Hobson v. Beck Welding & Mfg., Inc., 20734

• Decision Date: 21 March 1969
• Docket Number: No. 2,No. 20734,20734,2
• Citation: 16 Ind.Dec. 717,245 N.E.2d 344,144 Ind.App. 199
• Parties: Joyce HOBSON, Administratrix of the Estate of Damon Hobson, Deceased, Appellant, v. BECK WELDING AND MFG., INC., a Corporation, Appellee
• Court: Indiana Appellate Court

Page 344

245 N.E.2d 344

144 Ind.App. 199

Joyce HOBSON, Administratrix of the Estate of Damon Hobson Deceased, Appellant, v. BECK WELDING AND MFG., INC., a Corporation, Appellee.

No. 20734.

Appellate Court of Indiana, Division No. 2.

March 21, 1969.

James E. Bath, Indianapolis, for appellant.

Oscar Strom, Angelo A. Buoscio, Gary, D. Russell Bontrager, Elkhart, for appellee. Strom & Whitted, Gary, of counsel.

PFAFF, Chief Justice.

This is an action for damages for wrongful death brought by the appellant, Joyce Hobson, Administratrix of the Estate of Damon Hobson, deceased, against the appellee, Beck Welding and Mfg., Inc., arising out of an accident that occurred in the city of indianapolis, Indiana, on February 9, 1964, at about six o'clock in the evening.

Damon Hobson, husband of the appellant, was employed by the H. Coster Electric Car Sales & Service, Indianapolis, Indiana, as a part-time driver of a semi-trailer truck unit hauling electric golf carts to and from golf courses located in Indiana. The trailer of this truck unit was specially constructed by the appellee for Hobson's employer. The trailer had two levels, the upper level being supported by upright steel posts and cross braces between said posts. On the date in question, as Hobson attempted to board the truck, by grasping the steel braces and hoisting himself up onto the lower level, a cross brace broke and caused him to fall backward, striking his head. Said injuries were fatal.

Issues were formed by appellant's complaint alleging that the appellee had negligently made the welds which had fractured, thus causing said accident, and appellee's answer thereto.

Trial was had by jury and a verdict returned for the appellee. Judgment was entered thereon on March 22, 1966, said judgment reading as follows:

'IT IS THEREFORE ordered, adjudged and decreed by the Court that the plaintiff take nothing by her action on her complaint.

'It is further ordered and decreed by the Court that the costs herein be taxed to the plaintiff.'

Subsequently appellant filed a motion for new trial, alleging as follows:

'1. The verdict of the jury is contrary to law.

'2. Error of law occurring at the trial, as follows:

'a. The court erred in giving to the jury, at the request of the defendant each of defendant's instructions numbered 9, 10, 19, 30, 31 and 35, and to the giving of each of which instructions the plaintiff duly objected within the proper time by filing written objections to each of said instructions after the court had indicated the instructions it would give to the jury.

'b. The court erred in submitting to the jury, at the request of the defendant each of defendant's written interrogatories to the jury numbered 3, 5, 6, 7, 10, 11 and 12, and to the submitting of each of which written interrogatories to the jury the plaintiff duly objected within the proper time by filing written objections to each of said written interrogatories to the jury after the court had indicated the written interrogatories to the jury it would submit to the jury.'

Said motion was overruled and appellant assigns as error the overruling of such motion.

The evidence discloses that the decedent's employer, Harley Coster, operated an electric car sales and service company in Indianapolis, Indiana. The appellee company operated a welding shop in Elkhart, Indiana, where it made undercarriages for house trailers and did some custom work.

Decedent's employer had several trailers built by the appellee to be used for transporting golf carts. One semi-trailer unit was built in January 1962, and another in May 1963, the latter being the one involved in the accident in this cause. Appellee built the May 1963 trailer from a flatbed trailer purchased by the decedent's employer. Also, the top level of the January 1962 trailer was cut off and installed as the top level of the May 1963 trailer.

The newer model golf carts were approximately six inches higher than the older models and, as a result, the appellee was requested to make the top level of the trailer six inches higher. The evidence discloses that at each end of the cross brace there were four edges that could have been welded, but that at each end only one was welded; that the penetration achieved--the amount of parent metal melted along with the amount of weld metal fused into the joint--extended only one-sixteenth of an inch to one-eighth of an inch into the thickness of the cross braces at each end.

Appellant contends that the trial court erred in giving over her objection defendant's instruction No. 19. Said instruction reads as follows:

'If you should find from a fair preponderance of the evidence in this case that the Defendant, Beck Welding and Manufacturing, Inc., constructed the trailer involved in this lawsuit for Harley Coster under his supervision and according to plans and specifications furnished by him; and if you further find that Harley Coster had an opportunity to examine and inspect the trailer after it was completed and then accepted the completed trailer in he condition in which it then was, the acceptance of the trailer by Harley Coster operated as the intervention of an independent human agency which broke the chain of causation so as to preclude the Plaintiff's decedent and the Plaintiff on his behalf from asserting or relying on any duty on the part of the Defendant to use care for the Plaintiff's decedent in the construction of the trailer in question, unless you further find that either (1) the supervision of Harley Coster, if any, or the plans and specifications furnished by him, if any, were so obviously dangerous that no reasonable man would have accepted the supervision, if any, or followed the plans and specifications, if any, furnished by Harley Coster; or (2) the Defendant knew of the existence of the defendants and fraudulently concealed them; or (3) the work done by the Defendant was so negligently defective as to be imminently dangerous to third persons.'

In the opinion of this court, the giving of appellee's instruction No. 19 over appellant's objection thereto constituted reversible error. For the purpose of this holding, the court would direct its attention to the following language contained in said instruction:

'* * * and if you further find that Harley Coster had an opportunity to examine and inspect the trailer after it was completed and then accepted the completed trailer in the condition in which it then was, the acceptance of the trailer by Harley Coster operated as the intervention of an independent human agency which broke the chain of causation so as to preclude the Plaintiff's decedent and the Plaintiff on his behalf from asserting or relying on any duty on the part of the Defendant to use care for the Plaintiff's decedent in the construction of the trailer in question * * *.'

As a general rule it may be stated that a contractor or manufacturer is liable to only those individuals in privity with him, and may not be held to be liable to third persons who do not have a contractural relationship with him, for negligence in the construction or manufacture of goods. In J. I. Case Co. v. Sandefur (1964), 245 Ind. 213, 197 N.E.2d 519, our Supreme Court, citing with approval an exception to the general rule as above stated, quoted from the case of Huset v. J. I. Case Threshing Mach. Co. (1903) (8 C.C.A.), 120 F. 865, as follows:

"(The third exception to) the rule is that one who sells or delivers an article which he knows to be imminently dangerous to life or limb to another without notice of its qualities is liable to any person who suffers an injury therefrom which might have been reasonably anticipated, whether there were any contractural relations between the parties or not."

Further, in J. I. Case Co. v. Sandefur, supra, the court stated:

'As so often happens in the development of the common law, eventually the exceptions become the rule, and that is what has happened during the last sixty years to the principle under consideration here.'

A limitation to the rule exception cited in Huset v. J. I. Case Threshing Mach. Co., supra, and later adopted by the Supreme Court of Indiana, is set forth in the cases of Travis, Admx. v. Rochester Bridge Co. (1919), 188 Ind. 79, 122 N.E. 1, and Davis v. Henderlong Lumber Co. (1963), D.C., 221 F.Supp. 129. In the Davis case, the court stated:

'Thus, it was stated in Russell v. Arthur Whitcomb, Inc., 100 N.H. 171, 121 A.2d 781 (1956), that one important limitation on the rule placing building contractors on the same footing as sellers of goods, and holding them to the general standard of reasonable care for the protection of anyone who may foreseeably by endangered by their negligence even after acceptance of the work, is that the contractor is not liable if he has merely carried out the plans, specifications, and directions given him, since in that case the responsibility is assumed by the employer, at least when the plans are not so obviously dangerous that no reasdonable man would follow them.'

In the case at bar the evidence discloses that appellee made two semi-trailers for Coster, the first in January 1962, and the second in May 1963. It was the second trailer that was involved in Hobson's death. Appellee's president, Erman Beck, testified that he provided the design and plan for the building of the first trailer and that Coster told him he had had trouble with the undercarriage of the first trailer being too light and he wanted Beck to build a second trailer, this time using a heavy duty Fruehauf flatbed to correct the problem. Coster wanted the top six inches higher for the second trailer because the new golf carts were higher. As to the design and general plan for the second trailer, Beck testified that he had supposed from the conversation with Coster that Coster meant that the second was to be the same, except that the top level should be raised six inches.

While it may be found from the above stated evidence that the...