Great American Ins. Co. v. " QUICK-WAY" TRUCK SHOVEL CO.

• Decision Date: 15 May 1962
• Docket Number: Civ. A. No. 7060.
• Citation: 204 F. Supp. 847
• Parties: GREAT AMERICAN INSURANCE COMPANY, a corporation, Subrogee of Patton and Linton, Inc., Plaintiff, v. "QUICK-WAY" TRUCK SHOVEL CO., a corporation, Defendant.
• Court: U.S. District Court — District of Colorado

204 F. Supp. 847

GREAT AMERICAN INSURANCE COMPANY, a corporation, Subrogee of Patton and Linton, Inc., Plaintiff, v. "QUICK-WAY" TRUCK SHOVEL CO., a corporation, Defendant.

Civ. A. No. 7060.

United States District Court D. Colorado.

May 15, 1962.

J. Bayard Young, Denver, Colo., for plaintiff.

John P. Beck, Denver, Colo., for defendant.

DOYLE, District Judge.

The above-entitled case was tried to the Court on May 7 and 8, 1962. It was originally instituted by the American Insurance Company seeking a "recovery over" from "Quick-Way" Truck Shovel Company and Aetna Insurance Company, its insured, in the amount of $45,000.00. This sum of money was paid out by plaintiff to one Lawrence Elliott, a workman who suffered a personal injury in connection with the operation by Patton and Linton of the Quick-Way crane. Plaintiff maintains that the ultimate liability is that of "Quick-Way" in that it violated a duty to plaintiff arising out of a warranty, express or implied, or negligence. The claim against Aetna Insurance Company was dismissed before trial.

The injury occurred on November 14, 1956. It resulted from the failure of a crane which was then being operated on a construction job in Pocatello, Idaho. Elliott was an employee of the building contractor and just before the failure he had been standing on a form in which concrete was being poured. The crane was being used to transport the concrete from a concrete truck to the form. The special basis upon which plaintiff seeks to recover arises from the furnishing of one-half inch bolts by "Quick-Way" for a repair which had been made several months prior to the failure. It is contended that ordinary hardware bolts were furnished and that because of their weakness they sheared, causing the failure and the injury.

The crane operator was one O'Connor, whose regular employment was as a truck driver, but who was shown to have occasionally operated this crane and to have had some previous experience in operating similar equipment. Prior to November 14, he had been assigned to the job of operator for only a few days and had actually operated the crane twice previous to November 14. Just prior to the happening, concrete was being moved from the truck to the forms which were located some 30 to 35 feet from the cab of the crane. At the time of the injury the boom was extended to a distance of almost 35 feet and was on an upward angle. The position of the crane was such that the concrete had to be moved in an arc of 180° from the truck to the form. The load in the "bucket" was approximately 2500 pounds. Just prior to the collapse the boom was over the form and the bucket was being moved into position — it was just a few feet above the form when the collapse occurred. Elliott, who had been standing on the form guiding the bucket to the correct point, was just under the boom. The sudden failure resulted in the boom's hitting Elliott a glancing blow on his left side, knocking him off of the form. He suffered severe head, back and rib injuries.

After the accident the crane was disassembled and it was discovered that the six bolts which attached the worm gear to the hub of the drive shaft, had sheared. This had resulted in freeing the shaft, causing the boom to descend rapidly and producing the injuries.

The crane, which is of Quick-Way's manufacture, is described as a "Quick-Way" Power Down Boom Hoist, worm driven, model L. It has a 45-foot boom when fully extended. Its workings are described in the Manual, exhibit 53, and were explained by O'Connor and the previous operator, Gambles.

The previous replacement of the bolts which plaintiff claims produced the failure, occurred in April, 1956, some months prior to the happening. At that time it was discovered that two of the bolts from the same area which later failed in November, had broken, or sheared, and required replacement. The crane was disassembled and was out of action for a period of two weeks or ten days. A specific order was made to a local supplier from a Quick-Way Truck Shovel Company catalogue. This catalogue described and pictured the bolts needed for the particular purpose. They were called PB-113 bolts. Plaintiff's evidence established that following the order the bolts were sent in a small package by Parcel Post. They were received by the dispatcher who delivered them to a Mr. Patton, who in turn delivered them to the mechanic, one Bentel, who in turn installed them. Gambles was the operator of the crane during the entire period between April and November, and he testified that this was the only repair job which was made during the period and that no other bolts were installed.

Defendant's testimony on this point was that the invoice showed that PB-113 bolts were furnished and its witnesses denied that the hardware bolts of the type which were found after the failure, were carried in stock. Further testimony showed, however, that bolts of similar dimensions were carried by Quick-Way, but were kept in a different bin from that in which the PB-113 bolts were kept. Bentel, the mechanic who installed the bolts, described them as dark in color, rather than shiny. The sheared bolts were of the latter type. There was a great deal of evidence as to the qualities of PB-113 bolts. These were shown to be heat and carbon treated and to have one hundred per cent. more strength than the ordinary hardware bolts which were found to have been installed.

Defendant also sought to establish that the crane was not properly operated. Testimony of Elliott was that the boom was being maneuvered at a low level thus placing more strain on the parts and that it was extended to such great extent that the cab was lifting off of the ground. He characterized the operation as "jerky" and "reckless."

Defendant also brought out that the brake which stopped the boom when it was moving downward was not working properly. Normally, release of a hand lever would move a so-called "dog" to engage a gear which would immediately stop the crane. However, this brake had not been working for some two years and the operators had been reversing the power from downward to upward in order to bring the boom to a stop. Defendant also emphasized that the pictures of the worm gear showed that it had had some non-factory work performed on it. The six holes into which the bolts in question attached the worm gear to the hub showed various markings indicating uneven torquing. From these photographs it also appeared that inserts, or bushings, had been placed in these holes, no doubt as a result of wear. According to defendant this would effect an uneven attachment.

Engineers on behalf of both the plaintiff and defendant testified to the effect of hardware bolts as against the PB-113, specially treated bolts. The former are much softer and are thus conducive to uneven torquing. Furthermore, the hardware bolts are much less capable of tolerating stress and strain, the PB-113 bolts being one hundred per cent. stronger.

Plaintiff's engineer gave as his opinion that the failure was caused by the inability of the hardware bolts to absorb the stress and strain. Defendant's engineer testified that the hardware bolts, had they been properly adjusted, had ample strength and resistance to carry the load. He stated in answer to a question from the Court, that even if improperly installed, the PB-113 bolts would have been much more capable of holding the load — that two or three of such bolts could have held the load.

1. The first fact question is whether the bolts which were furnished by the Quick-Way Company in 1956 were the identical bolts which were installed in the crane at the time of its failure.

The evidence as to this is not entirely satisfactory. Nevertheless, the probabilities favor the conclusion of fact that defendant furnished the wrong bolts. Although defendant argues that the chain of evidence is insufficient and inadequate, the evidence appeals to the Court as being sufficient. Certainly, Patton and Linton made every effort to obtain bolts specified in defendant's parts catalogue. The equipment was out of action for a period of time while these bolts were ordered. Had they been willing to install hardware bolts, this would have been unnecessary. The evidence established that the specific order was sent and that delivery of what purported to be PB-113 bolts was made. The bolts which were furnished were installed. Finally, the evidence is that this was the only installation during this period of time.

Against this chain of evidence are the denials of the defendant plus the circumstance that the mechanic described the bolts as being dark in color giving full weight to the statements of defendant that PB-113 bolts were carefully isolated. It seems more probable, in view of the evidence before the Court, that somehow a mistake was made and the wrong bolts were shipped and were installed.

2. The second factual question is whether the furnishing of the

wrong bolts constituted a factual cause of the ultimate failure. The answer to this question involves legal as well as factual analysis. A force is a factual cause of a consequence if it can be said to be a substantial factor in bringing about the harm. See Restatement of Law of Torts, section 432, Prosser on Torts, 2d ed., pp. 220, 221, 222. Restatement, supra, declares:

"(1) Except as stated in Subsection (2), the actor's negligent conduct is not a substantial factor in bringing about harm to another if it would have been sustained even if the actor had not been negligent.

"(2) If two forces are actively operating, one because of the actor's negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about harm to another, the actor's negligence may be held by the jury to be a substantial factor in bringing it about."

Can it be said that the harm would have occurred even if the defendant had not been negligent or in breach of warranty? In other words, if...