# Petition for Writ of Certiorari — Reynolds Metals Co. v. Yturbide > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386419_0464%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1958 - **Citation:** 358 U.S. 840 ## Text -_Supeeine Court ‘of tive Gnited States ad REY NOLI v. ‘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 10 a 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 e' 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° tx o/% ») Fi “ tat, o> i. 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 “ 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 | e 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 we 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 : : 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 st 2 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 ta 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 ry 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 I a 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, | a ° . > 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. a . the same-is mot contained 1m the printed Transeript of Rex ond 2+ ers ee © * And Lam frank to say that from the evi . 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 _* es 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? ie “ @. t 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 a 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 j 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. © 4. The requirement that the accident be “such 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). i 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. wy 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 © tanation of fluorine compounds fro the plant of — 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). \ ! 34 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. \ ° » a . . 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. . sh 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.” 7 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 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). 39 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 10 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 1 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 | e 13 . : . 3 The Court of Appeals also quotes in a footnote a statement bv Professor Prosser: a ; ; 4 e © “Prosser discusses the same matter | pp. 216-217). 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 : \ ~ * 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 U ‘ 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 ad 33 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. é There was much to indicate that information pos- sessed by Dr. Hills and Dr. Proctor would have heeiy P 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 45 | 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? - i 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 2 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 1. 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, q IX - 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 A ’ > * 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. a 38 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. e? Ce ~ > -@ 7 dhe evidence these existing facts which are claimed and — . 4 72 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 8. ; the duty of the defendant toccome fotward with evidence’ - & _s . | ; 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. c ———— . ‘ . oa 5 ‘ 7 ~- ef - ‘ s® 7 4 o ” * y ‘ ° | e 4 we , ) 74 | | ‘Part UNITED STATES COURT OF APPEALS > FOR THE NINTH CIRCUIT REYNOLDS | METALS COMPANY; Appellan ) \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 9 —~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 7% 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 . 92 ~ 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 83 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 8k _ CROSS APPEAL OF MRS. YTURBIDE ‘RESPECTING costs é correctly points out, however, limitation is’ contained int Section | 1821, nor in ‘Section o* ‘ 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 ie % 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 r% v x. _¢@ 85 eax A 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. a = Rb 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’ f oe 87 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 88 . 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. \l 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 Q? 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, 7 ‘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 — ’ ~ G3 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? A f 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 © require duplication of costs. Obviously the expenses of 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. 95 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 + 96 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. \ | | eo ae . O8 7 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 % a. ne ° oe Og . « 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 - 6 -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 ae _ 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 . 7 103 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” justified, but you are forced to make the diagnosis of pos © 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 q * 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 J 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 o te seth oer ad Cd earth after being air-borné; that quantities of them ate ; 111 would drift i in the direction of the Martin land and that there were publications, whiéh dealt with dangers to human beings from fluorides. oars . ) : ; ee The question iss whether in view of the knowledge which the company was reasonably required to have as a manufacturer in this field, andthe knowledge — which it actually did have of the potential dangers of these escaping fluorides, there was evidence of a failure to use reasonable care for the protection of persons in the situation of the Martins. | 8, @ On behalf of the defendant it was testified, that at all these times de fendant was utilizing and had installed ‘the latest and Bost know n means of protecting against the escape of the fluorides: that the company, contin» ually” ‘studying the problem, installed an experimental pilot plant to develop a new procéss and then changed over to the improved process as soon as its feasibility was ‘developed. : * On behalf of plaintiffs it was urged that the evidence warranted a conclusion that the company did not exer- cise the care in‘this direction which it might have done in that it allowed the plant to be.operated with the less efficient. élimination system’. from. 1946 until 1950 whereas proper care required an earlier use of the better > devices. ae effluents.” ee co Bt ax 212 The only bit of evidence which was taken to sustain ‘Such a contention is found in the testimony of Dr. Hun. ter who testified as follows: “Q. (By Mr. Mead) ow: tor, are you familjar with an induced air system af dust control or fume control? A. Naturally, 1 haven't been trained as a_ ventilating engineer. But since I firs .studied industrial -hygiene in the Harvard School of ‘Public Health with the famous Phillip Drinker— tie is a ventilating engineer—-and because of the work which I have to de and so teach, whieh is industrial medicine, I am, naturally, interested in systems. of ventilation, Nnd in all of the chapters of that book there i is ane \ac! description of systems of ventilation which are used in known to all industrialists the world over that exhaust ventilation could be effectively applied to remoye.these A , 3 , Possibly we can assume that the question relating to.an “induced air system” referred to_the sort “of sve tem cStablished by the company: in 1950. ‘Testimony that. suc h a system, was well known in 19-46 would “a at that time constituted negligence. We believe it ls unnecessary in reaching our ultimate conclusion here to draw-such inference from this single answer in this long record for we are of the dpinion that the trial court f “ei | -various parts of the world) And in 1946 it was wel . mit an inference that failure to use that better sv stem _ 113° properly submitted to the jury the question of negli- vence-on the:part of the defendant on the theory that this was a case correctly permitting the application of ‘the doctrine of res ipsa loquitur. The court instructed the jury as follows: “Under the law and the facts of these ations, the defendant Was _the sole operator and in exclusive possession and direct control of the Aluminum plant involved during the time. involved, namely, between on or about September 23, 1946, and November 30, 1950. 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 fliorine compounds emanating there- from, and that such a mishap would not o¢cur.” ‘The statement in the first of these two sentences is unques- tionable: the second sentence is in conformity with de- fendant’s theory and much of the e vidence adduced by it at the trial. The instructitai was Consistent with the testimony that the plant as equipped and operated. woyle not cause fluorosis to persons Who had. not been me. ed in the plant itself. The court noted. that: there Was no evidence as to the amount or concentration of fluorides that would bring about: fluorosis in the case of such persons. While during the critical per iod here 40 percent of the gases, fumes and particulates got by the sprinkler system and escaped into the air® the fluorine ‘ . *- 114 - contents aggregating hundreds of pounds all told. the ‘tests made at various localities near the’ plant and every side thereof, according to defendant's Wit TEsses, produced no significant concentration of fluorides at thy time the tests were made. Hence, the court, acceptin. this proof, told the jury that. “in the ordinary course « events it is unexpected that persons being in the-vi ini of such a‘plant would be injured or harmed. by fluoriy * compounds emanating therefrom.” In so ruling the court in effect determined that tly accident was of a kind which ordinarily does not occu in the absence of someone's negligence. That is a prin condition for the application of the so-called rule of re ipsa loquitur. Said the ‘court (135. F. Supp, at 38! “Here was an instrumeytality that was in the eyclusty noss@ssion and control of the defendant: Something the’ ordinarily we would -not expect to happen did happe and damage resulted. This is the pure and simple tes Yas the court sees it of res ipsa loquitur.”* The court We using language similar to that of Ritchie vo Thome 190 Or, 95, 224 P. 2d 543, 551: "An inference of nes! ence may arise only when injury é caused by ant! , 8 The court cited and rehed u Suko v. Northwestern Ice & Colt Sore Co., 166 Or. 957.1143 P. ld , 213. where the following yy ua “In the ordinary course of matters the mishap would not have except through carelessness in the construction, 1 tion or uw ft tank. And, as hereimabove stated, the premises on which the tank wor be" were i the exclusive possession and under the direct control of the fete ant Therefore, the doctrine of res ipsa loquitur apples.” we VN . strumentality 0 hich is under the control and PPLenbengee ment of the defendant. and when the accident Is such as. in the ordinary course of events does niet Dreapepens. if these who have the Management Use ordinary care” Such ifthe test generally approved in such cases. See Prosser, Law of Torts. 2nd bd. p. 201: Harper and lames. The Law of Torts, $19.6. lust what caused this net-ordinarily-to-be-ex pected ~attering of fluorides in. “exceSive amounts”. was not specified. That they were so scattered the jury was war- ranted in finding. W hat coycerns us here is that the trial judge was justified in paraphrasing the laiguage of the Suko case (supra. note 8): “In the ordinary course of matters the mishap would not have occurred except through carelessness...” Whether this want of care Was in faulty construction, faulty inspection. or faulty operation of the fluorides elimination svstem, plaintiffs Were not required to stow. for wherever the fault lay, twas necessarily that of the defendant whic hy had es clisive contrel, Of course the inference of negligence referred to in Ritchie v. Thomas. supra. i; merely a per: Missible one. Bedal v. Hallack and Toward Lumber (ympany. ein. 226 BL 2d 526. 538. but it carries the Us : Case te the jury. Viewing plaintiffs’ case in the most favorable light. a WP are required to doo we have the following: (1). P ‘ . 116 Damage to persons in the position: of the Martins Wals, possible from “excessive amounts” of fluor ides: (2). th Martins were poisoned and from this plant and by thes | fluorides: (3). from this it is permissible to infer the “EXCESSIVE amounts” reached th®ém,—that there wen such excessive amounts: (+), the emission’ of EXCESSIVE amounts from the plant was circumstantial evidences! negligence, Res ‘ipsa loquitur. Appe ant says that the res ipsa rule was misapplie: here. It quotes from this court's decision in Orr v. South: ern Pacific Company, 9 cir., 226 F, 2d 841, B43, the statement: “Res ipsa loquitur is a procedural rule as te evidence. It is never valid in the face of facts which ade quately explain the occurrence.” Here, it -asserts. I! made an adequate explanation of the occurrence, |! says: “Reynolds, as has been showny used the wrreates! possible care, far above that required by any reasonabl risk of human jnjury.” The Orr case. presents a different situation for the jutge who found the facts decided for the defendan In the present case the jury night have accepted defend ant’s proof and explanation: but obviously it did rat I" ~ Was not obliged to do so. The procedural problem whic! h faces any defendant such as this, as it has de vel oped in the cases. is disc ussed at some length by bot! Prosser and Harper & James. The latter say. (10 12 1,7 “Defendant in a res ipsa case may, show ‘by evidence how the accident happened. but ordinarily this does not entitle him to a directed: verdict. The jury may still rejeet the evidence or find that the explanation sloes nyt preclude the likelihood of negligence... In most res ipsa loquitur cases, defendant cannot definitely ‘ex* plain the accident. His usual defense consists of proof of the precautions he did take in constructing, maintén- ng. and-operating the injuring instrumentality, Once ina ereat while such proof may conclusively show that the accident did not in fact happen. or that it was not caused by defendant. But this is seldom the outcome. And where it is not, defendant is in this dilemma: the less effective his precautions to, prevent the occurrence the more apt they are to appear negligent: the more effective the precautions testified: to. the less likely thev are to have ‘been! taken in this ease since the accident did happen? ' The authors quote ‘the following from Minutilla v. Providence dce Cream Co. 00 RD 43. 49: “Tf the care comn used by defendant had been exercised the presence of these piecesfof lass in the cream sold o plaintiff would have been impossible. Yet thk fAct remains that there they were ” Footnote 6. p. 1106) . Prosser discusses the sate matter (pp. 216-217) as follows: “But if the defer ont merely offers eviderice of His own acts and precautions amounting tos . mable care, it is seldom that a yerdict can be direc ted in. his favor. The inference fronr the circumstances remains in the case to: contradict the rvidence. If he testifies that he ased proper care to itisulate his wires, to * inspert his chandeher, to drive his bus, or to keep defunct mice and wander ing insect Ife out of his bottled beverage. the fact that electricity escaped _ from the wares. that the chandeher fell, that the bus went-into the ditch . ond the bug was in the bottle, with the bac kground of common experience that such things do not usually happen if proper care is used, may permit reatonable men to find that his witnesses are not to be believed, that the preceutions described were not) sufficient to conform to the standatd re [18 Here the jury were instructed at length to the etter that the plaintiffs’ claims were based upon, thei ase tion that defendant had been guilty of negligence. i) nature of their claim and the negligence asserted wo stated by the court to the jury in substantially the sams language as that set forth in the pretrial stateme:’ quoted above. The court stated the contentions of th defendant in respect to this claim of negligence: it fined negligence and set forth that the plaintiffs wer “required. to. prove not only negligence but that suc negligence Was the proximate cause of the injury v1 damage. There is no contention here that these term were not adequately-defined in the instructions." P “¢ ; When res ipsa loquitur is applied the facts: of th occurrence warrant the inference of negligence. Thes furnish substantial evidence of negligence where th: «. - 9 ‘ quired or fr not faithfully carried out. and that the whole truth hes" + been told. Tt is of course not impossible that proof of proper care may br > overwhelming as to call for a dirécted verdict. but inethe ordinary oot | will not be sufficient to destroy the inference from res ipsa loquitur ” 10 Included in the instructions were the following oe “Negligence on the part of any person is Lever presumed, onc 5 cannot f:nd a person liable, merely from the fact alone, that acm ta! has occurred’and that a person has suffered afl injury. The defendon’ not an insurer against injury to persons residing in the vicinity «! Troutdale plant. The question. is whether or not there was negligrn: the part of the defendant in the course of the operation of its plant Bet: a person can be held liable for actionable negligence, causing an (ee injurs, there must be some duty upon that party. and failure te perf” that duty. which produces or concurs or joins 4n producing..the prow” cause of a resulting irvury complained of.” : “The burden of proof in all cases rests upon the party having the firmative of the issue, and in these cases, the burden of proving by 1h, ponderance of all of the evidence in the case negligence on thre (1 the defendant and such neghgence. if any, was the proxyumate cause oT" ‘ injuries complained of by each of the three respective plaintiffs. rests i ‘ those plaintiffs throughou: the trial.” a ee Ree ‘4 \ " memory mnenaninen Se ise a et ne 2 ’ Bit ag 4° 7 “. ; 125 P ; . e - o —_: % Se ae ey . ihe a consent te thee exdtninaiion alse of a plrysician or sur Ceor on the Same subject. ae rs : . 2 “Appe ‘itant conten thait Verla Martin had “oe red’ herselfias a Witness because when made a Witness by ap- pellangby interrogator fes submitted under oe ae 33 and que tioned i inva de cnchsitini taken by “‘appeltait under 1 CeLP. 20 in which her utthrney sought NO CrOSS-OX* ANNA tons she iad not ner rself of her privilege to re fuse to anisyyer iach a cOhcer ning her treatment by Iwo Marvlanid doctors but Had testigjed concerning their treatment and advicé Silas tees ,.* Appellant . interfogatories were? answered — in March, 1952 Ansa its questions in the deposition in: May. "1482. Instead of attempting to tae. the de wonithiers of. these doctors promptly. it was npt ‘tintil two and a halt veary later whe nothte case was set for trial on July 25. £55, that appellant gave notice of taking of the doc tors’ legbemionny in Baltimore on July. 161955 >. Because of the expense. to the Mantis inese nding a lawyer to Balti- More, NIrs, ‘ hgaloael apts for-a ru ng the right ta take — physici lans’ testimony and the istrict Court riled as follows: ce : . . 9) ; o Rele sony eis made to the plaintiff's objec tion to the bhi ne ot fhe depasitions of Drs, Hill: and, Tuntley 21m the State vf Marvland now set for inane: mor ning. Nur Court hike exapaned the defendant's interrogatories “a . ‘ 7 ‘ a Pas ; é 7 / | : . , % : é . ‘ . 2 \ o 7% . es « aytg 2h prese nited to the plaintitfs. and is of phe pita thas “their arpsywers and state renits fevelusive of Paula Nhe tin’ do not reveal either an expressed or implied wai of their Paul Martin and Verla Martini? right of pri’ lege c reated by SELOLOORS., -Pherelare, the depositions of said doctors, so far a: questions and interrogatories relate “to any information acquired Chy either of the dattors» iat attending the po tient ‘either of the plaintiffs) which was a ee tu enable him to prescribe or act for the patient. Lis Nios lative oof plaintill S mentioned privilege. and to that extent the objections should he sustained. r “Tat is to say. the district court held it is the list Oregon that | in) merely answering a question from her OP Padre nt Which she might have avoided. | she stil! remains the appellart’s Witness and does not Constitute ain offerering of herse If as aw itness, “Appellant cites no Oregon, case ‘that holds to the vonitrary and our care ful search disc loses none. \ppel lant re ‘lies solely on the case of Forrest'v.ePortland By « PP. Co. 6+ Ore. 2b | 1913). here the Court saves tha! the plaintiff in Seeking to establish the damages for her perseral i injur: ies offer ‘d herself as au itne sy and testi fied at length about the extent and mature of her ae - Juries, There is nothing/in the Oregon Supreme Courts opinion whic h remotely suggests that ore: plaintitt a a eeemeeinied Eee en ee “that case Was testitvang as the defendant's wittesscas Wats Mes.eQlartin here tn this situation we « tinier say from our own study a the law of Oregon that the district judge erred in ap- plying the Taw of his own state. followingath® principles established =by the Supreme ‘ourt in Henderson Co. | hormipsorn. SOOT S.2258. 2th 1937%: Thompson v. Con-- silidated Utilities Corp.. 00 US. 55, 7TRTG 1037); Township of Hillsborough v. Cromwell, 326 US. 620, Tene Ly Shee er y . rem : ¢ We think for the reasoys thus stated it must be said ; that at the time of the ruling complained of ‘made on \ugust Tb: 1955), prior to the Commenceyrent of the “trial which began August 25 >>. 1955). the court was not inerror in holding that at the time the proposed deposi: trons Were Roticed these plaintiffs had not offered-thent eles as witnesses Within the meaning: of the Oregon statute. Dn other words, the ruling of the trial court was correct when made. At the time of the trial these Wil- Heses did offer themselves as witnesses and at that Hine Waived their privilege. At that time Drs. Hills and Prowtor would have been proper witnesses They. were Hat then called. nor was the court at nv time. during the three weeks’ trial asked for a continuance or an order modifving its earlier limitation te permit at the WK an enlarged inquiry on deposition te be, made of 1a Drs. Mills: anid Proctor. Before the court could bn in error in respect to the takings the te SIMON ot thy » doctors. de fendant must have asked to take the te “mony.after t the sina ve had been waived, We ty. that in the « ircumstances appellani has failed to dem , onstrate that the ac [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386419_0464%3A2. Public record. Not legal advice.