Gregory v. White Truck & Equipment Co., Inc.
| Decision Date | 20 February 1975 |
| Docket Number | No. 2--473A89,2--473A89 |
| Citation | 323 N.E.2d 280,163 Ind.App. 240 |
| Parties | , 16 UCC Rep.Serv. 644 Glenn GREGORY, Appellant (Plaintiff Below), v. WHITE TRUCK & EQUIPMENT CO., INC., Appellee (Defendant Below). |
| Court | Indiana Appellate Court |
Charles R. Clark, White, Pierce, Beasley & Gilkison, Muncie, for appellee.
Plaintiff-Appellant Glenn Gregory (Gregory) appeals from an adverse judgment in a products liability action (fifth wheel assembly) in which he sought damages for negligence and breach of implied warranty against Defendant-Appellee White Truck & Equipment Company (White), claiming the trial court erred in directing a verdict on the negligence claim and in instructing the jury that contributory negligence is a defense to an action for breach of warranty.
We reverse.
The facts and evidence most favorable to Gregory (the party against whom the judgment on the evidence was sought and entered) are:
In February of 1964 Gregory purchased from White an new Reo diesel cab-over tractor for $22,896.00, which he intended to use in his freight hauling business.
As part of the sale, White agreed to install on the tractor a semi-trailer hitch, commonly known as a fifth wheel assembly. Having had no experience in installing such devices, Gregory authorized White to attach it to the tractor in the proper manner.
White selected a Holland brand fifth wheel assembly to install on the new tractor. In order to do so the fifth wheel assembly (which had been taken from another tractor) was attached to the frame of the tractor by means of ears or tabs designed to extend over the edge of the frame of the tractor. These 'ear tabs' were then bolted to the frame. The assembly contained pre-drilled holes bored by the manufacturer so that 'U-bolts' could be utilized to fasten the fifth wheel assembly to the frame of the tractor. No U-bolts or other securing device, such as spacer bar clamps, were used to fasten the assembly to the tractor frame.
When the assembly was placed on the tractor frame, it was discovered that it was not wide enough to attach to the frame. White therefore adapted the assembly to fit the tractor frame by removing the ear tabs and re-welding them at a different location on the assembly. The tabs were then bolted to the tractor frame.
On at least three occasions after Gregory's purchase of the tractor, he discovered that the ear tabs had broken loose at the Then on July 20, 1965, Gregory was towing a cargo laden semi-trailer with the tractor over a two lane highway in Pennsylvania at a speed of approximately forty miles per hour (the posted speed limit). As Gregory approached a slight left-hand curve in the road, the tractor, suddenly and without warning, would not steer left into the turn, and, with its front tires screaming, continued forward off the pavement.
point where they had been re-welded to the assembly; and on each occasion he returned the tractor to White who re-welded them to the assembly.
At trial, Gregory testified that the next thing he remembered the tractor was upside down in a ditch at the side of the highway and the semi-trailer, which had separated from the tractor, came to rest approximately seventy-five feet behind the tractor.
After the accident it was determined that the fifth wheel assembly had broken off of the tractor frame at the point where the ear tabs had been re-welded. It was attached to the frame of the trailer. The severed ear tabs remained on the frame of the tractor.
Gregory also testified that the trailer made imprints on the asphalt pavement of the highway and that from his analysis of the rapid chain of events, the trailer had separated from the tractor while in motion on the highway and dropped to the road causing the tractor to lurch forward from underneath the trailer and careen off the highway into the ditch.
Gregory's third amended complaint filed on December 15, 1969, sought $28,000.00 for damages to the cargo, trailer and tractor. The complaint proceeded upon two theories:
(1) Negligence of White in installation of the fifth wheel assembly, and
(2) Breach of an implied warranty of fitness for particular purpose. 1
At trial, Gregory produced two expert witnesses. One, Roy Elton, testified that he always used additional securing devices besides tabs and welds in installing fifth wheel assemblies. On cross examination, however, Elton stated that securing an assembly by use of welded ear tabs only is considered proper if the tabs are welded properly.
The other expert witness, Jack Morris, stated it was his opinion that it was necessary to use U-bolts in addition to ear tabs to fasten a fifth wheel assembly to the tractor frame, and that such practice is recognized as a necessity by a majority of truck dealers.
After Gregory rested his case White moved for a judgment on the evidence in its favor as to both negligence and breach of warranty theories, alleging that Gregory failed to show that the accident was proximately caused by its alleged wrongful conduct or defective installation.
The trial court denied White's motion as to the breach of warranty claim, but granted it as to negligence, finding that Gregory failed to establish that his damages were proximately caused by White's negligent installation of the fifth wheel assembly.
The case then proceeded on the breach of warranty claim only.
As a defense witness, White produced Pennsylvania State Trooper Titus who was present at the scene of the accident. He testified that Gregory admitted to traveling about fifty miles per hour at the time the tractor trailer went out of control (ten miles per hour in excess of the speed limit in that vicinity). Over objection, Titus expressed his opinion that Gregory's excessive speed caused loss of control.
At the close of all the evidence, and over Gregory's objections, the trial court
read the following instructions to the jury relating to Gregory's 'contributory negligence':
'The plaintiff has the burden of proving the following propositions:
'First: That defendant breached on implied warranty of fitness for the particular purpose.
Second: That the plaintiff's property was damaged.
Third: That the breach of implied warranty of fitness for the particular purpose was the proximate cause of damage to the plaintiff's property.
If you find from a consideration of all the evidence that these propositions have been proved then your verdict should be for the plaintiff. However, if you find from a consideration of all the evidence that any of these propositions have not been proved, or if you find that plaintiff himself was guilty of contributory negligence, your verdict should be for the defendant.'
'The Court instructs you that contributory negligence is a defense to a claim for breach of implied warranty, and contributory negligence is defined as follows:
Contributory negligence is the failure of a plaintiff to use reasonable care to avoid injury to himself which failure is a proximate cause of the damages for which he seeks to recover.'
'The question of contributory negligence on the part of the plaintiff is an issue in this case. If plaintiff was guilty of negligence that proximately contributed to his damage, then plaintiff cannot recover even though the defendant may have breached implied warranty of fitness for particular purpose.
The defendant has the burden of proving by a preponderance of the evidence that plaintiff was guilty of such negligence.'
The jury returned a verdict for White on the breach of warranty claim.
Gregory appeals.
As this cause must be reversed and remanded for a new trial, it is desirable that two of the three issues raised by Gregory be considered:
ISSUE ONE
Did the trial court err in entering judgment on the evidence against Gregory on his negligence claim?
Did the trial court commit reversible error by instructing the jury that contributory negligence on Gregory's part would defeat his right to recover damages due White's alleged breach of an implied warranty?
As to ISSUE ONE, Gregory contends that there was adequate evidence presented by him to support a reasonable inference that White negligently installed the fifth wheel assembly by faulty re-welding or by failing to install spacer bars or U-bolts (or both), and that such negligence proximately caused the trailer's separation from the tractor and the property damage resulting therefrom.
White claims that no evidence was presented which would permit a legitimate inference by the jury that Gregory's accident was proximately caused by any negligent installation of the fifth wheel assembly. To do so would require an inference on an inference.
As to ISSUE TWO, Gregory contends that contributory negligence, as broadly defined by the trial court in its instructions, is not a defense to an action based upon breach of an implied warranty, and that he was therefore prejudiced by the instructions which adopted contributory negligence as an affirmative defense.
White's position is that the term 'contributory negligence' adequately describes the type of conduct on the part of a plaintiff in a breach of warranty action that will bar recovery, and the instructions were a proper statement of the law.
CONCLUSION--There was some evidence presented by Gregory sufficient to support a reasonable inference of negligence by White and therefore the case should not have been taken from the jury.
It is often said that in a jury trial a court should not direct a verdict for a defendant at the close of a plaintiff's evidence unless there is total absence of evidence or reasonable inference on at least one essential element of a plaintiff's case. Hendrix v. Harbelis (1967), 248 Ind. 619, 623, 230 N.E.2d 315, 318; Whitaker v....
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