Harris v. Hampton Roads Tractor & Equipment Co.

• Decision Date: 08 September 1961
• Docket Number: No. 5263,5263
• Citation: 121 S.E.2d 471,202 Va. 958
• Parties: ROSS HARRIS v. HAMPTON ROADS TRACTOR & EQUIPMENT COMPANY. Record
• Court: Virginia Supreme Court

Page 471

121 S.E.2d 471

202 Va. 958

ROSS HARRIS v.HAMPTON ROADS TRACTOR & EQUIPMENT COMPANY.

Record No. 5263.

Supreme Court of Appeals of Virginia

September 8, 1961.

Howard I. Legum(Louis B. Fine; Fine, Fine, Legum & Schwan, on brief), for the plaintiff in error.

James M. Pickrell(Kellman & Kellam, on brief), for the defendant in error.

JUDGE: SNEAD

SNEAD, J., delivered the opinion of the court.

Ross Harris instituted an action at law against Hampton Roads Tractor & Equipment Company, a corporation, for damages resulting from injuries he sustained while operating a crane with a tagline attached to the boom which the corporation had sold to his employer, Higgerson-Buchanan, Inc.The motion for judgment alleged that defendant negligently installed the tagline, and that it breached its implied warranty that the crane and tagline were fit for the purposes for which they were bought.At the conclusion of all the evidence defendant renewed its motion to strike plaintiff's evidence originally made when plaintiff rested.The motion was granted as to implied warranty, and the case was submitted to the jury on the question of negligence.A verdict was returned for defendant.Plaintiff's motion to set aside the verdict as being contrary to the law and the evidence and grant him a new trial, and because a juror conversed with a witness for defendant at a luncheon recess was overruled, and judgment was entered on the verdict.

The litigants will be referred to at times as plaintiff and defendant in accordance with their respective positions in the court below.

Plaintiff's assignments of error challenge the correctness of the court's rulings in entering summary judgment for defendant on the implied warranty counts; in granting and refusing certain instructions; and in refusing to set aside the verdict as being contrary to the law and the evidence and award a new trial, and because of the conversation had between a witness for defendant and a juror.

Defendant, who was a dealer, sold to Higgerson-Buchanan, Inc., a Model 25 Northwest crane, which was manufactured by Northwest Engineering Co., and a 'Rud-O-Matic' tagline which was manufactured by another concern.This tagline is an accessory for installation preferably on the crane's boom and weighs approximately 200 pounds.It has a spring reel from which a cable 5/16ths of an inch in diameter passes through two pulleys or sheaves and is fastened to the 'clambucket'; this particular 'clambucket' weighed 1600 pounds.The function of a tagline is to prevent the 'clambucket' from swinging or turning.

On or about March 16, 1957, the crane arrived at Lee Hall, Virginia, from the factory on a railroad flat car.Defendant's employees assembled the boom, attached to it the tagline which they brought with them, removed the crane from the car, and later it was delivered to the purchaser, plaintiff's employer.

Instructions for installation of the Rud-O-Matic tagline furnished by the manufacturer state that when the tagline is installed on the boom, it should be placed preferably 'with the wheel on the opposite side of the operator so as not to obstruct his vision. ' The crane in question was operated from the right side of the boom, and the evidence is conflicting as to whether the tagline was installed on the operator's side of the boom or on the side opposite him.

On September 14, 1957, plaintiff hauled the crane on a trailer to Lee Hall to unload a gondola car of stone.When he raised the boom and 'pulled' on the tagline the cable attached to the 'clambucket' snapped and struck him in his left eye which was later removed.

Plaintiff had operated various types of cranes, including 'Northwest', for about sixteen years.He was in charge of the crane.Among his duties were to lubricate the machine and to replace cables when necessary.The cable involved in the accident was at the time on the operator's side of the boom and had been a part of the tagline since delivery in March 1957.Plaintiff estimated the crane had forty to sixty hours of actual use a week for three months.He testified that wear usually causes a cable to break.Several weeks prior to the accident the crane and tagline were used to unload 150 gondola cars of stone.During the operation the cable would usually hit the edge of the cars and move 'back and forth'.Testimony varied as to the average life of a 5/16-inch cable under normal conditions.Plaintiff's witnesses stated that such a cable should render 1,000 hours or more of service.On the other hand witnesses for defendant said 120 hours; from 5 to 6 weeks; 'a month or two, and they can break in five minutes', depending on the operator.There was evidence that the pulleys or sheaves through which the cable ran were badly worn which would cause the cable to wear.According to R. M. Bowden, an expert witness for plaintiff, taglines should be oiled or greased daily when in use, and during that process the condition of the pulleys can readily be observed.

Bowden said a tagline should be mounted on the side of the boom opposite the operator 'as a safety precaution so that in case the cable breaks it would not come back and hit the operator. 'A. F. Kleever entertained the same view.A number of expert witnesses for defendant stated that it was proper to install the tagline on either side of the boom.L. W. Puglisi estimated that ninety per cent of the cranes he had seen had the tagline mounted on the operator's side of the boom.Plaintiff testified he had operated cranes before and after the accident with taglines mounted on the operator's side.He said 'it is customary to fasten it on either side.'

We shall consider first whether the trial court erred in striking plaintiff's evidence as to the implied warranty counts because there was no privity of contract between the litigants.

While there is authority to the contrary, the prevailing view, subject to some exceptions and qualifications, is that there can be no recovery against the manufacturer or seller of a product alleged to have caused the injury, on the theory of breach of warranty, where there is no privity of contract between the injured party and the manufacturer or seller.SeeAnnotation, 75 A.L.R.2d, 39 et seq.

In the recent case of Wyatt v. North Carolina Equipment Company, 253 N.C. 355, 117 S.E.2d 21, the question of privity of contract was involved.There Wyatt, the operator of a dirt loader, which was sold to his employer, Neal Hawkins Construction Company, by the defendant who was a dealer, was thrown on the hood of the machine and was seriously injured by the arms of the scoop when the loader tipped forward while he was backing it with the scoop of the loader off the ground.In his action against defendanthe alleged negligence and breach of warranty.Defendant's demurrer was sustained, and on appeal the judgment of the trial court was affirmed.The court said:

'A warranty, express or implied, is contractural in nature.Whether considered collateral thereto or an integral part thereof, a warranty is an element of a contract of sale.77 C.J.S.Sales§ 302;46 Am. Jur., Sales§ 299.

* * *

''Subject to some exceptions and qualifications, it is a general rule that only a person in privity with the warrantor may recover on the warranty.'77 C.J.S.Sales§ 305(b);46 Am. Jur., Sales§ 306.

'* * * Absent privity of contract, there can be no recovery for breach of warranty except in those cases where the warranty is addressed to an ultimate consumer or user.Ordinarily, the rule that a seller is not liable for breach of warranty to a stranger to the contract of warranty is applicable to an employee of the buyer.Berger v. Standard Oil Co., 126 Ky. 155, 103 S.W. 245, 11 L.R.A., N.S., 238.Negligence is the basis of liability of a seller to a stranger to the contract of warranty. '(Citing cases.)253 N.C., at page 359, 117 S.E.2d at page 24.

Gleason & Co. v. International Harvester Co., et al., 197 Va. 255, 88 S.E.2d 904, involved an alleged warranty of a coupling device, known as a fifth wheel, which is designed for use in fastening a trailer to a tractor.Richardson, the plaintiff, purchased an International tractor-type truck from Gleason, an independent dealer.At the same time he ordered from Gleason a fifth wheel and relied on him to select and install it.Gleason obtained the fifth wheel from a branch office of Harvester, which had purchased it from another manufacturer.A milk-tank trailer which the tractor was pulling became uncoupled because of the defective condition of the fifth wheel, turned over and spilled a large quantity of its load of milk.

Richardson instituted action against Gleason and Harvester for damage to the trailer and for loss of milk.He alleged breach of implied warranty and negligence.We held that want of privity of contract between Richardson and Harvester was a complete defense to the charge that Harvester was guilty of the breach of an implied warranty.We also held that the evidence failed to show that Harvester was guilty of negligence which was the proximate cause of Richardson's damages.

In Swift and Company v. Wells, 201 Va. 213, 110 S.E.2d 203, we held: '* * * [Where] a manufacturer of food for human consumption sells such food, in sealed containers or packages, to a retailer, who in turn sells it to a consumer, and the consumer upon eating it suffers damage in consequence of impurities in the product, shown to have existed therein before it left the manufacturer's hands, the manufacturer is liable to the consumer on its implied warranty of wholesomeness of the food, and the consumer may recover against the manufacturer for...