Duke v. Gulf & Western Mfg. Co.

• Decision Date: 18 October 1983
• Docket Number: No. WD,WD
• Citation: 660 S.W.2d 404
• Parties: Lewis G. DUKE and Margaret Duke, Respondents, v. GULF & WESTERN MANUFACTURING CO., Appellant. 32,672.
• Court: Missouri Court of Appeals

Page 404

660 S.W.2d 404

Lewis G. DUKE and Margaret Duke, Respondents, v. GULF & WESTERN MANUFACTURING CO., Appellant.

No. WD 32,672.

Missouri Court of Appeals Western District.

Oct. 18, 1983.

William T. Smith, III, Kansas City, for appellant.

Gordon N. Myerson, Kansas City, for respondents.

Before NUGENT, P.J., and TURNAGE and LOWENSTEIN, JJ.

NUGENT, Judge.

In this product liability case, Gulf & Western Manufacturing Co., the manufacturer of a die-press which injured plaintiff Lewis Duke's hands, appeals from jury verdicts in favor of Mr. Duke and his wife. The company asserts among other things that the judgment must be reversed because the plaintiffs failed to link alleged defects in the die-press to their injuries, because plaintiffs failed to offer evidence of the costs of design alternatives, and because the die-press was substantially altered by the purchaser. We affirm.

On October 24, 1975, plaintiff Lewis Duke was operating a power press manufactured by E.W. Bliss Co. (now an operating division of Gulf & Western) and sold to Gleaner Co. (the predecessor of Allis-Chalmers, Mr. Duke's employer). The press was multi-functional and could be fed from the front, rear or sides by automatic, semi-automatic or manual means. It was capable of notching, bending, punching, stamping, embossing, cutting, blanking, shearing, and drawing metal.

Mr. Duke had been employed at Allis-Chalmers for seventeen years and had operated that particular press for three or four years. While operating the press that day, something struck him in the head and the next thing he knew, his hands were in the press. Although ordinarily the press would descend only one time, it descended on his hands two or three times, requiring the amputation of two fingers on each hand.

Mr. and Mrs. Lewis filed their amended petition against Gulf & Western on October 9, 1979, claiming in Count I that the press "as designed, manufactured, assembled and/or sold by defendant was defective and unreasonably dangerous" because of a failure to provide adequate safety guards, defective design of certain machine components, and for failure to warn of the danger of operating the press as designed. On this product liability theory, plaintiffs sought $1,500,000 in damages. Count II sought $1,500,000 for breach of express and implied warranties. In Count III, plaintiffs sought $1,500,000 for negligence for the same failures and defects listed in Count I, and in Count IV, prayed for $32,000,000 in exemplary damages. Finally, in Count V, Margaret Duke sought $450,000 for loss of consortium resulting from her husband's injuries.

At trial, plaintiffs' witness, Dr. Donald L. Creighton, professor of machine design at the University of Missouri at Columbia, testified that the press is operated by engaging in the clutch which causes the gear to make one complete revolution, driving the crank down and back up. This forces the two halves of the die together, shaping the metal stock between them.

To engage the clutch, a trip rod is pulled down, which operates the clutch by means of a "latch mechanism." The trip rod is attached to the latch mechanism by a "clevis pin" and secured by a 3/4"" X 1/16"" "cotter key" or "cotter pin." According to Dr. Creighton, this was not a proper method of attachment. He also criticized the lack of a return spring as a means of preventing the press from running continually in the event of a failure anywhere below the latch bracket. After Mr. Duke's accident, Theodore Williams, general foreman of maintenance at Allis-Chalmers, designed a new means of securing the cotter key, using a "castellated" nut said by Dr. Creighton to be of a superior and safer design.

Dr. Creighton also testified that certain safety guards were available at the time the press was manufactured in 1949 and brought several 1948 advertisements for such guards to trial to make his point. (Objection to these exhibits as hearsay was sustained.) Without guards, he said, the press was "unreasonably dangerous and defective." He also stated that the press was defective when sold because it did not warn of the danger of operation without guards in place. Further, the latch mechanism, without a return spring and with a 1/16"" cotter key, was defective.

Mr. Duke testified that a few years before the accident, the original mechanical foot pedal mechanism had been replaced by palm buttons, the purpose of which was to force the operator of the press to remove his hands from the die area during operation. The buttons electrically actuate the air cylinder which pulls down the trip rod, eliminating the need to do this manually.

Mr. Williams testified for plaintiffs and stated that he arrived at the scene two minutes after the accident and that when he started up the press, it would not shut off at the end of a stroke. He found no damage to the clutch parts except a bend in one ear of the "clevis" (securing the trip rod), a bend which Dr. Creighton testified could not have occurred unless the cotter pin slipped out of place. Mr. Williams also stated that he found the clevis jammed past the stop pin.

Defendant's witness, Wayne Myslivy, supervisor foreman at Allis-Chalmers, testified that no guard existed for this type of press.

Peter Bosch, Manager of Product Reliability for E.W. Bliss, Co. agreed that guards should be used where practicable, but that in 1949, the practice was to provide them for special purpose presses but not for multi-purpose presses such as the one at issue. The reason was that when the actual use is not known to the manufacturer, a meaningful point-of-operation safeguard for all potential uses cannot be provided. In the opinion of Mr. Bosch, because Bliss could not foresee all the uses intended by purchasers, this press when manufactured in 1949 without point-of-operation guards, was neither defective nor unreasonably dangerous. He testified that in 1949, no one guard existed which could adequately protect all reasonably anticipated press operations. He did not believe that warning signs could provide any safety to the operator because they do not restrain or prevent unsafe operation. He did admit, however, that if the cotter key had remained in place, the accident would not have occurred.

Defendant's motion for directed verdict on Counts II (warranties) and IV (exemplary damages) having been sustained, the jury ruled in plaintiffs favor on the remaining counts and awarded $100,000 to Lewis Duke and $25,000 to Margaret Duke.

Defendant filed a motion for judgment notwithstanding the verdict or for new trial and in response, the court issued an order dated April 6, 1981, denying the motion and stating that although the plaintiffs had not made a submissible case as to a defective condition resulting from either the failure to provide safety guards or the failure to warn of the lack of such guards, they had presented a submissible case that "the press was in a latently defective condition and unreasonably dangerous when put to a reasonably anticipated use because of an inadequate method of attaching the trip rod to the latch lever." The court further stated that "there was evidence that the cotter key ... was of 1/16"'' thickness and of insufficient strength to withstand extensive use and wear" and that the substantial alterations made to the press after sale were not of such a nature "that their use would not have been reasonably anticipated by defendant as a matter of law."

On appeal from that judgment, defendant raises the following points: (1) plaintiffs failed to make a submissible case because they never offered testimony linking the press defects to their injuries; (2) plaintiffs failed to offer any evidence of the costs and detriments of design alternatives; (3) the evidence showed the press had undergone substantial alteration which defendant could not have reasonably anticipated and which constituted an independent intervening cause; (4) as a matter of law, manufacturers need not install guards on multi-purpose presses, and on the contrary, that duty rests with the employer; (5) plaintiffs improperly and repeatedly referred to evidence of a "new latch bracket" and certain advertisements for power press guards; (6) the trial court erred in failing to give withdrawal instructions on the issues of warning and guarding; and (7) the verdict was against the weight of the evidence.

1. Causation

In considering defendant's first contention that the trial court erred in overruling its motions for directed verdict and judgment notwithstanding the verdict because the plaintiffs failed to make a submissible case on the issue of causation, we must view plaintiffs' evidence in the light most favorable to plaintiffs and disregard defendant's evidence except insofar as it tends to aid plaintiffs' case. Franklin v. Farmers Mut. Ins. Co., 627 S.W.2d 110, 113-14 (Mo.App.1982). Sustaining a motion for a directed verdict is a drastic action and should only be done when all the plaintiff's evidence and reasonable inferences which may be drawn therefrom are so strongly against the plaintiff that reasonable minds cannot differ. Teachenor v. DePriest, 600 S.W.2d 122, 124 (Mo.App.1980).

Defendant argues nevertheless that a directed verdict was warranted here because plaintiffs failed to offer expert evidence linking the defects in the power press to the accident in which Mr. Duke was injured. ¹ Proof of causation is an indispensable element of a plaintiff's case under a product liability theory. ²

We find no merit in defendant's argument here. The record is replete with evidence from which the jury could have inferred that design defects caused Mr. Duke's injuries.

Plaintiffs' expert, Dr. Creighton, testified that the power press was by design defective in many respects. One of these was the attachment of the trip rod to the clutch by means of a 1/16"'' cotter key or pin. Dr. Creighton testified that the pin used was too small and an improper means of connecting...