Bowles v. Zimmer Manufacturing Company

• Decision Date: 04 May 1960
• Docket Number: No. 12804.,12804.
• Parties: Charles E. BOWLES, Jr., Plaintiff-Appellee, v. ZIMMER MANUFACTURING COMPANY, an Indiana corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

277 F.2d 868 (1960)

Charles E. BOWLES, Jr., Plaintiff-Appellee, v. ZIMMER MANUFACTURING COMPANY, an Indiana corporation, Defendant-Appellant.

No. 12804.

United States Court of Appeals Seventh Circuit.

May 4, 1960.

COPYRIGHT MATERIAL OMITTED

Hugh E. Reynolds, Hugh E. Reynolds, Jr., Indianapolis, Ind., George N. Beamer, South Bend, Ind., Locke, Reynolds, Boyd & Weisell, Indianapolis, Ind., Crumpacker, May, Beamer, Levy & Searer, South Bend, Ind., of counsel, for appellant.

Thomas L. Murray, South Bend, Ind., Earl C. Opperthauser, Detroit, Mich., for appellee.

Before DUFFY and SCHNACKENBERG, Circuit Judges, and MERCER, District Judge.

SCHNACKENBERG, Circuit Judge.

Zimmer Manufacturing Company, an Indiana corporation, defendant, has appealed from a district court judgment for $45,000 and costs, for plaintiff, Charles E. Bowles, Jr., rendered upon a verdict in an action brought to recover damages claimed in count I of an amended complaint to have been occasioned by the alleged negligence of defendant in the design and manufacture of an intramedullary pin, and claimed in count II thereof to have been occasioned by a breach of warranty in the sale of said pin.

Defendant's responsive pleadings were answers, including a defense "that prior to the commencement of this action and on or about the 21st day of May, 1956, the Plaintiff was paid the sum of $9,600.00 on account of his injuries and damage which said sum was accepted by and retained by the Plaintiff in satisfaction of the injuries suffered by him." On motion of plaintiff, the latter defense was "dismissed".

On a trial, the following material facts appeared:

On September 25, 1955, in Detroit, Michigan, plaintiff was struck by an automobile and thereby he fractured his left femur. While in the Receiving Hospital in Detroit, Michigan, for treatment, three days later, a 9 millimeter Kuntscher intramedullary pin was placed in the marrow cavity of the femur.

It was stipulated in the district court that G. A. Ingram Co. by written order to defendant, in Warsaw, Indiana, ordered the pin, which order was accepted by defendant in Warsaw, and that the pin was shipped by defendant to G. A. Ingram Co., who received it and thereupon delivered it to the Receiving Hospital.¹

Plaintiff was allowed up on crutches, instructed not to put weight on the leg and told how to exercise it, was released three weeks after his admission and then spent a week in bed at home. After making one call to the hospital as an outpatient, he was not examined or treated there afterward. He was examined by Dr. A. Jackson Day in Detroit on November 1, 1955. On December 12, 1955, X-rays were taken by Dr. Harry Harris at Dr. Day's request. A minimum bend of less than 5 degrees at the fracture site was shown. Dr. Day advised plaintiff of this and plaintiff was as careful as he could be and continued to do his exercises and drive his car. In January 1956 he noticed further bending of the leg.

On February 3, 1956 plaintiff had pain in his leg and told Dr. Day that he slipped on the ice which compelled him to go forward on his hands with his injured leg held back up off the ground. There was then no more noticeable bending in the leg.

Plaintiff was admitted to a veterans' hospital, where the pin was straightened and later a bone graft was performed, from a chip off his hip bone. He was on crutches, and then a cane.

He was admitted to Harper Hospital in Detroit on August 14, 1957 where by operation the Kuntscher pin was removed by Dr. J. G. Reid, an orthopedic specialist, and an 11 millimeter Schneider pin was inserted. He was discharged from that hospital on August 26, 1957.

On November 20, 1957, Dr. Reid found that plaintiff's legs were the same length. There was some loss of internal rotation of the left leg. The next X-rays were taken August 21, 1958, at which time it appeared that he had a good solid bony union with a shortening of the left leg of less than ¼ inch.

It was Dr. Reid's opinion that delayed healing of the broken femur would result from a bend in such a pin, from any disturbance in proper apposition, and from the angle at the fracture site revealed by the X-ray of December 12, 1955. The delayed condition of healing in August 1957 was also caused by the bending of the pin.

It was the opinion of Doctors Reid and Day that the fracture in plaintiff's leg could reasonably have been expected to heal within six months' time from the date of the original fracture. After the bending of the pin and the very little evidence of callus revealed by the X-ray of December 12, 1955, it was Dr. Day's opinion that the union of the bone would take from nine to fifteen months.

Actually the pin continued to bend and union was not achieved until a new and different pin replaced the defective one in August 1957. It was Doctor Reid's opinion that six months after November, 1958, plaintiff could perform all of his former duties. His incapacity from the date of the insertion of the first pin to May 1959 was, therefore, 3 years 8 months. This exceeds the normal 6 month period for healing of such a fracture by 38 months.

At the time of the accident, plaintiff (28 years old at the time of the trial in 1959), was employed as a grinder in a machine shop, earning about $2 an hour.

After the pin, which was manufactured by defendant, was removed from plaintiff's leg, Dr. Reid sent it to Professor Herbert R. Lissner, at Wayne State University, Detroit. He testified that the pin in plaintiff's leg was poorly designed and that, among the defects originating in the manufacturing process, was a crack running through the entire length of the pin. Any fluctuation of the leg would cause the crack to widen. That is what happened to the pin in plaintiff's leg.

Plaintiff brought suit against the driver of the automobile that struck him and the case was settled in May 1956 by the payment of $9,600 to plaintiff. Plaintiff executed a release which contained the following specific reservations and rights:

"Anything to the contrary herein contained notwithstanding, Charles E. Bowles, Jr., reserves his rights against any and all persons, real and/or corporate who may have manufactured, sold, or used an intermedullary type nail inserted in the leg of Charles E. Bowles, Jr."

At the close of plaintiff's evidence, and again at the close of all the evidence, defendant moved the court to instruct the jury to return a verdict for defendant, upon the grounds, inter alia, now raised by defendant in this court. Those motions were denied.

1. At the trial defendant attempted to prove the facts set up in the dismissed defense in reference to the suit brought by plaintiff against the driver of the automobile and the payment of $9,600 to plaintiff. The court having sustained an objection thereto, an offer of proof was made by defendant and rejected.

Defendant contends that the court erred, asserting that it is a universal rule of law that where one suffers an injury as a result of an accident, which is subsequently aggravated, plaintiff is entitled to only one payment for all the injuries received, irrespective of the number of parties that may be liable for the original wrong or its aggravation. He quotes from Manthei v. Heimerdinger, et al., 332 Ill.App. 335, 75 N.E.2d 132, at page 140, where the court said:

"* * * The damages he sustained are inseparable and the overwhelming weight of authority applicable under these conditions is that the ancient rule of the release of one operates to release all applies indiscriminately, i. e., to both types of tort feasors, joint and independent concurring tort feasors."

The court instructed the jury in the case at bar:

"12. The Court instructs you that you may not compensate the plaintiff with damages for any prior injuries which he may have suffered by reason of any other accident or injury at some prior date.

"The plaintiff may recover, of course, for the aggravation of any prior existing injuries which he may have had at the time this injury allegedly took place, but only for the aggravation of those prior existing injuries as shown by a preponderance of the evidence, but he may not recover, as the Court has instructed you, for the prior injury.

"The plaintiff can only recover in this action for damages, if any, which you may find by a preponderance of the evidence, that he suffered as a direct and proximate result of the negligence or breach of warranty of this defendant."

The driver of the car which injured plaintiff and defendant were not joint tort-feasors. The tort of the automobile driver was committed and injured plaintiff prior to the time that the tortious action of defendant injured plaintiff. While it is true that insertion of the defective pin manufactured by defendant took place in a body theretofore injured by the negligent driver of an automobile, there was no joint action between the two tort-feasors. Their torts were separate and distinct. The injuries caused plaintiff by one tort were separate from those caused by the other tort and it is believed that the jury was sufficiently instructed on that point by the court so that it was able, from considering the evidence, to exclude from its allowance of damages assessed against defendant any damages which the plaintiff sustained by reason of the breaking of his femur.

But defendant argues in this court that, if the driver of the car and the defendant are considered to be not joint tort-feasors, then the executed instrument and payment of $9,600 constituted a full and complete release, and plaintiff can have only one satisfaction; hence he is barred from recovery in this case.

We know of no reason why plaintiff cannot rely upon the reservation of rights written into the release, which specifically preserves to plaintiff his rights against those who manufactured, sold, or used "an intermedullary type nail inserted in" his leg.

Inasmuch as this release was executed in Michigan and pertained to a Michigan tort, it must be...