Schenfeld v. Norton Company, 9386.

Citation391 F.2d 420
Decision Date02 July 1968
Docket NumberNo. 9386.,9386.
PartiesJoseph SCHENFELD, Appellant, v. NORTON COMPANY, Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Philip Hornbein, Jr., Denver, Colo. (Roy O. Goldin, Denver, Colo., was with him on brief), for appellant.

John C. Mott, Denver, Colo. (of Zarlengo, Mott & Carlin, Denver, Colo.), for appellee.

Before MURRAH, Chief Judge, and BARROW and DELEHANT*, District Judges.

MURRAH, Chief Judge.

Appellant Joseph Schenfeld was injured in the course of his employment with Western Foundries, Inc., when a grinding wheel he was using flew into pieces, one or more of which struck him in the face. The wheel was mounted on a power grinder by means of a metal mount. Schenfeld brought suit against appellee Norton Company (the manufacturer and supplier of both the grinding wheel and metal mount), alleging: (1) breach of an implied warranty that the grinding wheel was in all respects fit, proper and safe to be used when mounted in the manner in which it was, and (2) negligence. At the close of the evidence the trial judge sustained Norton's motion to dismiss the implied warranty claim. He found that the metal mount was not sold by Norton to Schenfeld's employer, and concluded that in the absence of a "sale", there could be no implied warranty. The case was submitted to the jury on the negligence count, the court instructing on both negligence and contributory negligence. Judgment was entered on the jury verdict in favor of Norton. On appeal, Schenfeld contends that the trial judge erred in: (1) instructing the jury on contributory negligence, and (2) dismissing the implied warranty claim.

The record discloses the following pertinent facts. Norton manufactures and markets approximately 250,000 varieties of grinding wheels. The type being used by Schenfeld at the time of the accident was a so-called "raised hub" grinding wheel, designed to perform a particular grinding operation. Norton markets, as a separate item, a fiber mount to be used for mounting raised hub wheels. For some time prior to the accident Western Foundries' Foreman Grieve had purchased hub grinding wheels and fiber mounts from Danielson, Norton's salesman who made monthly visits to the foundry. Grieve became dissatisfied with the fiber mounts because they wore down too quickly and, about a month before Schenfeld's injury, asked Danielson if there was a metal mount that could be used in place of the fiber one. Danielson replied that although Norton did not make a metal mount for sale as a separate item, it did market, as a complete unit, a metal mount and grinding wheel attached together by means of a cement adhesive. This unit was called a "dis-card mount wheel" or a "throw-away mount wheel" because the mount was discarded along with the wheel when the wheel was worn out. Danielson said he would get Grieve one or two of these metal dis-card mounts which, after removal from the attached grinding wheels, could be used in place of the fiber mounts. A few days later Danielson brought two of the throw-away mounts to Western Foundries and told Grieve "to give these a try and see if they would work."1

On the morning of the accident, Grieve personally mounted a hub wheel (admittedly manufactured and marketed by Norton) on a portable grinder by means of one of the supplied metal mounts. He subsequently assigned the grinder to Schenfeld to remove rough places from a cast iron irrigation gate. Schenfeld testified that after checking the grinding wheel for chips, he started the grinder and had "barely touched" the gate with the grinding wheel when the accident occurred.

The trial of the case was essentially a battle of experts. In support of his negligence and breach of warranty counts, Schenfeld presented expert testimony to the effect that there was a mismatch between the metal mount supplied by Danielson and the grinding wheel; that this mis-match created a gap between the mount and the wheel; and that when the two were placed on the grinder and tightened, a stress was created in the grinding wheel, causing it to break and injure Schenfeld. This conclusion as to the cause of the accident was refuted by two expert witnesses called by Norton. Based upon their examination of the wheel fragments, they concluded that the grinding wheel broke as the result of being "jammed" by the operator, i. e. banged suddenly into the work piece.

At the close of the evidence, the trial judge, over objection by Schenfeld's counsel, instructed the jury to return a verdict for Norton if the jury found that Schenfeld was guilty of contributory negligence. On appeal, Schenfeld argues that the expert testimony to the effect that the accident was caused by jamming on the part of Schenfeld was merely "surmise, speculation and conjecture", and did not form a sufficient basis upon which to predicate an instruction on contributory negligence. On the contrary, we think the instruction was proper.

It is true of course that contributory negligence, like primary negligence, must be based upon something more than speculation or surmise, but negligence, either primary or contributory, may be established by reasonable inferences drawn from the facts and circumstances surrounding the accident. See Martin K. Eby Construction Co. v. Neely, 10 Cir., 344 F.2d 482; McCready v. United Iron and Steel Co., 10 Cir., 272 F.2d 700; and Remley v. Newton, 147 Colo. 401, 364 P.2d 581. Norton's experts examined the wheel fragments as they existed immediately following the accident, and listened to Schenfeld's description of the manner in which he was holding the grinder when the accident occurred. From the information thus gathered, they concluded that the accident resulted from "jamming" on the part of the operator. We think the opinion they formed and expressed was permissible under the facts and circumstances, and warranted an instruction on contributory negligence.

Before considering the propriety of the trial judge's dismissal of Schenfeld's implied warranty claim, it seems appropriate to quickly review the development and present status of the various potential recovery routes open to a claimant injured by a defective product. One such avenue of redress is, of course, an action for negligence. Since MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, it is no longer doubted that the supplier of a chattel negligently made is liable for foreseeable harm to anyone injured, regardless of privity. See Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099, 1100-1103 (1960).

Independently of the negligence route, recovery has been traditionally allowed for breach of an express or implied warranty. Such a warranty was considered to be a part of the contract between the seller and buyer and thus had its basis in contract law. See Dagley v. Armstrong Rubber Co., 7 Cir., 344 F.2d 245. With the advent of the Uniform Sales Act, now replaced in the vast majority of states by the Uniform Commercial Code, recovery became conditioned upon compliance with its pertinent warranty provisions. USA §§ 12 and 15. Recovery was often precluded, however, by the assertion of certain recognized contractual defenses such as lack of privity or the existence of a disclaimer. See Annot., 75 A.L.R.2d 39, 47-54. In response to a felt need, many courts circumvented these defenses by using theories of fictitious agency or third party beneficiary.2 The theory which has become more or less agreed upon in later years is that of a "warranty" running with the goods or made directly to the consumer on the basis of public policy.3 The net effect of these cases was to impose on the manufacturer strict liability, i. e., liability in the absence of either negligence or privity. This strict liability was first imposed in breach of warranty cases involving food and drink4, and was gradually extended to include articles for intimate bodily use. See Graham v. Bottenfields, Inc., 176 Kan. 68, 269 P.2d 413. Finally, in the leading case of Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1 (1960), the Supreme Court of New Jersey extended strict liability to cover the sale of any defective product which may be expected to cause harm to the consumer.5 The floodgates were thus opened6, and a surge of cases soon followed the New Jersey court's lead.7

The next step was to shed the warranty guise under which strict liability had been traditionally imposed and give it an honest label. This task was undertaken in 1963 by the California Supreme Court in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049. With characteristic clarity and succinctness, Justice, now Chief Justice, Traynor imposed strict liability in the name of "tort": "Although in these cases strict liability has usually been based on the theory of an express or implied warranty running from the manufacturer to the plaintiff, the abandonment of the requirement of a contract between them, the recognition that the liability is not assumed by agreement but imposed by law * * *, and the refusal to permit the manufacturer to define the scope of its own responsibility for defective products * * * make clear that the liability is not one governed by the law of contract warranties but by the law of strict liability in tort." 27 Cal.Rptr. at 701, 377 P.2d at 901.

The impact of the Greenman decision was immediate, and other courts quickly added their approval.8 The American Law Institute has confirmed the transition in nomenclature in its Restatement of Torts (Second), § 402A: "(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and...

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