General Elec. Co. v. Schmal, 8849

• Decision Date: 20 October 1981
• Docket Number: No. 8849,8849
• Citation: 623 S.W.2d 482
• Parties: GENERAL ELECTRIC COMPANY, Appellant, v. Patricia SCHMAL, et al., Appellees.
• Court: Texas Court of Appeals

Page 482

623 S.W.2d 482

GENERAL ELECTRIC COMPANY, Appellant, v. Patricia SCHMAL, et al., Appellees.

No. 8849.

Court of Appeals of Texas, Texarkana.

Oct. 20, 1981.

Rehearing Denied Nov. 4, 1981.

E. Lawrence Merriman, Nichols, Merriman, Patterson & Allison, Longview, for appellant.

Blake C. Erskine, Erskine, Dunn & McMahon, Longview, Welby K. Parish, Gilmer, for appellees.

Harold Nix, Daingerfield, Guardian Ad Litem for Minors.

HUTCHINSON, Justice.

Appellees (plaintiffs), Patricia Schmal, individually and as next friend for her four minor children, Donald J. Schmal, Kurt James Schmal, Mark Richard Schmal and Jennifer Lynn Schmal, the surviving widow and children of Richard J. Schmal, brought this suit for damages for the death of Richard J. Schmal which occurred while he was working on a large piercing press for his employer, the Lone Star Steel Company, in Morris County, Texas. The suit was brought against the appellant, General Electric Company (GE), and other parties, two of which were DeMag Meer Rohrtechnik Mannesmann-Meer, Mannesmann DeMag A G (DeMag), the manufacturer of the piercing press, and Fielding Plant Design, Ltd. (Fielding), the designer of the piercing press. GE filed actions for contribution and indemnity against both DeMag and Fielding.

The electronic control system for the piercing press, referred to as the "Logitrol", was supplied to DeMag by the defendant, GE.

On the day of his death, Mr. Schmal and other employees of Lone Star Steel Company had worked upon the piercing press and he was killed while they were checking out the machine to see if it was ready to be put back into regular operation.

Prior to trial plaintiffs settled the suit against DeMag and Fielding for the sum of $400,000.00 and dismissed that portion of the lawsuit. GE also dismissed its actions against DeMag and Fielding but maintained its pleadings asserting their liability. The other defendants were also dismissed and the case was tried with GE as the only defendant.

In response to special issues the jury found, among other things, that the Logitrol was defectively designed and that such defective design was a producing cause of the death of Mr. Schmal. The jury also found that the piercing press was in a defective condition unreasonably dangerous to the user by reason of a design defect when it left the hands of both DeMag and Fielding and that such defective condition was a producing cause of the occurrence.

The jury found the total damages for the plaintiffs to be $700,000.00. Judgment was entered for the plaintiffs for the sum of $300,000.00 plus the stipulated sum of $2,108.00 for funeral and burial expenses, and $1,650.00 for an attorney's fee for the guardian ad litem of the minor plaintiffs.

GE by its first two points of error contends that the trial court erred in entering judgment for the plaintiffs based upon the jury's answer to Special Issues Numbered 1 through 6 because the answers were supported by no evidence or factually insufficient evidence.

In response to these issues the jury found that (1) the Logitrol as applied to the piercing press was defectively designed, (2) the defective design was a producing cause of Mr. Schmal's death, (3) the Logitrol was furnished by GE without adequate warnings of the dangerous consequences of using it to operate the piercing press with safety interlocks overridden while using high ram forces and the press container out of position, (4) the furnishing of the Logitrol without warnings rendered it defective, (5) it was reasonably foreseeable by GE that safety interlocks might be overridden by users of the equipment in order to operate the piercing press using high ram forces with the press container out of position, and (6) furnishing the Logitrol without adequate warnings was a producing cause of the death of Mr. Schmal.

GE asserts in support of the two points that there was no testimony or evidence showing that the Logitrol system was being used at the time of the accident. A review of the record reveals ample evidence from which a jury could conclude that the Logitrol was in use at the time of the fatal accident. GE points one and two are without merit.

GE by its next four points of error submits that the trial court erred in allowing Mr. George Greene, Jr. and Dr. Phillip J. Charley to testify as expert witnesses contending that neither were qualified to give expert opinion testimony and that each testified as to ultimate fact issues based upon assumed facts which were not in evidence.

Mr. Greene attended Texas A & M University graduating in 1963 with a degree in mechanical engineering. While at the University he took courses in electrical engineering, including basic electricity, semi-conductors and transistors and solid state circuitry. He served in the capacity of vice- president over engineering for Stonebore, Incorporated, Houston, Texas, and was promoted to president of the company after one year. At the time of this trial he was the owner of Engineering Services International in Houston, Texas. He has taught courses and given lectures on product failures and product analysis to the Texas Society of Professional Engineers and is a member of the National Safety Council.

Dr. Charley is a registered mechanical, metallurgical and safety engineer. He, at the time of his testimony, was the president of Trusdale Laboratories in Los Angeles, California, and works as a consulting engineer primarily in the field of accident investigation and failure analysis.

Both Mr. Greene and Dr. Charley went to the Lone Star Steel plant and examined the equipment involved in the accident, the operation manual for the piercing press, the Logitrol manual, and various drawings and photographs.

The base for GE's objection to the testimony of these witnesses seems to be their lack of experience with the Logitrol system and in the case of Dr. Charley, his lack of experience with programmable controls.

It is well established in Texas that the qualification of an expert witness is left to the sound discretion of the trial court. Columbia Engineering International, Ltd. v. Dorman, 602 S.W.2d 72 (Tex.Civ.App.-Beaumont 1980, writ ref'd n. r. e.); Air Shields, Inc. v. Spears, 590 S.W.2d 574 (Tex.Civ.App.-Waco 1979, writ ref'd n. r. e.); Simpson v. Glenn, 537 S.W.2d 114 (Tex.Civ.App.-Amarillo 1976, writ ref'd n. r. e.). We believe that both Mr. Greene and Dr. Charley were properly qualified. While neither had previous experience with the Logitrol system, such would not prohibit their testimony. Of course, it could be considered by the jury in evaluating the evidence submitted by each of them.

GE's contention that the expert witnesses should not have been permitted to testify because their testimony was based upon assumed facts not in evidence is without merit. This contention is based upon the assertion previously made, that there was no evidence that the Logitrol system was in use when the accident occurred. We have concluded otherwise.

GE next asserts that the plaintiffs failed to sustain their burden of proof that the design of its product was defective as applied to the piercing press in question.

As stated the jury found that the GE Logitrol as applied to the piercing press was defectively designed. The jury was instructed that it could consider any or all of the following items in determining whether or not the Logitrol as applied to the piercing press was defectively designed and no others:

(a) in permitting safeties to be overridden at times when high ram forces were being used with the press container out of position;

(b) in failing to provide selective or limited overrides instead of a general override;

(c) in failing to provide additional safety interlocks which could not be overridden when the press container was out of position or high ram forces were being used;

(d) in failing to provide different or additional programs for the Logitrol which would not permit high ram forces to be used with the container out of position or would not permit the container to be out of position when high ram forces were being used.

GE in its brief states that the plaintiffs presented no evidence regarding the design of the Logitrol system as applied to the piercing press and certainly no evidence concerning their contentions that the design was defective or unreasonably dangerous, even if the testimony of Mr. Greene and Dr. Charley is accepted. Thus, this is in fact a no evidence point and this court must review the evidence in its most favorable light, considering only the evidence and inferences which support the findings, and rejecting the evidence and inferences contrary to the findings. McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901 (Tex.1980); Rourke v. Garza, 530 S.W.2d 794 (Tex.1975).

Appellant cites the cases of Henderson v. Ford Motor Company, 519 S.W.2d 87 (Tex.1974), and Weakley v. Fischbach & Moore, Inc., 515 F.2d 1260 (5th Cir. 1975), to support its argument that the mere fact that a product could be designed better in some respect will not suffice as a predicate for a finding of an improper design. We agree with appellant that these cases correctly state the Texas law, but our review of the evidence in support of the jury findings here reveal more than a mere suggestion of a better design and contains testimony describing the unsafe features created by the defective design of the Logitrol. The record supports the jury's findings as to both a design defect and causation. Appellant's point of error is therefore overruled and such ruling also requires the overruling of the point of error asserting that GE as a matter of law had no duty to furnish warnings regarding the use of the product.

GE next contends that the trial court erred in refusing to submit to the jury its requested issues and instructions on misuse of the Logitrol by Mr. Schmal and the assumption of the risk by him. Prior to the submission of the case to the jury, GE submitted its...