Gillette Dairy, Inc. v. Hydrotex Industries, Inc.

• Decision Date: 13 April 1971
• Docket Number: No. 20103.,20103.
• Citation: 440 F.2d 969
• Parties: GILLETTE DAIRY, INC., a Corporation, Appellant, v. HYDROTEX INDUSTRIES, INC., a Corporation, and Texas Pioneer Corporation, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

440 F.2d 969 (1971)

GILLETTE DAIRY, INC., a Corporation, Appellant, v. HYDROTEX INDUSTRIES, INC., a Corporation, and Texas Pioneer Corporation, Appellees.

No. 20103.

United States Court of Appeals, Eighth Circuit.

April 13, 1971.

Kenneth Cobb, Lincoln, Neb., and Lynn D. Hutton, Jr., Norfolk, Neb., for appellant.

Fredric H. Kauffman, Lincoln, Neb., for appellees.

Before VAN OOSTERHOUT and HEANEY, Circuit Judges, and HANSON, District Judge.

HANSON, District Judge.

This is an appeal by the plaintiff from an adverse jury verdict and the refusal by the district court to grant a new trial. Plaintiff-Appellant Gillette commenced this action in the United States District Court for the District of Nebraska against defendants-appellees hereinafter referred to as Hydrotex seeking damages for breaches of warranty with respect to compressor oil sold by Hydrotex to Gillette. In short, Gillette claims the oil was not as warranted and, as a result, certain compressors were damaged. Hydrotex admitted the sale of the oil in question, Hydrotex No. 206-A, but denied existence of the alleged warranties and further denied that plaintiff's damages resulted from the oil. As an affirmative defense, Hydrotex pleaded contributory negligence.

The matter was tried to a jury who returned a verdict for Hydrotex. Gillette's motion for new trial was overruled and this appeal pursued. Gillette raises three issues for review: (1) that the trial court erred in submitting as a defense plaintiff's contributory negligence without instructing as to burden of proof and the requisite quantum of proof; (2) that the trial court committed reversible error in admitting into evidence a letter from one of defendant's employees to a fellow employee; and (3) that the trial court erred in submitting the existence of implied and express warranties to the jury rather than directing that such warranties existed.

We find each of the assigned errors to be without merit and affirm. The issues presented by appellant will be treated seriatim.

I.

Gillette contends that the trial court erred in the submission of the defense of contributory negligence. Specifically, appellant points to the failure of the court to instruct on Hydrotex's burden of proof on its affirmative defense. Such an argument necessarily presupposes that the district court submitted contributory negligence as an affirmative defense. The court did not do so.

Instruction 4 of the court's instructions sets forth Gillette's claim that defendants' oil was responsible for its damage as well as Hydrotex's claim that any damage was caused, not by the oil, but by sludge which had accumulated in the compressors. Instruction 5 stated that Gillette has the burden of proving its claim by a preponderance of the evidence and delineated the essential elements of the claim. One of these elements was as follows:

4. That damage and loss accrued to plaintiff by reason of the failure to deliver oil which complied with the warranties made.

Instruction 6 then stated:

There has been testimony from which you could conclude that sludge or some foreign matter which had no connection with the oil sold by defendants caused the injury and damage to the compressors. Defendants have no burden of proof in this regard but this evidence can be considered by you in determining whether plaintiff has proven by a preponderance of the evidence that the oil furnished by defendants caused the damage and loss and particularly whether as to essential allegation number 4 above set forth the evidence is equally balanced or preponderates in favor of the defendants.

It is obvious from a complete reading of the instruction that even though defendants may have pled contributory negligence as an affirmative defense, the trial court did not submit this defense to the jury. The court merely spelled out in some detail the manner in which the jury was to consider the evidence adduced by defendants in relation to plaintiff's claim. Thus, the trial court not having submitted contributory negligence as a defense, it is not error to fail to instruct on the attendant burden of proof of such a defense.

II.

Gillette also claims reversible error in the admission into evidence of a letter, Exhibit 66, from one of Hydrotex's employees to a fellow employee. The letter states results and conclusions pertaining to tests run on oil samples taken from the compressors.

Even assuming the letter was inadmissible as hearsay, its admission was harmless error. Exhibit 66 is at most cumulative evidence. The test results reflected in this exhibit were directly testified to by one of defendants' witnesses, Bert Melchar, the chemist who analyzed the oil samples. Furthermore, the test results set forth in Exhibit 66 were utilized as a basis of opinion testimony by one of Gillette's own expert witnesses. Insofar as the conclusionary matter contained in Exhibit 66, this was also cumulative evidence and, consequently, harmless error. Jack Hodges, a lubrication engineer and a witness for Hydrotex, on direct examination gave an identical opinion as to the cause of the compressor failures. His opinion was based in part on the sludge analysis test results contained within Exhibit 66. Therefore, even assuming the inadmissibility of Exhibit 66, improper admission of incompetent evidence which is merely cumulative on matters clearly shown by other admissible evidence is harmless error. Brewers and Maltsers Local Union No. 6 v. N. L. R. B., 301 F.2d 216, 226 (8th Cir. 1962); Walsh v. Bekins Van Lines Co., 217 F.2d 388 (8th Cir. 1954); Rossville Salvage Corp. v. S. E. Graham Co., 319 F.2d 391, 396 (3d Cir. 1963); Hannigan v. Sears, Roebuck & Co., 410 F.2d 285, 292-293 (7th Cir. 1969).

III.

The last issue presented in this appeal is whether the District Court erred in submitting the existence of express and implied warranties to the jury rather than finding the warranties to exist as a matter of law.

The usual rule in respect to what matters are or are not to be submitted to the jury is that where the evidence so overwhelmingly demonstrates what the fact is so as to leave no room for reasonable doubt, it is the duty of the court to decide the question as a matter of law rather than submit it to the jury for determination. Continental Can Co. v. Horton, 250 F.2d 637 (8th Cir. 1957); Jarosh v. Van Meter, 171 Neb. 61, 105 N.W. 2d 531 (1960); Costello v. Simon, 180 Neb. 35, 141 N.W.2d 412 (1966).

Thus, to sustain Gillette's position, we would have to find that the evidence would permit no other reasonable conclusion but that the warranties did in fact exist.

The District Court submitted the issue of warranty to the jury in the following instructions:

Instruction No. 5

The burden of proof is upon the plaintiff to prove all of the essential allegations of its claim against the defendant by a preponderance of the evidence before plaintiff may recover. The essential allegations of the complaint which must be so proved by a preponderance of the evidence in order to entitle plaintiff to recover upon said claim against the defendants, may be summarized as follows:

1. a. The oil sold and delivered by defendants to plaintiff was sold under an express warrant that it would meet major equipment manufacturer specifications and that it was of top quality, or

b. that the oil sold and delivered by defendants to plaintiff was sold under an implied warranty that the goods were merchantable which in this case would mean that the oil was fit for use in compressors, or

c. that the oil sold and delivered by defendants to plaintiff was sold where the seller knew the particular purpose for which the oil was required, to-wit, for use in compressors in a dairy and the buyer is relying upon seller\'s skill or judgment to furnish suitable oil whereby there was an implied warranty that the oil was fit for such purpose.

2. That plaintiff relied upon said seller\'s skill or judgment referred to in l. c.

3. That the defendants failed to deliver oil which complied with the warranties so made.

4. That damage and loss accrued to plaintiff by reason of the failure to deliver oil which complied with the warranties made.

5. The amount of such loss or damage.

* * * * * *

Instruction No. 11

The statutes of Nebraska provide as follows:

"(1) Express warranties by the seller are created as follows:

(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.

(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description. * * *

(2) It is not necessary to the creation of an express warranty that the seller use formal words such as `warrant\' or `guarantee\' or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller\'s opinion or commendation of the goods does not create a warranty."

"* * * (A) warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. * * *

Goods to be merchantable must be at least such as

(a) pass without objection in the trade under the contract description; and * * *

(c) are fit for the ordinary purposes for which such goods are used; * * * "Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller\'s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next

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