Hawkins Const. Co. v. Matthews Co., Inc., 38627

Citation209 N.W.2d 643,190 Neb. 546
Decision Date27 July 1973
Docket NumberNo. 38627,38627
Parties, 12 UCC Rep.Serv. 1013 HAWKINS CONSTRUCTION COMPANY, a corporation, Appellee, v. MATTHEWS COMPANY, INC., a corporation and Waco Scaffold and Shoring Company, Appellants.
CourtSupreme Court of Nebraska

Syllabus by the Court

1. A jury verdict may not be set aside unless it is clearly wrong and it is sufficient if there is any competent evidence presented to the jury upon which it could find for the successful party and all conflicts in the evidence, expert or lay, and the credibility of the witnesses is for the jury and not the court.

2. The difficulties attending an offer of evidence of illustrative experiments requires that in such cases a wide latitude or discretion be conferred upon the trial court and unless there is a clear abuse of discretion a judgment will not be reversed on account of the admission or rejection of such testimony.

3. The proponent of expert testimony based upon an experiment must demonstrate that the person who makes the experiment is competent do to so; that the apparatus used was of the kind and in the condition suitable for the experiment; and that the experiment was honestly and fairly made.

4. A hypothetical question should fairly reflect the proven facts.

5. A hypothetical question is not improper simply because it includes only a part of the facts testified to.

6. An expert witness in giving an opinion has a right to confine the facts that he recites to those which are believed to be true, and which are believed to be material to the issue.

7. A manufacturer is strictly liable in tort when an article he placed in the market, knowing that it is to be used without inspection for defects, proves to have a defect which causes injury to a human being rightfully using that product.

8. Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the boods shall conform to the affirmation or promise.

9. Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.

10. It is not necessary to the creation of an express warranty that the seller use formal words such as 'warranty' or 'guarantee' or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty.

11. Express warranties may be made in an advertising brochure.

12. A manufacturer or seller may be held liable under such an advertising warranty even though he is not in privity of contract with the purchaser.

13. Traditional 'contributory negligence,' in the sense of a failure to discover a defect or to guard against it, is not a defense to a suit in strict tort, or for a breach of warranty; assumption of risk and misuse of the product are.

Crossman, Barton & Norris, Cassem, Tierney, Adams & Henatsch, John R. Douglas, Omaha, for appellants.

Knudsen, Berkheimer, Endacott & Beam, Lincoln, for appellee.

Heard before WHITE, C.J., BOSLAUGH, SMITH, McCOWN, NEWTON and CLINTON, JJ., and HASTINGS, District Judge.

WHITE, Chief Justice.

This is an action for property damage sustained by plaintiff Hawkins Construction Company as a result of the collapse of a scaffold manufactured by the defendant Waco Scaffold and Shoring Company and leased to the plaintiff by the defendant Matthews Company, Inc. The jury returned a verdict for the plaintiff and against both defendants in the amount of $32,635.48. We affirm the judgment of the District Court.

Because of the complex nature of this case, a careful review of the facts is necessary. In May of 1968, the plaintiff Hawkins Construction Company entered into a contract with Swift and Company of Chicago under the terms of which plaintiff was to construct a ham canning facility for Swift at 94th and J Streets in Omaha, Nebraska. A substantial amount of scaffolding equipment was needed for the job, and the plaintiff made an investigation as to availability, cost, and similar factors. Because of the frequent need which companies like the plaintiff have for scaffolding equipment, manufacturers and suppliers periodically send it advertising brochures, and the plaintiff had a complete set of the latest brochures in its office. Among the pamphlets was one published by the defendant Waco, which the plaintiff had received from Mr. William Matthews of the defendant Matthews Company, Inc. The back cover was rubber-stamped with one of the Matthews Company's trade names, 'Scaffold Rental & Sales Co.,' together with its address and phone number.

The Waco pamphlet described the various types of scaffold components manufactured by the company, and provided pictorial representations of suggested applications of the equipment. In addition, the pamphlet contained the following statement: 'Waco HI-LOAD shoring equipment is designed to safely carry working loads up to 20,000 pounds per panel. This is twice the load capacity of conventional steel scaffolding.' The pamphlet later reiterated the claim in the following manner: 'HI-LOAD panels will safely carry individual concentric loads up to 10,000 pounds per leg as illustrated. These loads were established following test procedures recommended by the Steel Scaffolding and Shoring Institute.' Accompanying this text was a drawing of a scaffold panel with the number '10,000' above each of its two legs.

Thomas Lang, plaintiff's job sponsor on the Swift project, testified that he relied on statements made in the brochure in entering the lease arrangement for Waco equipment with the defendant Matthews Company. Fred Hawkins, president and majority stockholder of the plaintiff, testified at trial that he also relied on the brochure in helping to make the decision to use Waco scaffolding, but in a deposition prior to the trial he had testified that there was 'no particular thing' he read or saw that influenced his thinking, and that price was an important factor as well. In any case, the decision was made to use Waco scaffolding, and to lease it from the defendant Matthews Company. Lang, the job sponsor, went to William Matthews, described the project and the purposes for which the equipment was to be used, and provided him with blueprints of the job. In time, the plaintiff received back from Matthews a series of drawings prepared by Waco showing the recommended scaffolding configuration for the plant's construction, and work on the project began.

The purpose of the scaffolding involved in the collapse was the support of the roof deck cement pour. The plaintiff's men first consulted soil compact tests made by a local laboratory in an effort to determine whether the foundation upon which the scaffold would be erected was firm. Under the supervision of Thomas Flynn, the plaintiff's carpenter foreman, 'mud sills' were then placed on the ground to support the structure. These sills consisted of 2 12 inches boards laid flat on the ground, and their purpose was to prevent sinkage by distributing the weight of the scaffold and its load more evenly over the base soil. Screw jack base plates, permitting vertical adjustment of the panels, were then nailed to the mud sills, and levels were taken at each stage of this assembly to insure that the base scaffold structure was perfectly horizontal. The tubular frame panels forming the bottom section of the structure were then fitted into the base plates.

The roof deck construction required the scaffolding to reach to a height of 20 feet and, since each scaffold panel is only 6 feet high, the job thus required panels to be stacked on top of each other until the desired height was reached. In order to accomplish this, the plaintiff had ordered tubular connectors, manufactured by the defendant Waco, from the defendant Matthews Company. These connectors are merely hollow tubes with an interior diameter slightly larger than the tubular feet of a scaffold panel. Connectors are fitted over the tubular supports of the bottom panel, and the upper panel is then stacked on top by fitting its feet into the connectors.

Originally, these connectors were manufactured by simply welding a reinforcing ring washer to the outside center of a solid length of pipe. More recently, however, the connectors have been formed by hydraulically pressing two smaller lengths of pipe together with an amount of pressure greater than their yield value, so that the two pieces deform at the center to form an exterior ridge as they join. All this is accomplished without heating the connector components, and the procedure is correspondingly known as a 'cold form process.' It was the latter type of connnector which Matthews Company provided for the plaintiff's use on the Swift job, and the effect of the cold form process on the stability of these connectors is actively disputed.

Once the panels have been stacked to reach the desired height they are topped off with 'shore heads,' U-shaped holders designed to cradle some of the supportive lumber bracing which will underlie the plywood pour base. More specifically, the short heads cradle the 'ledgers,' which consist of a minimum of three and sometimes four 2 12's nailed together front to back and fitted into the shore heads on edge. That is, if three 2 12's are used, the ledger when installed would be 6 inches wide in the store head and would stand 12 inches above it. The ledgers, in turn, support the 'joists.' Joists are lengths of lumber placed on edge on top of the ledgers and at right angles to them. It is the joists which provide direct structural support to the plywood pour base above, and, in this ease, they were placed 16 inches apart on center.

In the construction of these joists the plaintiff departed from the plans supplied to it. The variances involved the size of lumber used...

To continue reading

Request your trial
88 cases
  • Jones & Laughlin Steel Corp. v. Johns-Manville Sales Corp.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 9 Julio 1980
    ...(strict liability); Hiigel v. General Motors Corp., 190 Colo. 57, 544 P.2d 983 (1975) (strict liability); Hawkins Constr. Co. v. Matthews Co., Inc., 190 Neb. 546, 209 N.W.2d 643 (1973) (strict liability); Price v. Gatlin, 241 Or. 315, 405 P.2d 502 (1965) (strict liability); Inglis v. Americ......
  • Hill v. Joseph T. Ryerson & Son, Inc.
    • United States
    • West Virginia Supreme Court
    • 6 Mayo 1980
    ...of our Uniform Commercial Code. McCarty v. E. J. Korvette, Inc., 28 Md.App. 421, 347 A.2d 253 (1975); Hawkins Construction Co. v. Matthews Co., 190 Neb. 546, 209 N.W.2d 643 (1973); Collins v. Uniroyal, Inc., 126 N.J.Super. 401, 315 A.2d 30 (1973), aff'd, 64 N.J. 260, 315 A.2d 16 (1974); Hau......
  • Rahmig v. Mosley Machinery Co.
    • United States
    • Nebraska Supreme Court
    • 11 Septiembre 1987
    ...and unreasonably dangerous product. See, Hancock v. Paccar, Inc., 204 Neb. 468, 283 N.W.2d 25 (1979); Hawkins Constr. Co. v. Matthews Co., Inc., 190 Neb. 546, 209 N.W.2d 643 (1973). "One who is capable of understanding and discretion but fails to exercise ordinary care and prudence to avoid......
  • Morningstar v. Black and Decker Mfg. Co.
    • United States
    • West Virginia Supreme Court
    • 13 Abril 1979
    ...N.W.2d 373, 380 (Iowa 1972); Brooks v. Dietz, 218 Kan. 698, 704-705, 545 P.2d 1104, 1110 (1976); Hawkins Construction Co. v. Matthews Co., 190 Neb. 546, 566-67, 209 N.W.2d 643, 655 (1973); Rice v. Hyster Co., 273 Or. 191, 204, 540 P.2d 989, 995 (1975); Ellithorpe v. Ford Motor Co., 503 S.W.......
  • Request a trial to view additional results
1 books & journal articles
  • Recovery of Pure Economic Loss in Product Liability Actions: an Economic Comparison of Three Legal Rules
    • United States
    • Seattle University School of Law Seattle University Law Review No. 11-02, December 1987
    • Invalid date
    ...(Del. 1980); Sharp Bros. Contracting Co. v. American Hoist and Derrick Co., 703 S.W.2d 901 (Mo. 1986); Hawkins Constr. Co. v. Mathews Co., 190 Neb. 546, 209 N.W.2d 643 (1973); Cayuga Harvester v. Allis-Chalmers Corp., 95 A.D.2d 5, 465 N.Y.S.2d 443 (1983); Hagert v. Hatton Commodities, Inc.,......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT