Board of Water Works Trustees of City of Des Moines, Iowa v. Alvord, Burdick & Howson

• Decision Date: 01 June 1983
• Docket Number: No. 82-2005,82-2005
• Citation: 706 F.2d 820
• Parties: BOARD OF WATER WORKS TRUSTEES OF the CITY OF DES MOINES, IOWA, Appellant, v. ALVORD, BURDICK & HOWSON and Dorr-Oliver, Incorporated, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 820

706 F.2d 820

BOARD OF WATER WORKS TRUSTEES OF the CITY OF DES MOINES IOWA, Appellant, v. ALVORD, BURDICK & HOWSON and Dorr-Oliver, Incorporated, Appellees.

No. 82-2005.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 15, 1983.

Decided May 5, 1983.

Rehearing and Rehearing En Banc Denied June 1, 1983.

C. Carleton Frederici, Steven L. Nelson, Davis, Hockenberg, Wine, Brown & Koehn, Des Moines, Iowa, for appellee Dorr-Oliver, Inc.

W.C. Hoffmann, Steven L. Udelhofen of Jones, Hoffmann & Davison, Des Moines, Iowa, for defendant-appellee, Alvord, Burdick and Howson.

John R. Mackaman, Richard A. Malm, Barbara G. Barrett of Dickinson, Throckmorton, Parker, Mannheimer & Raife, Des Moines, Iowa, for plaintiff-appellant.

Before LAY, Chief Judge, BRIGHT and ROSS, Circuit Judges.

LAY, Chief Judge.

In this diversity jurisdiction case the Board of Water Works Trustees of the City of Des Moines (Water Works), a municipal entity, sued for negligence and breach of warranty regarding installation and operation of a water treatment mechanism to be used in its treatment of water supply in the city of Des Moines, Iowa. The jury found for the defendants, Alvord, Burdick & Howson and Dorr-Oliver, Inc., and the district court, the Honorable Donald E. O'Brien presiding, entered judgment accordingly. On appeal, the Water Works has challenged the trial court's refusal to submit certain of the Water Works' proposed instructions, and the court's submission of certain other instructions to the jury. We affirm in part and reverse in part.

Background.

The Water Works owns and operates the water treatment and distribution facility providing the water supply to the city of Des Moines, Iowa. For many years the Water Works has added lime to its water supply as part of its water softening treatment. Lime sludge is a waste product of this softening treatment; this litigation stems from the Water Works' attempts to dispose of the lime sludge in the most efficient way. For years the Water Works stored the lime sludge in lagoons on its premises. However, this method ultimately proved to be unsuccessful because of aesthetic problems and the limited availability of space.

The Water Works contacted its consulting engineer, Alvord, Burdick & Howson (ABH), and requested that it conduct a study regarding alternative methods of lime sludge disposal. ABH in turn contacted Dorr-Oliver, an equipment manufacturer with experience in the concentration of sludges. Dorr-Oliver offered ABH a lime sludge concentrator which, Dorr-Oliver told ABH, would "produce an anticipated sludge concentration of approximately 15% or greater."

Dorr-Oliver's concentrator was purchased and installed. However, in operation the concentrator produced a lime sludge concentrate of only six percent solids. The Water Works was not satisfied with the six percent level, but efforts by the three parties to increase the concentration level met with little success. The Water Works eventually suspended operation of the concentrator, and brought an action for negligence against its engineer, ABH, and the manufacturer, Dorr-Oliver. The Water Works also sued Dorr-Oliver for breach of express and implied warranties.

At trial the Water Works attempted to show that it had required of ABH and Dorr-Oliver that the concentrator achieve a level of 15% solids. The defendants countered that it was understood by all three parties that 15% concentration was only an expectation, not a requirement. The jury found that there was no breach of express or implied warranties by Dorr-Oliver, and found for both defendants on the Water Works' negligence claims.

On appeal, the Water Works argues, first, that the trial court erred in failing to instruct the jury that warranties can be created even when there is no direct dealing between the buyer and the seller, and that an express warranty can be created through the use of correspondence between parties. Second, the Water Works argues that the trial court's instruction regarding concurrent negligence was confusing and contained terms which were not defined clearly. Third, the Water Works contends that the trial court erred in its instruction relating to contributory negligence and the alleged reciprocal duties of the parties. We agree with this last contention.

I. The Warranty Instructions.

The Water Works contends that the trial court erred in refusing to submit to the jury its proposed instructions 11A and 15, which dealt with the creation of a warranty between a seller of goods and a purchaser when there has been no direct dealing between the seller and purchaser.

The parties ¹ do not argue that either the district court's instructions or the Water Works' proposed instructions are incorrect statements of law. Rather, the plaintiff argues that the trial court did not adequately inform the jury as to the law applicable to the facts in this case.

The Water Works argues that the court committed reversible error when it refused to give the requested instructions because nothing in the court's instructions indicated to the jury that a warranty can be created through indirect communication, and the parties had agreed in a stipulation that Dorr-Oliver had no direct communication with the Water Works prior to the installation of the concentrator. The plaintiff argues that a party is entitled to a specific instruction on its theory of the case, and that the trial court erred when it rejected the plaintiff's specific instructions and instead submitted a general instruction. See Ralston Purina Co. v. Parsons Feed & Farm Supply, Inc., 364 F.2d 57, 62 (8th Cir.1966); Chicago & N.W. Ry. Co. v. Green, 164 F.2d 55, 61 (8th Cir.1947).

In its denial of the plaintiff's motion for a new trial, the district court ruled that although the plaintiff's proposed instructions were correct statements of law, their substance was included in the court's instructions. The district court noted that it refused to give the Water Works' proposed instructions in an effort to avoid repetition in the charge to the jury. ²

A litigant is entitled under federal rules of procedure to have the jury instructed as to its claims and theories of law if they are legally correct, supported by the evidence, and brought to the court's attention in a timely request. Corey v. Jones, 650 F.2d 803, 806 (5th Cir.1981); see Fed.R.Civ.P. 51. However, the trial court is not bound to give the party's requested instruction. A district judge has broad discretion in framing the form and language of the charge to the jury, and as long as the entire charge fairly and adequately contains the law applicable to the case, the judgment will not be disturbed on appeal. Corey v. Jones, 650 F.2d at 806; Brown v. Cedar Rapids & Iowa City Railway Co., 650 F.2d 159, 165 (8th Cir.1981); E.I. du Pont de Nemours & Co. v. Berkley & Co., 620 F.2d 1247, 1271 (8th Cir.1980); Chavis v. Finnlines Ltd., 576 F.2d 1072, 1084 (4th Cir.1978); Bern v. Evans, 349 F.2d 282, 287-88 (8th Cir.1965); 9 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2552, at 627 (1971).

The trial judge did not abuse his discretion when he rejected the proposed instructions, since the substance of the requests was included in the court's charge to the jury. Joyce v. Atlantic Richfield Co., 651 F.2d 676, 686 (10th Cir.1981); Beard v. Mitchell, 604 F.2d 485, 497 (7th Cir.1979); Bern v. Evans, 349 F.2d at 287-88. In the Water Works' requested instruction 11A and in the first two paragraphs of its proposed instruction 15, it sought to instruct the jury that a warranty may be created even though no direct communication existed between the buyer and the seller. The substance of that contention was conveyed to the jury when the court instructed that an express warranty is "any affirmation of fact or any promise by the seller relating to the goods...." (instruction 17A) (emphasis added). Nowhere in the charge was the jury instructed that in order to create a warranty the seller had to make an affirmation of fact or a promise directly to the buyer. The plaintiff also overlooks the court's instruction 22, which read in part:

The first essential of an implied warranty of fitness is that the buyer make known to the seller the purpose for which the goods are required. It is not necessary that there be any specific conversation between the parties with respect to this matter. It may be shown by implication from the facts and circumstances surrounding the transaction, from past transactions, and from the nture [sic] of the goods which are being sold.

The third paragraph of the plaintiff's proposed instruction 15 states the rule enunciated in Iowa Code Ann. Sec. 554.2318 (U.C.C. Sec. 2-318) (West 1967 & Supp.1982), that a seller's warranty extends to any person reasonably expected to use, consume or be affected by the goods and who is injured by breach of the warranty. That contention is included almost verbatim in the court's instruction 31A. ³

We find no error in the court's refusal to give the Water Works' proposed instructions 11A and 15.

II. The Concurrent Negligence Instruction.

The Water Works argues that the trial court erred in submitting the instruction on concurrent negligence to the jury, because it was confusing and contained terms not defined and not understood by the average juror. We find that the Water Works has failed to preserve this issue for appeal, since the record indicates that the plaintiff did not object specifically to the instruction before the jury began its deliberations.

Under Fed.R.Civ.P. 51, a party may assign as error the giving of an instruction only when "he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." Id. The Water Works made no such objection, and "[e]rror in the instructions not properly objected to is waived unless the error is plain error in the sense that a miscarriage of justice would...