Fruehauf Trailer Division v. Thornton

• Decision Date: 03 August 1977
• Docket Number: No. 3-1174A193,3-1174A193
• Citation: 174 Ind.App. 1,366 N.E.2d 21
• Parties: FRUEHAUF TRAILER DIVISION, Fruehauf Corporation, Appellant-Defendant, v. Quentin THORNTON and Mary Thornton, Appellees-Plaintiffs.
• Court: Indiana Appellate Court

Page 21

366 N.E.2d 21

174 Ind.App. 1

FRUEHAUF TRAILER DIVISION, Fruehauf Corporation, Appellant-Defendant, v. Quentin THORNTON and Mary Thornton, Appellees-Plaintiffs.

No. 3-1174A193.

Court of Appeals of Indiana, Third District.

Aug. 3, 1977.

Franklin A. Morse, II, David R. Melton, Thornburg, McGill, Deahl, Harman, Carey & Murray, South Bend, for appellant-defendant.

David L. Matthews, David L. Matthews & Associates, P. C., South Bend, Daniel J. Harrigan, Bayliff, Harrigan, Cord & Maugans, Kokomo, Jerry J. O'Connor, O'Connor & Feldman, Cassopolis, Mich., for appellees-plaintiffs.

STATON, Presiding Judge.

A jury returned a verdict which awarded Quentin Thornton seventy-five thousand dollars for injuries that he had received when a Fruehauf tire blew out causing his semi-trailer truck to overturn and burn. Mary Thornton, Quentin Thornton's wife, was awarded thirteen thousand dollars for the loss of services and consortium of her husband.

Fruehauf Corporation, manufacturer of the tire, appeals and presents these issues for our review:

(A) Did the court err in permitting the Thorntons' case to be submitted to the jury for its consideration?

(B) Did the court err in instructing the jury at the request of the Thorntons on the law applicable to a cause of action based upon implied warranty?

(C) Did the court err in refusing to instruct the jury at the request of Fruehauf on the doctrine of misuse?

(D) Did the court err in refusing to instruct the jury at the request of Fruehauf on the doctrine of incurred risk?

(E) Did the court err in admitting the Thorntons' Exhibits 14, 15 and 16 (tire, tube and flap, respectively) into evidence?

(F) Did the court err in refusing to grant the motion of Fruehauf for judgment on the evidence under Trial Rule 50 of the Indiana Rules of Trial Procedure?

(G) Did the court err in permitting Mr. William Bice to testify as an expert witness on behalf of the Thorntons at the trial?

(H) Did the court err by engaging in communications with the jury during the course of its deliberations and by refusing to again instruct the jury on the law of the case as requested by the jury, without doing so in open court and without notifying the parties and their attorneys?

(I) Did error occur in that the jury rendered a quotient verdict with respect to the damages to be awarded to Quentin Thornton?

After reviewing the record, we conclude that the trial court did not err. We affirm.

I. Proximate Cause

Fruehauf Corporation contends that Thornton did not produce evidence which would establish that the tire blow out was the sole proximate cause of his injuries; therefore, as a matter of law, the trial court committed reversible error when it submitted this cause to the jury.

Where the evidence permits only one reasonable conclusion upon the question of proximate cause, the trial court's ruling is a matter of law and not sufficiency of the evidence. Mamula v. Ford Motor Co. (1971), 150 Ind.App. 179, 275 N.E.2d 849. Ind. Rules of Procedure, Trial Rule 50(A). Fruehauf sets forth an elaborate series of arithmetic formulae and mathematical computations given by its expert at trial to support the contention that the accident sequence could not have possibly occurred as Thornton described it. However, Thornton's expert testified to his discovery of defects in the tire's workmanship which supported Quentin Thornton's testimony that the accident and damages were proximately caused by the blow out. ¹ It is the jury's responsibility to sort through the conflicting testimony and reach a conclusion based upon the evidence they accept as being most credible. Clearly, the jury rejected the testimony of Fruehauf's expert. This is the jury's proper role. While Fruehauf denies in its brief that it is raising a "sufficiency of the evidence" argument, it is nonetheless not within the province of this Court to determine which of two logical, but opposing, inferences the trier of fact should have drawn from the evidence. We will look only to that evidence and the reasonable inferences which support the verdict. Wm. J. & M. S. Vesey, Inc. v. Hillman (1972),151 Ind.App. 388, 280 N.E.2d 88.

"We do not weigh the evidence and substitute our judgment for that of the trial court or jury. Further, if there is evidence or reasonable inferences to support the verdict of the jury, we do not reverse on an assignment of the appellant that the verdict is contrary to law unless the appellant affirmatively shows that reasonable men could not have arrived at the same verdict or judgment." New York Central Railroad Co. v. Cavinder (1965), 141 Ind.App. 42, 211 N.E.2d 502.

There was evidence in the record from which the jury could have concluded that the accident was proximately caused by defects in the tire manufactured and sold by Fruehauf. We cannot say as a matter of law that reasonable men could only have arrived at a conclusion different from that reached by the jury. The trial court did not err in permitting this case to be submitted to the jury for its consideration. ²

There is sufficient evidence in the trial record from which reasonable men could conclude that the tire manufactured by Fruehauf contained a defect which caused a blow out; that the tire was thus negligently manufactured; and that such negligence proximately caused injury to Quentin Thornton. The trial court did not err.

II. Implied Warranty

The trial court instructed the jury as to the following definition of implied warranty:

"The law implies a warranty by the manufacturer to persons using its product that it is reasonably fit for the ordinary purpose for which it is intended to be used.

"If you find from a preponderance of the evidence that the product, in this case a tire, was defective or not reasonably fit to be used for its ordinary and intended purpose and that the product was properly used and that in the course of the use of the product the plaintiff was injured as a direct and natural result of the defective or unfit condition of the product, then you may find that the defendant breached the warranty which the law imposes on sellers."

In Indiana, an action for breach of warranty may be either in contract or tort, depending upon the allegations of the complaint. Wright-Bachman, Inc. v. Hodnett (1956), 235 Ind. 307, 133 N.E.2d 713. The distinctive characteristics of each warranty action are described in Withers v. Sterling Drug, Inc., 319 F.Supp. 878, 882 (S.D.Ind.1970) as follows:

"A suit for breach of implied warranty which sounds in contract is an action which arises out of the agreement of the parties, and only a party to the contract, one in privity with him, or one within the coverage of § 19-2-318 of Burns' Indiana Statutes Annotated (1964 repl.), may enforce the implied warranty. An action for tortious breach of implied warranty arises out of a duty fixed by the law and is independent of the will or agreement of the parties." 1 I.L.E. Action, § 25, p. 93.

The Thorntons allege in Count II of their complaint that Fruehauf Corporation breached an implied warranty regarding the product herein involved, namely, a Fruehauf Fleet Miler Truck Tire. Count III of the complaint alleges that the tire was in a defective condition unreasonably dangerous to the user or consumer and, as such, predicates liability on the part of Fruehauf under the theory of strict liability in tort. Fruehauf submits that a fair reading of Count II of the complaint, together with the contentions of the Thorntons set forth in the pretrial order, compels the interpretation that Count II states a cause of action based upon tort. Accordingly, it claims that when such causes of action are set forth and alleged in the same complaint, they are duplicitous, and the trial court's instruction to the jury on both theories of recovery was prejudicial to its defense of this product's liability case.

Fruehauf's reply brief cites two cases in support of its contention that this Court has presumed prejudice where erroneous statements of law have been included in jury instructions. In City of Evansville v. Cunningham (1964), 138 Ind.App. 39, 202 N.E.2d 284, four instructions were held to be presumptively prejudicial. Two of these contained incorrect statements of the law, one was outside the scope of evidence adduced at trial, and another, which encompassed a correct principle of law, was improperly refused. In Jenkins v. City of Fort Wayne (1966), 139 Ind.App. 1, 212 N.E.2d 916, two instructions were held to be prejudicial because they included misstatements of the law. However, Fruehauf does not argue that Instruction 14 contains an erroneous statement of law or is subject to any of the other disabilities noted in the above cases. Rather, it only contends that Instruction 14 is duplicative of strict liability and asks us to presume prejudice from that fact alone. There is no support in either of the above cases or elsewhere for Fruehauf's attempt to equate an erroneous instruction with one which is duplicitous.

In Cornette v. Searjeant Metal Products, Inc. (1970), 147 Ind.App. 46, 258 N.E.2d 652, Judge Hoffman wrote "We think these principles are sound and we expressly adopt § 402A, supra, as the law of this State." 2 In footnote 2 of his opinion in Cornette, Judge Hoffman further stated that "In Greeno v. Clark Equipment Co., 237 F.Supp. 427 (N.D.Ind.1965), the Northern District Court of Indiana adopted § 402A. . . ." and lists a series of 7th Circuit cases. Greeno v. Clark Equipment Co., supra, compared the liabilities to which a seller is subjected under implied warranty and strict liability in the following terms:

"Without attempting an exhaustive explanation, it may fairly be said that the liability which this section would impose is hardly more than what exists under implied warranty when stripped of the contract doctrines of privity, disclaimer, requirements of notice of defect, and limitation through inconsistencies with express warranties." Greeno, supra, at 429.

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