Simpson Timber Co. And Grace Line, Inc. v. Ezra Parks, Simpson Timber Co. v. Grace Line, Inc.

390 F.2d 353 SIMPSON TIMBER CO. and Grace Line, Inc., Appellants, v. Ezra PARKS, Appellee. SIMPSON TIMBER CO., Appellant, v. GRACE LINE, INC., et al., Appellees. No. 19673. United States Court of Appeals Ninth Circuit. February 20, 1968. Kenneth E. Roberts (argued), of Mautz, Souther, Spaulding, Kinsey & Williamson, Portland, Or., for appellant, Simpson Timber Co. John R. Brooke (argued), of Wood, Wood, Tatum, Mosser & Brooke, Portland, Or., for Grace Line, Inc. Philip A. Levin (argued), of Pozzi, Levin & Wilson, Portland, Or., for Parks. Nathan J. Heath (argued), of Gray, Fredrickson & Heath, Portland, Or., for Brady Hamilton Stevedore Co. Before CHAMBERS, BARNES, HAMLEY, JERTBERG, MERRILL, KOELSCH, BROWNING, DUNIWAY, and ELY, Circuit Judges. BROWNING, Circuit Judge: 1 This case is before us for the second time. Reference is made to our first opinion, reported at 369 F.2d 324 , for a detailed statement of the facts. The following summary will suffice for present purposes. 2 A longshoreman was injured when he stepped through the packaging on a bundle of doors while loading cargo in the hold of a vessel. He sued the manufacturer of the doors alleging that the doors…

This ease is before us for the second time. Reference is made to our first opinion, reported at 369 F.2d 324 , for a detailed statement of the facts. The following summary will suffice for present purposes.

A longshoreman was injured when he stepped through the packaging on a bundle of doors while loading cargo in the hold of a vessel. He sued the manufacturer of the doors alleging that the doors were negligently packaged, and the shipowner alleging that the vessel was un-seaworthy. The shipowner interpleaded the stevedoring company. The defendants filed various indemnity claims. The main action was tried to a jury, the indemnity claims to the judge. The jury returned a verdict against the manufacturer and the shipowner. The judge’s rulings on indemnity are noted later.

We reversed solely on the ground that error occurred in instructing the jury regarding the legal standard governing the manufacturer’s liability for negligence. The Supreme Court vacated our judgment and remanded the case to this court “in order that it may pass upon the issues in the case not covered by its prior opinion.” Parks v. Simpson Timber Co., et al., 388 U.S. 459 , 87 S.Ct. 2115 , 18 L.Ed.2d 1319…

(dissenting in part).

I agree with the court that the remark in counsel’s opening statement concerning Simpson’s post-accident change in the manner of packaging doors for shipment was unwarranted and constituted prejudicial error. But I do not share the court’s view that this comment, though so gross as to render suspect the amount assessed by the jury as damages and require a new trial on that issue, did not likewise affect the jury’s finding of liability.

The remark related primarily, if not solely, to negligence; its chief vice lay in the impermissible suggestion to the jury that Simpson was at fault [2 WIGMORE, EVIDENCE § 283 (3d ed. 1940)]; it was not in that class of remarks which are improper principally because of an appeal to bias and sympathy which may unduly enhance damages.

I would remand for a complete new trial.

CHAMBERS, Circuit Judge, concurs, in part.