Dudley Sports Co. v. Schmitt, No. 1170A193

• Docket Nº: No. 1170A193
• Citation: 151 Ind.App. 217, 279 N.E.2d 266
• Case Date: February 22, 1972
• Court: Court of Appeals of Indiana

Page 266

279 N.E.2d 266 151 Ind.App. 217 DUDLEY SPORTS CO., Inc., Appellant (Defendant Below),
v.
Lawrence Robert SCHMITT b/n/f Joseph Schmitt, Appellee
(Plaintiff Below). No. 1170A193. Court of Appeals of Indiana, Second District. Feb. 22, 1972.
Rehearing Denied April 4, 1972.

[151 Ind.App. 219]

Page 270

Peter B. Stewart and James J. Stewart of Stewart, Irwin, Gilliom, Fuller & Meyer, Indianapolis, for appellant.

John T. Hume, III, of Smith & Jones, Jesse W. Peden, Indianapolis, for appellee.

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BUCHANAN, Judge.

STATEMENT OF THE CASE AND FACTS--This is an appeal of a personal injury products liability case (baseball pitching machine) by the defendant-appellant, Dudley Sports Co., Inc. of New York (Dudley), from a jury verdict awarding $35,000.00 to the plaintiff-appellee, Lawrence Schmitt (Schmitt).

On March 24, 1965, Danville High School (the High School) purchased an automatic baseball pitching machine (the machine), purportedly designed and manufactured by Dudley, from Em-Roe Sporting Goods Company of Indianapolis, Indiana (Em-Roe). Dudley's name, 'Dudley Automatic Pitching Machine Dudley Sports Co., Inc.,' was affixed to the machine by a metal tag, but the machine was manufactured by Commercial Mechanisms, Inc., of Kansas City, Missouri, under a written agreement by which Dudley was to be the [151 Ind.App. 220] exclusive distributor. However, none of Dudley's advertising material or the metal tag on the machine disclose this arrangement.

The machine consists of a frame and an open extended metal throwing arm. No protective shield guards the throwing arm, which operates in a clockwise cycle, triggered by a large coiled spring at the base of the machine. A ball rack at the top of the machine loads the arm when it is in a horizontal nine o'clock position. When the arm reaches a ten o'clock energized position, after receiving a ball, energy is released from the coiled spring and transmitted to the arm by tension on a steel cable running between the coiled spring and the arm causing the arm to pass through a clockwise pitching cycle at a high rate of speed, coming to rest in a four o'clock position. The arm can then be returned to the ten o'clock energized position by using the electric motor (located near the base of the machine) to rewind the spring, or by deliberate manual operation of the arm to that position. The only purpose of the electric motor is to automatically rewind the spring, which eliminates the necessity of manually returning the throwing arm to the energized ten o'clock position. Thus the machine is still capable of delivering a powerful blow when in the ten o'clock position even though it is unplugged.

Evidence showed that if the throwing arm is in the ten o'clock energized position, it can be set off by any slight vibration or a change in atmospheric conditions. If it is between the four o'clock rest position and the ten o'clock dead center (unstable) position, the machine is 'stable' and it will not go off spontaneously. The danger of triggering the arm increases as it moves in a counterclockwise position towards ten o'clock.

Upon receipt of the machine by the High School, it was uncrated by the vice principal, Glenden Gibbs (Gibbs), and the baseball coach, John Trotter (Trotter). In addition to the machine, the crate also included a parts list, assembly instructions,[151 Ind.App. 221] and a tool to deactivate the coiled spring. The only warning instructions found in the crate was a general warning tag which said:

'WARNING! SAFETY FIRST

READ INSTRCTIONS BEFORE ROTATING MACHINE EITHER ELECTRICALLY

OR MANUALLY

STAY CLEAR OF THROWING ARM AT ALL TIMES!

DON'T

REMOVE THIS PACKING BLOCK UNTIL YOU

FULLY UNDERSTAND THE OPERATION OF THE ARM

AND

THE DANGER INVOLVED'

However, no operating instructions were included in the crate. (Presumably, the missing operating instructions would inform the purchaser as to the specific operation

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of the machine and the exact dangers that might be encountered in the use of the machine, such as the conditions which would cause the throwing arm to be energized and the fact that the machine is capable of delivering a powerful blow even though unpulgged.) Moreover, no information was supplied as to the use of the tool which deactivates the coiled spring (energy source).

The machine was then tested by Gibbs and Trotter for one-half hour. They found that the throwing arm was bent, so minor adjustments were required to improve the accuracy of the machine. Trotter testified that he put the arm in the resting six o'clock position and stored the machine, unplugged, behind locked doors in locker room No. 2. However, the two adjoining locker rooms, with inside entrances to locker room No. 2, were not locked from their outside hallway [151 Ind.App. 222] entrance. It would have been possible to enter the unlocked doors of rooms No. 1 or No. 3 to gain access to locker room No. 2.

The next day, Schmitt, who was a student at the High School, was sweeping in locker room No. 2 as he had done several times in the past at the request of the coaching staff. He said that as he approached the front of the machine, he heard a whistling noise and a pop. He could not remember whether his broom touched the machine, but the next thing he knew was that he had been hit in the face by the throwing arm, causing extensive facial injuries. These injuries consisted of deep cuts and lacerations on Schmitt's upper lip, nose and above his right eyebrow, a partially severed nose, a crushed left sinus cavity, skull bone exposure, and two chipped teeth.

Four surgical operations were subsequently required to remedy these facial injuries, leaving Schmitt with permanent facial scars.

A short time before the accident, Schmitt and two other students viewed the machine and then they departed. All three of them testified that they did not tamper with the machine, but the football coach, Mr. Pedigo, testified that Schmitt's two companions related to him that they saw Schmitt tampering with the machine just before the accident. They denied making such statements and they did not remember seeing the machine in the energized ten o'clock position.

Schmitt brought an action against the High School, Em-Roe, and Dudley, alleging negligence in design, manufacturing, and storage of the machine. Schmitt in his Complaint alleged that Dudley was negligent in designing and manufacturing the machine with no protective shield or guard around the arm and in failing to supervise and control its agent, Em-Roe.

A verdict of $35,000.00 was rendered by the jury in favor of Schmitt, and Dudley now appeals.

[151 Ind.App. 223] The facts and events during trial relating to ISSUES FOUR, FIVE and SIX will be set out separately in the DECISION as each issue is discussed.

ISSUES--Dudley raises some twenty-five points of error, which we have sorted out into six issues:

ISSUE ONE. Is a vendor of a product who holds himself out as the manufacturer of that product and labels the product as such, to be held to the same standard of care in the design, manufacture, and sale of that product as the manufacturer?

ISSUE TWO. Was the evidence sufficient to support the jury's conclusion that Dudley was negligent in the design, manufacture, and sale of the machine?

ISSUE THREE. Were the damages awarded excessive?

ISSUE FOUR. Did the trial court err in the admission of Schmitt's Exhibits 52, 53, 60, and 61?

ISSUE FIVE. Did the trial court err in giving plaintiff's Tendered Instructions

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No. 2, No. 9, No. 11, and No. 12, and refusing to give Dudley's Tendered Instructions No. 4, No. 9, and No. 11?

ISSUE SIX. Was it reversible error for the trial judge to direct Schmitt's attorney, in the jury's presence, not to point the machine toward the bench or the jury?

DECISION

To avoid repetition, we restate certain familiar propositions. This court must view the evidence in a light most [151 Ind.App. 224] favorable to the appellee. Jessop v. Werner Transportation Co. (Ind.App.1970), 261 N.E.2d 598; Dent v. Dent (1961), 241 Ind. 606, 174 N.E.2d 336. It is not the province of this court to weigh the evidence or pass upon the facts; the verdict of the jury will be taken as conclusive and will not be disturbed unless it is clearly erroneous or shows that the jury's decision was influenced by passion, prejudice or corruption. Union Traction Co. of Indiana v. Gaunt (1922), 193 Ind. 109, 135 N.E. 486; Indianapolis Newspapers, Inc. v. Fields (Ind. 1970), 259 N.E.2d 651; Muehlman v. Keilman (Ind.1971), 272 N.E.2d 591; Legler v. Legler (Ind.App.1971), 273 N.E.2d 303.

ISSUE ONE. It is our opinion that a vendor who holds himself out as the manufacturer of a product and labels the product as such must be held to the same standard of care as if he were in fact the manufacturer.

This is a question of first impression in Indiana. The discernible emerging trend is that one who labels a product with his own name and represents the product to be his own will be held to the same standard of care as if he had manufactured it. We adopt as the law of Indiana what appears to be the prevailing modern rule and in doing so we look to an abundance of well-reasoned authority, particularly the Restatement of Torts (2d) § 400, which flatly states:

'One who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer.'

See also Sears, Roebuck & Co. v. Morris (1962), 273 Ala. 218, 136 So.2d 883; Wagner v. Larson (1962), 257 Iowa 1202, 136 N.W.2d 312; Wojciuk v. United States Rubber Co. (1960), 13 Wis.2d 173, 108 N.W.2d 149; Carney v. Sears, Roebuck & Co. (4th Cir. 1962), 309 F.2d 300; Burkhardt v. Armour & Co. (1932), 115 Conn. 249, 161 A. 385; Thornhill v. Carpenter-Morton Co. (1915), 220 Mass. 593, 108 N.E. 474; Commissioners of State Insurance Fund v. City Chemical [151 Ind.App. 225] Corp. (1943), 290 N.Y. 64, 48 N.E.2d 262; 1 Harper and James, Law of Torts, 594, §...