Harper v. NAMCO, Inc.

• Decision Date: 10 January 1989
• Docket Number: No. WD,WD
• Citation: 765 S.W.2d 634
• Parties: Prod.Liab.Rep. (CCH) P 12,038 Jerry HARPER, Appellant, v. NAMCO, INC., et al., Respondents. 40173.
• Court: Missouri Court of Appeals

Page 634

765 S.W.2d 634

Prod.Liab.Rep. (CCH) P 12,038

Jerry HARPER, Appellant, v. NAMCO, INC., et al., Respondents.

No. WD 40173.

Missouri Court of Appeals Western District.

Jan. 10, 1989.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Feb. 28, 1989.

Stanley L. White, Detroit, Mich., James A. Rahm, Carrollton, for appellant.

David A. Oliver, Columbia, for respondents.

Before COVINGTON, P.J., and NUGENT and GAITAN, JJ.

GAITAN, Judge.

Plaintiff (appellant), Jerry Harper, filed suit against defendant (respondent), Moentmann Brothers, Inc., along with defendants NAMCO, Inc., Clifton Wood and Florence Shannon, for negligence, strict liability, reckless and wanton conduct, and breach of warranties. The actions against NAMCO, Inc., Clifton Wood, and Florence Shannon were dismissed prior to trial. Plaintiff appeals the jury verdict against him, alleging that the trial court erred in the following respects: (1) by instructing the jury on contributory fault in this strict liability case; (2) by modifying the jury instructions during the reading of those instructions to the jury without knowledge of counsel; (3) by permitting a juror to leave the jury room during deliberation without notice to the court or counsel; and (4) by failing to sustain plaintiff's motion for directed verdict. We affirm.

Defendant had sold a Model 60 Grain-O-Vator (GOV) silage wagon to Melvin Clevinger in 1965. Mr. Clevinger used the GOV for several years, during which time he experienced problems with it including the slat conveyor breaking several times. Subsequently the wagon was left in a broken down condition along a fence near his barn. In the fall of 1980, Mr. Clevinger's son sold the wagon to plaintiff, Jerry Harper. The GOV had sat outdoors for ten years and rusted prior to the sale to plaintiff.

Plaintiff, a high school graduate, has lived on a farm all his life and has driven tractors since the age of nine. He learned machinery repair from his father and had a large, well-stocked shop on his farm to maintain his farm equipment. He purchased the GOV for $275, and made repairs himself. He obtained some wheels for the silage wagon, put in a new floor and made a couple of slats which moved along the floor to move the contents of the silage wagon. The chains on the outside of the wagon were used to drive three rotating beaters near the front of the wagon. These beaters each had knives or teeth and were designed to break up silage before it moved into a conveyor, if silage was being discharged from the front. In order to save on chains, plaintiff used only one chain on one side of the silage wagon to operate the beaters. The unit had been designed to have chains operate the beaters from both sides, with all of them turning the same direction. By using only one chain, the middle beater was caused to rotate in one direction while the upper and lower beaters operated in the other direction. The entire mechanism was operated by a power take-off (PTO) from a tractor.

Plaintiff used the wagon twice daily to feed his calves from approximately December 1, 1980 until January 27, 1981, the date he sustained his injuries. Plaintiff testified that during the time he operated the wagon, he knew of no way to operate the side chute conveyor without the beaters rotating.

Defendant Moentmann Brothers, distributed the GOV manufactured by North American Manufacturing Company. The subject wagon consisted of a rectangular box which sat on dual wheels. The silage or feed is placed in the bed of the wagon which is approximately six feet wide, twelve feet deep and three feet high. The floor of the GOV consists of slats which are normally driven by two chains, one on each side. When in operation, the conveyor floor slowly moves forward directing the silage into three steel beaters. The silage is then dropped into a side chute conveyor which transports the silage out of the wagon and into a feed bunk. The disengagement of the clutch for the slat conveyor would not disengage the three beaters.

Mr. Earl Moentmann, president of Moentmann Brothers, testified that when he inspected the GOV in 1987 at the Harper farm, it operated in substantially the same manner as it had when it was sold new to Mr. Clevinger. Additionally, Mr. Sevart, plaintiff's expert witness, testified that the Model 60 GOV was defectively designed and not reasonably safe for its reasonably foreseeable use. The GOV did not have warnings other than those which came on the machine from the manufacturer.

On the morning of January 27, 1981, plaintiff loaded the wagon box with silage and began filling the feed bunks. He had filled four of the feed bunks and had just begun filling the fifth when he noticed that the silage had stopped discharging into the bunk. Plaintiff turned off the power to the wagon, climbed out the side of the wagon to see if he could determine where the chain had broken. Being unable to see where the chain had broken, plaintiff restarted the power, got his shovel, and climbed into the back of the wagon. He shoveled the silage under the beaters and into the discharge conveyor as he had done several times before without any problems. He had filled the fifth bunk when he discovered that the chain had broken right under the beaters. He was looking down at the chain when he felt a tugging on his right coverall leg. Plaintiff attempted to pull his coverall free, but could not. He then braced his hands across the top of the beaters. The next thing plaintiff remembers was lying on the discharge chute on the other side of the beaters. When he tried to get up, it was then that he saw that his right arm was gone.

Plaintiff was hospitalized at the University of Missouri Hospital and Clinic from January 27, 1981 through March 20, 1981. He underwent several surgeries on his right shoulder, vigorous rehabilitation and further corrective surgery.

I.

The plaintiff cites, in support of his position, that the trial court erred in submitting an instruction on comparative fault Lippard v. Houdaille Industries, Inc., 715 S.W.2d 491 (Mo. banc 1986). While it is true that this case held that comparative fault is not applicable in a product's liability case, the majority opinion does leave the door open for the submission of the defense of contributory fault consistent with Missouri Approved Instruction (MAI) 32.23 in appropriate cases. Id. at 493. The majority opinion seems to support the proposition that where it may be found that the plaintiff assumed the risk, or voluntarily and unreasonably exposed himself to a known danger then such an instruction would be appropriate. Id. Consequently MAI 32.23, the affirmative defense instruction relative to contributory fault, is a complete defense to strict liability.

Since the Lippard decision in 1986, there have been no Missouri cases which have found that a plaintiff "voluntarily and unreasonably exposed himself to a known danger", and thereby permitted a submission under MAI 32.23. The question to be answered is just when does one expose himself to such a known danger. Our review has led to a comparison of the standard used for assumption of the risk with that for contributory fault. The standards set forth in Lippard seem very close to those required by the legal principle "assumption of risk."

We consult Prosser & Keeton on Torts, § 68 at 486-87 (5th ed. 1984):

Knowledge and Appreciation of Risk

The defense of assumption of risk is in fact quite narrowly confined and restricted by two or three elements or requirements: first, the plaintiff must know that the risk is present, and he must further understand its nature; and second, his choice to incur it must be free and voluntary.

'Knowledge of the risk is the watchword of assumption of risk.' Under ordinary circumstances the plaintiff will not be taken to assume any risk of either activities or conditions of which he has no knowledge. Moreover, he must not only know of the facts which create the danger, but he must comprehend and appreciate the nature of the danger he confronts.

The Eight Circuit Court of appeals held in Hale v. Firestone Tire & Rubber Co., 756 F.2d 1322, 1331 (8th Cir.1985) that:

Missouri recognizes contributory fault as an affirmative defense to strict liability. To be charged with contributory fault, however, the plaintiff must know the facts which create the danger and comprehend and appreciate the danger itself. Collins v. B.F. Goodrich Co., 558 F.2d 908, 911-12 (8th Cir.1977) (Missouri law); Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362, 364 (Mo.1969) (tire rim case). There must be evidence that the danger is open and obvious and that plaintiff voluntarily and unreasonably encountered a known risk. Haines v. Powermatic Houdaille Inc., 661 F.2d 94, 96 (8th Cir.1981). The plaintiff, however, need not know of the exact design defect but only of the risk to the user. Ensor v. Hodgeson, 615 S.W.2d 519, 525 (Mo.Ct.App.1981).

Here, we are dealing with the use of a silage wagon which used three sets of rotating steel knives to break up silage brought to the beaters by slats moving over a smooth floor. The silage might be tightly packed, wet or frozen, and it was the purpose of the rotating knives to break it up before it was moved out of the wagon and was used as feed to animals. Plaintiff knew exactly how the silage wagon operated as he had restored it to its use after it had been abandoned by a previous owner for ten years. He was an experienced farm worker who maintained and repaired his own machinery. Plaintiff's knowledge of this machinery was such that his counsel qualified him as an expert to testify to its operation at trial. He used this particular wagon almost every day for more than a month. He was aware that a PTO switch from his attached tractor supplied the power to all the moving parts of the GOV. Additionally, when he first noticed that the machine was not operating properly on the date of his accident, the first thing he...