Champlin v. Oklahoma Furniture Manufacturing Co.

• Citation: 269 F.2d 918
• Decision Date: 07 August 1959
• Docket Number: No. 5985.,5985.
• Parties: Dorotha L. CHAMPLIN, Appellant, v. OKLAHOMA FURNITURE MANUFACTURING COMPANY, a corporation, and The Evans Company, d/b/a Big Red Warehouse, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

269 F.2d 918 (1959)

Dorotha L. CHAMPLIN, Appellant, v. OKLAHOMA FURNITURE MANUFACTURING COMPANY, a corporation, and The Evans Company, d/b/a Big Red Warehouse, Appellees.

No. 5985.

United States Court of Appeals Tenth Circuit.

August 7, 1959.

Delmer L. Stagner, Oklahoma City, Okl. (LeRoy Powers, Stagner, Alpern, Powers & Tapp, Oklahoma City, Okl., were with him on the brief), for appellant.

Walter D. Hanson, Oklahoma City, Okl., for appellees.

Before BRATTON, Chief Judge, and HUXMAN and LEWIS, Circuit Judges.

LEWIS, Circuit Judge.

Plaintiff-appellant questions the properness of an adverse summary judgment rendered against her by the court after consideration of the pleadings, depositions, and answers to interrogatories obtained through discovery procedures.

Alleging diversity jurisdiction, plaintiff filed a tort action in the District Court for the Western District of Oklahoma against defendant-appellee, a furniture manufacturer. Claim was made that she had suffered personal injuries from a fall occasioned by the collapse of a chair alleged to have been negligently designed, manufactured, assembled, handled and placed in the channels of commerce by defendant. By answer and in addition to general denials, defendant alleged that the chairs it had manufactured had been sold to the Evans Company, a retailer, upon an "as is" basis, without warranty, and with the understanding that the Evans Company would repair the chairs before sale to the public; that such repairs were undertaken by the Evans Company and that as a consequence any liability to plaintiff was solely that of Evans Company; finally, that plaintiff for a consideration had executed a covenant not to sue the Evans Company. Defendant also filed a third-party complaint against the Evans Company asking for recovery over should plaintiff obtain judgment. In turn, the Evans Company answered, denying it had agreed to or had repaired or altered the chair; alleged that the chair was defective in original manufacture and then counterclaimed for the equivalent sum paid to plaintiff for her covenant not to sue.

It is apparent that the cause was not ripe for summary judgment based upon the pleadings alone as the issues as thus formed highlight an effort between manufacturer and retailer to fix legal blame upon each other.

Plaintiff, by deposition, testified that while shopping for furniture in the store of the Evans Company she sat in the subject chair, fell backwards, and was injured; that she could describe the chair only generally and that she could not produce it as an exhibit. Other witnesses whose depositions were taken consisted of employees and officers of the retailer and manufacturer. The employees testified in complete conflict concerning the condition of the chair after the accident. Each had been directed to the chair by an unidentified person and had inspected it. It was variously described as having "a broken spring," "a spring out of the bracket," "two screws loose" and "a completely broken base." Officers of the companies testified to the circumstances of the sale of the chairs from appellee to the Evans Company. The statements of none of the deponents (plaintiff of course excepted), testifying as they were to matters beyond plaintiff's knowledge, were admitted to be factually correct as deposed.

Plaintiff did make several admissions by way of answers to interrogatories which were considered by the trial court and which we deem to have been properly considered although such answers are not specifically brought within the scope of consideration on summary judgment by Rule 56(c), 28 U.S.C.A., and there has been some diversity of opinion among the circuits as to whether they should form a part of the record for this procedure. In Town of River Junction v. Maryland Casualty Co., 5 Cir., 110 F.2d 278, 283, it is said, "Such interrogatories are exploratory, intended to find out facts and witnesses and documents so the propounder may thereafter prepare to prove his case in an orderly manner. They are not `depositions' referred to in Rule 56 as to be considered on summary judgment." This view was rejected by American Airlines, Inc. v. Ulen, 87 U.S. App.D.C. 307, 186 F.2d 529; Gasifier Mfg. Co. v. Ford Motor Co., D.C.E.D.Mo., 1 F.R.D. 10, appeal dismissed, 8 Cir., 116 F.2d 498; and numerous other district courts.

In many instances, the answers to interrogatories do appear as admissions within the language of Rule 56(c), and, additionally, Rule 33 provides that the answers to interrogatories may be used to the same extent as provided by Rule 26(d) for the use of the deposition of a party. We conclude, therefore, with the majority of courts which have considered this question, that interrogatories and answers thereto may properly be considered when ruling on a motion for summary judgment.

In answer to propounded questions plaintiff admitted that the subject chair was one of a group of chairs sold by appellant to the Evans Company upon an "as is" basis; that the sale was at a reduced price and after a visual inspection of them by the retailer; that the sale was without warranty. And by way of an amended answer to an interrogatory not reproduced in the record¹ plaintiff stated:

"The plaintiff, pursuant to agreement before the court on April 24, 1957, amends her Answers to Interrogatory Number 3 to amplify such Answer by adding the following:

"With reference to sub-paragraphs (b) and (c), the plaintiff believes and therefore contends that one of the coil springs used by the defendant in the manufacture and assembling of the chair was not fastened to the bracket, causing the chair to be completely unstable and dangerous, and that the spring used was broken, which facts the defendants\' agent knew or should have known; that said chair was placed in the channels of commerce as thus defectively manufactured and assembled with knowledge that when it would be used by members of the public for the purpose for which it was manufactured it would topple and would likely cause an injury to such user."

In apparent contradiction to the above-quoted limiting statement, plaintiff resisted the motion for summary judgment with a "statement of evidence plaintiff will produce upon trial.":

"Plaintiff will further prove by a safety engineer that all of the chairs of this design were so defectively designed that they could not safely be used for the purposes for which they were manufactured, that is that these chairs could not be used for sitting purposes without a great likelihood or probability that they would tip over backwards, and that this condition was inherent in the design of the chair and could not be repaired or corrected except by a complete remanufacture of the chair with parts of

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