Harnischfeger Corp. v. Harris

• Citation: 190 So.2d 286,280 Ala. 93
• Decision Date: 15 September 1966
• Docket Number: 6 Div. 29
• Parties: HARNISCHFEGER CORPORATION et al. v. James Luther HARRIS et al.
• Court: Alabama Supreme Court

Page 286

190 So.2d 286

280 Ala. 93

HARNISCHFEGER CORPORATION et al. v. James Luther HARRIS et al.

6 Div. 29.

Supreme Court of Alabama.

Sept. 15, 1966.

Jas. E. Clark, Jas. L. Shores, Jr., and London, Yancey, Clark & Allen, Birmingham, for appellant Harnischfeger Corp.

Lange, Simpson, Robinson & Somerville, Birmingham, for appellant Joe Money Mach. Corp.

Hare, Wynn, Newell & Newton, Birmingham, E. L. Brobston, Bessemer, and Wales W. Wallace, Jr., Columbiana, for appellee Harris.

GOODWYN, Justice.

This is a 'products liability case' involving the so-called 'manufacturer's liability doctrine.' The suit was brought by James Luther Harris against Harnischfeger Corporation and Joe Money Machinery Company, Inc., to recover damages for personal injuries received while assisting in the assembly of a boom to a motor truck crane. At the time, Harris was employed by Hughes Construction Company, the owner of the crane. The crane was manufactured by Harnischfeger, sold by it to Money and then sold by Money to Hughes. Hughes was not a party to the suit. Bituminous Casualty Company intervened as Hughes' workmen's compensation insurer.

The complaint, as amended, contained three counts (A, B, and E), counts A and E charging negligence and count B charging a breach of warranty. Demurrer to count B was sustained, and the case went to the jury on counts A and E. The affirmative charge was given in favor of Money. There was verdict and judgment for Harnischfeger and Money. Harris' motion for a new trial, containing 58 grounds, was granted against both Harnischfeger and Money. Harnischfeger then brought this appeal from the judgment granting the motion. Money has joined in the appeal.

In granting the motion for a new trial the court stated it was not granted on the grounds 'dealing with conduct of counsel during the trial or the weight of the evidence.' There is no need to discuss this statement's effect on our review of the judgment granting the new trial, since we are at the conclusion the judgment, in granting a new trial as to Harnischfeger, was justified on at least one of the other grounds of the motion, thereby requiring an affirmance of the judgment insofar as it grants a new trial as to Harnischfeger. See: J. F. Holley Const. Co. v. Brown Service Funeral Homes Co., 277 Ala. 251, 252, 168 So.2d 621; Alabama Power Co. v. Bell, 274 Ala. 590, 591, 150 So.2d 754; City of Tuscaloosa v. Townsend, 274 Ala. 268, 269, 147 So.2d 824; Shepherd v. Johnson, 268 Ala. 69, 70, 104 So.2d 755. The judgment is due to be reversed insofar as it grants a new trial as to Money.

One of the grounds of the motion charges the court with error in giving the following written charge requested by Harnischfeger:

'19. I charge you, gentlemen of the jury, in order for the crane involved in the accident made the basis of this suit to be imminently dangerous as charged in the complaint it must have been delivered to the purchaser thereof in such condition that it was Reasonably certain to place life and limb in peril when used with due care in the usual and customary manner for which it was intended, and unless you are reasonably satisfied from the evidence in this case that the danger attendant to the proper use of the crane in question for the purposes intended was Reasonably certain, and further that the same was either known or should in the exercise of reasonable care have been known to the defendant, Harnischfeger Corporation, before it delivered the same to the purchaser thereof, then you cannot render a verdict in favor of the plaintiff and against the defendant, Harnischfeger Corporation.' (Emphasis supplied.)

Aside from any other reason, the giving of this charge was error because it instructs the jury as a matter of law that the crane would not be 'imminently dangerous,' as charged in the complaint, unless it was 'reasonably Certain to place life and limb in peril when used with due care in the usual and customary manner for which it was intended,' and that a verdict in favor of plaintiff could not be rendered against Harnischfeger unless the jury should be reasonably satisfied from the evidence that the danger attendant to the proper use of the crane for the purposes intended was 'reasonably Certain.' (Emphasis supplied.)

Although the 'reasonably certain' phrase has been stated to be a basis for liability of a manufacturer under the manufacturer's liability doctrine (see: Defore v. Bourjois, Inc., 268 Ala. 228, 233, 105 So.2d 846), our cases do not hold that this is the sole basis for liability under that doctrine. It has been held that liability attaches 'if the injury (should) have been reasonably anticipated' (see: Sears, Roebuck and Co. v. Morris,273 Ala. 218, 222, 136 So.2d 883), or if the danger of injury 'could reasonably be expected' (see: Greyhound Corporation v. Brown, 269 Ala. 520, 526, 113 So.2d 916), or where the manufacturer 'had a probable knowledge of danger, or that the nature of the thing would probably cause injury, or that it was reasonably certain to place life and limb in peril when negligently made' (see: Defore v. Bourjois, Inc., 268 Ala. 228, 233, 105 So.2d 846, 851, supra). To be sure, an article which is 'reasonably Certain' to place life and limb in peril is 'imminently dangerous' and is a basis of liability under the manufacturer's doctrine, but it is not the only basis, as shown above. Charge 19 had the effect of limiting plaintiff's right of recovery to a finding of a reasonable Certainty of injury. To be reasonably certain of something is more restrictive than reasonably anticipating it, or having probable knowledge of its danger, or that its nature would probably cause injury.

We hold it was reversible error to give Harnischfeger's requested charge 19 and that Harris' motion for a new trial was properly granted as to Harnischfeger. Accordingly, the judgment granting the motion, insofar as it grants a new trial as to Harnischfeger, is due to be...