Lowe v. American Mach. & Foundry Co.

Decision Date06 September 1974
Docket NumberNo. 49474,No. 2,49474,2
Citation132 Ga.App. 572,208 S.E.2d 585
CourtGeorgia Court of Appeals

Wyman C. Lowe, pro se.

Smith, Cohen, Ringel, Kohler, Martin & Lowe, Robert W. Beynart, Atlanta, for appellees.

Syllabus Opinion by the Court

STOLZ, Judge.

On September 16, 1961, the plaintiff cut off his large toe while mowing a steep, wet lawn in his stocking feet. On September 13, 1963, the plaintiff filed suit in the Superior Court of Fulton County, Georgia, against American Machine & Foundry Company (AMF), Sears, Roebuck & Company (Sears) and Kollwood, Inc., (Kollwood). Kollwood was dismissed as a party defendant in the Georgia suit, by the plaintiff voluntarily, on September 21, 1973. The plaintiff's complaint alleged in part that the lawnmower was manufactured by Kollwood or its corporate predecessors; that Kollwood was subsequently acquired by AMF; and that the lawnmower was sold at retail by Sears. (Hereinafter, defendants may be collectively referred to as 'Georgia defendants.') The basis of the Georgia suit was that the lawnmower was improperly and negligently designed and manufactured. Likewise, on September 13, 1963, the plaintiff filed suit in the United States District Court for the Southern District of Iowa, Central Division (hereinafter 'Iowa suit'), against the Taylor Steel Products Company, a corporation (Taylor), The New Monarch Machine & Stamping Company, a corporation (New Monarch), and Kollwood, Inc. (Kollwood), alleging that one or all of those defendants was the manufacturer of the lawnmower in question. (These defendants will be referred to hereinafter, collectively, as 'Iowa defendants.') The basis of the Iowa suit was that the negligent and improper design and manufacture of the lawnmower had caused the plaintiff's injuries. In order fully to understand the two cases, a brief history of the various corporations involved may be helpful. The ownership of all capital stock in Taylor and New Monarch was acquired by Western Tool, on or before January, 1957. Both Taylor and New Monarch continued their corporate existence until dissolution on January 25, 1962. Western Tool did business under that name until July 29, 1963, on which date it changed its name to Kollwood, Inc. Prior thereto, in 1963, AMF acquired all the shares of stock in Western Tool and assumed all liabilities of that company. Kollwood continued in existence until July, 1963, when it filed notice of intention to dissolve. Thus, on September 13, 1963, the date of the filing of both of the plaintiff's suits, AMF was the corporate successor of Taylor and New Monarch, had assumed the liabilities of Kollwood, and had changed its name from Western Tool to AMF.

Prior to the trial of the Iowa case, the following stipulation was entered into in the presence of the court: 'Mr. Crouch: I would like to have it made this way, that the defendant Kollwood, formerly Western Tool and Stamping Company, assumes any negligence, if any, and any responsibility, if any, in the manufacturing or assembling of the lawnmower known as 'Taylor,' and under it the words 'Taylor Steel Products Company,' the assumption being predicated upon proof that there is some evidence of negligence and some negligence in the design; some negligence in the manufacture or assembly of the lawnmower. But whatever there is proof of, if any, Kollowood, formerly Western Tool, assumes full responsibility. The Court: I think that takes care of it then, Mr. Lowe. Mr. Lowe: Yes, sir. I might request, since Kollwood within the last four months exchanged share for share its stock or Western Tool-and with American Machine and Foundry-and I do not have that contract, but the secretary of all three of those companies states in discovery deposition yesterday afternoon that it was stated in the contract that American Machine and Foundry assumed the liabilities of Kollwood. I would like a clarification on that point in the absence of being permitted to get a copy of that contract. That's one of the things that I asked for, too. Now he stated that American Machine assumed the liabilities of Kollwood and Western Tool, and now he says that Kollwood assumed them of New Monarch. Is there any transferring of liability to American Machine or does it reside with Kollwood, according to his stipulation? The Court: Kollwood has assumed the liability here, if any, if any exists. Is that correct? Mr. Crouch: That is right. And, your Honor, while this matter may not be brought before a jury to try this fact, Kollwood, formerly Western Tool & Stamping Company and New Monarch Machine & Stamping Company, had in force and effect a products liability policy that covered their liability, if any, for the manufacturing of power lawnmowers. And, it is under this coverage that any judgment that this plaintiff would obtain would be paid. I have so informed Mr. Lowe prior to this date and I make this statement now in open court. While it isn't a matter that may be submitted to the jury, the fact that there is liability insurance, with reference to looking for an asset from which to collect his judgment, I make this statement professionally and binding my clients; that there is an asset that covers the product liability of these corporations. Mr. Lowe: May I ask if he will add in the word 'liability' in addition to saying responsibility and liability in his stipulation? There may be some slight difference between the two words. Mr. Crouch: And I'll say the word liability, if any.'

Thereafter the stipulation was made a part of the pre-trial order and the Iowa case proceeded to trial. At the conclusion of the trial, the Iowa jury was given the following special written interrogatories and made the following answers: '1. Were the defendants negligent in any of the following respects: (a) In failing to warn users of the rotary power mower of the dangers involved in its use, and in failing to warn of the dangers of getting feet under said mower? No. (b) In designing, manufacturing, assembling and selling for general public usage, a rotary power mower not equipped with safety devices in the form of handle up-stops? No. (c) In designing, manufacturing,...

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