Aller v. Rodgers Machinery Mfg. Co., Inc.

• Decision Date: 26 July 1978
• Docket Number: No. 60694,60694
• Citation: 268 N.W.2d 830
• Parties: Robert ALLER, Appellant, v. RODGERS MACHINERY MFG. CO., INC., Appellee.
• Court: Iowa Supreme Court

Page 830

268 N.W.2d 830

4 A.L.R.4th 634

Robert ALLER, Appellant, v. RODGERS MACHINERY MFG. CO., INC., Appellee.

No. 60694.

Supreme Court of Iowa.

July 26, 1978.

Louis A. Lavorato and David S. Wiggins, of Williams, Hart, Lavorato & Kirtley, West Des Moines, for appellant.

H. Richard Smith, of Ahlers, Cooney, Dorweiler, Haynie & Smith, Des Moines, for appellee.

Considered by MOORE, C. J., and LeGRAND, REES, REYNOLDSON, and MASON (serving after June 14, 1978, by special assignment), JJ.

MASON, Justice (serving by special assignment).

Plaintiff, Robert Aller, appeals from a judgment entered upon an adverse jury verdict and from the order denying his motion for new trial. Plaintiff instituted a law action in the Polk District Court seeking damages from defendant, Rodgers Machinery Manufacturing Company, Inc., for injuries sustained by plaintiff in the operation of a saw manufactured by defendant.

Plaintiff's petition was in three divisions. In division 1 his claim for relief was based on the theory of defendant's negligence. In division 2 the claim asserted was based on breach of implied warranty and in division 3 he sought recovery on the theory of strict liability in tort. Plaintiff withdrew divisions 1 and 2 at the close of all the evidence prior to submission to the jury. The only theory presented to the jury was one of strict liability in tort.

In division 3 plaintiff alleged he was injured while using a power saw sold to his employer by defendant, who had manufactured the saw; plaintiff was operating the saw in its intended manner when injured; the saw was defective and unreasonably dangerous when sold; and the defects were the proximate cause of plaintiff's injuries.

The facts giving rise to this lawsuit occurred July 24, 1974, when plaintiff's right hand was cut and crushed by the blade of an upright panel saw designed, manufactured and distributed by defendant. According to plaintiff the injury occurred when his co-worker activated the saw while plaintiff's hand was under the guard of the saw.

Plaintiff's employer, Francisco Cabinet Corporation, had purchased the saw from defendant in 1967. At some time after delivery of the saw and prior to plaintiff's injury, Francisco had installed a guard on the saw to prevent employees from reaching into the blade as it was coming down.

In normal use the saw took two and one-half seconds from the start of its downward cut to reach the point at which plaintiff had his right hand. Here, however, the saw was at the point of impact when it was activated by plaintiff's co-worker. It appears the saw was designed so that it would pop out and start cutting whenever the forward button was pushed.

During the trial of this matter while plaintiff presented his evidence he attempted to have admitted into evidence certain exhibits consisting of safety standards promulgated by various organizations and governmental agencies. Defendant raised numerous objections to the admission of these exhibits which the court sustained.

Plaintiff also attempted to have his expert witness state his opinion whether the saw was dangerous. This attempt was thwarted when defendant objected on several grounds and the court sustained the objection.

After all the evidence was presented, defendant amended its answer to conform to proof to add as an affirmative defense the allegation the sole proximate cause of plaintiff's injuries was the unexpected activation of the saw by a fellow employee of plaintiff. The court allowed the amendment because defendant had originally pled the defense to plaintiff's negligence charge in division 1 of his petition.

Immediately thereafter, the court afforded plaintiff and defendant an opportunity to raise their objections to its proposed instructions. Plaintiff raised several objections which the court overruled.

After the jury returned its verdict the court entered judgment for defendant and granted plaintiff an extension of time in which to file a motion for new trial. In his motion plaintiff raised the same issues raised on appeal. This motion was overruled by the court.

In seeking reversal and a new trial plaintiff contends: (1) this court should change the law with respect to strict liability so "unreasonably dangerous" is no longer an element; (2) the definition of "unreasonably dangerous" should be changed; (3) the court erred in instructing on defendant's duty to design a safe product, subsequent changes in the product, sole proximate cause, and plaintiff's credibility; (4) the court erred in refusing to allow plaintiff's expert to testify the product was dangerous; and (5) the court erred in refusing to admit nine exhibits relating to safety standards as inapplicable or irrelevant.

Plaintiff's written brief and argument in support of these contentions presents the following questions for determination:

1. Did the trial court err in instructing the jury "unreasonably dangerous" was an element of strict liability in tort?

2. Did the trial court err in instructing the jury on the definition of the phrase "unreasonably dangerous"?

3. Did the trial court err in instructing the jury a manufacturer has a duty to design, manufacture and assemble a product which is reasonably suitable and adequate for the purpose for which it is manufactured?

4. Did the trial court err by instructing the jury it was to consider the duty of the manufacturer as of the date it manufactured the saw?

5. Did the trial court err by failing to instruct the jury that a change in a product after it leaves the manufacturer will not relieve it of liability if the change was foreseeable or if it was not the cause of injury?

6. Did the trial court err in instructing the jury on defendant's affirmative defense of sole proximate cause?

7. Did the trial court err by instructing the jury that in considering whether plaintiff had assumed the risk of injury it was to consider all of the facts established by the evidence including plaintiff's statements, age, experience, knowledge and understanding as well as the design and mode of operation of the saw and the obviousness of the condition and the danger it posed?

8. Did the trial court err in failing to allow plaintiff's expert witness to testify that the saw was dangerous?

9. Did the trial court err in failing to admit into evidence certain exhibits consisting of safety standards promulgated by various associations and governmental agencies?

I. Plaintiff concedes that under the applicable Iowa law "unreasonably dangerous" is an element of strict liability in tort as defined by Restatement, Second, Torts, section 402A. See Kleve v. General Motors Corporation, 210 N.W.2d 568, 570-571 (Iowa 1973). As plaintiff points out, this court specifically adopted the principles found in section 402A of the Restatement in Hawkeye-Security Insurance Co. v. Ford Motor Co., 174 N.W.2d 672, 684 (Iowa 1970). Nevertheless, plaintiff urges this court to re-examine this area of law and remove "unreasonably dangerous" as an element of strict liability.

Defendant not only argues the court was correct in including this element in its instructions but also argues plaintiff cannot raise this issue on appeal. Because of the seriousness of the latter of these two arguments by defendant, it will be considered first.

As noted plaintiff alleged in division 3 of his petition the saw was in a "defective condition unreasonably dangerous" when it left defendant's hands. Plaintiff never attempted to strike this allegation by amendment to his petition. Defendant in answer denied this allegation.

The issue thus raised by the pleadings was whether the saw was in a defective condition unreasonably dangerous to the user.

During trial plaintiff attempted to have his expert witness testify the saw was dangerous. He waited until all the evidence was presented at trial and then raised his argument "unreasonably dangerous" should not be considered an element of strict liability in his objections to the court's instructions which contained the phrase.

In light of defendant's argument the question then becomes whether a party may try an entire case upon his theory and then abandon this theory by raising objections to its inclusion in the court's instructions to the jury.

The following statement from Wilson v. Fleming, 239 Iowa 718, 736, 31 N.W.2d 393, 402, mo. den., 239 Iowa 918, 32 N.W.2d 798, lends support to defendant's position:

"Further, the parties seem to have proceeded until the close of the evidence upon the trial as if plaintiff were entitled to have the damage due the owners and that due Heck separately assessed. Separate condemnation awards were made. Plaintiffs' petition claimed separate damages to the owners and to the tenant. No attack was made thereon. Throughout the trial value witnesses testified without objection to the difference in value of the farm and the difference in value of the leasehold, before and after the condemnation, apparently without regard to what the total damage would have been if there had been no leasehold interest. If such method of evaluating the damage was not to be followed, it would seem the question should have been raised before the time to instruct the jury."

This same point was made in Vaillancourt v. Dutton, 115 Vt. 36, 50 A.2d 762, 763, where the court stated:

" * * * It appears that throughout the trial, until the evidence was closed and the arguments completed, the cause was treated by both sides as an action founded upon P.L. 8540. The Court was justified in so regarding it and the defendant's objection came too late. His exceptions to the charge and to the submission of the special verdict are unavailing. * * *."

Even more pointed is the following statement from 88 C.J.S. Trial section 414, pp. 1138-1139 (citing Wilson and Vaillancourt as support):

" * * * A party may not complain of the giving of an instruction with respect to an issue created by his own motion or evidence. So a party cannot except to an...