International Harvester Co. v. Pike

• Court: Arkansas Supreme Court
• Writing for the Court: BROWN; HARRIS, C.J., and HOLT
• Citation: International Harvester Co. v. Pike, 249 Ark. 1026, 466 S.W.2d 901 (Ark. 1971)
• Decision Date: 15 February 1971
• Docket Number: No. 5--5427,5--5427
• Parties: , 10 UCC Rep.Serv. 1164 INTERNATIONAL HARVESTER COMPANY, Appellant, v. Earl PIKE, Appellee.

Page 901

466 S.W.2d 901

249 Ark. 1026, 10 UCC Rep.Serv. 1164

INTERNATIONAL HARVESTER COMPANY, Appellant, v. Earl PIKE, Appellee.

No. 5--5427.

Supreme Court of Arkansas.

Feb. 15, 1971.

Rehearing Denied May 10, 1971.

Wright, Lindsey & Jennings, Little Rock, for appellant.

J. Hugh Lookadoo, Arkadelphia, and McMath, Leatherman, Woods & Youngdahl, Little Rock, for appellee.

BROWN, Justice.

Appellee Earl Pike obtained judgment for personal injuries and property damage against International Harvester Company and its Malvern distributor, Burks Motors, Inc., as a result of a mechanical failure of appellee's International transport truck, which failure substantially wrecked the transport and caused serious injuries to appellee. This appeal is by International, in which several points for reversal are submitted and to which we shall later refer. Burks Motors filed a separate appeal because its single point is adverse to International--case number 5--5425.

At the time of the mishap appellee was engaged in the long haul truck transport business and was hauling bulk flour from Arkansas City, Kansas, to Little Rock, Arkansas. He lived in the Malvern area. In the spring of 1965, after negotiating with the International Harvester zone officials at Little Rock and the International distributor at Malvern, Burks Motors, appellee purchased a new 1965 model truck to replace an old truck. The new truck was delivered to him in July 1965. The cost was $24,785.17. In December 1965 appellee experienced his first trouble with the torque arm assembly. The mechanism is located under the fifth wheel and the purpose is to prevent the axle from going forward or backward when the truck is accelerating or slowing down. Within a period of six months appellee had trouble with the assembly on four occasions.

The first occasion. About two months after the purchase of the truck, appellee and his brother were unloading flour in Little Rock. The brother noticed a loose bolt in the torque rod assembly. It was the bolt that held the torque rod assembly to the differential. The truck was taken to International's shop in Little Rock. The brothers testified that International had the bolt and bushing repaired at a machine shop. The brother, Marvin Pike, testified that the nut at the end of the bolt was loose, and that the looseness was caused by some internal wear in the assembly. Appellee said he was instructed by the shop manager to take the truck to Burks Motors in Malvern for future repairs.

The second occasion. In February 1966 the same bolt again became loose and the truck was taken to Burks Motors. Appellee testified that the bolt was worn, that defect being visible once the bolt was removed. That was the bolt which had been inserted by International Harvester in Little Rock. Mr. Burks testified that the bolt had to be replaced. He had the replacement bolt made at a local machine shop since none was carried in stock. Witness Burks stated that he did not know the hardness of the metal in the bolt; that the bolt was not secured by a self-locking nut because the threads would not take it; and he did not know whether the bolt and nut were torqued.

The third occasion. On March 4, 1966, the machine shop bolt broke or fell out and the differential housing landed on the pavement. There was no serious damage done because the vehicle was travelling at slow speed. The truck was towed to Burks Motors.

The forth occasion. Among other repairs, Burks Motors again replaced the torque arm bolt. Burks testified that he called Memphis, Hot Springs, Texarkana, Little Rock, and Dallas, and finally located one on March 9 in Dallas. He said he was looking for a 3/4 bolt, 6 1/2 long. Burks ordered the bolt under the catalog number 753029C1. A loose-leaf catalog insert had been sent to all dealers in 1964 showing that the 753029C1 bolt had been replaced with a 757815C1 bolt. The witness said he did not keep up with the numerous inserts, 'but, even if we order a number of bolt that has been replaced, International Harvester automatically sends the correct part.' The bolt received from Dallas (and which was installed) was about 1/2 shorter than the International Harvester bolt removed in February. The witness testified that when he called Little Rock concerning the bolt, that office gave him the number 753029C1. Appellee testified that the truck was obtained by him from Burks Motors on March 10. He said he looked at the bolt before leaving and observed that it had a nut on the end which had been tacked on with a weld; and that the bolt had sleeves and washers on it. Appellee made a trip to Arkansas City, Kansas, without mishap. He started on his second trip on March 17. A short distance from Malvern the torsion bolt was said to have broken, the front drive differential turned over, and went underneath the back drive axle, causing the damage to the truck and personal injuries to appellee. It is on the basis of that experience that appellee filed his suit.

So much presently for the four described incidents. Appellee testified that when he placed an order for the truck he specified the heavy type torque rod with the assembly mounted on springs instead of rubber pads. The truck was not equipped as desired and appellee said he voiced an objection. He said the dealer insisted that he take the truck and try it and if appellee was not satisfied a change would be made.

Logan Ross testified for appellee. He is in business in Malvern, specializing in buying and repairing Ford and International trucks. He has been so engaged for well over thirty years. It was his opinion that the light (as opposed to the heavy) torque rod assembly was much less preferable. He thought the design of appellee's assembly was improper and caused vibration which in turn damaged the rod.

The principal witness for appellee was Ben W. Hopkins of Little Rock, a graduate and registered consulting engineer. He examined the bolt which had been installed by International Harvester in Little Rock in the fall of 1965. He testified, as abstracted:

The bolt had been severely galled and is reduced in diameter in certain areas. This reduction in diameter affects the strength of the bolt. The galled areas evidence extremely excessive wear. The flanges on the differential housing are heavily battered and worn. This was caused by a chattering movement in the torque arm assembly. The flanges on the forward differential housing for the forward torque rod assembly have been worn in an elliptical pattern. The entire torque rod assembly which attaches to the housing is worn. Based on the wear I found in this bolt I would expect to find wear in the component parts, that is, the other parts of the torque rod assembly with which the bolt had had contact. I found such wear. I found chewed up lumps of pressed metal when I removed the rubber which covers the portion of the forward torque rod assembly where it attaches to the housing. In my opinion the torque rod assembly end which connects with the yoke on the differential housing is of improper design. The rest of the assembly is adequate. It is my opinion that the frictional bond, under certain conditions, could not be maintained in this assembly even though it was properly installed.

The witness purchased from Burks' parts department a duplicate of the shorter bolt which was in the forward assembly when the truck wrecked. Of that bolt the witness had this to say:

Using the bolt which I bought from Mr. Burks, inserting it in the yoke arms with the bushings installed, you cannot get the self-locking nut all the way on the threaded end of the bolt. If this size bolt were used there is no way in the world that it could be installed properly; and if it was not installed properly there would have to be movement wear, and eventual failure. There is no question about that, and there is no way you could keep it from failing. It would not make any difference how the assembly was designed, it would fail if you put the too-short bolt in there.

I am of the opinion that the torque rod assembly which was installed in Earl Pike's truck, by reason of improper design, would utimately have failed regardless of installation.

It is my opinion, with the torque arm and the bushings worn as they were on March 10, 1966, the assembly was improperly installed. In other words the man putting it back together on March 10, 1966, shouldn't have put it back together.

Likewise, International Harvester presented the testimony of a graduate engineer who is chief engineer for Hendrickson Manufacturing Company. Hendrickson has been making torque rod assemblies since 1962. The torque rod itself, he explained, is made by another company and furnished to Hendrickson. Hendrickson furnished the torque rod assembly in question to International. We summarize the pertinent parts of his testimony:

The fact that a torque rod is light-weight means only that it weighs less than some other type. It does not mean that it has less strength. As a matter of fact the lightweight torque rod is forged, whereas the heavier one is cast. The lightweight O & S torque rod assembly has more durability than the heavy one. This is because of the particular type of packing in the end assembly of the lightweight unit.

The special locking nut would not be effective if the bolt is used which is 1/2 shorter than the proper one. The locking portion of the nut could never engage if the shorter bolt were used.

The old bolt was No. 753029C1 and the new one is No. 757815C1. In my opinion, with the worn torque rod assembly parts which came from Mr. Pike's truck, you could not get proper torque. I would expect a failure, regardless of the bolt used, if the other worn parts were used in assembling the unit.

In my experience in working for Hendrickson I have never known of other instances where there has been a failure of the 3/4 bolt. We have been making these assemblies since about 1962. We have sold between 800,000 and 1,000,000...