Cuthbertson v. Clark Equipment Co.

• Decision Date: 20 July 1982
• Docket Number: MARTIN-MARIETTA
• Citation: 448 A.2d 315
• Parties: 34 UCC Rep.Serv. 71 Norma J. CUTHBERTSON, Admrx. v. CLARK EQUIPMENT COMPANY and Chadwick BaRoss, Inc. v.CORPORATION.
• Court: Maine Supreme Court

Page 315

448 A.2d 315

34 UCC Rep.Serv. 71

Norma J. CUTHBERTSON, Admrx. v. CLARK EQUIPMENT COMPANY and Chadwick BaRoss, Inc. v. MARTIN-MARIETTA CORPORATION.

Supreme Judicial Court of Maine.

July 20, 1982.

As Modified on Denial of Rehearing

Aug. 3, 1982.

Hunt, Thompson & Bowie, James M. Bowie (orally), M. Roberts Hunt, Glenn H. Robinson, Portland, for plaintiff.

Richardson, Tyler & Troubh, Harrison Richardson (orally), Portland, for Clark Equipment Co.

Preti, Flaherty and Beliveau, Robert Checkoway (orally), Portland, for Chadwick BaRoss Inc.

Hewes & Culley, Peter W. Culley, Portland, for third-party defendant Martin Marietta.

Before McKUSICK, C. J., and GODFREY, NICHOLS, ROBERTS and WATHEN, JJ.

NICHOLS, Justice.

The novel claim of jury misconduct when it, after a trial of a wrongful death action which lasted eight days, returned a verdict in 16 minutes, is among the issues raised by the Plaintiff, Norma J. Cuthbertson, on this appeal from a judgment adverse to her in Superior Court (Knox County). The Defendants, Clark Equipment Company (Clark) and Chadwick BaRoss, Inc. (BaRoss), have cross-appealed.

We deny the Plaintiff's appeal and dismiss those of the Defendants.

The Plaintiff's husband and her intestate, Albert Cuthbertson, died on December 3, 1973, when a front-end loader which he was operating at the Thomaston quarry of the Third-party Defendant, Martin-Marietta Corporation, overturned. The loader known as a Michigan 75-IIIA, was manufactured by Clark in Michigan and obtained by Martin-Marietta from BaRoss, then the Maine distributor for Clark heavy equipment products. This transaction took place on January 21, 1971, although a lease agreement covering the loader was signed on March 17, 1971, by BaRoss and Dragon Cement Company, Martin-Marietta's corporate predecessor. The agreement provided for monthly payments for four years followed by a "repurchase" by BaRoss. The lease and the owner's manual which accompanied the loader included certain disclaimers of warranties.

At the time of the accident the decedent was driving the Michigan 75-IIIA down a fairly steep incline. The loader did not have a Roll Over Protective System (ROPS), although such a system was available at the time from a manufacturer other than Clark. In 1972, after regulations requiring ROPS had been promulgated by the federal Occupational Safety and Health Administration, Clark began installing such systems on the loaders which it built. Martin-Marietta in 1972 or 1973 had ordered a ROPS for the Michigan 75-IIIA involved in this case, but it did not arrive before the accident.

The Plaintiff commenced this wrongful death action in November 1975, including counts for strict liability, ¹ breach of warranty and negligence. Trial began on June 24, 1981. The parties presented eight days of testimony. After the Plaintiff rested her case, the Superior Court granted a defense motion for a directed verdict on the breach of warranty count.

On July 14, the jury deliberated for sixteen minutes, during which it sent a question to the court and received an answer. For only about ten of those minutes the jury had access to the more than seventy exhibits introduced into evidence. The jury returned a verdict that the Defendants were not negligent, using a special verdict form. The Plaintiff moved for a new trial on July 20. This motion was denied on August 26. Because the claim for indemnity of Defendant BaRoss against the Third-Party Defendant Martin-Marietta remains outstanding, the Superior Court entered an order under M.R.Civ.P. 54(b), making this appeal possible.

I. Jury Issues

The only issue presented to the jury in this case was the alleged negligence of the parties--the negligence of Clark and BaRoss in design and distribution and the contributory negligence of the Plaintiff's decedent in the accident. The jury retired to deliberate in the late afternoon of a hot, humid day. The instructions given to the jury by the trial court were extensive, filling forty pages of transcript. The jury members had been told before the trial began that this was the last case with which they would be involved. The Plaintiff argues that these factors, when taken together with the brief duration of the jury's deliberation, demonstrate jury misconduct requiring a new trial.

The Plaintiff raised this issue by means of a motion for a new trial, filed six days after the verdict. The denial of such a motion is reversible only where there has been a "clear and manifest" abuse of discretion. Binette v. Deane, Me., 391 A.2d 811, 813 (1978); Field, McKusick and Wroth, Maine Civil Practice § 59.2 (Supp.1981). A claim of jury misconduct must be based on a showing of bias, passion or prejudice which affected the deliberations. Chenell v. Westbrook College, Me., 324 A.2d 735, 737 (1974).

The fact that the jury spent no more than sixteen minutes to complete its deliberations in this case is not, standing alone, enough to support a finding of misconduct necessitating a new trial. See Ogden v. Libby, 159 Me. 485, 195 A.2d 414 (1963); Segars v. Atlantic Coast Line Railroad Co., 286 F.2d 767, 770 (4th Cir. 1961); Patten v. Newton, 102 N.H. 444, 159 A.2d 809 (1960). Although it was impossible for each of the jurors to have examined every one of the numerous exhibits during the deliberations, such perusal was not required in order to reach a fair and impartial verdict. ² Absent clear evidence of improper conduct by jurors, the Superior Court did not abuse its discretion in refusing to set aside a verdict which was supported by the evidence. Pittsburgh National Bank v. Mutual Life Insurance Company, 273 Pa.Super. 592, 417 A.2d 1206, 1209 (1980), aff'd 493 Pa. 96, 425 A.2d 383 (1981).

The Plaintiff has also challenged the sufficiency of the evidence to support the verdict. After carefully reviewing the evidence presented, we cannot say that the verdict was clearly or manifestly wrong. Ogden v. Libby, supra; Larsen v. Lane, 156 Me. 66, 158 A.2d 759 (1960). Credible evidence in the record to support a finding that the Defendants were not negligent includes, but is not limited to, the following: Martin-Marietta was aware of the existence of ROPS as early as 1969; a ROPS had been ordered for the Michigan 75-IIIA but had not arrived at the time of the accident; Martin-Marietta was responsible for maintenance of the Michigan 75-IIIA, and it was possible that brake failure caused the accident; a ROPS was not standard equipment in the front-end loader manufacturing industry in 1971; uniform industry standards for a ROPS on front-end loaders were not established until after the Michigan 75-IIIA involved in this case was manufactured.

The fact that the jury verdict was supported by the evidence in this case is relevant to our consideration of the Plaintiff's challenges to the jury instructions given by the Superior Court. A claim raised for the first time on appeal, that the charge as a whole was so confusing as to require a new trial, need not be addressed here. See Laurel Bank and Trust Company v. Burns, Me., 398 A.2d 41 (1979). A challenge to the instructions on comparison of the negligence of the various parties is rendered moot by our determination that the evidence supports a verdict that neither Defendant was negligent at all. Bryne v. Greene, 70 F.2d 137 (1st Cir. 1934). The jury had no reason to apply those instructions.

The remaining challenge is to the instruction on the duty of the distributor. The Plaintiff proposed jury instructions based on Section 401 of the Restatement (Second) of Torts (1965), ³ dealing with the duty of BaRoss. She suggests that this duty included providing a ROPS, or at least informing Martin-Marietta of the existence and source of such a safety system. She contends that the Superior Court's refusal to give these instructions constituted reversible error. BaRoss's reply that it is a lessor to whom the terms of § 401, which describes the liability of sellers, does not apply is weakened by its agreement in the "lease" to "repurchase" the loader after Martin-Marietta had made payments equivalent to the purchase price plus interest.

The Plaintiff requested that the presiding justice instruct the jury that a distributor such as BaRoss had a duty to learn of any reasonably foreseeable dangers from the use of a front-end loader such as the 75-IIIA, a duty to exercise due care to protect potential users of the front-end loader from any harm that BaRoss knew of or had notice of, and a duty to inform customers and prospective users of the front-end loader of those dangers and of any devices or methods for minimizing those dangers.

The Superior Court instructed the jury on this issue in accordance with § 388 of the Restatement, ⁴ adding that the supplier also has a duty "to acquire knowledge about the products that he sells that he can obtain through the manufacturer."

Assuming arguendo that § 401 would apply to BaRoss in this case (as a seller of the Michigan loader), we find nothing in the facts of the case to require its presentation to the jury. Michaud v. Steckino, Me., 390 A.2d 524, 534 (1978). Nor did the trial court's refusal of the proposed instruction prejudice the Plaintiff. Id. The only section of the proposed instruction not included in the instructions given was that BaRoss had a duty to use due care to protect potential users of the loader from reasonably foreseeable harm. This is based on the final clause of § 401: The seller is liable if he fails "otherwise to protect" users. The proposed instruction, however, was a misleading statement of the law. Id.

The interpretation of this clause urged by the Plaintiff would make distributors of the Michigan 75-IIIA insurers against any harm caused by its use. Such is not the intendment of this provision of the Restatement. See Hagans v. Oliver Machinery Company, 576 F.2d 97, 100 (5th Cir. 1978); Micallef v. Miehle Company, 39 N.Y.2d 376, 386, 348 N.E.2d 571, 578, 384 N.Y.S.2d 115,...