Foster v. Marshall

• Decision Date: 10 January 1977
• Docket Number: No. 13058,13058
• Citation: 341 So.2d 1354
• Parties: Reverend Aubrey Denson FOSTER, Individually and as Tutor of his minor son, Robin D. Foster, et al. v. Billy R. MARSHALL et al.
• Court: Court of Appeal of Louisiana — District of US

Page 1354

341 So.2d 1354

Reverend Aubrey Denson FOSTER, Individually and as Tutor of his minor son, Robin D. Foster, et al. v. Billy R. MARSHALL et al.

No. 13058.

Court of Appeal of Louisiana, Second Circuit.

Jan. 10, 1977.

En Banc. Rehearing Denied Feb. 14, 1977.

Writ Refused March 31, 1977.

Kierr, Gainsburgh, Benjamin, Fallon & Lewis by Harvey J. Lewis, New Orleans, for appellants.

Theus, Grisham, Davis & Leigh by J. Michael Hart, Monroe, for Billy R. Marshall and American Employers Ins. Co.

Davenport, Files, Kelly & Marsh by Thomas W. Davenport, Jr., and William G. Kelly, Jr., Monroe, for Scott Truck and Tractor Co. of Winnsboro, Inc. and Scott Truck and Tractor Co. of Monroe, Inc.

Gist, Methvin & Trimble by James T. Trimble, Jr., Alexandria, for Prior Products, Inc. and Southwest Wheel & Manufacturing Co., Inc.

Before BOLIN, HALL and JONES, JJ.

HALL, Judge.

This wrongful death action arises from fatal injuries suffered by Mrs. Eula Mae Foster when an oncoming cotton wagon or trailer being towed by a pickup truck veered into decedent's lane of travel and collided with her automobile. The cause of the trailer veering into decedent's lane of travel was the failure of the bolting assembly connecting the towing yoke to the trailer.

The plaintiffs are Reverend Aubrey Denson Foster, decedent's husband, individually and as tutor of a minor son, and two major sons. The defendants are (1) Billy Ray Marshall, owner of the cotton trailer and driver of the pickup truck; (2) American Employers Insurance Company, liability insurer of Marshall; (3) Prior Products, Inc. and Southwest Wheel & Manufacturing Company, Inc., manufacturer of the cotton trailer ¹; and (4) Scott Truck and Tractor Company of Winnsboro, Inc., which sold the used and refurbished trailer to Marshall. ²

Plaintiffs' suit is based on contentions that decedent's death was caused by the concurring fault of all defendants and in particular that:

(1) Prior is liable:

(a) For manufacturing a product that was defectively designed; and (b) For failing to give any warnings or instructions concerning proper maintenance which it knew was mandatory for safe use of its product.

(2) Scott is liable:

(a) For inadequately inspecting the wagon and failing to replace unsafe and/or missing parts; and

(b) For failing to make the vehicle reasonably safe for highway use; and

(3) Marshall is liable for failing to correct unsafe conditions in the cotton wagon prior to putting it to use on public streets.

After trial on the merits, the district court in a lengthy, carefully considered, written opinion, found that only Marshall was liable for Mrs. Foster's death. Judgment was rendered in favor of plaintiffs against Marshall in the total amount of $51,318.20, subject to a credit of $5,000 paid by Marshall's liability insurer prior to trial, being the full amount of the liability policy limits. The amount of the award to plaintiffs was mitigated by reason of Marshall's impecunious financial condition. Judgment was also rendered rejecting plaintiffs' demands against Prior and Scott.

Plaintiffs appealed from the judgment insofar as it exonerated Prior and Scott and insofar as it awarded inadequate damages. Marshall and his insurer answered the appeal urging the judgment was in error in finding these defendants liable to plaintiffs, in failing to find liability on the part of Prior and Scott, and in awarding excessive damages.

For reasons expressed in this opinion, we affirm the judgment of the district court rejecting plaintiffs' demands against Prior; reverse the judgment rejecting plaintiffs' demands against Scott; affirm the judgment holding Marshall liable; and award damages in the total amount of $93,818.20 against Scott and Marshall in solido.

Mrs. Foster was driving to work about 9:25 a.m. on the morning of October 26, 1972, traveling in a southerly direction along Main Street (Louisiana Highway 605) within the Town of Newellton, Tensas Parish, Louisiana. At the same time Billy R. Marshall, a contract cotton harvester, was driving his 1965 GMC truck towing a cotton wagon in a northerly direction along Main Street. As these vehicles approached each other, the bolting assembly connecting the towing yoke to the front axle of the cotton wagon failed, causing the wagon to swerve into Mrs. Foster's lane of travel and to collide with her automobile. The resulting impact demolished the Foster vehicle and fatally injured Mrs. Foster.

The cotton wagon consisted of the body or superstructure mounted on a trailer or 'running gear.' The running gear was manufactured by Prior in the early 1960's and consisted of the wheels, yoke or tongue, front and rear axles, reach pole and bolting assembly. The trial court accurately described the essential towing components and how they were connected as follows:

'The trailer lacked motive power and had to be connected to some other vehicle by means of a 'y' shaped yoke or tongue so that it could be towed. The lower, single end of this yoke or tongue connected to the towing vehicle and each of its two upper ends fit into semi-circular or 'U' shaped steel brackets called clevis mounts that were welded onto the trailer's front axle.

'The 'bolting assembly' which Prior designed to connect the towing yoke to the trailer's axle was very simple. It consisted of three components: an unthreaded bolt with a hole near one end, called a 'clevis pin,' a flat washer and a 1/8th inch cotter key that was fit in the pin hole. The metal clevis mounts and each end of the yoke had holes drilled in them in order to accommodate the 'clevis pin.'

'The two arms of the towing yoke were connected to the trailer axle by positioning the ends thereof between the arms or side plates of the clevis mounts, with all of the holes in line and the clevis pins threaded through the holes.

'The clevis pins were made fast by placing the washers over the small ends thereof and inserting the cotter keys in the holes in the pins, behind the washer. Of course, to make the cotter keys effective, the double ends thereof were spread and bent apart.'

Prior to the collision the bolting assembly on the left front axle separated, causing the wagon to veer to its left, invade the opposing line of traffic, and collided with the left side of the car driven by Mrs. Foster. The bolting assembly separated because the cotter key failed, allowing the clevis pin to work its way out of the clevis mounts which in turn allowed the arm of the towing yoke to separate from the trailer axle. Investigating officers found the clevis pin on the street forward of the point of impact, this being in the direction that the pickup truck and trailer were proceeding. The clevis pin and the remnants of the cotter key contained within the diameter of the pin were subsequently examined by the parties' expert witnesses and were introduced as an exhibit during the trial of this case. No washer was found at the accident scene. The cotter key in place at the time of the failure was a 3/32 inch cotter key rather than a 1/8 inch cotter key originally furnished by the manufacturer. No washer was in place on the bolting assembly connecting the other arm of the towing yoke to the front axle.

The running gear of this particular trailer and several thousand others like it were manufactured by Prior in the early 1960's. Three or four thousand of the trailers, including the one involved in this accident, were sold by Prior to Kline Trailer Company, a distributor in Lubbock, Texas. Kline received the units unassembled, assembled the running gear, and put on bodies or framework of its choice.

Seven of the wagons were purchased from Kline by Herman Harris between the years 1960 and 1963. Harris was a contract cotton harvester who lived in northeast Louisiana and worked both in Louisiana and Texas. Harris used the trailers in his business from 1960 through 1970. He would transport his trailers between Louisiana and Texas in a 'piggyback' manner by disassembling two of the trailers and stacking them on a third trailer that was then towed by a pickup truck or automobile over the highways. On the occasion of each reassembly, Harris would change the cotter keys. Sometimes the washers were put back in place and sometimes they were not.

Harris, a customer of Scott, mortgaged four of the trailers to Scott as collateral security for his account with that company. Financial difficulties resulted in the four mortgaged trailers being judicially seized, delivered to Scott for storage and ultimately sold to Scott at sheriff's sale in mid-1972.

For the most part, from the completion of the cotton harvest in Louisiana in 1970 to the time the trailers were seized in mid-1972, they stood idle in Harris' pasture. During that time two of the trailers were used on occasion by friends and neighbors of Harris to haul hay and other crops.

After Scott obtained title to the four trailers by virtue of the sheriff's sale, they were inspected by Willie Carter, an employee of Scott with many years experience in dealing with cotton trailers and other agricultural equipment. Scott is a relatively large dealer in agricultural equipment and sells new trailers which it buys from manufacturers. Scott has a staff of mechanics trained to work on agricultural equipment. The company does not ordinarily deal in used trailers.

Carter's inspection of the trailers revealed that the superstructures were in bad condition, that the tongue on one of the wagons required welding, and that tires needed replacing. Scott's personnel demolished the superstructures. Scott contracted with the Arnold brothers, d/b/a Quality Builders, to build new bodies and Arnold also did the required welding work on the tongue of one of the wagons, which was not one of the trailers ultimately sold to Marshall.

Carter testified he visually inspected the cotter keys from about three feet away and they looked to be in satisfactory condition. He testified he also checked the lugs on the...