Herman v. Speed King Mfg. Co.

• Decision Date: 13 January 1984
• Docket Number: No. 83-66,83-66
• Citation: 675 P.2d 1271
• Parties: Donald HERMAN and Sibble Herman, husband and wife, Appellants (Plaintiffs), v. SPEED KING MANUFACTURING COMPANY, a Kansas corporation, G & G Manufacturing Company, a Nebraska corporation, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 1271

675 P.2d 1271

Donald HERMAN and Sibble Herman, husband and wife, Appellants (Plaintiffs), v. SPEED KING MANUFACTURING COMPANY, a Kansas corporation, G & G Manufacturing Company, a Nebraska corporation, Appellees (Defendants).

No. 83-66.

Supreme Court of Wyoming.

Jan. 13, 1984.

Robert P. Chaloupka (argued) of Van Steenberg, Brower, Chaloupka, Mullin & Holyoke, Scottsbluff, Neb.; and Sue Davidson of Urbigkit & Whitehead, P.C., Cheyenne, for appellants.

Glenn A. Hottenstein (argued), of Guy, Williams, White & Argeris, Cheyenne, for appellee Speed King Mfg. Co.

G.G. Greenlee (argued), of Murane & Bostwick, Casper, for appellee G & G Mfg. Co.

Before ROONEY, C.J., and THOMAS, ROSE, BROWN and CARDINE, JJ.

CARDINE, Justice.

This is an appeal from the judgment in an action seeking damages for a personal injury arising out of a farm accident allegedly caused when a PTO shaft malfunctioned. The case was tried without a jury. The court held that the appellants' negligence was equal to or greater than any fault on the part of the appellees and, therefore, entered judgment denying recovery.

We will affirm.

Appellants raise three issues:

"1. Did the Court err in failing to grant Appellants' request for a jury made at the time of the filing of their Amended Petition?

"2. Were the Findings of Fact, and the Judgment entered by [the] Court, so unsupported and against the great weight of the evidence that they should not stand?

"3. Did the trial court commit reversible error in refusing to admit certain portions of Appellants' evidence, and in admitting certain portions of Appellees['] evidence over timely objections by Appellants?"

Appellant, Donald Herman, was severely injured in a farm accident involving a power take off (herein referred to as PTO) driven Speed King Auger. The PTO shaft was manufactured by appellee, G & G Manufacturing, and made part of a grain auger manufactured by appellee, Speed King Manufacturing Co. This particular PTO shaft was protected by a plastic safety shield.

On the day of the accident, appellant Herman arrived at Dr. Cross' ranch to deliver a load of alfalfa pellets. He was driving a large, double axle truck and pulling a pup trailer. Both were full of the pellets. He used a Speed King Auger owned by Dr. Cross to unload the pellets into a granary located at the farm. The truck and trailer were equipped with traps which could be opened in order to allow the pellets to drain into an area from which they could be augered into the granary.

At the time of the accident, the auger was protected by a plastic shield. It was not equipped with an implement master shield, which is a component of the auger rather than the PTO shaft. The implement master shield would protect against entanglements in the unshielded portion of the PTO universal joint where it connects to the auger. The plastic shield protects the auger itself.

While appellant was unloading the feed, he leaned across the rotating PTO shaft to open a trap door in the bottom of a trailer. From this point on, it is not clear what happened. The appellant testified that as he grabbed the grain trap release lever, he felt his chest inadvertently contact the safety shield of the PTO shaft. He remembers nothing from that point. Dr. Cross testified that he saw the PTO shaft suddenly "scoop" Mr. Herman up and begin to beat him about the grain trailer. However, he also testified that the accident happened so quickly that he could not really say that he saw anything in regard to the shaft. Appellants' expert witness testified that in his opinion the PTO shaft destructed because of a process known as "resonance phenomena." He defines this cause as:

"Resonance phenomena simply means that a system, dynamic system, vibrates at a frequency or is being rotated at a frequency where the system would start to resonate such as music strings do and unless they're of adequate strength or dampening, this leads to failure."

Speed King contended that it was impossible to know what caused the accident. However, they contend that the more probable cause was that the shaft had been deformed in a prior incident, that the safety shields had been removed before this accident, and therefore, when the plaintiff leaned over the unguarded shaft, he was picked up and thrown against the trailer. They contend that the shaft assembly was not defective. Appellee G & G Manufacturing proposed the argument that the accident was caused when Mr. Herman's right sleeve became entangled in the The burden is on the appellants to establish by a preponderance of the evidence the facts necessary to a prima facie case. The trial court judge found that the PTO shaft was not defective when it left the possession of G & G, that it was not altered nor modified by Speed King, that it was not defective when finally affixed to the Speed King grain auger, and appellants did not meet their burden of proof.

unguarded universal joint thereby pulling his body into the shaft.

I

RIGHT TO JURY TRIAL

Appellants did not request a jury at the time of filing their original complaint. The trial judge recognized this omission and advised counsel by letter, fifteen months later, that, since no jury demand had been asserted, trial would be to the court. Appellants then presented a motion for leave to amend their complaint, which included a demand for a trial by jury. The judge allowed the amended complaint to be filed. However, he ruled that trial would be to the court because the jury demand was not timely. Appellants assert that the amended complaint contained new material, issues, and claims which of right are triable by jury. They contend that new and additional facts, developed throughout the period of discovery, were the basis for alternate additional claims under the theories of negligence, strict liability, breach of warranty, and for punitive damages.

Rule 38(b)(1), W.R.C.P., states:

"Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after service of the last pleading directed to such issue. Such demand may be endorsed upon a pleading of the party."

Appellants would have us construe this rule as permitting a demand for a jury within ten days after any pleading which addresses the issue. Appellants assert that their amended complaint falls within this classification. However, we have consistently stated that:

" ' " * * * Demand may be made within ten days after service of the amended or supplemental pleading for new issues raised by that pleading but the amendment does not revive a right, previously waived, to demand jury trial on the issues already framed by the original pleadings. Nor does the late demand create a right to jury trial on issues raised by the amended or supplemental pleadings if those issues were fairly raised by the original pleadings." ' " Cates v. Daniels, Wyo., 628 P.2d 862, 865 (1981), quoting from Scherling v. Kilgore, Wyo., 599 P.2d 1352, 1356 (1979).

Amendments to the pleadings which do not change the issues do not revive a right to a jury trial. 5 Moore, Federal Practice § 38.41 (2nd ed. 1948); Western Geophysical Co. of America, Inc. v. Bolt Associates, Inc., 440 F.2d 765 (2nd Cir.1971); Wright & Miller, Federal Practice and Procedure Civil § 2320.

However, if fundamental factual questions or new issues are stated in the amendment, a jury trial can be granted as to those new issues. The complaint, as originally filed in this case, set forth claims for relief based upon theories of negligence, breach of warranty, and strict liability. The amended complaint sets forth the same claims and contains also a claim for punitive damages. However, there were no new facts, nor any facts at all, which would justify a claim for punitive damages. Therefore, the allegations are similar, and the case upon the amended complaint was based on the same theories. We perceive no difference.

If Rule 38(b)(1) is not complied with, Rule 38(d), W.R.C.P., comes into effect and states in part:

"The failure of a party to serve a demand as required by this rule and to file it as required by Rule 5(d) constitutes a waiver by him of trial by jury. * * * " There being no new facts nor issues contained in the amended complaint, the right to a jury trial was waived by not being timely filed. There was no error in the denial of a trial by jury.

II WAS THE JUDGMENT SUPPORTED BY THE EVIDENCE?

On appeal, this court assumes that the evidence in favor of the successful party is true, leaving out of consideration entirely the evidence presented by the unsuccessful party. We will not substitute our judgment for that of the trial court unless that judgment is clearly erroneous and contrary to the great weight of the evidence. City of Rock Springs v. Police Protection Ass'n, Wyo., 610 P.2d 975 (1980); Barnette v. Doyle, Wyo., 622 P.2d 1349 (1981).

Appellants contend that ten of the fourteen findings of fact and two conclusions of law are not supported by the evidence in whole or in part. They are as follows:

"3. * * * The PTO shaft also was sold with a universal-joint shield, not in use at the time of the accident. * * *

"4. * * * The only eyewitness to the accident, Dr. Robert Cross, was vague in his memory of some circumstances surrounding the accident. His position at the time of the accident would have made it difficult for him to accurately observe the exact circumstances of the accident. There was little apparent damage to the plastic shield or tubing and steel PTO bar either as the result of the accident or as the result of the method used in straightening the PTO shaft after the accident.

"5. If the PTO shaft had been bent to an angle of 60 degrees there would have been significant damage to the plastic shield and the metal tubing.

* * *

* * *

"8. The Court finds that the Defendant, Speed King, purchased 1100 identical...