Singer v. Walker

• Citation: 331 N.Y.S.2d 823,39 A.D.2d 90
• Parties: Frederick F. SINGER and Michael Singer, Plaintiffs-Respondents, v. Alan WALKER, doing business under the firm name and style of Walker's Minerals, Defendant, and Estwing Manufacturing Co., Inc., also known as Estwing Manufacturing Company, Defendant-Appellant.
• Decision Date: 11 May 1972
• Court: New York Supreme Court Appellate Division

Page 823

331 N.Y.S.2d 823

39 A.D.2d 90

Frederick F. SINGER and Michael Singer, Plaintiffs-Respondents,

v.

Alan WALKER, doing business under the firm name and style of

Walker's Minerals, Defendant, and Estwing

Manufacturing Co., Inc., also known as

Estwing Manufacturing Company,

Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

May 11, 1972.

Harry L. Koenig, New York City, for plaintiffs-respondents.

William F. McNulty, New York City, of counsel (Abraham Burstein and Anthony J. McNulty, New York City, with him on the brief); Zelby & Burstein, New York City, for defendant-appellant.

Before NUNEZ, J.P., and KUPFERMAN, McNALLY and TILZER, JJ.

TILZER, Justice.

Defendant appeals from a judgment in favor of plaintiff Michael Singer in the amount of $130,000, and in favor of plaintiff Frederick Singer in the amount of approximately $2,000.

In February of 1960 plaintiff Michael Singer received as a birthday present from his aunt a 14 ounce geologist's hammer. It was this hammer which caused the complained of injuries. The hammer was manufactured by the defendant Estwing Manufacturing Co., Inc. On the neck of the hammer was printed the following:

'Unbreakable Tools

Estwing Mfg. Co., Rockford, Ill.'

The hammer had been advertised to the trade as being unbreakable, and was sold under a guarantee, which provided that 'All Estwing Tools are guaranteed unbreakable in all normal use.' On April 17 1960, plaintiff Frederick Singer, his son Michael and a friend, went on an outing to collect rock specimens. Upon arrival at the destination the members of the party went in search of quartz since they were seeking topaz which is contained therein. The geologist's hammer had been taken on the trip and during the course of the day Michael had occasion to use it. There came a time when one of the boys found a two to three pound quartz rock, which was brought to Frederick Singer. Frederick Singer decided 'to open up the rock, to chip it open, to see whether there was any topaz (in it).' While on his knees, he placed the rock on the ground and struck it as hard as possible with the hammer. We note that Frederick Singer testified that he was trying to break a piece off the rock. Suddenly, Michael Singer, who was kneeling alongside his father, cried out. The father looked up and noticed a speck of blood on Michael's right eyelid. We need not consider the subsequent events of the day in detail, except to note that Michael was returned to New York on the same day, where he underwent an operation for the removal of the foreign substance from the eye. The substance was removed, but unfortunately further difficulties developed, necessitating the removal of the right eye.

Initially, it is to be noted that at the trial there was considerable testimony as to whether the foreign substance removed from the eye was a chip from the head of the hammer or a piece of mineral. It is conceded on appeal, however, that on this issue a question of fact was presented for determination by the jury. We believe that the finding that the substance came from the hammer, implicit in the jury's verdict, was amply supported by the evidence.

The case was submitted to the jury on three theories of liability: (1) negligence in design and manufacture (2) breach of the express warranty and (3) breach of the implied warranty that it was reasonably fit for the purposes intended. With regard to the negligence cause of action defendant argues that he expert testimony fell far short of establishing defective design or manufacture, and merely amounted to little more than an opinion that the hammer could have been improved by using some other method of manufacture or a different design. Further, it is urged that the testimony offered by plaintiff's expert witness was of no probative value since it was based upon the assumption that the hammer was being used in a normal manner for the purpose intended. Further, the question of proper use is raised in connection with the other two causes of action based upon warranty. With respect to this issue it is argued that the evidence established that Frederick Singer was not using the hammer for the purpose intended. Finally, it is asserted that the judgment must be reversed, since Michael Singer was a 'non-user' of the geologist's hammer, and hence the warranties, under existing New York law, do not extend to him.

As stated in the dissent, since the case was submitted to the jury on three separate theories of liability, and since a general verdict was returned, the judgment must be reversed unless all three theories of liability can be sustained. (Clark v. Board of Educ. of City of N.Y., 304 N.Y. 488, 109 N.E.2d 73; Durham v. Metropolitan Electric Protective Assn., 27 A.D.2d 818, 278 N.Y.S.2d 163.) We believe, however, that all three of the causes of action were established and hence, that the jury's verdict was proper.

We first consider the question of whether the testimony established that Frederick Singer misused the hammer at the time of the accident. The law is clear that a manufacturer need not anticipate that his product will be misused (Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802). We do not believe that it was established as a matter of law that the hammer was being misused. The Court charged that 'the testimony on the manner of what is or is not the proper use of a geologist's hammer . . . is a question of fact.' With this we fully agree.

Clearly, Frederick Singer utilized the hammer to break open the rock. It is argued that the expert testimony established that the hammer was not intended to be used to break or split open a rock of this size and hardness, but its purpose was limited merely to chipping an edge off the rock. Defendant maintains that if one wished to split such a rock a chisel or small sledge hammer should be used. Such an argument presents a rather subtle distinction between chipping and breaking. It was not shown that this particular hammer came with any instructions with regard to its use, or that the manufacturer took the necessary precautions to warn as to the limitations on its use. Defendant well knew that this hammer was purchased and used by hobbyists and could not assume that the purchasers would be aware of the distinction between chipping and breaking. The Trial Court put it quite well when questioning the witness Walker. 'But the expectation is that the surface of your hammer is to be used against the surface of the object you are hitting, is that right?' The purpose of the hammer was that it would be struck directly against hard objects, i.e., rocks, and that is what Frederick Singer was using the hammer for at the time of the accident.

In any event, as indicated above, we believe that a question of fact was raised concerning the proper use of the hammer. The record did not establish so clearly, as urged by defendant, that the hammer should only be used for chipping. The witness Walker testified he 'would use a hammer to split open a rock . . .'. Dr. Manson testified that the hammer is used 'to deliver a sharp hard blow to any piece of material to try and see what's inside it, any piece of rock or stone . . .' (the very use to which Frederick Singer was putting the hammer). Dr. Manson further testified that it might very well be preferable, under certain circumstances, to use the geologist's hammer to break open the rock rather than use a chisel, since use of a chisel might increase chance of destroying the topaz.

We now consider whether each of the three causes of action submitted to the jury was established. We have already concluded that the finding implicit in the jury's verdict, that the hammer was being used in a normal manner was proper. The defendant in its brief on appeal states that '(n)o one disputes the proposition that Estwing would have been negligent if this 14-ounce geologists' hammer 'could fragment in normal use' and if it 'failed to warn purchasers that said hammer could fragment in normal use' . . . or if the hammer was not properly designed or constructed for the 'normal use' for which it was designed and manufactured and intended to be used . . . or if said defendant 'manufactured and distributed for sale a geologist's hammer which, when used as intended', broke or fragmented.' The evidence clearly supports a finding of negligence in design and manufacture, as well as failure to warn. Plaintiff's expert testified in effect, that the hammer was defectively designed and that if the hammer had been beveled there would be less likelihood of its fragmenting. He also stated that the hammer would be better fit for its intended use if it had been rim-tempered. Further, it is quite clear that the express and implied warranties were breached. The hammer, guaranteed to be unbreakable in all normal use, fragmented while being used for the purpose intended. The express warranty was in fact false, and from the record it is clear that the hammer was not of merchantable quality. Indeed, it does not really appear that defendant disputes that if the hammer broke in normal use the warranties were breached.

While the defendant concedes that under present New York law, 'it is clear that any 'user' of the warranted product can sue for breach of warranty, express or implied . . .', it urges nevertheless that Michael Singer is not within the protective scope of the warranties as he was not the user of the hammer. It is urged that the Court of Appeals has not, as of yet, extended the protective scope of warranties to non-users.

In the first place, we do not believe that Michael Singer is properly characterized as a non-user. The term 'non-user' refers to a bystander--to a person who has no real nexus to the instrumentality causing the injury except that he is injured. Michael Singer was not a stranger to the product; in fact the hammer belonged to him. He was not a mere onlooker at the time of the accident, but rather, was engaged with his father...