Sven Sterner v. U.S. Plywood-Champion Paper, Inc.

HENLEY, Circuit Judge

(concurring).

I concur with the court in its ultimate conclusion that the judgment of the district court should be affirmed. However, I disagree with the majority in its view that the admission of plaintiff’s Exhibits 20 and 21 was not erroneous and in its further view that the jury’s responses to the questions set out in Special Verdict No. 3 and Special Verdict No. 4 were not inconsistent.

As to Exhibits 20 and 21, I feel that they fell within the general rule that evidence of post-accident or post-injury changes or corrections made by a defendant is inadmissible. I do not agree that the exhibits fell within any exception to the general rule, and indeed there was no issue as to feasibility of design of a more explicit warning or as to prior knowledge of dangerous properties. But, upon a review of the entire record in the case I am satisfied that in the circumstances here presented the error was not prejudicial.

Turning now to the answers given by the jury to Special Verdict No. 3 and Special Verdict No. 4, it is noted that while all of the forms submitted to the jury were denominated “Special Verdicts,” what the district court actually did was to submit the case to the jury on a general verdict with directions also to answer two special interrogatories should a general verdict in favor of the plaintiff be returned. Such a procedure is authorized by Fed.R.Civ.P. 49(b).

By its answer to Special Verdict No. 3 the jury stated that its finding for the plaintiff was based on his negligence theory. By its answer to Special Verdict No. 4 the jury stated that it did not find for the plaintiff on the basis of his strict. liability in tort theory. The majority '■ finds that those answers were not incon- 1 sistent as between themselves; as indicated, I disagree.

Common to both of plaintiff’s theories was his claim that the labelling on the can of product which he bought was inadequate to warn him of the danger to which he was exposing himself in undertaking to use the product as he undertook to use it, and that the inadequacy of the labelling rendered the product unreasonably dangerous or “defective.” Since strict liability in tort is a broader theory of liability than common law negligence in that there may be a recovery on a strict liability theory without a showing of negligence, the jury’s finding for plaintiff on the basis of his narrower negligence theory while refusing to find for him on his broader theory was logically inconsistent, and the inconsistency cannot be reconciled. However, I do not think that the inconsistency calls for a new trial.

While logically the jury should have based its general finding on both theories if it was going to base the finding on negligence, it does not appear to me that the defendant is in any position to complain about being held liable on one theory when it could have been held liable on two. There was ample evidence to sustain the finding of liability based on negligence, and the answer to Special Verdict No. 3 was not inconsistent with the general finding favorable to the plaintiff. Nor was the negative response of the jury to Special Verdict No. 4 legally inconsistent with its answer to Special Verdict No. 1. Compare Stanbery v. Johnson, 218 Iowa 160, 254 N.W. 303 (1934), as discussed in Cooley v. Quick Supply Co., 221 N.W.2d 763, 769 (Iowa 1974).