Grammer v. Kohlhaas Tank and Equipment Co.

• Decision Date: 27 November 1979
• Docket Number: No. 3652,3652
• Citation: 604 P.2d 823,1979 NMCA 149,93 N.M. 685
• Parties: , 16 A.L.R.4th 1107 Marcus L. GRAMMER, Plaintiff-Appellee, v. KOHLHAAS TANK AND EQUIPMENT COMPANY, a corporation, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 823

604 P.2d 823

93 N.M. 685, 16 A.L.R.4th 1107

Marcus L. GRAMMER, Plaintiff-Appellee, v. KOHLHAAS TANK AND EQUIPMENT COMPANY, a corporation Defendant-Appellant.

No. 3652.

Court of Appeals of New Mexico.

Nov. 27, 1979.

Rehearing Denied Dec. 7, 1979.

Janet T. Santillanes, Eugene Klecan, Klecan & Roach, Albuquerque, for defendant-appellant.

O. R. Adams, Jr., David A. Grammer, Jr., Albuquerque, for plaintiff-appellee.

OPINION

SUTIN, Judge.

This is a strict products liability case in which a compressor tank manufactured by defendant exploded below the automotive shop of Montgomery Wards and seriously injured plaintiff employed there as a mechanic. The jury returned a verdict for plaintiff and defendant appeals from the judgment rendered. We affirm.

A. Facts most favorable to plaintiff.

Plaintiff was a mechanic who worked in the automotive shop of Montgomery Wards. On August 10, 1973, while at work, one of the three compressor tanks manufactured by defendant, while operating under pressure, exploded causing plaintiff serious injuries. The tank that exploded was delivered to Montgomery Wards in good condition in February, 1973 and was in operation about six months prior to the explosion. The normal life of the tank would approximate five years, although a replacement tank and others had been in operation 12 years.

The evidence is undisputed that the tank ruptured at a welded seam. The tank had a longitudinal seam and top seam, designated as a circumferential seam. The initial failure in the tank occurred on the longitudinal seam in the vicinity of 6 to 10 inches below the top weld. The explosion did not occur at the point of maximum stress. Metal, particularly steel, has a property called fatigue in which steel will carry a given stress for many applications until this fatigue process occurs to a sufficient degree that it will no longer carry that particular load even though the load or stress has never increased above a particular value.

Expert testimony established that, over the several months the tank was in use, the failure occurred as a result of fatigue, due to the fatigue of the weld during normal operating stress in the tank; that if the weld had been done properly, it would have been as strong as the parent metal. It would have carried a considerable overload. The fact that all of the failure occurred in the seam indicated that it was the weakness of the seam that caused the failure. The experts opinionated that the tank failed under normal working or operating conditions as the result of a faulty weld based on the fact that the weld seam simply came apart.

B. Defendant was not entitled to a directed verdict or judgment N.O.V.

Defendant claims the trial court erred in denying its motion for a directed verdict and judgment N.O.V. "because the plaintiff did not prove that a defect existed; nor did plaintiff prove that any defect caused the accident."

It does not require citation of authority to support plaintiff's position that under the doctrine of strict products liability, defendant, the manufacturer of the tank that exploded, which tank was in defective condition, unreasonably dangerous to plaintiff, and without any change in the condition in which it was sold to Montgomery Wards, is liable for damages to plaintiff even though defendant exercised all possible care in the manufacture and sale of the tank.

We have carefully read 25 pages of defendant's argument on this subject matter. Nothing was found which shows insufficient evidence to submit to the jury the factual questions of the presence of a defect and its proximate cause of the accident. Expert testimony was strong and effective to establish these facts. Apart from expert testimony, defendant, by cross-examination of plaintiff, learned in mechanics and welding, established that the weld was defective from the top of the seam all the way down.

To establish an insufficiency in the evidence, defendant must set forth all testimony, facts and evidence, together with all reasonable inferences to be drawn therefrom, most favorable to plaintiff and disregard all conflicting evidence. This, defendant did not do. It has often been stated that motions based upon an insufficiency of the evidence lack favor on appeal unless defendant hews the mark to show a complete absence of evidence to sustain an issue of fact. This must be done before defendant can argue vociferously, as defendant did, that plaintiff cannot rely on res ipsa loquitur when this doctrine was absent from the case; that the primary method of proof by plaintiff was to show that no misuse occurred; that the mere happening of an accident is not proof of products liability, or that plaintiff is attempting to stretch the doctrine of strict liability far beyond its intended scope. Argument of this nature is valueless.

Defendant failed to destroy expert testimony wherein opinions focused on fatigue as the defect in the weld. The arguments made by way of logic, that the experts did not compute or analyze the strength of a weld of 1/3 penetration, 1/4 penetration, or any variation from 100% Penetration, together with other similar detailed technical disputations, might affect the weight of the expert's testimony. To answer each of the technical contentions made, would require this Court to sit in conference with physicists to seek a solution. We are not physiochemical physicists who can apply defendant's logic to the expert's opinion to decide whether the opinion was without foundation. Defendant's disputations are matters of argument to the jury, not to this Court. It is common knowledge that this Court will not weigh evidence. We determine whether plaintiff made a prima facie case. We hold that plaintiff did.

We say without hesitation that the experts' opinions, as well as that of plaintiff, created issues of fact for the jury on whether plaintiff proved the existence of a defect in the weld.

Defendant raised two additional sub-points: (1) the requisite proof of defect existing at the time the tank left the defendant manufacturer is missing and (2) it was error to allow the expert witness to judge the credibility of other witnesses. These sub-points do not deserve discussion.

C. The court did not err in allowing testimony regarding A.S.M.E. Standards.

One of plaintiff's experts was allowed to testify briefly as to requirements in the manufacture of the tank under the Standards of the American Society of Mechanical Engineers. This testimony, defendant argues, was extremely prejudicial. We disagree.

Defendant overlooked the prior testimony of Max A. Smith, vice-president and engineer of defendant. His deposition was read into evidence. The following questions and answers were read without objection:

Q. On these specifications that you just read, Mr. Smith, where did you get that information?

A. It is design criteria taken from A.S.M.E. code textbook for design of pressure vessels.

Q. Data, documents and information relating to manufacture and specifications.

A. Yes. * * * This is a design data based upon A.S.M.E. code which would include, among other things, the design criteria For this particular tank. That's the heads For the tank. The elliptical heads, that's this one, and similar design criteria for the shell thickness Of the tank in question.

Q. * * * This book is entitled "Fogle's Number One Tank and Pressure Vessel Handbook for the New 1952 A.S.M.E. Code." A. Yes, sir.

Q. And on the inside it's marked "1952 Edition."

A. Um-hum.

Q. And is this still the book that you use in the manufacture ?

A. Yes.

Q. It's still valid for the things it has in it ?

A. Yes. (Emphasis added.)

Defendant's objections to the expert's testimony on A.S.M.E. Standards comes too late. Defendant relies on Jasper v. Skyhook Corporation, 89 N.M. 98, 547 P.2d 1140 (Ct.App.1976), reversed on other grounds, 90 N.M. 143, 560 P.2d 934 (1977). In Jasper I, this Court held that federal Occupational Safety and Health Act (O.S.H.A.) Regulations were not relevant and were inadmissible in evidence. Not so in the instant case where A.S.M.E. Standards were used in the manufacture of the tank in question.

The trial court did not err in allowing testimony regarding A.S.M.E. Standards.

D. No error occurred in disclosure of defendant's insurance.

During the course of the trial, the following questions were asked by plaintiff and answered by Vincent DiSylvester, a witness.

Q. By whom are you employed, Mr. DiSylvester?

A. Presently Denny's Restaurant in Las Cruces, New Mexico.

Q. And by whom were you employed in August of 1973?

A. Hartford Insurance Group.

Q. And what was your job, Mr. DiSylvester?

A. Senior claims representative.

Q. And, Mr. DiSylvester, shortly after August 10th, 1973, did you have occasion to go examine a pressure tank that exploded under a hoist out at Montgomery Ward and Company?

A. Yes, I did.

Q. Now, Kohlhaas Tank Company, and not Montgomery Ward was your insured, right?

A. Yes.

Q. Who was your insured? In other words

A. It was Kohlhaas Tank and Equipment.

Defendant objected to the admission of this testimony.

In chambers, before voir dire of the jury, the matter of plaintiff identifying DiSylvester as an employee of Hartford Insurance Group was a verbal war. The purpose of the identification was to show that Max Smith, vice-president and engineer of defendant, together with DiSylvester, examined the tank; that Smith told DiSylvester that he, Smith, thought the tank had ruptured because of a defective welding at the seam and that the testimony of DiSylvester would prove an admission by Smith and impeachment of his testimony.

In defendant's answers to interrogatories and Max Smith's deposition, both read to the jury, defendant and Smith stated that the cause of the rupture along the longitudinal seam was Misuse and not defective welding at the seam. Smith and DiSylvester did meet at Montgomery Wards after the explosion. Smith did not recall any...