Herman v. Midland AG Service, Inc.

• Decision Date: 22 March 1978
• Docket Number: No. 41275,41275
• Citation: 264 N.W.2d 161,200 Neb. 356
• Parties: , 24 UCC Rep.Serv. 590 Harold W. HERMAN, Appellee, v. MIDLAND AG SERVICE, INC., a Nebraska Corporation, Appellant.
• Court: Nebraska Supreme Court

Page 161

264 N.W.2d 161

200 Neb. 356, 24 UCC Rep.Serv. 590

Harold W. HERMAN, Appellee, v. MIDLAND AG SERVICE, INC., a Nebraska Corporation, Appellant.

No. 41275.

Supreme Court of Nebraska.

March 22, 1978.

Syllabus by the Court

1. It is the duty of the trial court, without request, to submit to and properly instruct the jury on all material issues presented by the pleadings and supported by the evidence. This principle applies to theories of defense as well as those upon which the plaintiff's cause of action is founded. The failure to so instruct is prejudicial error.

2. Where proof is by circumstantial evidence, the circumstances adduced by proof must render the existence of the inferred facts reasonably probable and proof of mere possibility is insufficient.

3. In a proper case where sufficient foundation is laid, the results of scientific experiments may be admissible as substantive evidence to prove the existence of a condition as well as for the purpose of proving that the condition was the proximate cause of a result.

4. A supplier of a dangerous substance owes the highest degree of care to prevent injury from the use of that product. He is not, however, an insurer of one who is aware of the dangerous character of the substance.

5. If a breach of an implied warranty of fitness is not the proximate cause of an injury and consequential damages, there can be no recovery for the breach.

6. A contract of bailment of a chattel for consideration may give rise to an implied warranty of fitness of the chattel for the purpose for which it was bailed.

7. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. § 27-401, R.R.S.1943.

8. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. § 27-403, R.R.S.1943.

Maupin, Dent, Kay, Satterfield, Girard & Scritsmier, Dale A. Romatzke and Gary D. Byrne, North Platte, for appellant.

Richard H. Williams of Barney & Carter, P. C., Nelson, Harding, Yeutter, Leonard & Tate, Lincoln, for appellee.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON and BRODKEY, JJ.

CLINTON, Justice.

This is an action by the plaintiff, Herman, a farmer, against the defendant, Midland AG Service, Inc., a fertilizer supplier, for personal injuries sustained by Herman on his farm while in the process of transferring anhydrous ammonia from a nurse tank furnished by the defendant to an applicator tank. Plaintiff sought recovery upon three theories: (1) Breach of implied warranty by defendant in furnishing a valve on the transfer hose on the nurse tank which was not reasonably fit for its purpose; (2) negligence; and (3) strict liability in tort. The trial court submitted the cause to the jury on the theories of negligence and a breach of implied warranty of fitness, and as to the negligence theory, submitted the defendant's claim of contributory negligence and assumption of risk on the part of the plaintiff. The jury returned a verdict for the plaintiff. Because of the form of the verdict, it is not possible to determine whether the verdict was founded upon the defendant's alleged negligence, or upon breach of warranty, or both.

On appeal to this court the defendant makes numerous assignments of error and those which have been both assigned and argued in the brief are consolidated by us to the following: (1) The trial court erred in failing to instruct the jury as to the specific acts of contributory negligence pled by the defendant and which were supported by the evidence. (2) The evidence of the plaintiff to prove circumstantially and by alleged scientific experiments that the plaintiff's injuries were proximately caused either by the negligence of the defendant, or by a breach of warranty by the defendant, was insufficient to support the verdict. (3) The court erred in permitting the plaintiff to introduce the results of experiments as to how the accident and injuries might have occurred, when the experiments were based upon assumptions of which there was no proof. (4) The court erred in giving instruction No. 17, dealing with the standard of care exercisable by one who furnishes a dangerous substance because the instructions set forth, not just a standard of care of the highest degree, but also one of "strict accountability." (5) The court erred in submitting to the jury the proposition that plaintiff could recover upon the theory of an implied warranty of fitness for a particular purpose. (6)The court erred in refusing to give the defendant's requested instructions Nos. 2, 9, and 11 pertaining to the duty of the bailor of the product not manufactured by him to inspect before entrusting to the bailee. (7) The evidence was insufficient to sustain the verdict because the plaintiff failed to prove that an inspection by the bailor would have revealed any defect. (8) The evidence was insufficient to sustain the verdict because the evidence failed to prove that the bailee relied upon the bailor's judgment in the selection of the product, to wit, the alleged defective valve. (9) The court erred in failing to instruct that an assumption of risk is a defense in an action for breach of warranty. (10) The court erred in giving instructions Nos. 2 and 18 and in refusing defendant's requested instruction No. 11, which instructions relate to the principle that there is no duty to warn of a known danger. (11) The court erred in refusing to direct a verdict for the defendant on the ground the evidence showed that the defendant was guilty of contributory negligence as a matter of law. (12) The court erred in refusing to permit evidence that the same equipment, to wit, the valve which allegedly caused the accident and injuries in this case, was used by others both shortly before and shortly after the accident without incident or modification in the equipment. For reasons hereinafter explained, we reverse and remand for a new trial.

It is admitted that on June 8, 1974, the defendant, pursuant to a purchase order for fertilizer, delivered to the plaintiff's farm a nurse tank filled with approximately 1,000 gallons of anhydrous ammonia. The nurse tank is equipped with a hose and nozzle by means of which the transfer of the fertilizer in the nurse tank to the applicator tank is made. On the day above mentioned, while the plaintiff was in the initial steps of the process of making the transfer, the valve on the nurse tank hose, in some manner not explained by direct evidence, opened before the plaintiff had made the necessary attachment to the receiving valve on the applicator tank and, as a consequence, he suffered burns to the face and eyes which resulted in serious permanent injury.

As to the theory of warranty, the trial court, by its instructions, submitted to the jury the issue of whether the defendant furnished to the plaintiff "a transfer hose and valve, which valve was not reasonably fit for the use intended, that is, the transfer of anhydrous ammonia from the nurse tank to an applicator tank in a reasonable manner." As to the theory founded on negligence, the court submitted the following allegations of negligence: (1) Failure to warn the plaintiff by a plain and visible warning on the nurse tank, as required by certain regulations, of the dangerous propensities of anhydrous ammonia. (2) The failure to furnish to the plaintiff, for use in making the transfer, a full face mask or goggles as called for by certain regulations. (3) The failure to provide an adequately tightened valve. (4) The failure to instruct the plaintiff in safety procedures.

As to the negligence theory, the court submitted to the jury the defendant's pleaded defenses only in the following form: "a. Plaintiff was himself negligent in failing to exercise due care and proper caution in attempting to transfer anhydrous ammonia from a nurse tank to an applicator tank. . . . b. Plaintiff assumed the risk of his own injury." The trial court did not instruct the jury as to any specific claimed acts of contributory negligence, although the defendant had pleaded, among others, that the plaintiff was negligent in the following particulars: "4. In holding onto the wheel on the valve on the end of the nurse tank hose . . . when in the process of attempting to attach the nurse tank hose to the applicator tank. . . . 5. In opening the valve on the end of the nurse tank hose . . . when in the process of attempting to attach the nurse tank hose to the applicator tank."

Before determining the merit of the assignments of error it will be helpful to summarize certain portions of the evidence. This summarization will, where necessary, later be supplemented as we discuss the particular assignments.

The evidence shows that shortly before noon on the day of the accident, one of the employees of the defendant had, at the plaintiff's request, delivered to the plaintiff's farm the nurse tank in question. The employee parked the nurse tank in the farmyard and left it. Whether he left it beside the applicator tank or whether plaintiff later moved the applicator tank into position by the nurse tank is disputed in the evidence. In any event, it is admitted that no special instructions were given by the employee to plaintiff at that time.

When a nurse tank is delivered, a valve at the tank end of the hose is closed as is the valve (the one here claimed to be inadequately tightened) at the end of the hose which is to be attached to the reciprocal valve on the applicator tank. Two employees of the defendant, one of whom filled the nurse tank on the day in question, testified that the valve on the hose was closed tight after the tank was filled and...