitioner

e a :

Ill The decision of. said-eourt that the claims of phen.’

—————efts Paul Marin and. Verla Martin were not subject

» to the two- ae statute of limitations of the State of

Oregon is in conflict with the er law of thé

aig ec: ESR Ee ced ee evict

A. The actions of Paul and Verla Martin were sub

ject to the Oregon two-year statute of limitations

B. No) jury question was involved. in determining —

: Ww hether the ac tions were barred . , .

C. The alleged causes of action accrued more than

two years. prior to. suit when respondents first be

came aware of their symptoms

Conclusion. ge, -

Appendix

Part 1 Opinion of United States Distrigt Court for the

. District of Oregon dated July 7.1952 (Sic,

Part I] Opinions of United States Court of Appeals Yor,

. _ the Ninth Circuit dated April 24, 1957 ~>

Part HI Opinion of the United States. ‘Court of Appeals

Fs _. tor the Ninth Circuit dated Jiine 5, 1958

7°

o/%

»)

Fi “

tat,

TABLE..OF ‘CASES

PAGI

" Arvidson, et all v. Reynolds Metals Company (W.D. Wash..

SD.. 1954) 125 F. Supp. 481: affirmed per curiam (CA

4. 1950) 236 F. 2d 224: cert. denied (1957) 352 U.S... 968. oe”

1 [.; Ed. 2d 323... - a Pi nae oe

Baer v. City of Bend (1956) 206 Or.’ 221. 292 P.: ‘2d 1 34 20.

Berkeley Gragite gd tee v. teste (1937) 183 Ga.

NOL, 190 8 : DS See 27°

Billo v. Allegheny Steel Co, (1937) 328 Pa: “07. 195 Atl 110-..~ 97

Bollenbach.v. Bloomenthal (1930) 341 Ill. 539, 173.NE. 570... 44

Clark vy. Unitéd States (D. Or.. 1952) 109 F: Nn: eae 4

“Conser v. Atchison. T. & S eit Ry. Co. (1954) - Mo. —, 266 6

me RE HO Tow ee A rR, SA phen 30

‘ Dunning vy, Northwestern Electric Co. (19-49) 186 Or. 379,

206 ©. Bde 1977..:...02.0.000:.. Sed VE!

Engelking v. Carlson (19 39) 13 Cal. 2d 216, 88 P. 2d 695. 44

Engl v. Aetna Life Ins. Co. (CCA 2, 1943) 139 F. 2d 469. ; 49

Forrest v. Portland Ry.. 1. & P. Co. (191 3) 64 Or. 240, 129

rac. 1666 ............... -49

Gow v. Multnomah Hotel, Inc. (1950) 101 Or. 45, 224 P. 2d_

Re ne +e eke Rare ee 35.97, 31,44

ee Trust Company: v. York (1945 326 U.S. 99, 65 dain

. 1464.89 L.Ed. 3079 © Siete ef

ludson v. Bee Hive: Auto® Service Co. (1950), 136 Or. a.” ¢

Pac. 588, 297 Pac. 1050 7 ‘ , 40)

"Kelley v. : National Lead Co. (Mo, » App 19-48 ) 210-5, W.. 2d

zx t ie

Lia Porte v. Houston, AC “al, 1948) 189 p. 2d: +4 : . in

Leathe m ‘Smith- tia Navigation Co. v. Osby (CCA 7, _—*

1935) 79 F.2d 280. . , 27 ‘

Martin (vy. Reynolds Met als Cann D Or., 1952) 145

-F Supp. 379° oN DE.

"Munzer vy. Swedish Renevicann Lane (SD. N.Y. 1940) 35 F.

pe. 493 : soles eee 1... My Oh SD

iv |

-TABLE-OF CASES—(Contimieds °°

, ae

Oliver v. Union “Transfer Co. (1934) 17 Tenn. Shin OOF, y

_ SW. 2d 478 H. .

Piukkula vy, Pills bury Astoria Flouring Mills Co (1935/4 mo:

"Or. 304, 42 P. 2d 921- rehearing denied (1935) 150-Or, 304.

+4 P.-2d 162 sats , ane ‘ am Fd dS. 1

Sinai v. Merchants Transfer & W. arehouse’ Company (1040

337 U.S. 330, 69 Sup. Ct. 1233.93 L. Fd. 1520 is

Richards v. Wael Short li ane R. Coon: 29 41 Utah 99; 123

rec, S32 .......... . tH

Ritchie Vv. Thomas (1950) 190 Or. er P. 2d '

PO recalrhnrch aa ee eee eee e a et 31, 33.35

Ryder v. Kincey 188) 62 Minn, 85. o+ N. W. OF. a 45

Smith v. Internatioital High “Speed Steel Co. (1923) 98'NIL

ee 120 Py ME score inne one 2e

~ Suko vy. ‘Newdhywesion Ice’ & Cold yrs Co. “(1941) lob

557, 113 P. 2d 209... RAPE I TNS Pe “< ni su

Tavani v. Swift &.Co. (1918) 262 Pa, 184. 105 Atl. +4-

"U nited States v, Aluminum’ Co. of America (CA 2, aan .

. 2d 446; (S.D. N.Y., 1941) 44°F. Supp. ._. ae 7,8

eye v. Katz Drug Co., (1949) -—.Mo. —, 223 $.W. 2d 97. 30.

v vr

TABLE OF STATUTES = ¢

BAGS? PAGE

1 Oregon Rev. Statutes , fy ! .

. Section 12.010, p. im: g Ph Pn, ee we

- Section. 12.110, p. 76. F rahe. i! 55

Section 44.040. (1) edie (ih a a RAO SORT Se

- Section 44.040 (2), p. 275 : ;

, : A ° E

RULES ae AR ost

\. Ping

Ss 47

Rule 30 ‘b) .. _ 47.

_ Rule 30 it 50

" Ruile 33... Sie Fs dethcdy Ia 47

ee em TERS Ee patted

37 Cal, L. Rev.) 183, Dean Poet “Res “Res: yaa Aoquiner in

California” .......... ; a 3

Harper & James (1956) ‘Section ORCS Ge eee 42

Prosser on Torts, Second Edition — pp. 216- 247.. 44

: “\

In the Supreme Court

Of the United States

October Term, 1958 .

REY NOLDS METALS COMPANY, Poititeuer,

PAULA MARTIN YTURBIDE, Respondent.

REYNOLDS METALS COMPANY, Petitioner,

Vv.

‘VERLA MARTIN, Respondent.

.REYNOLDS METALS COMPANY, Petitioner,

PAUL MARTIN, Respondent.

8 ere erm SL

PETITION FOR WRIT OF CERTIORARI To THE

= sf sic FOR THE NINTH CIRCUIT

To the Honorable Chief Justice and the Associate Justices —

of the Supreme Court of the United States:

Comes now RE ‘YNOL DS ME T AL. S COMPANY.” a

corporations and respectfully prays that a writ of cer-

tiovarii issue to rey iew the Judgment of the U nited States: .

Court-of Appeals for the Ninth c ircuit, entered in the va

above-entitled ‘cases by the Court of Appeals on. June

is 1952, ;

”

- | : 2 : : } ¢ . . y

es See ee ve

- B 8 : ” ORINIONS BELOW .

‘ . é 6

ji he opinion of AN United States District Court foi

the District of Oregon in denying the motion of peti-

_tioner for a directed Verdict, is printedLat 135 F. Stipp.

79, and is appended hereto at pages to 73.

The three opinions of the U nited States Court of Aye

-+peals for the Ninth Circuit. affirming the three judy .

oe ments of the United States District Court for the District »

ot Oregon are appended hekeyo at-pages 74 to 95. -

ie The opinion of the U nited’ States: Court of Reno

for the Ninth Circuit. after rehearing. affirming judy

ment of the United States District Court for the District

of Oregon is appenged hereto at pages.96 to 130.

ge JURISDICTION aan

E he judgment of the U nited States Court of Appeals

for the Ninth Circuit was dated Apr i124, 1937. and was

entered on the same-day,

ip As July 2+, 1957, an ord@g I said gourt was filed grant:

| ing a pean for rehearing. and on July 29, 1957, ali

order of said court was filed directing that the cause be

rvheard en banc. The sec ond judgment of said court.was

dated June 3, 1958, a was entered on the, sdme day.

er, -

' This court has jurisdi¢tion to review: the judgme nt

iny question by-a writ ‘of certiorari by reason of 28 USCA

-2101(ce).: = ee | : 7

°@

7 : ‘of the State of Oregon?

. ° P : ,

QUESTIONS PRESENTED

“Pyne >

1. Was the decision of the Court of Appeals that the.

doctrine of res ipsa loquitur should be afiplied to the

sfacts in these casesin conflict. with the applicable law

2. Was the decision of the United | States Court of

Appeals for the Ninth Circuit that the pre-trial éxamb- *

nation of°two of the. physicians of respondents Paul |

Martin and Vefla Mlartin was properly limited in con-

flict with the applicable law of theState of Oregon?

‘ - i ;

f 3. Was the decision of said ‘court chine the claims of’

respondents, Paul Martin’ and Verla Martin were not

subject to the two-year statute of limitations of the State.

| of Oregon in*conflict with the applicable law of the

| State of Oregon? cn |

cs "statutes .

I. 4 Oregon Rev. Statutes, § 12.010, p75

“Actions at law shall only be contmenced within’

the periods prescribed in this chapter, after the cause

of action shall have acérued, except where a differ

ent limitation is prescribed by statute. The objection

that the action was not commenced within the time

limited shall only be taken by answer, €xcept.as pro- —

- vided in ORS 16.260."

SD oy : ‘ '

@ +s

e+ a

‘ . ae

ts J

ix be ?

2. 1 Oregon Rev, Statutes, § 12.110. p276

“( 1) Anaction * WF, any injury to the person

or rights of another, not arising on contract, and not

especially cnuracrated in this chapter. shall be com

menced within two vears; * *

e e : :

< .

a Oregon Rev. Statutes, S A4.040 (1) (dd). p. 27%,

ee ne

"A regular physician, or surgeon shalt not. with?

out the consent of his patient, be examined in a civil

‘ action, suit or proceeding, as to any information ac.

. quired in attending the patient, which wagnecessary

to enable him to prescribe or act for the patient.”

. o .’

- t. / Oregon Rev. Statutes, § HE.O40 2), p.275

himself as a witness, it is deemed a consent to

the examination-also of a wife, husband, attorney.

clergyman. physician or surgeon, stenographer or

licensed professional nurse on-the saine subject.”

. S @& .

. .

> STATEMENT OF THE CASES

as Rue A. Preliminary Statement

The decision of the C ourt of Appeals’in these cases

\ ha’ imposed on pe ‘itioner a liability unprecedented and

certain to produc e the severest reperc ussions on the con-

sh diigt of hitherto lawful industry everywhere. The court

P ” J ia A : C—"

i 4 ; he

he 4 Me | a

by anerroneous application of res ipsa loquitur in effect

- ruled'that the operation of an aluminum reduction plant

an operation similar to any one of several other vital

‘industrial ‘proc esses in which fluorides escape, such as

steel plants and fertilizer plants—rendered the operator

dolutely liable for, the assorted ailments of the sur-

rounding population, even though ‘the operator took

every conceivable prec aution against injuring anyone

and in fact reduced the amount of fluorides escaping

§ far beyond the point whera they were ever capable of

harming residents in the area near. the plant. Those

“ ho Wish to do so Can interpret the decision as laying

at the feet of these fluoride-producing industries the

weight and other commonplace ailments of those w ho

Regear their plants, whether the plants are shown to

endanger those persons or not.’The burden w hich could

be thus iniposed on a law ful industry is staggering. The -

decision of the Court of ’ Appeals i is obviously, therefore,

not only of importance. to the parttes, but also og

public.

=f -

.B. Summary of Facts

From December, 1946, to November, » three _

respondents lived together on a cattle farm near. Trout-

dale. Oregon, about\a mile and a half upwind from

petitioner’s aluminum plant. Beginning. about. the

sole responsibility for the indigestion, backac hes, excess *

° . ‘ fy

. middle of 1947. they claim to have acquired a number o

of symptoms. which: were fully developed by 1048"

These alleged symptoms, which varied somewhat

among ,the three, included, among other things, EXCESS

weight, stiffness of the spine, ‘pains in the joints. liver

impairment, flatulenc v, polyps in the nose, simusteis.

shortness of breath, diarrh€a, excessive sweating. click:

ing jn the ankles, whee; Ang, mottling of the teeth. int

digestion, hypothyroidism and bladder irritation AR!

191 325,.°1933+4 1939-40, 198+).

is ae xe

~The respondents began to consult doctors, in all

some 16 of them. Of these, five testified at the trial in ¢

a speculative fashion and with varying degrees of hest-

tation that the respondents were yictims of fluorosis. *

although not necessarily witht regard to all these svmp- |

toms.

None of these, doctors claimed ever before to have

seen or heard of flierine’s producing such symptoms in

this country. Each replied in the negative as to whether

the- respondents showed the. two concrete signs com

monty enantio as tests for the. excessive ee of

fluorine-—skeletal changes as shown. by X rays and an,

‘abnormal level of fluorine in the uxine. Les

"$n the other hand, five doctors called-by petitioner

testified that the respondents’ symptoms could not con

~ ceivably be attributed to fluorine.

ree . Te

7 ,

Aluminum: has: been’ produced by electrolysis sirice

before the beginning of the century, See, for example,

the, discussions in United States v. Aluminum Co. of

America (CA 2, 1945) 148 F, 2d 416, 422, and in the

District Court (S.D. N.Y. 1941) 44 F. Supp. 97, 112

Emissions ‘of fluoride, even Ww hen precautions of the-sort.

taken by petitioner. were not present, have never been

-Anown to #ijure residents in the vicinity. —

_ ; %

Petitioner had no, means of foreseeing that the

amounts of fluoride released from an ‘aluminum plant

could or would cause. injury to human beings. under any

circumstances, mach less i injuries of the. type and under

duced by respondents that any such injury was fore-

Séeable,

Nevertheless, ‘to remove any possible hazard to cattle

or vege tation, and not because of any possibility of in-

jury to humans, petitioner, as is stated in detail below,

has installed at great expense the best devices that ity

could design to minimize emissions-from the Troutdale

plant of all waste, including fluorides. In. 1946 it in-

stalled a spray fume- control system which was the best

then developed (R. 1160, 1278). The’ present dual SVs-

tem of pot hoods and roof scrubbers és the only one of

its Kind i In any aluminum plant in the U nited States (R.

1530). It cost over $2,118,000 to install Me: 434) and in

-J

the circumstances here alleged. No evidence was intro-

. @ 8

1950 alone cost over $129,000 to operate | R. 43352 No

: °

evidence was presented that any better.control system

"was possible,

Howeve ry sonte flucrides ese cape and-wiH continue

Yo escape iin the future.. in amounts which heretotore

“have uniformly proved to be harmless, Thus the « Choi

ig between the release of this amount of fluor ile Sor the

cessation of the production of aluminum: in fnhabited

areas. dnasmuch as electrolysis on this scale can be per

for med only where there is an abundance of water

| power, the available sites are limited and in general

inhabited. United States ve. Muminum Co. of America

(SD. NY. 1941) 44 FL Supp. 97, 121. Thus there. is no

~ practicable alternative to release of fluorides except

cessation of production areagetier: j

The importance to the public gene as and ty

sdusiry specifically of the decision of the Court of Ap

peals‘is apparent from the fact that the following compe

rations filed Briefs: Amic us Curiae upon the rehearing

en bane: Aluminum Company” of Ame rica, haise!

Aluminum & Chemical Corporation)Monsanto ( hem,

ical C company. Olin Mathieson Chemical Corporation.

Victor ChenticalWorks, Harvey Aluminum, a Division

of Harvey Machine Co., Inc. and West Vaco € hemi al

Division of Food Machinery & Chemical Corporation

C. Jurisdiction

Hhese actions were submitted to the jury on Sep-

tember 15, 1953. Late in the following day. the jury re-

-__

turned its verdict in favor of respondent. Paul Martin

for the sum of $17, THE BIOL its: verdict for> respondent

Verla Martin for the sum of $12,764.30. and its verdict

lor respondent Paula Martin forthe sum of $7,764.30.

The United States) District Court. for the District of

Oregon thereafter enite red judgments based upon the

: aforesaid verdicts, 2 —

Jurisdiction ad the U nited States District Court for

the District of Drege nl was based upon diversity of citi-

| ve nship and the fm it in controversy. under 28 ESCA

1332

REASONS RELIED UPON FOR THE

ALLOWANCE OF THE writ

Petitioner submits that this court should review the. °

: decisions of the United States Court of Appeals for the

Noth Cireuit for the following reasons:

‘

| !

The decisiongyf Said court that the doctrine of res

ipsé loquitur should be. applied to the facts in these cases

is as comet with the appli able law of the State of

The decision of said court that the scope of exami.

nation before trial of two of respondents’ physicians was

properly limited is in conflet with the applicable law

of the State of Oregon. 2:

HT ‘ oa

The decision of said court that the claims of respond.

ents Paul Martin and Verla Martin-were-not subject to

the two-vear statute of limitations of the State of Oregon

is in conflict With the — able law of the State of

Oregon. : .

ARGUMENT

The decision of said court that the doctrine of res

ipsa loquitur ‘should be applied to the facts in these

cases is in conflict with the wells law of the State

of Oregon.

i) °

‘A. Unless an inference of negligence mem raised by

the doctrine of res ipsa loquitur, there was. no evi-

' dence that: Poe was negligent.

1. The yucontradicted eeiiienece showed. that pett-’

tioner used the greatest possible care in minimiz

_ ing the emission of fluorides. —.

Pi ae | ie ee” .*

Aluminum is produced at the Troutdale plant by

electrolysis. Raw materials are plac ‘ed m pee pots.

Fle trical energy is introc cede and aluminum in liquid

form is de ‘posited ina cavity at the base of the pot (R.

HH-8). The Troutdale plant Was made up of 312’ pots

vntil 1951 (R. 26). ‘ ee

. Some of the raw material going Mto each pot con-

tains fluorine. When ele ‘ctrolysis deposits the éluminum,

therefore, free fluorine is produc ed ‘as’a nee essary by-

product. of the process. Muci h of the fluorine thus pro-

duced is absorbed by the carbon lining of BF pot. The

rest emanates from the pot and immediately combines

With various other elements to form gases, fumes’ and

particulates known generically as fluorides (R. 115- 9),

Unless removed, thesé pass on to theatmospher e outside

the plant.

The-T routdale pidaatt Was constructed for the United

States, a 19-41 and 194% by Aluminum ‘Company of

Americ ‘as Whic h. Operated it'as a lessee of the -Govern-

ment from: May, 1942, 2, to September, 19-45. During that

period it was run Without any fuse control system.

‘Ro 1277),

During the 3 ear r following the end of the War the

v— stood ha. 111 1946: the Rec onstruc tion Financ e€ (ON

poration acting for the U nited States leased the. plant

lo pe litioner, |

When petitioner put the plant back in operation in

Septemlfer, 1946, there were indications that the pre-

: vious use without fume controls might have created a

“hazard to cattle in the sur rounding area (R. +16, 1305),

inasmuc h as fluor ides tend to become accumulated by

_the grass which is the principal fodder of pastured cattle

@im a grazing area such gs-that surrounding the plant

(R. 998-9),

Accordingly, petitioner undertook. two: projects.

First, it established and maintained a grid system for

keeping track of the amounts of fluorine in areaswround - : ‘

the plant (R. + 26, 1164). Second, and before it began to

_Operate the plant; it constructed a sy stem to control the 4

emanation of waste oes vine é Pee x

‘

_ Petitioner installed .im the entire length of the rool\

vent openings a system of water pipes and spray heads.

which sprayed a ‘curtain of water across.the openings.

No fumes-could pass:out into the atmosphere without

passing through that curtain. The water precipitated

out a substantial pr oportion of the gases, fumes and

particulates, including fluorides. These precipitations |

were then carried safely away (R. 415, 1278). ,

Witnesses for petitioner gave undisputed: testimony

that this system which\ Reynolds had devised was the

then best developed fume control system (R. 110.

1278). Harold W. :‘Zeh, Chief. Chemist and Control Fn-

Neaeye tilt:

* eas

.xineer of the plant, testified that in 19 to shine Was no

better control. sv stem” in any other aluminum: plant in

the United States. to my knowledge.” This sy stenr was

‘found te be 60 per cent effic lent; it removed ‘six-tenths

of the waste materials coming into contact with it CR.

114. There was no other system then in operation With »

aT) high an effici lency fate (R. tL):

In late 19-46 or early 1947, petitioner’ s staff s set about

complementing the spray system by adding a series of

baffles, each oné in theshape of a Z. between the W ater

‘spray and the outlet of the roof. The Water mist would

strike.the baffles, and the water would conde ‘nse, drop-

ping into the waste of the spray system, thus bei ‘ing pre-

vented from reac hing the outside atmosphere (R. 1 279).

‘ ;

liv early 1948, not — than a few months after

the baffles were installed, “petitioner began the con-,

struction of the pilot plant of the fume control system

ow in operation at the Troutdale plant. (R..1280). Ine.

‘stallationof the complete system began in 1949, and

portions of it’ were progressively put into operation ds

construc ted until the entire system Was finished. in No-

vember, 1950 (R. Bt ). This new sy stem is QO per cent

efficient. OR. 1332). It isa dual ope ration. consisting of

hoods for all the pots in the Troutdale plant. connected

‘toan induc ed draft system for drawing the gases, fumes

and particulates through evclones into washing towers.

A4.

as well as roof scrubbers: for the capture of waste ma.

ter tials not draw. n into the induced draft system ( R. BL.

1280-2). It isa complex affair and cost over $2.1 18.000

to install (R. +34) ‘with an operating cost during 1950

“«

of over $1 29, 000 (R. +33). No other aluminum plant in

the country has suc ha dual system (R. 1 330).

ie to this vinta, the: Court of Appeals’ made the

following statement (infra, pp. 114-112):

g : PP.

“On behalf of plaintiffs it was urged that the

~ . evidence warranted a conclusion. that the company

did. not exercise the care in this direction which it

_might- have done in that it allowed the plant to. be

operated with the less efficient elimination system” °

from 1946 until 1950 whereas proper care. required

an earlier use of the. better devi ices. ,

“The only bit of evidence which was taken te

sustain such a contention is found in the testimony

of Dr. Hunter. who testified as follows: ‘Q.-( By Mr.

Mead): Doctor, are you familiar with an induced

_air system of dust control or fume control? A. Na-

turally, | haven” t been trained as a ventilating ei;

gineer, But sincé I first ‘studied industrial hv giene

-in-the Harvard School of .Public Health. with the

famous Phillip Drinker—he is a ventilating engineer

—and because of the work w hich I have to do and:

‘so teach, which is: industrial medicine, I amy, natur-

ally, interested in systems of ventilation. And in all

_of the chapters of that book there is an exact descrip-

tion of systems of ventilation which are used. in_

_ various parts of the world. And in 1946. it was well ,

‘known, to all industrialists. the world over that ec

haust ventilation could be effectively applied to re-.

move these effluents.’

. ; | ,

i al af [*.

Lee 5 : : %

Spossibly Wwe can assume, that the question re-

lating to an ‘induced air systeny referred to the sort

of system established by the company in 1950. Testi-

mony that such’a system was, well known in 19-46

would permit an inference that failure to, use that

better system at that ‘time constituted negligence.

_ We believe it is unnécessary in reaching our ultimate

canNusion here to draw such inference ‘from this .

single answer in this long record for we are of the

opinion that the trial court properly submitted to

the jury the question, of negligence’ omathe part of

the defendant ‘on the theory that this was a case

correctly permitting the application of the doctrine

of res ipsa laquitur.”” (Emphasis added) *

: e

Thus, while.the-Court of Appeals did not find that.

petitioner was negligent. the Court did suggest that by

reason.of Dr. Hunter’s answer, ‘as set forth above, the‘:

os ‘ "1 F P a» ; . .

1950 fume collection system could have been installed

in 1946, This suggestion. is without any support in the

récord, and the uncontradicted evidenee is to the .con-.

trary... ° pease: Coane

-In the first place, it took more than: two vears. to

destzn the 1950 fume collection system. This system

Was unknown in 1946 or at any time until petitioner.

installed the same (R. 44 3: 1530).

Secondly, the question put to Dr. Hunter, was in

terms of “an induced air system of dist control or fume

control” “The Court of Appeals: failed to note that ghtis

Sai eee AS et aes ‘3

aswer was in'terms of an “exhaust ventilation system.

‘e

ely

_ which by its very definition refers to exhausting the

fumes within the plant to the atmospher e outside |

521). Surely the Court of Appe ‘als did not méan to -

that petitioner was remiss in not artificially blowing

more fluorides ‘out where respondents could breathe

them. Much as such “sweeping statement from such

personage as. Dr. Hunter might impress an unwitting

juror, it does not point to any negligent | omission by

_ petitioner. ‘Even Dr. Huntér termed the “éxhaust. ven-

tilation” system “grossly inadequate” (R.521).: °

, aes, *, s °

Furthermore, the Court of Appeals apparently did

‘not consider the later testimony of Dr. Hunter that an

“exhaust ventilation” system did not-involve scrubbing:

of fluorides ,by water .or attempting to precipitate the

oa same as w as true of the 1950 system installed at Trout.

dale (Re 521).

- Thus, not onty dia the Court of Appeals fail te find

that petitioner was negligent a: operating the Troutdale

plant but also the uncontradicted evidence is that peti”

tioner did everything in.its power: to minimize the

escape of fluorides: | q@°

In a case involving the emission -of fumes~from @

sulphuric- -acid plant, the Missouri court.has negatived,

any suggestion of negligence under these circumstances.

Kelley v. National Lead (o. ‘Mo App., ere 2105. W.

2d 728, 734, 735,

‘The question of whethef defendant@yas guilt

(sic) of negligenée in failing to install a Cottrell

‘Precipitator so as to prevent the escape of fumes and.

gases'is not unlike thatwhich arises where a defend-

aygt is called upon to answer for its nonobservance

of a statutory dut¥ to place a guard tipon a dangerous

machine. Such a duty, is absolute Whenever it. is.

possible for the*machine to be guarded; and if. in

such a’ case, it appears that there was a guard or

safety device known and obtainable which would

have served the purpose contemplated by the statute,

the failure of the defendant to guard its machine

. with oo that event give rise to ac-

tionable negligence. Simon vy. St. Louis Brass Mfg.

Co., 298 Mo. 70, 250 S.W. 74. On the other hand. if

there is no such device known and obtainable, the

defendant cannot be held guilty of negligence in

failing to install it.

“* * * Ifa Cottrell Precipitator had been readily

. procurable on the market, defendant would no doubt

have owed plaintiffs:the duty of promptly installing

ont, but since such a device was not available on the

market, defendant was not guilty.of any breach of

duty so as to, have afforded plaintiffs a remedy by

an action for negligence.’ . .

2. The uncontradicted evidence showed that no in-

jury to human beings from the amounts of fli

orine emitted was remotely foreseeable.

As‘ to this matter, the Court of Appeals made the

4 foMowings statement ( infra, px110 Pe...

; : F e . ) 4 .

: “The record here amply demonstrates that the

q defendant was fully aware of the potential dangers

ine the escape of fluarides. It is not questioned. that

® . : ; 7 * o

18 ae

nune rous claims of injury to ¢ cattle from the opera

tion of such plants had been presented to this and

other manufacturers. The defendant's senior clem

ist at the ‘Troutdale laboratory testified that he was

- familiar with the literature upon the toxic qualities

of .these ‘itor ‘ides: that he knew. that in quantities

they were toxic: that some of these were heavier

than air and would reach the earth after being air -

borne; that quantities of them would drift im the

direction of the Martin land and that there wer

publications which dealt with dangers to husan

beings from fJuorides.”

This statement also-reflects'an unfamiliarity with

na the-record in these actions. It is. true that petitioners.

"senior chemist testified as indicated by the opinion.

However, che also testified as follows:

Cn) That his knowledge of the literature did uot

inctude knowledge of possible injury to residents

the vicinity. of. an aluniinum reduction. plant 2

337;: and

(b) That fluorides may be toxic “if an excessiv

amount.is taken of it” (R. 338).

. Thus, what. this witness (and everyone else) actualls

said was that in sufficient quantities fluorides may be.

toxic (R. 938). He did not say that the amounts involved

here were toxic, and, of course, all the ev idenc e shower

that they were not.

Furthermore, the fact that petitioner was aware of”

the potential danger to cattle from the escape of flu-

orides does not mean that. petitioner Was aware of any

potential danger to human beings. In fact. the uncon-

tradicted testimony Ils to the contrary.

So far as petitioner could possibly be aware at the

time it began to operate the Troutdale plant; there was

no danger at all a personal injury arising from the

emanations of fluorides, even in the absence of control

meastires, Thi was but another plant of a type which

had then been operating Without such complaints for

fifty vears. The sole purpose of these e laborate control

measures was to minimize the chance of property dam-

age. So far as the record shows. never before in. the

history of the world has the claim been made that these

concentrations of fluoride could cause personal injury.

Furthermore, so far as the record shows, never before

in the history of the world has anyone tried to attribute

such an aggregate of symptoms to fluorosis.

_ There’ is no dispute that fluorine, like its chemical

COUSIN, iodine, is not toxic, unless it is ingested in ex-

cessive concentrations. Small concentrations are not

only harmless, but benef icial. Over 15,000,000 Ameri-

cans in at least 840 communities are drinking water to

whieh fluorine has been added. The Oregon court has

found that the introduction of one part of fluorine per.

20.

million parts of water reduces dental decay among 12

to 1+ year-old children 60 to 65 per cent, while doing

‘no harm to anyone. The court cited cases in other juris:

dictions unanimously reaching .the same conclusions

ee v. City of Bend (1956) 206 Or, 221, 223-224. 24.

“d 13-4, 135. e are Z *,

Accor ding | to Mr. 7eh, fluoride compourids are pres

ent evervw here (R. +50). “Mr, 7eh inehis work had-heen +

Anhaling fluorides for 21 years Without ill effects Re i

450): It is uncontrove ted that in. suffic iertly smat!

amounts. fluorides are harmless.

The Troutdale plant was operated: without -furhe

conta by the Aluminum Company of America for

three Vears. No one living in the vicinity complained

-of “subacute” or any other type of fluorosis. Other alum:

~inum plants throughout the country have operated since

before the beginning of the century. No one living nea!

those plants has complained of fluorosis.

- Officers and employees of petitioner testified that

they had no idea that there was a possibility of. injury

to residents in the vicinity of the plant, and none hai!

ever heard of a claim of personal injury to a resident!

in the vic ‘inity of an aluminum reduction plant (R. +.

937, t15 15-60, 1535).

The respondents. presented no evide nce ‘of a histor

of human injury. On the contrary, their principal wit:

ness. Dr. Donald Hunter, testified that “there are n°

writings inthe U nited States about fluorosis i in the sense

of men being hurt at all” JR. 583 ay.

Not’ only was there no intimation on any hand that

“injury was. possible; there was positive indic ation that

the operation: at Troutdale was perfectly safe. . \ survey

made by the United States Public Health Se rvic ein 1943

and 19-4 had ine luded petitioner’s plant at Longview,

yo ON ashington, which was then operating w ‘ithout any

“fume control system. ‘THe Public Health Service found

nO. danger, because the weighted exposuré for any one

individual was less than the tolerance level of three parts

of fluorine.per million parts of air (R. 1555). Further-

more, at the request of the C 10, the Oregon State Board

of Health @xamined conditions inside ‘the Troutdale

Pant and found no danger (R. 1553-6).

Both studies concerned conditions inside the plant,

of course, because hazard to employees.was the question.

ae iously, when petitioner's s agents wertinfor ‘med that

there was no danger to a man working in the potrooms

‘themselves, they could hardly be expected to surmise.

that there was danger to persons not a few feet, but

miles, from the source of fluorides.

‘There Was no ies e other than that adduced by

respondents through petitioner’s employees as to the

eoncentrations of fluorine present in the air. There was

‘also no evidence controve rting that whic h show ed these

‘concentrations to’ be regi irded by expert opinion as en-

® ° *

tirely harmless: Certainly. this was’ far less than th

tolerance level of three parts per million regarded o-

safe by the Public Health Service.

Dr. Willard Machle was a specialist. in the fielil «:

fluerosis, a pioneer mn research on fluorine in the earl

1030s and. the author of at least seven. articles on aii —

subject (R. 5600. 1420). He had been consulted by th,

respondents in 19512 and at that time had written ther

a report advising them that fluorine from the ‘Troutdal:

plant was not the cause of their difficulties. This reper

Was prepared by Dr. Machle tor the respondents tou

Years before he had any contact with petitioner R

1436). |

Dr. Machle testified that fludrosis appears after tiv:

or six vears only when the intake appronimigtes 12)

milligrams per-day ( R. 1470 ;@At most, the respondent! f

intake from the air could not have exceeded one mill.

gram per day, and Edward J. Largent placed it at 11

milligrams per vear (R. 1132). ,

The respondents gave né other evidence as te whe’

their intake might have been.

If.any further evidences was needed to show thy .

_harmilessness of the respondents’ exposure, that evidene

appeared in the deposition of Mr. Largent, which we

read into the record } BR. 1097 et seq.). Mr. Largent.u!

industrial chemist at Kettering Laboratory. had ber

the human subject of experiments, in which he intén-

honally ingested measured quantities of fluorine: in

anieounts ranging from 6 to 36 milligrams per day dur-

ing Various test periods. In the course of four vears, he

took in 3.000 to 4 000 milligrams of fluorine (Ro 11 24).

\t the rate of less than one milligram per day: the re-

Spondents sian not mane taken in even half that much

perienced none of my ethan “¥mptoms or any

other symptoms (R. 11235. - Dr Frank Prinei had ex

amined him before. during and after the experiments: .

lis health was initially excellent and the fluor Ine caused

nee change i in his physical condition. R. 1341-2

Surely no ¢ claim can be made that there is any basis

Whatever for saving that petitioner couldor should have

foreseen injury to human beings in general or the pres-

ent respondents int particular. The court recognized that

there was nig evidence introduc ed by respondents te

show that petitioners or its offic ers, had any reason ti

le die ve that there was any particular danger to human

hoings invelved in the operation of the plant. For at

pra tially the close of responde nts’ case in chief. the

Court stated: !

lhe statement of the court: on this pout is set forth won Pages TORO 1040

to the twped transe ript) While this portion of the typed transcript was

ree sted as part of the contents of record on appeal Appellees Designa

of Contents of Record on A peal. 5 ff) >. the same-is mot contained

1m the printed Transeript of Rex ond

ers ee

dence alone in this case this Court is not saying new.

that with the evidence before it that the officers ot

this corporation had any reason to believe that there

was any particular danger to humam-beings involved

in their actions.” : ; Pay, tly age

Pe adi oa orn”

ry _*

Later the trial court stated again (R. TSR):

-* ** it is unexpected that persons being in th

vicinity of such a plant would be injured or harp’:

by fluorine compounds emanating therefrom.’* 3?

“

The statement of the Court of Appeals. previous!

referred to (supra, p. 17). therefore, is contrary ne!

only to the uncontradicted - vidence but also to th

specific opinion of the. trial judge. '

| B. The doctrine of res ipsa loquitur did not apply.

Because petitioner used the greatest possible car

in minimizing the emission of fluorides from ats plar’

and no injury to human beings from the amounts v!

fluorides emitted was remotely foresecablé, as a matt

of law. petitioner was not negligent i operatitig th:

Troutdale plant. It follows, thereforec‘that petitione:

motions for a directed verdict made at the close al te

spondents’ case in. chief and renewed again after thi

parties had rested’ should have been granted. This th

triabeourt refused to do on the ground that respondents

were entitled to the benefit and evidentiary aid of the

doctrine of res ipsa loquitur. Vartin Reynolds Metals

Company (DD. Or. 1952) 135 BL Supp. 379. The Court

I Appeals also concluded that. by reason of the sub-

stantive law of the State of Oregon, the doctrine was

applic able to these cases (infra, p. Tho: The portion

of the opinion of the Court of Appeals on this point is

very confusing, Inasmuch as there is a failure to treat

separately two different questions:

1) Was the doctrine applicable so as to justify’

adenial of pe titioner” S two motions for a directed

verdict?

| Did the trial court proper lv instruct thle jury

on Bs subject of res ipsa loquitur. ) |

\t this juncture we are concerned only with the first

que stion, and not with the second. In this cannection

early the © ourt of Appeals misapplied the doctrine of:

res ipsa loquitur in such fashion as to eliminate the re-

qiurement that an action to be negligent must contain

foresee ‘able pote ntialities of i injur y.

dn Oregon the starting point of a ie ussion of res

ipsa loquitur must be the two. cases of Ritchie v. Thomas

1950) 190 Or. 95 », 224 PL 2d 343, and Gow. Multno-

mah Hotel, Ine. | 1950; 191 Or. $5. 224-P. 2d 3552. Be-

- tween them these cases disc uss exhaustively the earlier

dec; ISLONS and state the rule authoritative ly.

»(

From these cases and many more\that could b@® ited.

the a a elements of res ipsa loquitur are plain:

) Ty apply, the physical thing, oe canes the

injury must 6e in the exclusive reece ( Mf the defendant

The accident must bo ‘such as in the ordinary

course of events does. not teppen, if men who have the

a nt use or ‘dinary Cc are.’

(3) Res. ipsa loquitur “is never valid in the face ot

facts which adequately explain the occurrerice,” ‘inas

much as its function is.only to permit an inference unde:

certain limited circumstances when. the actual facts are

not shown by the defendant, who is in the best position -

to show theni because of his physical control of the in-

jury’ inflicting mnalrueneetauty. —

(+) The inference is a permissible one, which in thi

light of all the facts the trier of fact may use or not: its

only function is to. carry the plaintiff beyond a nonsuit

for want of a direct: showing of the manner in which

the allegedly negligent act-occurred.

in the ordinary course of et ents does not happen.

if those who have the management use ordinars”

vare™ was not satis fied.

’ The epinion of the Court of Appeals winfra. pp. Lit

-121) indicates that it failed to consider whether or ue’

/ the situation in the casey at’bar involved an “ace iden!

7 27 4

hs such as in the ordinary course of events does not

happien ee *.” Yet this requireme nt musi be satisfied. .

Cole wv, Vieltnomah Hotel, Ine. supra. py2s. at 52. 224

Pod. at 554. The word “accident” ie peed ‘San un

expected or unforeseen event happening suddenly aiid

violently. Thus, deci isions concerning industr ial accident

claims have held that a disease caused by tre inhalation

of impure air over a per iod of time does not result from

an “accident.” Smith r. International High Speed Steel

(1923) OR3NIA, 97+, T20 Atl. 188: Billo. Allegheny

Steel Co. (1937) 328 Pa. 97. 195 Ath WHOL 11K 11s:

Berkeley Granite C — @. Covington (1937) 183

Ga. 801, 190 SE.

*Not only must there -be an-accident, but also that

accident must be such as digs not ordinarily happen. It

must. have “oceurred out of, the ordinary course of

events”: if must be “extraordinary iit character”

| —- Smith- Putnam Navigation Co. ? . Osby CON

- 1935) 79 F, 2d 280, 283. It must Vipess, as the Dis.

trict Court itself said, that: “Something that ordinarily

we would not expect to happen did hi appe N and damage:

resulted.” Vartin wv. Re ynolds Metals C ompany supra,’

p23. p. 38h.

* |

Here. there is no sudde ‘ny Violent. unexpected event,

the impact with which the fumes and gases “hit\he: -'t

jMosphere hardly constituted viole nee, Her were the

; ,

emanations unexpected. Furthermore, even if) some:

agile imagination could conceive of this process of ema- |

‘nation as an “accident,” there is absolutely. no ground

for thinking that it occurred “out of the ordinar V COurse

of events.” Indeed, those emanations are inevitable

products of the dinctiadyiie manufacture of aluminur

The parties stipulated that, as long as the plant operates.

-26; No. 14,991, R. 28: No.14,992, R. 29).

emanation of fluorides ‘is continuous (No. 14,990, B.

It is for this very reason that res ipsa loquitur was

held inapplicable in the only case which has ever been

decided on facts comparable to those at bar. Actually.

the facts were virtually identical with those presented

here.

’ F . : 4) 4 : ; : . ;

Reni t. National Lead Co. _( 1948), 240 Mo. App

, 210 S.W. 2d 728, was an action by a mam and his

wife ras compensation for - personal injhries and

property damage allegedly-caused by ‘gases, fumes ani!

particles escaping from defendant's plant. Defendant

Was manufacturing oleum, also known as fuming si:

phuric¢ acid. As the court there noted (210 S.W Een, )

732):. |

“Not only is the production.of fumes and gases it

herent.in the. very nature of the process, but. there

is no known way of. peevonmns it.

oe . ™"

Although there was originally some confusion as to

plaintiffs’ theory, by the time the case was submitted -

to the jury Clbid.)

' “this issue had been reduced to the question of -

whether defendant could have remedied or pre-

vented the escape of fumes arid gases from its plant,

but negligently failed to do so.”

Defendant appealed a failure to direct’a verdigt in

its favor, and the court. finding no evidence of negli-

eence, reversed, The doctrine of res ipsa loquitur failed

ty save appellees’ verdict (210 SW. 2d, p. 733):

“In their brief in this court-plaintiffs argue that

their case was one for the application of the doctrine

of ressipsa loquitur. It is clear, however, that they

are Wrong in such assumption. One of the essentials.

of a res ipsa loquitur case is that the happening com-

plained of be suehvas in. the ordinary Course of things

does not oceur if proper care is exercised. by those

having the management or control of the instru-:

Mentality producing the injury. Pandjiris v. Oliver.

Cadillag Co., 339-Mo. 711, 98 SW. 24.969: Brown v.

St. Louis County Gas €o.. Mo.App., 131-S.W. 2d

334. In this case the evidence showed that the giving

off-of fumes and gases is inherent in the manufac.

‘ure-of sulphuric acid and oleum. In fact. oleum is

hrown as, fuming sulphuric acid. The mere circum,

stance of the: giving off of fumes and ‘gases may.

therefore not be said to bespeak negligence. Gr. in

other words, to afford reasonable evidence. inv and

of itself. that such a consequence jwas attributable

tothe lack of proper care? |

FP ene one oe 0» |

ge ; ; 30°

. The criter ia’ for the application of the doctrine are the

same: in Missourt as in Oregon. W cisbrod vy. Aatz Drug

Co, (1949) — Mo, —, —, 233, HW. 2 07, OO: Conse

MS Atchison, T. & S. F. Ry. Co. (19 54) - Io.

one ow: 2d 587,590. |

; _Itis not clear how the District Court could ‘hold res

ipsa logifitur applic able to this case under these cit um

“ stanc es, As’ ‘already noted, the ‘District Court's own

opinion cone urs thtat, something must happen which is

“4 outside the ordinary rink of events. But nowhere dies

the opinion state w hat that. something: is in this cas

Pie

Even the. trial court's opinion points up its OW!

| error. ‘The. court said res ipsa loquitur applies. wie no

: “Something that ordinarily we would not expect te

happen did happen and damage resulted” {see pp. i.

supra, emphasis added). In this case the, damage re:

sulted, allegedly, from the fluorine emanations. But

"sould those be the “something unexpected’ ” It has al-

ready’ been shown: that they were inevitable in the nor.

‘mal course: of events (see p. 11, supra). If the trial

court's instruction was to be consistent with the purpose

and statement of. that doctrinal requirement, it: would

“read: “Under the ordinary course of events it is une

"pected that fluorine compounds would emanate from

suetior plant.” Of course, that could not be said. The

application of es ipsa loquitur by the District Court

—

° -

- @

f, 6 X

was thus doctilinaliy unjustified, as ‘the Ke ey case so

aptly, showed. o

Another matter Which the Court of Appeals failed

to consider in its opiniok fw fvay the applicability Of the

_ doctrine of res ipsa loquitur to phenomenal, Unique and

unprecedented accidents, Of c ourse, tbe courts have ap-

plied res ipsa loquitur only when an unusual accident

“CUPS, because, otherwise the oc currence’ would not

make an act of negligence a more probable explanation

than the absence of as negligent act. As a corollary,

“when the accident is. so unprec edented. that the com.

_ mon expe rience of men does not indicate even the pos-

sible causts, the jury cannpt infer that it.is more likely

My than not that, the defendant committed a negligent act.

and res ipsa loquity rimay not be employed.

In been, Multnomah Hotel, Ine.y supra, p. 23, and

PHT Ie 0. Thomas, supra, p. 25, Justice Beand: of the

‘. Oregon Supreme C ourt. making af exhaustive study of

res ipsa loquitur, hore than once quoted with approv al

an article, by Dean Prosser, “Res Ipsa I oquitur in Cali-

fornia.” 3F ( ‘al. L. Rev. 183. ‘In that article Dean Prosser

states (p, 195):

“It is still true that Where it is entirely clear that

there is no basis of experience from which a reason:

*, able man may conclude thatgnegligence is a more

Probable explanation thari any other, the court will

hold the plaintiff mas not sustained his. burden of.

proof,”

; 32 .

Judicial application of that principle is found in la

Porte wv. Houston (Cal, 19 tS) 189 PL 2d FEE. Phere on

automobile being serwiced. by defendant -had lurched

forward and. struck plaintiff, even though the brake

had been set_and the gears, pit in neutral. The court

held res ipsa’ loquitur inapplicable, remarking that |p

40) “the evidence is overwhelming that the phenome.

non occurs so infrequently that it may be classified a

One that rad never been witnessed by the Majority o!

mechanics.” he

\ ,

Actually, petitioner admits—indeed, insists upot-

‘the incongruity of applying such rule to this case. The

emanation of fluotides is inevitable, hardly unusual.

ftid surely not phenomena). It is regularly Witnessed

by everyone in ‘the industry. But, if the court can over

look the inevitability of fluorine emanations and fin

‘the required “unusual occurrence” in the UNneXpeE ter

injury, then. petitioner can point, with equal validity.

to the fact that’ this sort of injury had never before o

curred in this country (see pp. 17-24, supra’. Emiplos:

ing the District Court’s own formulation, incongrud

as it i&, res ipsa loquitur cannot apply because. in Deat

Prosser’s words, * ‘there is no basis. of experience fret

which a reasonable ntan may conclude that negligene

is a more probable explanation than any other.

33 =

‘Tinallys it.is apparent that both the trial court and

+ the Court of Appeals, in holding that the doctrine was

“applivable, left out the requirement that the accident

he such as would not happen if ordinary care is used.

Thus, in denying petitioner's motion for a directed ver-

dict, the trial court made the following astonishing

statement as set forth in its published opinion (135 KF,

> Supp. 382);

. “At this. state of the case, there being no excul-

patory explanation of how it happened it seems to

this Court that it falls directly within the res ipsa

loquitur doctrine which is quoted very simply-in this

Pe sare from the Suko case, supra * * © if we’

would just paraphrase the language, and I will make

an attempt to do so. When the plaintiff proved the

the defendant and the injury suffered by him as.a_

result thereof, he made out a-prima-facie case of

negligence on tie part of the defendant.” ‘Emphasis

added). - .

-— wy,

@ NS re

tis apparent from this statement what the Court

-left out in applying res ipsa loquitur. It left out the

‘requirement ‘that the accident be such as would not

| happer: if ordinary care is used. Compare this with the

Matement in Ritchie v. Thomas. supra, p. 2):

* ‘ * .

“An inference. of negligence may arise only * *. *

When the aécident is such as. in the ordinary course

of events does not happen, if those who have the

Management use ordinary care.” (224 P. 2d 331).

antd with the. statement of the Or egon Supreme Cou

in Sin wv. Northu estern lee & ( ‘old Storage PC: or Wey

106 Or. 357, 566, 11 3 P. 2d 209, 213: ‘

“In the ordinary course of matters the mishan woul:

not have occ urred except through carelessness in thy

construction, inspection or ‘use -of. the tank,” ‘hn

phasis added) : :

\ rec ognized that ‘someone's negligence” was

By omitting the final clause of this element of res ips:

loquitur, as quoted from Ritchie v. Thomas, supra. tly

Court has entirély perverted its meaning. It would be

hard to phrase a c clearer statement of absolute Liability

In Sinha this matter, the Court of Appeal:

a prime *

‘condition for the. application of the’ so-called rule of re

“ipsa loquitur” Cinfra, p. 114+). However, at no place i:

its opinion is there a reference by the o ourt of Appeal

to the error contained in the foregoing statement of th

trial court. Instead, the Court of Appeals states that Lit

trial court had thé particular requirement of neg:

gence in mind because

: > §

“e * *. it stated in its instruction to the ju"

that ‘under the: ordinary course of events itis Ww

expected ‘that persons being in the vicinity of, suc!

a plant would be injured or harmed by fluorine con:

pounds emanating therefrom.” ~ Ginfra, p. 114.

. . ae * . .

This conclusion of the Court of Appeals is meaningless.

It the trial court did not Have the requirement of negli-

gence in mind in denying petitioner's motion for a di-

rected verdict as shown by the above exerpt from. its

published opinion (supra, p. 33>, then of what signifi-

cance is it that the trial court was considering this re-

quirement in giving its instruction to the jury? More-

over, the instruction in question omitted’ the very re-

quirement that the accident be such as would not hap-

pen if ordinary care is used. Compare again the state-

ment in Ritchie v. Thomas, supra; p. 25, 190 Or. 114:

“An inference of negligence may arise only when

injury is caused by an instrumentality which is

under the control and management of the .defend-

ant, and when the accident is such as, in the ordi-

nary course uf events does not happen; if those who

have the management use ordinary care.” (Empha-_ .

sis added). ) ; :

with the comparable wording of the instruction by-the |

trial court: — Z oe .

“Further, that under the ordinary course of events

HU is unexpected that persons being in the vicinity

oof such a plant would be injured or harmed by

fluoritie compounds emanating therefrom, and that :

such ‘a mishap would not occur” (R. 1880). ( Em-

phasis added) *

Thus the trial court in effect said, if'an event is merely.

’NXpected. res ipsa loquitur applies, but the rule is that. .

if an event is unexpected in the absence of negligen.

res ipso loquitur applies inasmuch as the happ®ning.:

the event unexpected in the absence rofl negidine CHE pe

mits an inference of negligenc e. .

—Tfan event merely unexpected allows an infer:

of negligence, an absurd’ result: is reached. The mor

careful one is, the less an injury is to be expected. Thu.

Where the most careful act produces the least expects.

injury, under the court's reasoning the inference of yes

‘ligence is strongest, , .

Perhaps recognizing the defectiveness of the rathe

elliptical reasoning of the trial court, the Court of \y

peals set forth in its opinion certain premises which

believed related to ordinary Care and warranted a Co

clusion that res ipsa loquitur anplied (infra, p. 115

“Viewing plaintiffs’ Case in the most favoral

light, as we are required to do, we have the follow

ing: (1), Damage to persons in the position of tl

Martins was possible from ‘excessive amotints

fluorides; (2), the Martins were poisoned and tr

eg! plant and by these fluorides: (3), from thir

_ permissible to infer that ‘excessive amoun'

a them —— that there were such exces

amounts; (+), the emission of excessive amou®

from the plant was cir¢umstaritial evidence of nes

gence. Res ipsa loquitur.”

The faultiness in this reasoning is obvious. First, the

Court of Appeals confused the effect of the “invasion

of excessive amounts of fluorides on human beings”

with “excessive amounts of fluorides emitted from an

aluminum reduction plant.”

Second, the word “excessive” at least implies that

the Troutdale plant emitted more fluorides than such

want Would in the ordinary course of events emit. Sach

implication is not supported by the record. According

. to the CRN ayy testimony in this case. the fume

collection systems in operation at the plant during the

period in question were unique and unsurpassed in per.”

formance by any system in the aluminum reduction in.

dustry (Supra, pp. 10-17).

Furthermore, as aleady shown, it was not remotely

foreseeable that the fluorides emitted from the plant

sould cause injury te residents in the areca ‘supra. pp.

2h OF course. without foreseeability there can be

noneghivence, 4. . ,

! The Wdence was umontiadictéd as to the Caine

of respondents’ alleged injuries.

\s previously noted ‘supra, p. 260. res ipsa leoquitur

is Hever valid in the face of facts which adequately ex

plain the ace urrence.” With respect to this feature of the

_ toetrine as applied to the instant cases. the trial court

pahes 38:

od . . . ’ °

made thé rather ineredible: statement. (133. F. Sup:

382 7 ). t ; ; . " ‘

“So'far as LT am.able to ascertain from the reco .

no attempt has beef made by the defendant to pro :

the cause‘of the emanation or the esc aping att)

scien <ecmen wilt TP ies

The stateme nt of the Court of Appeals on the sal’

subject is éven more astonishing (infra, p. 115

“Just what caused: this not-ordinarily- té-be-«

pected scattering of fluorides in ‘excessive anrount

Was not spec ified. That they were so scattered tl:

jury. Was warranted in finding. What concerns.i

here is that the trial judge was justified in ‘par:

Saray the language of the Suko case, (supra. not

‘In the ordinary course of matters the mishe:

Roan not have occurred except through careles

ness... Whether this want of care was in fault

construction, faulty inspection, or faulty operatic

of the fluorides elimination system, — We!

not required to show, for wherever the fault le’

>it was necessarily that of the defendant whic h he

exclusive control.”

“

Certainly. fluorides settled upon real properties :

were “scattered.” to use the word of the Court of \

peals. However, there were no “EXCESSIVE amounts” ae

dlready shown ‘supra, p. 22). In fact. the sc atterine

Was “not: ordinarily. to-be-expec ted” in that the amoun

“scattered” were far less than would erdinarily be e

pected: ‘supra, p. 10).

Furthermore, the Court of Appeals is wrong in sug.

vesting that the trial court paraphrased the language of

¢ .

the Suho case to read as follows:

“In the ordinary course of matters the mishap

would not have occurred except through careless-

* ee

Hess,

\s. previously noted (supra, Pp. 39). the quoted state-

ment is from the trial court's instructions and not from

its opinion in. denying petitioner's mgtion for a directed

verdict. Also the trial court made no reference to “care-

Tessness” in’ giving the instruction’ in. question but

merely stated CR, 1880):

“Further, that. under the ordinary course of events:

it is unexpected that persons being in-the vicinity

of such a plant would be injured or harmed by:

fluorine compounds emanating therefrom, and that

such @ mishap would not occur.”

As far as the cause of the “scattering” or “escaping” 7,

@! the fluorides, a considerable part of the record is de-

voted te nothing else. “The whole truth as to how and

why fluorides escaped was -known, and it is recited. in

detail in Point I-A-1. These facts were largely stipulated,

as ds shown by the instructions to the jury CR. 1870-3 >,

» There was simply no area in Which an inference as to

Neghgence could work. The question owas, entirely on

whether the stated facts as to. how and Why fluoride

escaped amounted to negligence. Petitioner, as has beer

shown, used the greatest possible Garey far above the

required by any reasonable risk of human injury. Mote

« . . . . @

over, since no injury was foreseeable, there could nv

‘

have .been negligence. '

Res ipsa loquitur is by its nafure appropriate en

when some sudden, unexplained event occurs under, thy

control of the defendant and causes injury. Herve th

event, the emission. of fluorides, is fully explained: i

only thing not explained is how the respondents coul:

have suffered injury from something harmiless to th:

rest of mankind, Petitioner was in no position to, expla

this, and certainly no inference was proper that flu-

rides caused the injury in’ the absence of some athe:

explanation.

3.. Even if res ipsa loquitur applied, petitioner!

e F Ve j sii “i .

butted the resulting inference by uncontradict«

testimony of due care.

‘ _ 2»

Res ipsa loquitur is a permissible inference. It is 1

mandatory and may be rebutted: by a showing that th

defendant exercised all due care. Judson v. Bee Hiv

Auto Service Co. (1930) 136 Or. 1, 1+ ee Pac. 3°.

2907 Pac. 1050, 1053-1054. Dunning v. Northwester

Electric Co. (1949) 186 Or. 379, 429, 206 P. 2d AL

MOl: Clark vo. United States 1). Or, 1952) 100 FL Supp.

213. 221. Because res ipsa loquitur is merely an infer-

ence and can be overcome by uncontradicted direct evi-

dence. the quoted principle could be applied to a. case

in Which res ipsa loquitur operates, Gow v. Multnomah

Hotel, Ine. supra, p. 25. at 53. 54. 221 PL 2d. at 335,

The principle should be applied to the cases at bar.

ae . ? .

. Even if res ipsa loquitur could have been operative, it

merely carried respondents past nonsuit. Petitioner, as

shown previously (see pp. 17-24, supra), introduced .

uncontradicted evidence that it could not have foreseen

‘injury to respondents and took every precaution to

suard against known-hazards. The only reasonable de-

duction that can be made from the ‘evidence is that pe-

«tittiner Was not negligent. ‘Therefore, in spite of res

ipsa, loquitur, the trial court should have directed ver-

_ dicts for, petitioner at the lose of all the evidence,

With respect to this feature of the case, the Court of

\ppeals stated as follows (infra. p. 110):

. - é . , ;

“* * *. In the present case the jury might haye

accepted defendant's proof and explanation but ob-

viously it-did not. It was not obliged to do so. The.

procedural problem which faces ana defendant such

_ as this, as it has developed in the cases, is discussed

- dt some length by both Prosser and Harper & James. |

The latter say, ($19,12'- ‘Defendant in a res ipsa

fase May show by evidence how the accident hap-

pened. but ordinarily this does not qutitle him to a

- #2 Noe ees

, . ' t

directed verdict. The jury may still reject the ev;

- dence or find that the explanation does not preclur

the likelihood of. negligence. 2... In most res isp:

loquitur cases defendant cannot definitely expla

the accident; His,usual defense consists of proof:

the precautions he did take in constructing. main

taining, and operating the mjuring instrumentality

Once in a great while such proof may conclusive)

show that the accident did not in fact happen. «

that it was.not gaused by defendant. But this is se

dom the outcome. And where it is not, defendent

in this dilemma: the less-effective his precautions

prevent the occurrence the more’ apt they~are +

appear negligent; the more effective the precautior

testified ‘to, the less likely they are to have >bee:

-taken in this case since the accident did happen.’ °

‘

Of courses What the jury in the cases at bar did

did not.do has no effect on the obligation. of the trie

court to’ direct a verdict if the evidence so required it

In addition, the quotation by ‘the Court of Appeals fror!

| Harper & James is of no value here. The uncontradicte:

evidence in this Case, most of which was included in th

stipulated agreed facts portion of the pre-trial order an:

the testimony introduced: by respondents, showed th

of fluorides captured, and the amounts of fluoride:

emitted. If the “aceident did happen,” that fact in thes

cases Would not even suggest, in view of the forego:

that “the precauiions testified to” were not “taken.”

efficiency of the fume collection system, the* amount |

. : . 3

The Court of Appeals also quotes in a footnote a

statement bv Professor Prosser:

a ; ; 4 e

as follows: “But if the defendant merely offers evi-

dence of his own acts and precautions amounting to

reasonable care, it is seldom that a verdict car be

directed in his favers The inference trom the Circa

stances remains.in the case to contradict the evi-

dence. Tf he testifies that he used proper care to in

sulate his wires, to inspect his chandelier. to drive

his bus. or to-keép defunet: mice and wandering in-

sect life out of his bottled beverage, the -fact that.

electricity escaped from the wires. that the Chande-

lier fell, that the bus went into the diteh and the

bug was in the bottle, with the background of com-

momexperience-that such things do not usually hap-

pen if proper care is used, May permit: reasonable

men to find that his witnesses are not to be believed,

that the precautions described were not sufficient

to conform to the standard required .or were snot

faithfully carried.out,and that the whole‘truth has

“not-been told. It is of Course not impossible that proof

. of proper care pfay be so overwhelming as to call

for a directed verdict. but in the ordinary case. it

Will not be Sufficient to destrov the inference from,

res ipsa loquiturs ”

Petitioner has no quarrel with the substance of Pro-

fessor Prosser’s statement. However, the statement. is

relevant only when the doctrine of -res ipsa loquitur: is

applicable to a’ ease. Thus. if the doctrine of resyipsa

luguitur isnot applicable, a motion fora directed verdict

should be granted when plaintiff. as here, introduces no

ad.

’

~ that will contradict or overthrow the doctrine is set

: p

: \ ~ * <¢ieab

7 a ae HM

evidence of negligence on the part qf defendant. or

Ww hen, as here, the defendant’ s unc ontradic ted ev ide TITRE

shows the. defendant is not negligent.

On the other anil, if the doctrine of res ipsa [quitur

is applicable, which petitioner does not concede, it can.

not be contradicted or overthrown by the type of evi.

denice cited by Professor Prosser, ‘The type. of evidence

forth by Professor Prosser in the paragraph preceding

that quoted by the C ourt of Appeels:

ieee defendant proves definitely: _by

uncontradicted evidence that the occurrence was

caused by ‘some outside agency over which: he had —

no control, that it was of a kind which’ common;

occurs without negligence on the part of anyone,

or that it could not have been avoided by the e LOTR,

of all reasonable care, the interence of. neglige nee

is no longer permissible, and the verdict is direc ted

for the defendant. The res ipsa case has been over:

thrown by showing that itis. not a res ipsa case.

AE -mphasis added } .

‘

‘ :

. %

The following cases support the italicized portion of.

the above - quotation: Engelking v. Carlson (1939) 13

—=C al. 2d 216, 88 P. 2d 695, 697: Olit er v. Union Transfer ,

“Co. 1934). 17 Tenn. App. 694, 71. S$ S.W. 2d) 478, 480:

Bollenbach'v. Bloomenthal. (1930) 341 I. .539, 173

'N.E. 670, 672; Tavani uv. Swift & Co. (1948) 262 Pa.

18+, 105 Atl. 35, 56; Rie hards v. Oregon Short Ling B.

)

Co. 1912) 41 Utah 99, 123 Pac 933, 937; Ryder v. Kint-

vey (1895) 62 Minn. 85, 64 NW. 94, 95. The uncontra-

dicted evidence in this case is that fluorides escape from

“all aluminum reduction plants and that this is the kind

of occurrence “which commonly occurs without negli-

sence on the part of anyone.” This conclusion is sup-

ported by the references jn the record to aluminum

reduction. plants throughout the United States and

Furope andby. the reference to the Troutdale plant in

Arridson.-et al, v. Reynolds Metals ( ‘ompany,, WD.

Wash, S.D., 1954) 125 F. Supp. 481; affirmed per

curiam (CA 9.1950) 230 FL 2d 224: cert. den. (1997)

352 U.S. 968, 1 Le Ed. 2d 32 3. Where Judge George H.

Boldt, in denying damages for alleged injuries to cattle

for the period 19-48 to 1953, stated (pp. 482-483):

“* "In both plants aluminum is produced by —

processes which unavoidably cause gases, fumes and

airborne particulates to be formed, some part of -

Which are discharged into the atmosphere from the

‘plant stacks. The effluence .contains fluorides in

some form and amount * * *,

“*.* * Whether the measures taken by defend-

ant to minimize the escape of fluorides from: its

plants are’ the maximum possible consistent with

practical operating requirements is yet to be deter-

mined, but apparently American industry has not

yet developed anything better.” (Emphasis added)

The evidence is also uncontradicted that the escape

of fluorides from the ‘Troutdale plant was an occurrence

er ae ae

_)- Which “could not have been avoided by the exer: ive

af all reasonable care” for the following’ reasons

(1) As noted, the manufacture. of aluminum

“unavoidably” causes fluorides to be formed.

(2) The fume control system installed by

petitioner before it cofmmenced operating the Trout. -

dale plant was “the then’ best developed washing

system,” “it was the best available” being used by

the industry, “at that time there was no better

control system in any other aluminum plant in the

United States” and there was no control system

vperating in any aluminum reduction plant with

F a higher operating efficiency (R. 440-4412 Too,

- 1278).

(3) The foregoing control system was replaced

: by a system.which captured 90 per cent-of the

fluorides otherwise escaping. The details concern:

ing the design and installation of this ~-cond svstem

have already been discussed. ‘No other aluminun.

plant in this country had or has such a system

CR, 1730). ae .

It follows, therefore, that the “inference of nexli

gence arising from the trial court's mistaken application

of the doctrine of res ipsa loquitur was not petanissible

in-these cases because. of petitioner's uncontradicted

evidence. Accordingly, it was incumbent upon the court

to direct verdicts in favor ot petitioner.

: LA

- | " * . .

The decision of said court that the scope of exomi-

nation before trial of two of respondents’ physicians

was properly limited is in conflict with the applicable

low of the State of Oregon.

Sub: after the commencement of these actions,

petitioner served Written interrogatories on each of

the respondenis, pursuant to Rule 33 of the Federal

Rules of Civil Procedure. ‘Those interrogatories were

duly answered (R. 8-13). Subsequently, petitioner took

‘each yespoude nt’s deposition pursuant to Rule 26 of

the Federal Rules of Civil. Procedure (R. 1902-2018».

It apy ‘ared from some i respondents” testimony

that Paul and Verla Martin had consulted Dr. Ralph

Hills and a Dr. Proctor, both of Johns Hopkins Hospital,

Baltimore, Maryland, in connection with their claimed

injuries (R. 1954-6, 1998-9, 2001-2. 2004- 6. Apparently

Paula Martin Yturbide had consulted neither doctor

R. 1920), : :

Petitioner thereafter sought to take the depositions

of Doctors Hills and Proctor. Respondents moved under

Rule 0 Cb? of the Federal Rules of Civil Procedure to

have the de ‘positions canceled, or, alternatively. to have

themecope of examination limited to matters not privi-

led The Court held that information possessed by

Dr Hills and Dr, Proc tor was privileged under Oregon

law and that the privilege had not been waived. There.

~ fore, it excluded from the scope of examination any

privileged matters (No. 14,991 and No. 14, 992, R. 14 21.

7h) 2e |

‘Petitioner opposed the motion on the ground that

Mr. and Mrs. Martin had previously waived their privi-

‘lege with respect to such information; that they had

voluntarily. opened the subject of their physical Con:

dition by disclosing their consultations with numerou:

physicians, including Dr. Hills and Dr. Proctor, and |

by cataloguing the alleged injuries and symptom:

which prompted these consultations.

A. Respondents Paul Martin and Verla Martin waived

their privilege to object to the examination of Doc-

tors Hills and Proctor.

Prior to the respondents’ motion, Paul Martin had

fully testified concerning his physical condition.: In

answer to Defendant's Interrogatories Numbers ¥ and

6 (No. 14,992, R..11), and in his deposition (R. 1983-4 :

he had described all his large catalog .of symptoms ani

_» alleged injuries.

Rule 26 (b) of the Federal Rules of Civil Procedur

permits examination of the deponent regarding “an

matter, not privileged,” which is relevant to the subjec-

matter of the action. Because the law of the state i.

“which a federal court sits decides What matter is privi-

~ leged, the United States District Court correctly referred

to. Oregon law, The Oregon statute provides:

ORS MOND (dy

“A regular physician or surgeon shall not, with-

out the consent of his patient, be examined in a civil

action, suit or proceeding, as to any information

acquired in attending the patient, which was neces-

sary to: enable him to prescribe or act for the pa-

tient.”

° : Pi ‘ ° | 4

cae)

a .

Of course, the, federal courts also look to state law to

determine whether a party has waived his privilege,

Enel v. Aetna Life Ins. Co. (CCA 2, 1943) 139 F. 2d

169, +70; Munzer v. Swe dish . American Line (S.D.N. Y.,

1940) 35 F. Supp. 493.»

‘

The Oregon statute relating to Waiver provides: .

ORS AA.OAD (2) Shae Mr, .

“If a party to the action, suit or proceeding

offers hifnself as a Witness, it is deemed a consent’

to the @x amination also of a * * * physician or

surgeon on the ON.

Tn Forrest 2, Portland Ry., Le & 2P. Co. (1013). 64

Or. 240, 129 Pac, 1048, the’ Supreme Court of Oregon

: considered at ‘length the application of this provision

e °

- 0”

i a personal injury. action. All the facts had bee:

stipulated except the damages.

Plaintiff testified to consultation with a Dr. Marsh,

who was thereafter called as a witness by defendant ‘

Plaintiff asserted her privilege, and the trial court

barred Dr. Marsh from testifying, according to an offer |

of proof, to his negauve diagnosis in plaintiff's Case

That ruling Was the sole ground of appeal. The Oregon:

Supreme ( ‘ourt reversed the judgment for the plamtifi,

holding that. plaintiff had Waived her privilege.” The

Court held that the Oregon statute 6n waiver

“gives legislative sanction to the. comnfon-senw -

reason that if a party of his own accord shall with--

draw the privileged veil of privacy which, for his

_ OWN protection; the law has placed around the rela-

_4 ~ tion of physician. and patient, the whole matter i:

thereby ‘set at large. * *.* The subject under cor-.

sideration as stated in the complaint and about

Which the plaintiff spoke herself as a witness we

her physical condition, including a displacement

Gf her uterus and injuries to her nervous sy lem

When she testified on that Subject, under the -pro-

isions-of Section 734, L. O. L. [now ORS 44.040 (2).

supra!, she consented to the examination of her

physician. or surgeon on the same subject” (124

Pac, 1050), | to 8

The Court of Appeals was bound to apply the law

of Oregon, thus formulated by the state's highest court

. Phe Martins’ depositions were “testimony,” and. a

deponents, they were “witnesses.” Rule 30 ¢.

Federal Rules of Civil Procedure. They certainly could

have raised the privilege by ‘objecting to defendant’ s

iiterrogatori les or to the examination on deposition.

Vunzer ov. Swedish American Line (S.D. NY. 19 H))

33K. Supp. 49 3,

x :

However, in its opinion of April 24, 1957, the Court.

ol Appeals concluded that re spondents Paul Martin and —

Verla Martin-had not “6ffered” themselves as witnesses

Within the meaning of the Jipiamens of ORS +4. O40 ( 2)

infra, p. 9b):

“That is.te say, the district court held it is the

law of Oregongthat (in) merely answering a ques-

tion from her opponent which she might. have

avoided, {she | sti]k remains the appellant's witness

amd does not constitute an offering of ‘herself as

a Witness.” : |

The striking fact is that of necessity this will be

true in-every personal injury action, By definition, the

. interrogatories are- propounded by the defendant, and

it will invariably ‘be the defendant wholavantts. to-take

the plaintiff's deposition In effect, therefore, the court

Fuled that a plaintiff in a personal injury action can

Hever Waive this pr ivilege in the course.of the normal

discovery: procedure. prec eding trial.

This point has hovn settled ina fede md Case indis-

linguishable fre m the cases at bar. Where the plaintiff,.

. .

in answering interrogatories, revealed a condition of

mental disease. Later she objected when defendant

sought the records of an institution in which she had

been confined. The court held her privilege waived even

though. the waiver statute provided that the privilege

must be “expressly waived.” Munzer v. Swedish | \mer.

_tean Line (S.D..N.¥., 19409 35°F. Supp. +93, 497. 40s

In its opinion of June 5, 1958, the Court reaffirmed

‘its conclusion that respondents “had not offered” thém-

selves as witnesses (infra, pp. 123-128). The Court als:

stated as follows (infra, p. 127):, ° : |

“At the time of the trial these witnesses ‘did offer

themselves as witnesses and at that time waived

. their privilege. At that time Drs. Hills and Proctor

-+ would have been proper witnesses. They were not

then ‘called, nor was the court‘at any time during

the three weeks’ trial asked for a continuance or at

order modifying its earlier limitation ta permitat

the. time an enlarged inquiry on deposition to be

made of Drs. Hills and Proctor. Before the court

could be put in error in respect to the taking of the

testimony of these doctors, defendant must’ have

“asked to take the testimony after the privilege had

‘ Le

been waived.” .

This statement is best answered by the reniarks of Judge .

Chambers. who dissented on this point (infra, pp. 12°

130):

‘Here I think we do an injustice when we sal

to the defendant, During the course of trial vou

should have renewed your request to take the doc-

tors’ deposition: that is: have stopped the trial to do

it. Ordinarily, that would be a useless right. With

a jury one does not want -to stop the main show to

run off to a side show in Maryland. That has many

_perils, not*the least.of which is the urgency of courts

to get on with their business. | would let a plaintiff

restrict the taking of testimony on depositions at his

own risk, if he should later offer to testify in the

restricted area. And, as a trial judge. | would think

it plaintiff's. error, not mine,”

B. The errot was prejudicial to petitioner.

It is obvious that petitioner Was prejudiced in being

“fited in its examination of Drs: Hills and Proctor. The

existence, cause and extent of respondents’ alleged in-

juries were directly in issue. A major part of: the trial

Was devated to the tesgmony of experts bearing on

responderits’ physical co@dition. Petitioner was entitled |

to the full benefit of the federal discovery procedure in.

making its case on these crucial issues,

Apart from the question of privilege, it Was a proper

case for discovery. By testifying that they had consulted

Dr. Hills and Dr. Proctor with. reference to the injuries

in suit, respondents Paul and Verla Martin bore witness

that the information in the doctors’ handsawas “relevant

— to the-subjectematter™ of the action within the meaning

_ of Rule 26°(b) of the Federal, Rules of Civil Procedure.

There was much to indicate that information pos-

sessed by Dr. Hills and Dr. Proctor would have heeiy

valuable in assessing ‘respondents’ true state ae health.

It is, in fact, significant that respondents called neither

doctor as‘a witness during the trial. The Martins under- :

went a thorough check-up in the Johns Hopkins Hospital;

under the supervision of Dr. Hills. All the doctors who

examined ‘the respondents reported their findings to.

him. He also made his own ‘general physical examina-

tion of. the Martins (R. 1935, 2005), Yet petitioner Was

. unable to ask Dr. Hills his diagnosis, the results: of tests

run at Johns Hopkins or his opinion of the cause. of re-

spondents’ ailments, if any.

s ‘Similarly, Paul Martin testified that Dr. Pr octor was

a nasal specialist to whom he was referred by Dr. Hills.

Dr, Proctor made an examination of his nasal condition

eer

and operated on his sinuses (R. 2006).: Paul Martin

claimed aggravation of sinus condition as one of his.

_ injugjes, and he voluntarily disclosed Dr. Proctor’s sur-

gery. Yet petitioner was ‘barred from discovering from

Dr, Proctor ‘his analy sis of Paul Martin’s condition and

its causes. — et

C onsideri ‘ing the importance Sf medic al issues at the

" trial, the assured relevancy of the information withheld

_ and its indicated importance, the order of the District

‘Court prejudicially affected substantial rights of ‘the

petitioner. : . a ake

| The decision of said court that the claims of respond-

- ents Paul Martin and Verla Martin were not subject to

the two-year statute of limitations of the State of Ore-

gon is in conflict with the applicable law of the State

of Oregon.

A. The actions of Paul and Verla Martin were subject

- . to the Oregon two-year statute of limitations.

- The District Court was bound to apply the Oregon

statute of limitatidns and the éonstructions plated there-’

on by the Oregon courts. Ragan rv. Merchants Transfer & -

Warehouse Compariy (1949) (337 U.S. 330, 69 . Ct.

1233.93 1, Ed. 1520; ¢ suaranty Trust ( ‘Company v. York

1945) 326 U.S. 99, 65 Sup. Ct. 1464, 89 L. Ed. 2079,

The two-year Oregon statute of limitations governs - -

these actions, °

ORS 12.010

o : . Ss .

“Actions at law shall only be commenced within

the periods prescribed in this chapter, after the cause

"of action shall have accrued, except where a differ-

ent limitation is prescribed by statute.” z

ORS 2116

_ “An action * * *ferany injury to thé person or

rights of another, not arising on-contract, and not

especially enumerated a a chapter, shall be com-

enced within two year$; * #7? -

st e — é , v * .

‘ 6 ‘ F

« ees iy a .

, BS No- -jury’ question - _was involved in determining

whether the actions were barred. pele Les ae

7 a filed t these actions « on June 7. 1952

i in his eu that by the end of eae he had

“ac quired, all the 14 symptoms he claimed (R: 1984-93. —

“except A lui i in his breast, which he said appeared oniy P

two monthebetore his deposition was taken (R; 1994- 3

He eonfirmed this testimony on the witness stand R

at . 673-4, 710).

~» 4

Similarly, Verta Martin. testified that ‘by - 1948 she.

| had acquired all 12 2 of the symptoms liste@in her deposi ,

. tion (R.- 1934), except face lesions, w hich she said ap “

peared only two months before her deposition was taken

(R. ‘1939-40), This. testimony also was confirmed at

csbsauk bits.) Cae Cee nea a -

moos. Because: it appeared: athat up to “the time her com

‘ plaint was filed Paula Martin Ytur bide was é minor as

~ to whom the limitations periéd did not rung petitione:

did not m@gve fer a directed verdict against her on this

0 A : ‘ a,

—srounc . ee, ; ;

7 As ‘to Paul and Verla Martin, however; petitionter

}e _ asserted as the first ground of its motion for a directed

- erdiet {hat their c laims were parred by the stahute of

3 ; ie ri

> . P : ‘ i 7 \ .

Sak ow it: ; o ‘ me a\

Piety ° Soe

e oe —: & .

+4 ae °

himitations asa matter of law « R. 957, 1862 3). . The Dis-

trite ‘durt de nied petitioner's fiotion® on this ground,

holding that, asjury question Was presented (R. 959,

- ae ‘e

With one eyception, every question presented ‘by °.

pSitioner’s argument’ Was.a legal? and not a factual,

one. W hat Was the applicable statute? U ‘pon wi oc.

curren e did the zed causes af-action aecrue and

the, .Jimitations period” begin to run? Those questions

were. clearly’ legal questions for the Court.

. ¢ ; at

2 Petitioner: contended. ‘that the claims acerued when

‘the Martins had become aware of their sy mptoms. The -

onl factual’ question was when that had occurred. And Se

this, though it was.a factual issue, w as not. a.jury ques-

tion ‘in this case. Theré Was_ no evidence of any ‘kind

from ww Hfch a juror could’ have reached any conc lusion

’ > *

except that-the Martins had become aware of their con-

dition during | 1948. The onky relevaiit evidence any-

Where in, the record is the Martins’ ‘own testimony. Un-

Mer these circumstances e-single fact involved: Was

& > \ ; oe ¥

‘established asa matte r ng law. | n. era oe

A . %

0 Petitioner sought to testa legal theors y. lf the motion

os yas erroneous in law, it was for the Court to say so. It’

“could not abdicate that decision to the j jury, and it erred

in passing off a clear-cut controversy of law asa non-

ssiteyseispute of fact. aires

i 4 . : ° :

i . : . p.

< The otieged causes of pore accrued more than two

". . years prior to suit when respondents first became

o #3’ aware ‘of their symptoms.

An action for personal injuries sulfered through the

continued inhalation of vapors. and gases must be

brought within two years, after the cause of actior

accrues. The cause of action accrues when the injured

person first. becomes aware of his pathological svimp-

’ toms, whether or not he then realizes the full extent

of his injuries.

et : re

In Piukkula v. Pillsbury Astoria Flouring Mills Co

(1935) 150 Or. 304, 42 P. 2d 921, reRearing”denie:

(1935) 150 Or. 304, +4 P. 2d 162, the plaintiffs were

the widow and minor son of John Piukkula, who had:

‘ alleg edly died of an occupational disease contracted.

Ww hile in defendant's employ, through continued inhe

lation of flour dust in deferidant’ s plant. The plaintiff: |

* cause of action for death was held to be maintainable

only if Piukkula-‘had had a cause of action again

defendant at the _ of his death. He had rio cause ©

ae tion, the defendant contended, because he was barre’

ag by ithe, Oregon two-y ear statute of limitations.. Piukkul

hadyin fact. instituted an action on June 8, 1933. Hence. !

| the dec isive/question’ was whether his cause of ac tion

had accrued more than two years prior to that fate

The Oregon Supreme Court, through. Fudge Ross-

- guian. posed the question as follows:

- “We come now to the problem of determining

when Piukkula’s cause of action accrued: August

28. 1929, when he entered defendant's forbes. ¢

September 17, 1930, when he experienced difficulty

in breathing: January, 1931, when he, for the last

~ time, worked for the defendant: or January 22, 1933,

when he, for the first-time, realized the extent and

seriousness of his ailment?” (42 P. 2d 927)

. Plaintiffs argued for the fast date, January 22. 1933,

contending that “when the injury takes the form, of an

occupational disease ‘the statute of limitations does not

begin to run until the workman’s condition of health. —

_. becomes so serious that he realizes the extent of his |

disease’ (42 P, 20 927). | ,

x The Court rejected this theory and held that Pink-

kula’s action. had been barred. Itsconcluded that on

September 17, 1930, wher Piukkula became aware of

- the svmptoms of his injury, his cause of action accrued:

and the limitatiéns period began to run. The ‘Court

said:

. ~The plaintiff does not. charge that the defendant

in any way concealed anything cencerning the

purported ailment. We are not called upon to deter-

mine the precise moment when the tortious: act

* occurred. The complaint alleges that on September

17, 1930, more than two vears before Piukkula filed

. |: : ae

his complaint, he experienced difficulty in breathin,

and. upon the advicg of a physician, left the defend

ant’s employ to pursue other work in the out-ot

doors. Tf the defendant was responsible for the ai!

ment of which Piukkula was then, suffering. the

ailment had already achieved substantial propor

tions and had inflicted upon, him an appreciable

injury. In other words, at that time, if the averment:

of the complaint are true, the defendant had

breached a duty which it-owed to Piukkula and th

breach of the duty had resulted in an injury t

him of which he was agtually aware. It is evident

from the foregoing that the application of the afore.

mentioned principles requires a conclusion that the

September 17,1930" (42 P. 2d 929), :

Applying the-court’s. language to the cases, of Pau!

and Verla Martin, the only possible. conclusion is tha!

their suits were barred. By their own testimony, in 1948.

more than two: years before tHe filing of their com-

plaints, they had experienced all of the:sympiomis sum:

narized above. If the petitioner was responsible for the

ailments from which they were then allegedly sui:

fering, according to their own testimony those ailments

-hadealready “achieved substantial proportions and had

inflicted upon them an apprecjable injury.” Theretore.

their alleged causes of action accrued, and the limita:

tions period began to run, not later than’ the’ ‘end o!

1948. Because their complaints were. not. filed until a

January 7, 1952, they were not filed ‘within the two-

limitation period began to operate not later thay

. ; 4* fyi

"é 4, : |

year limitations pé odd. Henoe: the claims of Paul and

Verla Marti, “aige’ didcred: “by the applic abile Oregon

statute of limitaibns as a matter of law. @

(In ifs opinioii of junk 9 1958, the Court ‘bf peeren

thought that the Piukkula Case, supra, was * siicee cuir

able from the present’ one ” infra. p. 122) because there

Piukkula’ i's exposure. had ceased more than two vears

pr lor to the Commencement of the action, whereas he re

, respondents had “been exposed to the condition com

plained of during a portion of the two- year period im-

mediately prec eding the filing of their actions. T his dis-

tinction fs clearly irrelevant. The vidane ion established

. bythe Oregon Supreme Court in the Piukkula cases su-

pra. for application to situations such as the instant one is

When does the injured person become “actually. aware”

of the symptoms of his injury? At-such time. the statute.

of limitations commences to run. If the position of the

Court of Appeals is sound, respondents could have con-

tinued to live in the area near petitioner's plant indef-

| “ ,

initely, for a’ period even running into ‘years, and the

statute of limitations would not commence to run until

“they moved from the area or until the plant ceased

“operating permanently. Thus. if respondents remained

_in-the area until 1968 and the plant operated during

“this” per iod. the statute of. limitatioris would continue

torununtil 1968 even though the symptoms c omplained

of were apparent x0 vears befor e.

()2

The Court of Appeals also reached the conclusion

_ that these actions were controlled by the rule laid dow),

in two later Oregon cases (infra, pp. 122-124):

-. “We think that that case is distinguishable from _-_

the present one, which would appear to be coyered

by the rule laid down in the later cases of Shives\

Chamberlain, 108 Or. 676, 126 P. 2d 28, and Hate!

ling v. Walther, 169 Or. 559, 130 P..2d 944. ‘Thow

were cases in which the plaintiff sought recovery

for medical malpractice becauS® of the alleged negli:

gent treatment of the patient. In each case the

treatment continued for a long period of time. |:

was held that the statute-did not begin to run until

the treatment was discontinued. In the first of thev

cases the court said: “This continued treatment. ..

constituted a continuing tort causing the statute of

limitations to start only “when such. treatment

ceased.” (126 P. 2d 31) In the second case it wa:

said: “The alleged negligent treatment of the plaiv-

tiff must be «considered as a whole. Plaintiff wa:

not obliged to split his cause of action. The continued

negligent treatment constituted but a single cau

«of action. Where the tort is continuing, the. right o!

action is continuing. |. . : The rule that the stat:

ute runs-from the last date of the continuous negli:

gent treatment is just and equitable.’ * (1.30 P. 2

O40 ) Cae

‘The rule derived from these two cases is not appli:

cable to respondents’ claims. In both, the Court noted

that the limitations period would usually begin to run

from the date the original harm was done. But the plain:

tiff could not be expected to file suit so long as lit

‘

’

thought the. defendant physician Was-treating him and

undoing the ‘harm that had been done. On that basis

only, the ‘Court was willing to postpong! the running

of the statute until the treatment ceased and plaintiff—-—-

‘could no longer expect the defendant to cure him. The |

court created a limited exception applicable only in the.

.malpractiee actions where it had its birth, and certainly

of no relevance here.

: Ot:

_ CONCLUSION »

ec . Wherefore. in light_of the-vital nipoitanice to the |

public and industry in general ‘of the issues here pre

sented, the serious errors of law which petitioner be-

lieves to have been-committed and the essential conflict.’

between the views of the Court of Appeals as expressed

in these cases with the applicable_law of the State of |

Oregon, n, petitioner respéctfully urges and _prays that ~

~ this’ petition for a writ of certiorari to the Court of

Appeals’for the Ninth Circuit be granted.

Respectfully. submitted,

King, Miller, hailietins,.

_ Nash & Yerke * ¢: ca

Fredric A. Yerke, Jr.

. Clifford N. Carlsen, Jr.

1200 American Bank Building

ee 5, Oregon | .. KO

Attorneys for \ psig

_ Joseph H. McConnell

Gustav B. Margraf

’W. Tobin Lennon.

Reynolds mee Building eet Pees.

Richmond. 18, Virginia Plead a

Of. Counsel for Petitioner

not help but be struck by the fact that the so-called

ae APPENDIX

Part I _

~ PAULA MARTIN, By and Through ARTHUR H. LEWIS, |

her guardian ad litem, Plaintiff,

“tf Vv.

REYNOLDS METALS COMPANY, Defendant

VERLA MARTIN, Plaintiff, es

REYNOLDS METALS COMPANY, Defendon

PAUL MARTIN, Plaintiff, ; ie rer

REYNOLDS METALS COMPANY, Defendant :

Civ. Nos. 6278-6280.

‘United States District Court

‘ie ‘ D. Oregon. |

July 7, 1952.

< EAST, District Judge.

This matter. coming to the Court upon a motion for

a direc ted verdict it is not the function of the Court/to

we ‘igh, the evidence. We must look at the evidence before

us in the most favorable light to the plaintifts and deter-

mine w hether or not from that evidence, adowing. all

ae inferenc in that flow therefrom, reasonable’ men could,

reach a different conc lusion.

Beari ing: in meee in these three cases the i injury com-

plained of. is that of a per sonal injury as distinguished .

from injury to real or personal property, the Court can-

hb \ ;

doctrine of Rylands v. Fletc her! or the sites liabilix,

and. ultra hazardous condition theori ies of liability ger,

erally refer. to trespass on property as distinguishe’

from: person. There is one eerepeen where this theor?

Oregon. There a .peggonal injury resulted but none «

the mentioned theories of Robbing. were adopted. Ther:

_ is one other factor that the Court wants to point put. and

that isin the major itv of these cases where str ict liabilits

as such is imposed, there is an appar injury either t

property or to per son, a catastrophe of some nature hia: :

. ha pened,

An the Ure agai the United States ‘fone! that Judy.

Fee had, there was obvi ious dnenane to property ‘Dy ree-

son of the flooding.of it. Here we have an alleged injury

Which is denied in its entirety, so, first of all, the jury

has the question of fact of whether or not ari injury did

occur, so that complicates opt search somew hat,, but

analyzing it we find simply ‘this:”

‘

of Hability* is discussed and that is the Suko case? jy

We have a situation where each of the plaintiffs °

claims that he received personal inijury by reason at

receiving into his system certain fluorine compounds

which they claini originated Within the plant of the

a \ e

1. L.R. 1 Ex. Ch. 265, affirmed Fletcher*¥. Rylands (1868) L.S. 3 HLL. 33

2. Suko v. Northwestern Ice & Cold Storage Co., 166 Or. 557, 113 P.2d 20%

3. Ure v. United States (White v. United States), D.C.Or., 93 E.Supp.. 77

defendant, became airborne ‘3 were deposited upor

the lands upon me they, worked and lived, in turn

contaminating ‘the air abot. them and the. foods pee

duced on their land. ’

The defe ndaitt i is engaged i ina perfectly legal use of

its pp Jerky, conducting thereon a recognized industry, .

nanighyan aluminum reduction. plant. It is stipulated

\ by: the Ip ties shat in the course of | defendant? s legiti-

‘lates emanate intothe atmosphwre, from said plant, con-

7 wag dean. va

, sjsting c primarify of hy drogen fludride, cryplite, calcium

s fluoride,” ion fluer ide: and siliagn tetra

~ are in the’ form of gases, liquids and solids and.are im-

uoride, w hich

j mediately diffused into. Me’ air, and that portions thereof

- have settled: at vata nines upon the lands occupied

by the plaintiffs. Furthermare, it is agreed by all the

experts who appeared here that the majority of these

compounds are toxic or poisonous, but the debate bes

tween the experts and the question, the j jury is going to

have to determine, is at what point or quantity-do these:

compounds become poisonous or are likely to become

poisonous and harmful to. humans. It is a magter of

* quantity or degr ee as they point out.

‘ Plaintiffs contend that a sufficient quantity was

-deposited on their lands to. cause. them injury. The.

defendant denies that any such quantity did occur and

further. deniesthat they would receive the i injury which

they claim herein it it had been so.

Lw~

mate use’ of itsp ty, that gases, fumes and particu-e -

° 7

Now. Gant we say, in the face of these facts, ‘that the

defendant is nec a engaged in a business which

diffuses into the air poisonous objects such as we ordi.

narily: refer to, poisonous matters that are inherentls

;Mangerous to human beings? ae git

In trying to determine under shia theory of lia

bility, if any, this complex question of fact is to be

. submitted to the jury, we can only look to the authority

we have in Or egen for guidance. We think the Oregon

law is sufficient? sto guide us:

Let us first ‘turn our attention to Judge Fee's .dec:

sion in Ure v. United States, supra. Bear in mind the’

there the defendant was maintaining: an ‘irrigation |

canal which. the Court pointed out, had a certain rate

- of flow and a certain quantity of water and that if the

_ dike br dke it was bound to flow upon the land adjacer’

to the canal and particularly -as it did when the cana.

bank _broké, ‘upon the lands of the plaintiff. The Cour

vent fully into this question of strict, liability and re

siewed all ‘the Oregon cases that bore upon it alt

ultimately Judge Fee reaches t the conclusion . that it

that particular case he did not have to determine w hic!

theory of liability was applicable, but. determines 13

F. Supp. 791) ** * “thisisa trespass | for which liabilit:

ialiga ai turlicidn law and under the Oregon deci:

sions.” ke eerie e

.¢ 09 .

“The defendant was. handling a highly” dan-

gerous instrumentality in a position where the lands

of plaintiffs were peculiarly -exposed to peril, and.

was bound to exercise a degree of care proportionate.

to the injuries likely to result to others if the-ditch

did not hold the stream.,When plaintiffs ‘proved

_. the collapse of the wall of the canal and the injuries

suffered by him, he made out a prima facie case of

negligence. “A very high degree of danger calls for. -

avery high degree of care,which, however, amounts’

to no more than ordinary care in such a case.’ ”’

And there he lays emphasis upon the doctrine of. the

Suko case, supra: Now let us analyze the Suko. case.

Recall in that case that defendant was engaged in

a perfectly lawful enterprise of ‘maintaining upon its

roof a water tank. You can look across the skyline and

see many of them. The tank burst and dropped a large -

quantity of water upon the plaintiff and adjoining land

and he was personally injuréd. There it is hard to find

any distinction between’ that case .and the situation

presented in Ure ¥. United States, The plaintiff is iin-

jured by water.when jt is in such quantity that it is in

—an inherently dangerous form. We do not quarrel

. with the pfoposition that an irrigation canal up-above

the land. if it broke would certainly damage plaintiff's

land, and most certainly if-a water tank of the propor:

tans involved in the Swko case, burst and dumped its |

Whole load upon an individual some stories down that

person was going to be injured,

Dig ere OE ;

‘i . ; a * . al ’ \ : * ’

But the Oregon Supreme Court, in the’Suke case, did

‘not adopt the so-called Rylands doctrine. They adopted

the pure and simple rule of negligence with the.test or

f} . 8 : , ee

measure of ordinary due care and gave plaintiff the.

benefit and evidentiary aid of the so-called doctrine

: , ¢ . ; on

of res ipsa loquitur. Here was. an instrumentalit® that

Was in the exclusive. pgssession .and control of the fle. 4

fendant. Something thaterdinarily we would not expect

to happen did happen and damage resulted. This is the

pure and simple test as the Court sees it, of res ips

loquitur*; ae ;

- What do we have in-our instant case? We have a .

defendant engaged in a perfectly legitimate and legal -

business, that, of making aluminum. In ¢he -course oi

making that metal, there are, by reason of. the electro: -

‘lysis that is involved in the process, certain compounds

developed, which by the action of the elements escape

end are dispersed up ) a acent lands unless some type

of control or collection is used. The evidence of the case

tie ; . mm

shows a large quantity of fluorine solids or compound:

‘escaped from the plant which had to be. deposited on

. . . ree ! e,0 . ey. 7 .

adjoining lands. These quantities diminished avith instal-

iets : "3 . :

+. “These instructions ta our “dpinion violated one of tlie fundanfental cond:

' ‘Uons permitting the application of the rule of res ‘ipsa loquitur, That rub.

amongst other ‘things, is prédicated upon the condition that the agency

which has produced an injury is within the exclusive posession, control, an

oversight of the person charged with negligence whence, legignately. flows

the inference ‘that, if there is any explanation of the accident consistet!

with freedom from negligence, he ou to be able to give that explanation

** *." Asheim v. Fahey./170 Or. 336, at page 343. 133 P.2d 246. at pag’

1,145 A.L.R.2d 861. + A Ne :

;

ef . aE.

lation of increasing efficiency of controls, During the.

time involved in’ this case two systems Of control «

- retention within the plant area of said compounds were

a installed by the defendant.

Now: it develops to this point: If it is found by the

try that these fluorine compounds. did leave the plant «

_ of the deféndaht and-did become deposited on plaintiffs’

> lands to such ah extent that. they did receive into their

"systems these. compounds and did become poisoned

thereby and did suffer a personal’ injtity, then that is

1 a finding of the jury that relates back toa ‘causation

‘cumied by the defendant and ar ising walaly from its ex-

Clusive controt aNd possession of the plant. At this state |

of the case, there being. no exculpator y ‘explanation of

* ‘how it, happened ithse s to this Court that_it falls

Na directI$. within ‘the res ipsa loquitur doctrine which is

quoted ‘very simply in ‘this statement from the Suko

ase. supra * * *.if we would just paraphrase the. lan-

guage, and I will make an attempt to do so.5 When the

~ plaintiff proved the emanation of fluorine compounds

s from the plant of the defendant and the i injury suffered

by him asa result thereot, he.made out a prima- facie

3 “W uc, the plaintiff proved the célla of the tank and the injuries ssifteried

by lam.as a result thereof, he made a°prima facie case of ‘negligence on

thy part of tht defendant. So far as we have been able to ascertain from*

F record, ng attentpt was made by the defendant to prove the cause of

o _. the bursting of the tank. ‘Its effort was go, show only that it was not at fault.

‘It was a question for the jury, with. all\the evidence before it, whether the

' .* preponderance of such evidence was in favor of ‘the plaintiff.” Suko. supra, p

i ote Or Bs pages 567568, 1S P.2d at page. 214.

> -@

7 dhe evidence these existing facts which are claimed and —

. 4

case of negligence on the par ‘ of the defendant. So far

as Lam able to ascertain from the record no attempt has

~ been made by the defendant to prove the cause of the

emanation ‘or the escaping of the fluorine compounds

so. it is a question for’the jury with all the ev idence

before it whether a prep id rance, of such ey idence

is in favor of the plaintiff.

"Without belaboring the matter any further, it is

“my jhought t at if and when the plaintiff ha proved

to the satisfaétion of*the jury by a preponderance of

outlined, then a prima-facie case of gnegligance is pre-

sented’ That being so, it is an inference that the jury

can take into consideratiori together with all the other

‘evidence in the case in determining whether or not

the defendant Was negligent, and it thereupon became

to show that it was not negligent.

. F . ]

The burden of proof never at any time shifts, it still

being upon the plaintiffs. Nevertheless it would be for

-. the jury.to'weigh:such. evidence as the defendant bring:

forward in connection with explaining the inference

of negligence and to make an ultimate determination

. of where the evidence preponderates, so with that i

mind the matter will be submitted . to the jury on the

theory of negligencyit any, | and" the lack of ‘ordinary

| 2y

;

the duty of the defendant toccome fotward with evidence’ -

. | ; 73

due care and caution on-the part of the defendant with

the aid ine favor of the plaintiff of the rule of res ipsa

loquitur as I understand it-expressed here. With that in

-. mind the motion for directed verdict on the second

| ground will also be denied.

————

. ‘

. oa

5 ‘

7 ~-

ef -

‘

s®

4 o

‘

°° :

' >

”

y ‘

° | e

)

| | ‘Part

UNITED STATES COURT OF APPEALS >

FOR THE NINTH CIRCUIT

REYNOLDS | METALS COMPANY;

Appellan

) < 1900

| Apr. 2+, 1957

)

vs.

PAULA MARTIN YTURBIDE,

Appeal, from the United States District Court

for the District of Oregon —

Before: DE NMAN, Chie f Judge and POPE and.

CHAMBERS, Circuit Judges

DE NMAN, Chief Judge:

Appellant, hereafter Metals Co., appeals from a

judgment of the United Statgs District Court of Oregon

ina diversity suit awarding damages to’ Paula Martin

Yturbide! for bodily _ injuries suffered by her from

wisonous fluoride ases released in the air by Met als

— Co.'s aluminum plant in its process of. reducing alum: °

num by clectroly sis from aluminum oxide. The =

_ is located about one and a half miles fr oma farm, called

Troutdale, where Paula resided with her parents, Paul

Martin and Verla Martin, during the period from Sep-

tember, 19+6, until November, 1950, while the: gases

were befng emitted by a practic aa continuous opera

tion of the —

-- ame “—--—— . .

1. The suit was commenced by Paula Martin, a minor, r, by her eure ad

litem. Before the trial she became of legal age and prosecuted the s¥yt on

her own. :

—

Few ve

Metals Co. makes various contentions of error by the:

trial-court. Its Point [is that the evidence does not sup-

port an inference of negligence. by the jury because

“A. The appellant used the greatest possible care in’

minimizing the emission of fluorides. B. No injury to

human beings frogn the amounts of fluoride emitted was

; remotely foreseeable. C. In the absence of foreseeabilgty

of any injury through emission of fluorides, as a matter

of law there was no negligence.”

. ‘ . : ‘ } ‘ ‘ 7 -

The testimony of Mr. Zeh, chief chemist and control

. engineer of Metals Co, is that when the company took

oyer the plant in 1946 it recognized the danger from the

toxic effect of ‘the fluoride gases and installed a system

of sprays of water. into the heated gases arising from

the electrolic treatment of the ore. When they ‘began

operating, even with these sprays, 40% of the gases

escaped into the air. As will be seen, this +0°% amounted

to very large figures of this poisonous material poured

‘into the air.

The toxic gases arise from some 128 large pots 18

fect long, 6 feet w ide and 2 2 feet deep. The total surface

area of the pots is 13, 824 square feet. Metals Co. does.

not claim that any other aluminum plant in the world

is as large. Each. pot normally contains 7,200 pounds —

... Of fluorides. in molten condition, ata temperature in

excess of 1.740° Fahrenheit.. Fluoride compounds ema-

nate from the pots continuously. The materials added

to the pots each day to'retain the necessary quantity o!

fluorides for electralytie-purposes Contained an average

3 ° . ;

of five tons of fluorine.

+° ‘The gases, fumes and particulates being evolved

. from.the pots consist principally of hydrogen fluoridf,

sodium ‘aluminum fluoride, calcium fluoride, iron fluo-

ride and silicon tetra-fluoride; and are in the form o:

gases, liquids ‘and solids, and are immediately diffused

in the air and become air-borne ‘and portions settled.

down upon-the lands of the appellees.

The quantity of fluorides escaping from the reduc

tion plant during the pertinent period amounted to wel!

over a ton a day. The appellant company’s chief chemist.

and contro! engineer, Harold Zeh, testified that th

fluorine content of the fluorides escaping each. dav. fur

1947, was 2,845 pounds: for 1948, 2,840 pounds: for”

_ 1949, 2.040 pounds. oan cies

’

That the jury could infer that Metals Co. realtred

the danger from this daily tonnage of gasses so released

is apparent from the fact that during the entire tou

Years it maintained at its plant an extraordinarily lary

laboratory with what must be a very high salaried staff.

consisting of Mr. Zeh, Chief Chemist and Control Ex:

gineer: Mr. Hollis, Senior Chemist, and five analyst:

for. the. sole purpose of dealing with fluofide contami

nation. heir a- 7

~ ee

Mr. Hollis testified that at the time operation of the

Troutdale-pitant Commenced there were publications in

the literature known to himself and athers concerning

the danger of these. contaminations to human beings.

and that the company hack a libr ‘ary at the plant of such

literature with the medic al and veterinarian public a-

thors

Hollis also testified’ that: the poisonous gases would

bv absorbed inte the body itself of plants, with which

they came in contact in thy air. and also that the ground

would absorb the poisons and |hyus enter plant life as it

absorbed its nourishment fron «: earth. The Martin

. lami grew its own vegetables on their farm so exposed,

ch thus became contaminated.

The fluoride contamination committee, established

n 1946 a serie 's of stations called @ grid sy ‘stem to study

) such stations, 14 of them on the farm of the Martins.

By November, 1950, they had been increased to +5, later

to 50. The jury well could infer that the continued and

Jcreasing eg those many ‘Stations te determine the

toxic effeet, itdicated from the beginning a toxic con- —

‘dition so serious that the seven-man committee deemed

it necessary to continue and increase its grids:

Further supporting the contention of negligence is

the fact that not until the summer of 1950 did Metals

as ia :

Co. seek the additional control of the escape of the gase.

It then expended upwards of $2,000,000 tby which,

reduced the gas escape to-all but 10°. ot the amour:

created. There is nc showing that this reduc tion of wi

of the poisoris released could not have been done _

‘ much earlier date.

We, think that the Court did not err in denying P

my for a verdict for Metals Co. on the grounds abov

stated. The jury well could infer that the company full:

realized the danger to mammals. including the hima:

- mammal. of releasing the toxic gases andshence it ac te

negligently in so doing.

We think that the doctrine yf Fletcher vo Ryiand:

also applies. a °

In dese on y. Wattier. 24 ? Or. 7.115 1893 nthe Oregu:

. Supreme Court .said: ay ace

water either by overflow or percolation? In Fletche

v. Rvlands. L.R.3 HL. 330. Mr. Justice Blackburn. AL

the court of Exchequer Chamber, thus ilbastrates |

rule applicable in this case: “If a person brings. 0 °

accumulates. on his land: anvthirig which. ui 7.

should escape, may, cause’ damage to his neighbor. -

he does so at his peril” oe ake

“Will the plaintiff sustain damage from ac

In’ Sharkey \. Portland Gas Co... 74+ Or. B27 11

where a gas main operated by defesdant compar

% Ps) 79

beake, permitting the escape of gas Mnien injured the

trees of plaintiffs, the Supreme Court stated that “illumi-- -

naling gas is.a dangerous thing when it eludes Control.”

and imposed upon the defendant the duty to control . |

it, saving: TF os

% rh ;

. ¢ : we “s e

“Hf the facts ajleged-in the complaint in this

-action are proved As laid. a prima facie conclusion

of negligence would be imputed to thet defendant as

a matter of law bao ,

“W ithin the meaning of the precede nts. a Case

was made by the plaintiffs sufficient to go to the®

jury when they showed that the gas escaped and

that in consequence thereof, the ‘trees were killed.”

vt Or. at 332.

The rule continues to’ be: recognized in Orggon, Malle tt

«. Tavlor. 78 Or. 208 | 1915): See also Brown v. , essle ,

AST Or 503. 512 61951) and Judge Fée’s opinion in Use -

sv. United States, 93 F. Supp. 779.791 (D. Or. 19505.

{> \ppellant contends that: the court erred in the fol-

~ towing instructions to the. jury:

“In determining whether or not the plaintiffs’ in

these respective actions have met this burden of

proof, they are entitled to, and you miust consider, .

the rule or doctrine of the law of negligence, gen-

* erally referred to as res ipsa loquitur, which merely

Ine ans and is translated as. “The thing speaks for it-

self.” : ita °

]

’ 80

—~ZSWhatever other Oregon decisions may have said of thi

rule, the court's discussion oftits effect: miakes the in-

-struction not errongous. That statement is ‘as follows:

“Lhe plaintiffs’ burden, ‘od proving negligetice. i

any, on the part of the defendant.-by a prepoider.

ance ofevidence, is not changed. by this rule or dov.

trine just mentioned.

“It follows, therefore. that in order to hold the

defendant negligent, the inference of negligence re-

ferred to, if you find that that is.applicable, and am

other supporting evidence in the case must have

greater weight, more convincing force.in the minds

of you jurors than the opposing explanation offered

by the defendant to the effect that ‘the defendant

was not negligent. If such preponderance in plain:

tiffs’ favor exists, plaintiffs have established nezli-

gence on the part of the defendant: but if,it does not

exist, if the evidence preponderates in defendant’

favor, or if in your minds, there is an even balance

as betaveen the weight of the inference and any ‘up:

porting evidence, and the weight of contrary ev-

‘planation, neither having the more convincing

force, then the defendant cannot be found negligent

by vou.’ \

6 : \

~ ‘ \

The Met fls Co. further contends \that there ts ne

evidenc e from which the jury could infer Mrs. Yturbide

was harmed by her exposure as a resident, to the e

caped gases from, the plant. Ten experts testified regart:

ing ‘the character. of the gases. Five witnesses were i:

troduced on behalf, of Mrs. Yturbide, and at the same

time on behalf of her parents, the separate suits of each

“ONIN REITER —

einen anny S

ee Oe ee

St ea

‘of the three persons being consolidated for trial. All

these ten witnesses were heard viva voce by the jury.

and hence the verdict can be supported if any one of

the ten testified favor ably to Mrs. Yturbide. It is a as

the briefs of the appellant seem to suggest that we con-

sider de novo the: relative weight. of the physicians”

statements as between the. parties. .

There is. abundant eV enc c supporting the verdict

. ™

trom ‘one of her witnesses, Dr. Donald Hunter. internist

a“ physician at the London Hospital, London,

and, who has made a study of the diseases produced

~ by such Thuorides as camé from the Metals Co. plant.

These symptoms are those testified to by Mrs. Yturbide

“as follows: continued aching of the feet and legs. and

hack beginning in 1947 ‘and continuing, to the trial.

\fter two years on the ranch there came a “popping”

into her feet so loud that it was audible. She had very

severe abdominal gas and bloating. Her urine scalded

and burned her in passing. and she had to get up with

great frequency during the night t6 urinate. She had

trouble with her nése swelling so that she could hardly

breathe ‘and her ear ac hes. ‘with her ears becoming’

plugged up. Her hands perspired and swelled. If she sat

down for long she would go to sleep and was:always

tired. All of these svmptoms were present dy 1948. Dr.

’ Hunter described these svinptoms as being. — known

e-«

x2 .

to be caused’ by a-disease which he called subaeut

| : :

fluorosis. f

Dr. Hunter added the’ testimony concerning the |

phy sical effects of such poisonous. gases on material

objec ts with Ww hich they come in contact. He Was shown

apiece of the glass of a window of the Martin hous

facing the plant and stated that:

. this is precisely the etched glass window that.

I saw in Lincolnshire on an ironwork in England

when in 1946 a. family like the Martin family Was

overcome, with all the same symptoms as the Mar:

tins, which is not included in this monograph be.

cause it has nothing to do with the aluminum plant.

but the effluent was the same thing, hydrogen fluo-

ride and cryolite dust, aluminum fluoride, and ever

silico’ fluoride which are probably the worst of the

e lot; therefore, this accords with experience in other

countries of effluent from factories where fluorit:

compounds are allowed to contaminate the, atmo-

_: phere of places where people live.”’:

eater '

Doctor Richard Capps examined. Mrs. Yturbide fo:

a week during which she was hospitalized: There he -

discovered the symptoms discussed by Dr. Hunter, plu:

- athyroid enlargentent and a mottling of the teeth which

could be caused by fluorosis. THe doctor stated that the

total of these symptoms showed infection. by fluoros

and in answer tothe question, “Could all of these thing:

Doctor, that you have described be explained on the.

hap re on

basis of any other diagnosis? p stated, “Tf it is, I haven't

the slightest idea w hat it might be.” - _ +58

‘ea , ; e , ‘

Both the physicians stressed’ the fact that the symp-

toms of all three members of the family were practically

. identical. We think there was sufficient testimony for

the jury to infer that “the disease disclosed by. these

symptoms was caused by the releasé of the poisonous

gases from the plant. : ge tes

‘The Metals Co. contends that. the court erred. in ad-

mitting: evidence at the trial With respect to. damage to

cattle from the toxic gases being deposited on and im-

pregnating the vegétation they ate. We can see ‘no error

in introducing this analogy : of the effect on other mam-

- mals of the infected vegetation Ww here the s same infection

to the Martins. ei may arise from eating the infected

vegetables grow non their farm. The Or egon law leaves

_ to the discretion of the trial judge the extent to w hich’

such analogies may he considered by the: jury. Here

.the re Was abundant-ev idence of the difference between

the digestive systems of the tw oO mamnials, and of the

greater ‘likelihood of cattle infection. Leavi ing the matter

to the j jury did not constitute an abuse. of the wide dis-

cretion allow ed to the trial court under the Oregon lew.

Tuite v. Union Pacific Stages, et al., 204 Or. 565,°590

(1955). 3

" witnesses from great distances and, if successful. impos ;

court.

-_ expenses and subsistetice of witnesses to expenses for.

travel for a distance of 100 miles from the place of tr’al

She urges that Section 1821,:Titte 28 U.S

vides for the computation of ‘the cost of travel allowed

. . aN

for witnesses containsno mileage limitation. Metals (

Mrs

_ CROSS APPEAL OF MRS. YTURBIDE

‘RESPECTING costs

correctly points out, however,

limitation is’ contained int Section | 1821, nor in ‘Section

‘

that while ino mileag

fimiting the award to her of costs for the travel

‘turbide appeals from an order of the district

C., which pro

‘600¢ which was replaced. by’ Section 1821, in 194s.

tourts have. generally limited the application. of both

» sections to the range. of. the subpoena power of the dis

trict court, that is, in civil cases, 100 miles from the plac

a of trial under F. RCP. #45(e) (1). Kenyon ». Aute>

‘matie Instrument ( to., 10 F.R.D. 248, 251-2

1950); Barnhart. v. Jones, 9 F.R.D. 423 (S.D. \W. Va.

1949 j

‘ foréign as well as dot 1éstic witnesses. See Lu@vigsen ¥.

Commercial Stevedoring Co., 228 F. 2d 707, 708 Gr.

‘It appears. that the. limitation is ‘applic able te

“2, 1956).

We conclude’ that the trial court properly limited ‘

‘the allowable costs te: 100 miles from the place of trial’

This is a sajutary rule: otherwise, a party might bring

%». :

(W.D. Mich

;

‘Oo

» ieee ees

x. _¢@

85 eax

3 | f ;

upon his opponent costs which would render the ex-

_ pense of litigation, which is already great, prohibitive:

7 . ae ‘

lhe proper procedure in cases where witnesses are at

great distances from the place of trial is to have deposi- ‘

or) A ° .

| tions taken. FAR.C.P. #26.

The judgment and the order appealed from respect-

ing costs are affirmed. °

(Endorsed: ) Opinion. Filed Apr. 24, 1957.

| Paul P. O’Brien, Clerk.

UNITED STATES COURT OF APPE ALS

FOR THE NINTH CIRCUIT

REYNOLDS. METALS COMPANY, )

Appellant, )

vs. ee: ) No. 14.991

: > ' oo

VERLA MARTIN, Apr. 2+, 1957,

Appellee.) |

‘Appeal from the United States District Court

_ for the District of Oregon s

Before: DENMAN, Chief Judge and POPE and.

CHAMBERS, Circuit Judges

DENMAN, Chief Judge:

Appellarit, hereafter Metals Co.,. appeals: from «.

judgment of the United States District Court of Oregor:

in a diversity suit awarding damages to Verla Marti

_ for bodily injuries suffered by her from poisonous flue

ride gases released in the air by Metals Co.’s aluniinur

plant in its process of” reducing aluminum by electrolys:

from aluminum oxide. ‘The plant is located about on

anda half miles from a farm, called Troutdale, wher

Verla Martin resided with her’ husband, Paul Martix.

and daughter, Paula Martin Y turbide, during the pe riod

from Séptember, 1946, uctil November, 1950, while th

la eee A eatin Sh sata

gases were being emitted by a practically continuo —

operation of the plant. ’

This case was tried with that of Reynolds Metal

» Company v. Paula Martin Yturbide, the same evident’

applying to this and the third case, that of Paul Martin -

against the Reynolds Metals Company.

Only two contentions here made by the Metals Co.

differ from those urged’ in the case of Paula Martin

Yturbide, this day decided.

- First. appellant contents that the claims of ‘the two

adult plaintiffs, Paul and Verla Martin, are barred by

the Oregon two-year statute of limitations. Or: Rev. Stat.

§ 12.110. The Oregon law is applicable under the rule

_ of Guaranty Trust Co. v. York. 326 U.S. 99 (1945). The

present suits were filed in January, 1952. If, therefor e,

the statute of limitations began to run against the claims

of Paul and Verla Martin prior to January, 1950, their

suits are barred.

- The period of appellees’ exposure to. the fluorides

emanating from appellant's plant was from December,

1946, to November, 1950. Paul and Verla Martin testi-

lied. however, that almost all of their many symptoms

had appeared before the end of 1948, Appellant ‘bases

its contention that appellee's claim is barred by the

statute of limitations on the decision of the Oregon Su-

preme Court in Piukkula v. Pillsbury Astoria Flouring

Mills Co., 150 Or. 304, 42 P. 2d 921 (1935).

In that case, the statute of limitations question was

When the period commenced to run against a workman

. 2 @ . Sal

‘who suffered an occupational diséase caused by his ev.

posure to flour dust in a mill. The workman continued

to work in the mill. for some months after he became:

aware of the symptoms of the disease. The Oregon Su

preme Court held at. pages 325-6 that the statute began

to run when the’ workman first exper ienced: the svimp-

toms of the disease. The injustice ‘of this decision is vb.

vious. If one‘continues to work for his livinig with the.

same exposure he w ould be prevented from recovering

for his i injuries for the per iod of his exposure Within the

two-year period of the statute.

We think the Piukkula case is overruled ity two ssh

sequent cases, Shives v. Chamberlain, 168 Or. 6/7»

(1942), and Hotelling v. Walther, 169 Or, 359 (1942

Both of these were medical malpractice cases in which

the treatment of the patient by the negligent physician

continued for over tw o years after the acts constituting

malpr actice occurred. The court held in the Shives case.

at page 689, that the conduct ‘of the physician Was @

“continuing tort” against which the’ statute of limita

tions does not begin to run until the person ceases to be

exposed to it. In the Hotelling case, supra, the court. a!

"page 56+, expressly repudiates a Massachusetts malprat-

tice case holding that the statute begins to run when the

negligent treatment first harms the patient. This sam

Massactiusetts decision was cited with approval in the

Piukkula case at page. 324. Further, in the Hotelling

89 ;

case. _ supra, the court: at page 304, cites with approval a

New Jersey decision holding i in-a Case involving an oc-

cupational disease that the statute begins to run from

the last date of continuous exposure, -

- In-neither of these Oregon cases is the ruling based

“on any confidential relationship of physician and patient

but, as geen, entirely on the continuity of the tortious

acts into the period of limitation.

- Secondly, appellant further contends the court erred

in refusing before the trial to permit questioning in

depositions of Dr. Hills and. Dr. Proctor, of Baltimore,

Maryland, two of the physicians who examined and

treated Paul and Verla Martin on information acquired

“in attending” them. The federal courts look to the state |

law to determine whether the physicians bear a+coff-

fidential Kelaticnship to their patients. Engl v. Aetna

Life Insurance Co., 139 F.2d 469 (Cir. 2, 1943). The

applicable Oregon statutes provide: Or. Rev. Stat.

§ saat 1} (d y:

“A regular phy sician ¢ or surgeon shall not, with-

out the consent of his patient, be examined in a civil-

action, suit or proceeding, as to any information ac-

quired in attending the patient, which was nec essary

to enable him to prescribe or act for the patient.”

90 :

Or. Rev. Stat. § 44.040: 2):

“If a party to the action, suit or proceeding offer.

himself as a witness, it is deemed a consent to th

examination also of a... physician or surgeon

the same subject.”

Appellant contends that Verla Martin had “offered

_ herself as a witness because when made a witness |)

; appellant by interrogatories. submitted under F.R4 P

33 and. questioned in a4 deposition.taken by appellay

under F.R.C.P. 26 in which her attorney sought no crow.

examination, she had not availed herself of her priv.

lege to refuse to answer questions concerning her trea!’

“ment by two Maryland doctors buf had testified cov:

cerning their treatment and advice.

_ Appetlant’s interrogatories were answered in March. —

1952 and its questions in the deposition in May. 1%.

Instead of attempting to take the’ depositions of thes

doctors. promptly, it was not until two and a half vear

later when the case was set for trial on July 25, 195)

that appellant gave ndtice of taking of the doctors test

mony in Baltimore on July 16, 1955. . Because of th

expense to the Martins in sending a lawyer to Baltimore.

Mrs. Martin moved for a ruling on the right to take he

Wh vsicians testimony and ‘the district court ruled a

' follows: ,

O17

_ “Reference is made to the plaintiff's objettions.

to the taking of the depositions of Drs. Hill and

Huntley in the State of Marvland now set for to-

morrow ‘morning. The Court has examined the dey

fendant’s interrogatories presented to the plaintiffs.

aud is of the opinion that their answers and state-

ements -eNXE lusive of Paula Martin) do not reveal

either an expressed or implied waiver of their ( Paul

Martin and Verla Martine Tight privilege created

by Sec EROLOORS. -

“Therefore, the depositions of said doctors, sO

far as questions and interrogatories, relate “to any

information acquired (by either of thesdoctors) in

attending the patient (either of the plaintiffs) which

Was necessary to enable him to prescribe or act for

the patients is violative of plaintiff's mentioned

privilege, and to that extent the objections should bee

sustaind.” | FE, mphasis added.

That issto say. the district court he ld it is the law

of Oregorr that merely answering a- ‘question from, her

“ppouent which she might have avoided. still remains

the appellant’s witness and ‘does snot wconstitute an

ffering of herself as a witness.

Appellant cites no Oregon case that holds to the

contrary and our careful search discloses none. Appel-

lant re lies solely on the case of Forrest v. Portland Ry. &

P. Co. OF Ore, 240° (1913). where the court says that

the plaintiff in see king to establish the damages for her

mrsonal injuries “offeréd herself as a witness” and testi-

’ tied at length about the extent and nature ‘of her in-

‘ o

juries. There is nothing in the Oregon Supreme Court.

opinion which remotely suggests ‘that the plaintiff »

that case was testifving as the defendant's witness «

was Mrs. Martiti here.

In this situation we cannot say from our own stud

of the law. of Oregon that the district judge erred in ap”

plying the law of his own state, following the principles,

‘established by the Supreme Court in Henderson Co.\ —

‘Thompson, 300 US. 258, 266 (1937). Thompson v. Co

‘solidated Utilities. Corp., 300 U. S. 99, 74-759 (1937 .-F

Township of Hillsborough v. Cremiwell, 326 U.S. 620.

630 (1945).

CROSS-APPEAL OF VERLA MARTIN

RESPECTING COSTS i

After awarding costs to Mrs. Yturbide in her (as .

against the Metals Co., the trial court denied costs

appellants Paul weil Nets. Martin for travel ee ;

sistence expenses of the same witnesses. Appe Hatyt Ver!

Martin argues that while these witnesses testi ‘d onl

_-at one“trial ow behalf of all three plaintiffise vet the

are eititled to costs separately because each action we

- separate, and they were joined only for convenience”

trial. She argues that the rule announced by. this court

in National Union Fire Ins. Co. v: California Cotter

Credit Corp., 76 F.2d 279, 289 (Cir. 9, 1935) permitting —

’

the award of double costs where the cases of two plain-

titfs against a single defendant were joined, was not

atfected by the repeal of the statute under which that

case Was decided and the adoption of E.R.C.P. 42: a)

i 1438. This rule provides-for the consolidation for. trial

of suits involving Common questions of law or fact and .

. that the court “may make such orders concerning: pro-

aA?

ceedings therein’ as may tend to avoid unnecessary

Sad

We oink the disallowance of multiple costs is con-

wonanit with the purpose of the: present rule 42ya). Ad-

mittedly, the only case ¢ ited to us discussing this ques-

_ tion involved the ¢ onsolidatian of twoc Case's between the

sanie parties. Copeman Laboratories v. Norge Division,

YF Supp: 1604 (S.D. Mich., 1950). In that case multiple

costs Were disallowed. The fact that in the present case

there are different. plaintiffs does not appear to us to

these Witnesses wet re not: trebled ‘because the trial j

which they. testified involyed the cases of three ee

tits. The three plaintiffs paid these expenses only once;

it is both unfair and unreasonable to multiply them by

three in peering them on to the appe ‘lee:

The pilgpie nt and the wane appealed from respec t-

Nk Costs are affirmed.

CHAMBERS, Circuit Judge, ‘concurring and dissenting:

a en oe

I concur in the foregoing opinion, except I dlissen

as to the specifica of on the matter of the testimons

of the Baltimore physiciaris, Drs. Hil/and Proctor.

think in the setting here the defendant was entitled t)

take their testimony at some time before the case‘went -

to the jury.

* (Endorsed: ) Opinion and Concurring and Dissent.

ing Opinion. Filed Apr. 24, 1957.

Paul P. O'Brien, Clerk.

UNITED, STATES Cou RT OF APPEALS: 7

FOR THE NINTH CIRCUIT

REYNOLDS METALS COMPANY, \

Appellant, J. :

a aiisnas) ( No. 14,992 °":

‘PAUL MARTIN, : . Apr. 24, 1957

Appellee.

Appeal from the United States District Court

‘ for. the District of Oregon

; Before: DE NMAN, Chief Judge and POPE‘and -

CHAMBE RS, Circuit Judges

‘.

Per Curiam:

This case was tried with the cases of Paula Martin

Yturbide and Verla Martin against Reynolds Metals

Company, and the issues presented herein are, substan-

tially the same as those in Reynolds Metals Company

v. Verla Martin, this day decided.

_ For the reasons therein stated the judgment and

the order appealed from respecting costs are affirmed. \

_(Endorsed:) Per Curiam Opinion. Filed Apr. 24,

1957, |

Paul P.O’Brien, Clerk.

* es

want tt

| UNITED STATES S.COURT OF APPE AES

“FOR THE, NINTH CIRCUIT

REYNOLDS METALS COMPANY,

_, Appellant,

\s ie ibe eal 990

PAULA MARTIN YTURBIDE, \ °

Appellee.

REYNOLDS METALS COMPANY

ss Appellant, |

| = No. 14, got

VERLA MARTIN, \

Appellee.

| REYNOLDS METALS COMPANY,

Appellant, lx No. 14.992,

"PAUL MARTIN,

vs. .

June 4, 1958

‘aais s

_On rehearing ea from the final judgment of the -

— urt for the District of —

EN BANC. = STE PHENS, Chief Iudge, HE ALY.

POPE, LEMMON, CHAMBE “RS, B: ARNES

and HAML EY, Circuit Judges.

' POPE, Circuit Sudee.

In hay, 1946, Reynolds Metals Company, a “Dela

ware corporation, acquired through tease, an aluminut

plant belonging to the Government and located a

Troutdale, Oregon. It commenced operation of its first”

potline for the production of aluminum in Septembe!

af that vear. .In the operation of the plant chemical.

cymponds containing aluminum. were collected’ in the |

‘reduction cells of the so-called ° “pots” and were reduced

or separated by the process of electrolysis or passage

of current through the cell. In the process, temperatures

| up te 1775° F, were-developed. As the compounds with

which the cells were charged, (cryolite or sodium fluo-

ride or calciuny fluoride and aluminum fluoride) con-

tain large percentages of fluorine ranging around 30

percent, a considerable portion of fluoride material was

volatilized the process and reached the atmosphere.!

Shortly after the operation of the plant began, and

in December, 1946, the appellees in these three appeals,

Pee “Se ee , : °

_ Paul Martin, his wife, Verla Martin, and his daughter, .

Paula Maftin, (now Mrs. -Yturbide) , moved to ‘their

cattle farm or ranch near Troutdale located about.a-mile

ty. a mile and one-half from-the aluminum plant, and

they resided there until November, 1950. The law suits |

out of which these appeals g grew were based upon claims

that. during the period of their residence on the farm

they were poisoned by fluorides which or iginated at the

appellant's plant .and were borne. on ‘the air to the

farm where they breathed these fluoride effluents

claimed, to be highly toxic and also ate vegetables

It took form in hydrogen fluoride, silicone tetratfluoride, enbiens aluminum

fluoride, aluminum fluoride, and cryolite. The fluorine. as such, is a. gas

which immediately combines with other elements to make these effluent

compounds. \ | |

. O8

growing in ther ate garden which also had been absorbin,

the same toxic elements.2 .4¢

The. principal: question presented here is: wheth

the evidence adduced at the trial below. (the thre

* Cages were tr ied together and: upon the sarhe evidenc

Was Sufficient to permit the case to go to the jury, Ups

‘the part ofthe appellant it is contended, (12) that ther

Was: insuffic ieitt proof to demonstrate that the damaz

- to the persons of the Phaintiffs, of which they complain:

Was caused by the fluor ides-escaping from dete ndant:

plant; and 42), that there was no &vidence of any negli

- gence, or any other breach of duty, on the part. of the

defendant. ,

‘ ©

With respect to the question of causation: —whethe

the escaping fluorides did in fact cause plaintiffs In

juries, —the evidence was sufficient to warrant th

jury ‘s conclusion that the ,escaping fluorides were th:

cause of the injuries. It was not disputed, in fact it Was

stipulated, that “fluoridés in some quantities and form.”

: aa ) :

did escape, when the potlines of said: plant were ope:

_ating, from defendant's plant.” The pre-trial stipulatio:.

after stating the specific fluoride combinations whit’

2. Frort the Pre. Trial Orders: “Plaintiff contends. that the poisonous fluor

7 fevuling emanating from the plant of the deféndant and carried by *

revailing winds upon and over, and settling upon, the lands upon

plaintiff resided and was present, were inhaled and were ‘ingested by =

tuff. and said “poisonous fluoride compounds rendered p'aintiff permanet’

ill and caused: plaintiff to suffer and to undergo serious and permonen! »

sonal injury. ee ‘ ; ' = saa

. «

did eseape in the form of gases, liquids and solids, and

which became air-botne, recited that-“portions thereof

cae settled at various tibties upon the lands” of the

Martins. ‘

. . .

A hortic ulturist fr om the Ciigem State College, in

the vears 19-48, 1949 and 1950 made test samples of

plants grown on selected plots in the * vicinity of the

Martin: property, for the purpose -of determining the

. fluorine content of. such plants. Some of the test plots .

hed _ . _° .

used’ were on the Martin property and as close as 1.1

omhileés from the aluminum plant. Others located in the

same direction from the plant were farther away. Those *

plants tested ‘on plots nearest the ‘aluminum . plant

showed ‘substantial (mounts of fluorine content. The

plants tested on prote which were farther away from:

(plant showed a substantially decreasing fluorine

content, thus indicating that -rel@jvely speaking the

nearer the aluminim plant the gr eater the concentra-

tion af the Bases, fumes and_ particulates, (i.¢. fine

wlids), lit making such tests plants which readily

_ absorbed fluorine compounds such as -buckwheat: and

gladioli were used so as to facilitate the testing. The

nesults therefore. did not indicate the quantities of -

-lluorine which would likely ? be found in garden

végetables. such &s. those the Martins grew in their

sarden-plot for their domestic use. Lf

. 100

_ In general there was an absence df proof as to jw

what quantities of fluorides contained in these gare.

fumes and particulates, passed over the Martin land «

were inhaled by them or: ingested from the: garde:

vegetables eaten by them. There was, however. prow’

that these fluorides were toxic. One of the chemists wh

testified Stated without challenge that hydrofluotic

acid or hydrogen fluoride, one of the effluents from th

plant, was “quite toxic” and that “the books orr chem

-istry. warned ot “ry it.” Appellant co

~ cedes that. such fluorides “are poisonous in excess

_ amounts.”

That very large quantities of, these gases. fume.

Mil particuiates, did leave the plant and were. diffux

into theair, was unquestioned. Appellant’s own exhib

disclose that with the. equipment which was .used '

“control the escape of gases during the period that t

Martins lived on their. farm,. hundyeds of pounds uf

these effluents escaped each day. Thus in the year 1%

the amount of fluorine. alone escaping per day from th

plant ,averaged .2845 pounds. Comparable amour

escaped in the years 1948-49 and throughout the fir

half of 1950, after which time the appellant began th,

installation.of a new control system which was mut’

more efficient in arresting the escape and.fall-out ,

ss 1

. . x . ° y

- There is no’ showing as to where these large.

quantities of effluents finally settled: The experiments

mentioned above would indicate that the greater portion

* wttled on thosg areas nearest the plant, and those areas

included the Martin farm. That the effluenits.did have-

wme degree of toxic or harmful effect was indicated

by proof that cattle upon the Martin place showed

dlamage from fluorosis. Generally with. respect to cattle

\ it does not appear to-have. been controverted that cattle

~ lamage from an aluminum plant is a fairly coramon

‘ *

phenomenon. *

Jic arse it does not follow from mere proof of some

deme to cattle on the Martin place that the plain- .

lilt’ physical injuries, were. due to excessive amounts

of fluorides from the plant. Cattle get their whole food

from grass and ingest large quantities.-A human diet

cogains a relatively. small proportion of vegetables.

lor the purpose of this opinion we assume that the evi-

lence that cattle on the Martin place showed injury

“ health from fluorides has no significance here other

than to sliow the fluorides did reach the Martin place

. Hisome Quantity and that in some quantity the ingestion

During the trial in examining witnesses counsel for defendant made fre

jwent reference to @ British Government ation entitled “Medial Re’

warth Memorandutn No. 22 on Industrial Fluorosis and State of Hazards

Man and’ Animal near Ft. William. Scotland.” This reports the result

b« study of fluorosis affecting cattle and sheep tear an aluminum factory

"teperts with respect. to such cattle grazung im the vicinity of the factory

mteatystrophia, dental lesions. and “some cases of ostewmalacia due tw

Suor me, intoxication”. Also severe loss of condition and lows of aulk om af

Set animals .

ae .

, Pr

of affected plants may possibly cause illness in a mam

mal.+-

A significant bit of testimony adduced was pro:

that glass in the Martin home became etched by aci:.

~probably hydrofluoric acid which was one of the efflu.

ents from the aluminum plant. One of the expert wi:

" $40 . ° .

nesses, the British doctor who. had some prior experienc:

with similar etching of glass located near industri.

plants’ abroad, testified that the glass from the Marti

window which he was shown during the testimony we

an indication of, excessive: quantities of fluoride cor

tamination,in the atmosphere.

Although the cases of the Martins are unique 1!

that they were unable to produce either from medice.

literature or expert witnesses histories of persons situ

ationed as they were, namely, persons not. working

the plant but simply living outside and near the plan

who developed symptoms similar to theirs in cons

quence of the fall-out of emanations from an aluminu

pe ies ot ae eae |

plant (see footnote 5a infra) nevertheless they did p:

+ Dr. Donald Hunter,*British physician and a director of research in ind

trial medicine of the Privy Council Medical Research Council, whi h pr

‘duced the memorandum No. 22 referred to in footnote 3, supra. testi!r

as follows: “Q. Why, Doctor, are both cattle and animals as wel! as

humans. affected by the effluents from an aluminum factory? A Beer

fluotides*-fluorme compounds are deadly poisonous to mamalian tise

and man is a mammal just as much as a cow or sheep.’

Error is assigned on accoynt of the admission of evidence of damage”

cattle. Since, as here indica that evidence had only a timuited: sigh

cance, it cannot be said that Ms admission was error. It was admissible:

the purpose be re stated .

103

duce substantial medical testimony which did connect

* their disabilities and physical injuries with the fluorides

escaping from the plant. Of course there was also testi-

inony to the contrary, but theevidence adduced on their

behalf, principally from the British. medical expert re-

_ ferred in footnote 3, supra, and from a Dr. Capps, a‘

Chicago specialist-on diseases of the liver, was substan-

tial. and in our view, fully worthy of credit. Dr, Capps

had been consulted by the Martins in November, 1951;

Dr. Hunter, the British expert, examined the Martins

shortly before the time of the trial; he also reviewed

the laboratory and other tests made’ with respect -to

them by Dr.'Capps and by other physicians who had. |

“examined them. Theirs was not the only: medical testi-

mony adduced in support of the claims of the Martins, |

“but it was probably the most complete. Their quali-

fications to testify was not only adequate ut their

experience with the subject upon which they testified

Was outstanding. For the purposes of this opinion it is

sufficient to. say that the evidence clearly warranted

the jury in accepting the testimony and conclusions of

\ Dr. Hunter, a Fellow of the Royal College of Physicians, was director of a

department for research. of industrial medicine of the Medical Research

Council, a public undertaking of the Privy Council. He had been called

upon to give lectures in this field: at medical schools and before medical

eoups throughout the world. Before testifying he had examined and re

viewed the reports and tests made in 1951, particularly the liver efficiency

tests to determine the damage to the cells in: the livers of the Martins

mado by Dr Capps whom Dr. Hunter. referred to as “probably the world’s

greatest expert on this subject.”

10h. ¢

these doctors. Hence there is no point in Wirdertaki.

to detail their testimony at length. >

The medical witnesses expressed confidence in the:

conclusions because of the fact that they found subst

tialiv the same svinptonas in the three individuals. th

lessening the possibility. that the symptoms were .,

tributable to individual idiosyneracies. Neither one \

-able to testify as to the degree of concentration. — |

Dr. Capps described Paul Martin's symptoms ay follows. “In the Testy

he developed diarrhea, indigestion, and heartburn, and bloatyng. parti ui

after meals. Those symptoms all were referable to the mitestunal tout 4

~wecomily . be develaped sxoytoms which we might refer te as shee

symptoms: pain, particularly im his back. occasionally down the dey s°

ciently severe so that he was unable to bend over and tie his shoes. for:

ample, or even put his shoes on, as a matter-of fact. These pains

aggravated by lifting and by various types of exertions. The thir! ge

of symptoms had to do with the respiratory tract. the lungs. He deve

a dry cough and shortness of breath particularly on exertion And. fine

he developed frequency of urination particularly at might, to such an eve

that-—seven or eight times at night. and he was unable to sivep The

were, in brief, the symptoms which he congplained of. And ous olsersat’

in the hospital were directed towards trying to determine what tho

eroyps were due to.”

Kher detailing at length the process by which he arrived ata dingn> -

of what caused these symptoms which included a diagnosis of fluor»

poisoning with fluorine), and tox hepatitis, (toxnm involyenment of %

_ liver). he stated his conclusion as follows: “In view. then. of this pote

history of the exposure arid in view of the fact that we were adivoe |

we were faced with a rather bizarre group of symptoms bere is an on

ment of a gumber of .the symptoms in the body which was uniuges

definitely bizarre, and it corresponds exactly to the description of putie

cases of fluorosis, furthermore. there is no other explanation One oc

make another single diagnosis that would cover all of these svriptins |

could make four or five diagnoses, but. of course. that ts always of

a very poor thing to do. This is the picture of fluorosis There oe «to

of the potentias exposure. We are unable to fing any explanation a

careful search. and under those circumstances one is justified. and noo”

fluorine.” wee

Dr. Hunter testified that “fluorine compounds are deadis poem

mammalan tissues,” that when they enter the body they attack tM °

zymes in the body cells, that fluorine compounds fed in animal es perime’

produced degeneration of the liver and the kidney, that the symptom

subacute. fluorine poisoning were those which were seen in the Mer

It was his opimon that the Martin family were suffering from sub

fluorosis because their symptoms were identical with those im cases ot”

character which he had seen previously.

many parts per million of fluorides Would be re

quired to bring about the injuries founds but beth at

toched some significance to the fact that the Window

the house was etched by acid. As stated by Dr Capps.

think that if there is enough fluorine to eteh a win

dows it should be able to etch a lung.” Dr. Hunter re.

tid his owneexperionce in finding in England a fam

Jy with the same symptoms as the Martins whe lived in

‘house near af industrial plant’ whose windows were

itularly etched and said that the etching he observed

in the glass taken from the Martin’ home was an indi

‘ation of excessive quantities of fluorine in the atmos

phere. He referred to studies made in 1940 warning the

industrial wor hl ‘against throwing into the atinosphe re

meffluent which would etch glass.”

A further circumstance which the medical witnesses

emphasized was that in the case of the Martins the ir

brormal sv mptomis were reduced and lessened tut

‘hey had moved away from the vic inity of the plant

We are thus led to the conclusion that the jury was war

ited in finding. as they did. that physical injuries te

the Martins were caused by the flivoride emanations

‘om the plant which foiund thei ‘ir way to the Martin

nlace.

This Was an ironworks which produced the same fluende effluence

106 =

On hehalf of the defendant evidence. was adduced

to show that only a very small conventiatjon of fluores

could have reached the Martin home. We think “the

jury were warranted in accepting plaintiffs’ testimony.

and the inferences therefrom, that excessive amounts

of fluorides reached them, for they actually suffered

fluoride’ poisoning. There was no proof on the part o!

plaintiffs as to what particular percentage or concen:

tration of fluorides was necessary to produce such re-

sults. Plaintiffs Were obliged .to accept In that respect

‘the concession made by the defendant. to the effect that

such fluorides are “poisonous in excessive amounts”

The only possible conclusion is that because the dani:

-age.was actually caused by the fluorides, they somehow

managed to get there in excessive quantities. We think

we must aceept this as a permissible finding Of the yur

The important question. is whether there Was proot

of any negligence or other breach of duty on the part

of. the de fendant. which brought about these see! ih as

its proximate result.

In our former opinion, in the case of Paula Martin

(Reynolds Metals Company v. Paula Martin Yturbide.

April 24, 1957, not reported), this court expressed the

view that these plaintiffs were entitled to recover under

the doctrine of Fletcher’ v.. Rylands, 3 H. & C. 77! aly

firmed in Rylands Vv. Fletcher, L-R. 3 HL... 3300. and

107 eo? 7

referred to certam Oregon decisions which were thought

to recognize a doctrine of strict liability. or liability

without fault, What we said there about that docétrine

and its possible application here is now withdrawn, As

is hereafter developed,: a disc ussiog) of that problem is

_ limmecessary to a decision of this case.. I ‘urthermore. this ”

Case Was not submitted to the jury which heard it upon

anvesuch theory./

\ppellant argues that there is a complete absence of

proof of any want of care on its fart in the operation of |

the aluminum plant. In this respect its contention is that

hefore fhe plant was put in operation it equipped. it

with facilities for minimizing the amount of effluents

that escaped from the plant. Fach potroom building was |

equipped with a ventilator extending the full length of

the building -at the root of ceiling. Air was supplied to

the reom through louvre doors at the base and the

heated air ¢ carrving the escaping Has. fumes and par:

tic ulaies moved upward to the ventilators. At the ven.

Hilators a Washing system was installed which consisted |

obaser ies of sprays running the full length of the build:

ing se that any, air that left the building had to) pass

See Martin v) Reynolds Metals Co. 135 Fo Supp. 370 The able trial judge.

‘Apsessing doubt that. the doctrine of Fletcher vo Rylands-would be applied

by the Oregon Court to a case of this kind, held that the case should go to

he jurv upon the issue of neghgence. Although in appropriate cases a

sigment mav be affirmed upon grounds other than those adopted in- the

urt below. we think it questionable that such rule is applicable where

the dgement is based upon the verdict of a jury acting upon instructions

Hot comprehending the new grounds urged

° c 4

ee 108 .

through these sprays. After the spray system was first

started, baffles were inser ted to intercept and conders

the moisture which came from the spray into the escap:

ing air: in other words, to take — out of the air

The result of this spray system wat that it remoyed some

"60 percent « of the: fluorides from the air goming through

the roof so that only +0 per cent of these c ompounds a

tually eseaped from the plant. ~

Defendant's ‘Assistant Vice-President testified that

during this per iod from 19: 1 to 1950, when the spray

- system of fluorides elimination was in use, the ¢ ompany

was carrying on experiments to devise and find betiet

ways of making a more efficient capture of the eftlu-

ents. In 1948, a pilot plant was designed for the purpose

of. trying out an improved system of elimination, and °

as a ‘result of the éxperiments with that pilot plant. it

Was arranged about May, 19+9, to change over to a new.

sy stem. The installation of,that was congpleted in No-

vember, 1950. The new system inivolved the placing.ol |

hoods over. each pot and the installation of fans which

sucked the air coming ftom the pots upward and fore

ing it through sprays and washtowers. The .csult of the

use of ihis improved system was to-eliminate 90 percet!

of the fluoride compounds from the air which esc aped

from the plant. W hile, as we prev iously indicated: the

average pounds of fluorine escaping per day during

1947 were 2845 and in the month of March. 10 50), they

109

were as high as 3988 pounds, yet beginning in July,

1950. when the new. svstemr began to be used, there was

= . , .

a sharp reduction so that in November and December,

1950, after the completion of the improved:system, the

average daily flow of fluorine escaping was requced to

- 643 pounds, In short. by this improved method, the por-

tion of the emanating fluorides which reached the aid

were 10 percent of the total as against +0 perc ent under

the ear lier system. :

In determinthig the duty of-care the law imposed |

upon the defendant, it is to be borne in mind that asd

priinary care which the law requires of such a defend!

ant is measured in part by the defendant’s knowledge

of potential dangers. Thus a seller of fur coats who ac-

tually knows that some few persons are especially sus-

_ ceptible to poisoning by a particular fur dye must take —

precautions accordingly, and greater prec autions than

would be required if hé were ignorant of this particular

susceptibility. Gerkin. v. Brown & Sehler Co.. 177 Mich

- 13 NOW. 48. As stated in the Restatement of Torts,

s289 in determining the standard, of reasonable con-

duct.’ “the actor should recognize that his conduct in-

volves a risk of causing an invasion ‘of another’ s interest,

if a person, possessing . °°. such super ior pe rception as

the actor himself has... would infer that the act

Creates an aeyascunee chance of causing such inva-

- . . o

- - 110

sion. > Comment ay) imder this section headed °

per ior knowledge” kecites: “If the actor has a “wider

' knowledge, whether gained from personal experience

or otherwise, the proj riety of his judgment as fo the. ,

risk involved in his co rduet is determined by what a

-reasonable man h. ing: such know ledge. would: regard

as’pr obable.. i “This requirement of conduct propor troned

to the superior knowledge and intelligence of the actor

is developed at length-in discussions on the subject in

Prosser on Torts, 2ind ed... pp. 132 to 13-4, and im Harper

& James, The Law of Torts, $816.5 and 28.4. Not only

that. but it was the duty of one in the position of thie de.

fendant to know of the dangers incident te the alum:

num reduction process. As the last named authors point

‘out in $16.5, “The manufacturer must learn of dangers

that lurk in his processes and his products.”

The record here amply demonstrates that the de-

fendant. was fully aware of the potential dangers it the

"escape of fluerides. It is not questioned that numereus

claims. of ‘injury to caitle from the operation of wach

% 5 .

plants had been presented to this and other manutac-

turers. The defendant's senior chemist at the Troutdale

‘laboratory testified that. he was familiar with the liter-

ature upon the toxic qualities of these fluor ides: that

he knew: that in quantities they were toxic: that some

of these vere: heavi ier’ than air and would reac h the

seth oer

earth after being air-borné; that quantities of them

ate ; 111

would drift i in the direction of the Martin land and that

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