Hoerr v. Northfield Foundry and Mach. Co.
| Decision Date | 28 October 1985 |
| Docket Number | No. 10872,10872 |
| Citation | 376 N.W.2d 323 |
| Parties | Prod.Liab.Rep. (CCH) P 10,907 Greg HOERR, Plaintiff and Appellee, v. NORTHFIELD FOUNDRY AND MACHINE COMPANY and Country Hill Cabinets, Defendants, G.C. Peterson Company, Inc., Defendant and Appellant. Civ. |
| Court | North Dakota Supreme Court |
Gjevre, McLarnan, Hannaher, Vaa, Skatvold & McLarnan, Moorhead, Minn., for plaintiff and appellee; argued by Galen Vaa.
Gunhus, Grinnell, Klinger, Swenson & Guy, Moorhead, Minn., for defendant and appellant; argued by Paul E. Grinnell.
Defendant G.C. Peterson Company, Inc. [Peterson], appeals from an "amended order" 1 of the District Court of Cass County awarding plaintiff Greg Hoerr damages in the amount of $47,266.88, plus costs and disbursements. We affirm.
On August 20, 1982, Hoerr suffered a work-related injury when a high-speed wood shaper he was operating severed parts of three fingers from his left hand. At the time of the injury, Hoerr was employed as a cabinetmaker by Custom Fabricators, Inc. [Custom], in Fargo. Hoerr received workmen's compensation benefits.
The wood shaper was manufactured by Northfield Foundry and Machine Company [Northfield]. Peterson, the distributor of the wood shaper, initially sold the machine to Country Hill Cabinets [Country], which in turn resold the machine to Hoerr's employer, Custom.
In February 1983, Hoerr commenced this products liability action against Northfield, Peterson, and Country based on theories of negligence, strict liability in tort, and breach of express and implied warranties. Hoerr later voluntarily dismissed his claim for breach of express and implied warranties. The complaint alleged that the defendants "negligently designed, fabricated, constructed, manufactured, inspected and sold" the wood shaper and that the defendants "manufactured, designed, fabricated, constructed, inspected and sold" the wood shaper "in a defective condition, unreasonably dangerous to users and consumers."
Prior to trial, Hoerr entered into Pierringer or Bartels releases 2 with defendants Northfield and Country, from whom Hoerr received $10,000 and $20,000, respectively. Peterson proceeded to trial as the sole remaining defendant and asserted as defenses Hoerr's negligence, assumption of risk, and unforeseeable misuse of the wood shaper. A special verdict form was submitted to the jury which contained two separate fault assessments with regard to all parties, including the employer and settling defendants. The jury found that Hoerr was entitled to recovery under both the negligence and strict liability theories and returned the following verdict:
After the verdict was entered, Hoerr filed a motion pursuant to Rule 58, N.D.R.Civ.P., requesting an order granting judgment against Peterson on the negligence verdict alone, for 67.5 percent of the total damages, or $47,266.88. In response, Peterson filed a "Brief on Entry of Judgment" contending that: (1) judgment should be entered on the strict liability fault assessment; (2) the case should be retried with a combined fault assessment verdict form; (3) judgment should be entered on an average of the two fault assessments rendered by the jury; and (4) judgment should be entered with Peterson "picking up only a pro rata share of the fault assigned to the employer, with the other parties who were found at fault picking up a pro rata share of the employer's negligence in proportion to their fault." The district court rejected Peterson's contentions and entered judgment against Peterson in the amount of $47,266.88, representing 67.5 percent of the total damages. This appeal followed.
Peterson first asserts that the jury's verdict is "perverse" because the jury failed to assess any fault on the part of Hoerr under either the strict liability or negligence theories. Peterson claims that the evidence justifies findings that Hoerr was negligent, assumed the risk, and unforeseeably misused the wood shaper.
We need not dwell at length on this contention. This court's review of questions of fact is limited to consideration of whether or not there is substantial evidence to sustain the jury's verdict. E.g., Farmers Co-op. Elevator of Cavalier v. Lemier, 328 N.W.2d 833, 835 (N.D.1982). In determining whether or not there is substantial evidence to sustain the verdict, we will not invade the province of the jury to weigh the evidence or to determine the credibility of witnesses. E.g., Powers v. Martinson, 313 N.W.2d 720, 728 (N.D.1981). In reviewing the evidence, we view it in the light most favorable to the verdict. E.g., Johnson v. Northwestern Bell Telephone Co., 338 N.W.2d 622, 625 (N.D.1983).
Peterson directs our attention to testimony in the record that would certainly support findings that Hoerr was either negligent, or had assumed the risk or unforeseeably misused the wood shaper. Hoerr directs our attention to testimony in the record that clearly supports the jury's contrary findings. Under these circumstances, we will not substitute our judgment for that of the jury, which heard the testimony and had the opportunity to judge the credibility of the witnesses. We conclude that there is substantial evidence to support the jury's findings that Hoerr was not negligent, did not assume the risk, and did not unforeseeably misuse the wood shaper.
Peterson asserts that the evidence is insufficient to support the jury's $70,025 damage award.
In Vallejo v. Jamestown College, 244 N.W.2d 753, 759 (N.D.1976), this court stated:
In the present case, the treating physician testified that Hoerr's injury resulted in a 32 1/2 percent permanent partial impairment of his left hand which correlated to approximately 30 percent permanent impairment of his entire left arm. The doctor also testified that in his opinion Hoerr would be unable to satisfactorily perform his former duties as a carpenter or cabinetmaker because of the loss of the ability to "manipulate small parts, nails or screws or anything that required dexterity with any degree of skill...." A rehabilitation psychologist who evaluated Hoerr testified that Hoerr suffered from depression for approximately 18 months after the accident and that he had acquired an "anxiety relating to operation around power machinery." The rehabilitation psychologist also testified that a reasonable retraining program at a vocational technical institute would cost between $5,000 and $6,000. 3 Hoerr testified that he continues to suffer from pain and discomfort in his left hand when it is exposed to cold weather or bumped against objects. Hoerr also testified that he has undergone three surgical procedures for treatment of his injury.
Having reviewed the record, we cannot say that the amount of damages awarded by the jury is unsupported by the evidence or that it is excessive.
Peterson asserts that the trial court erred in submitting to the jury separate fault assessments under Hoerr's negligence and strict liability theories of recovery. Peterson requests that we remand this case for a new trial with a combined fault assessment special verdict form, a copy of which counsel has offered as an exhibit in this court. In the alternative, Peterson suggests that Hoerr should have been required to elect his theory of recovery before submission of the case to the jury. See Hauenstein v. Loctite Corp., 347 N.W.2d 272 (Minn.1984).
This court has consistently held that a question not raised or considered in the trial court cannot be raised for the first time on appeal. E.g., Family Center Drug Store, Inc. v. North Dakota State Board of Pharmacy, 181 N.W.2d 738, 745 (N.D.1970). We have also held that where no objection to a special verdict form was made, the jury's finding upon the special verdict is binding. Andersen v. Teamsters Local 116 Bldg. Club, 347 N.W.2d 309, 313 (N.D.1984); Farmers Union Grain Terminal Ass'n v. Nelson, 223 N.W.2d 494, 499 (N.D.1974).
The record in this case establishes not only that Peterson failed to object to the special verdict form, but that it agreed to the contents prior to its submission to the jury. The record also...
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