Manning v. Altec, Inc., 73-1219 to 73-1221.

• Decision Date: 05 December 1973
• Docket Number: No. 73-1219 to 73-1221.,73-1219 to 73-1221.
• Citation: 488 F.2d 127
• Parties: Jack MANNING and Clara Ann Manning, Plaintiffs-Appellees, v. ALTEC, INC., Defendant-Appellant. Jack MANNING and Clara Ann Manning, Plaintiffs-Appellees, v. MOBILE AERIAL TOWERS, INC., Defendant-Appellant. Jack MANNING and Clara Ann Manning, Plaintiffs-Appellants, v. MOBILE AERIAL TOWERS, INC., and Altec, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

488 F.2d 127 (1973)

Jack MANNING and Clara Ann Manning, Plaintiffs-Appellees, v. ALTEC, INC., Defendant-Appellant.

Jack MANNING and Clara Ann Manning, Plaintiffs-Appellees, v. MOBILE AERIAL TOWERS, INC., Defendant-Appellant.

Jack MANNING and Clara Ann Manning, Plaintiffs-Appellants, v. MOBILE AERIAL TOWERS, INC., and Altec, Inc., Defendants-Appellees.

Nos. 73-1219 to 73-1221.

United States Court of Appeals, Sixth Circuit.

Argued October 9, 1973.

Decided December 5, 1973.

William N. Groover, Knoxville, Tenn., for Altec, Inc.; Cheek, Taylor & Groover, Knoxville, Tenn., of counsel.

George D. Montgomery, Knoxville, Tenn., for Mobile Aerial Towers, Inc.; Kennerly, Montgomery, Howard & Finley, Knoxville, Tenn., of counsel.

W. Zane Daniel, Knoxville, Tenn., J. D. Lee, Madisonville, Tenn., for Jack Manning and Clara Ann Manning.

Before WEICK, EDWARDS and LIVELY, Circuit Judges.

LIVELY, Circuit Judge.

A diversity action in the district court has resulted in three appeals which were consolidated and heard together in this court.¹ Jack Manning, an employee of the Knoxville Utility Board, was seriously injured while at work on July 1, 1970. At the time the injury occurred Manning was working in a bucket elevated above the ground by a crane or boom to which the bucket is attached, this equipment being commonly referred to as a "cherry picker." He and another lineman had been lifted in the bucket to a position near a group of electric wires from which they intended to remove a dead line. Manning's shoulder came into contact with an energized line and the resulting injury required that both hands and a portion of both arms be amputated. Clara Ann Manning joined in the complaint seeking damages for loss of consortium and services. The jury returned a verdict of $450,000 in favor of Jack Manning and $75,000 in favor of Clara Ann Manning. The district court, on its own motion, remitted $100,000 of the Jack Manning verdict and $45,000 of the Clara Ann Manning verdict and entered judgment for $350,000 and $30,000 respectively. The plaintiffs accepted these remitters under protest and have appealed in No. 73-1221.

The defendants in the action in the district court were the manufacturer, Mobile Aerial Towers, Inc. (Mobile) and Altec, Inc. (Altec), the distributor of the "cherry picker" equipment. It was stipulated that the equipment had been purchased by Manning's employer on July 1, 1966 and had been put in operation on July 27, 1966. At an informal pretrial conference held in chambers immediately before the jury trial began, attorneys for the plaintiffs stated that the case would be tried as a products liability action under Section 402A of the Restatement of Torts² and that the only negligence to be proven was that the equipment left the hands of the manufacturer with a defective servo valve. Although Jack Manning could remember nothing about the accident and there were no eye witnesses, his theory was that the bucket in which he was working tilted and this resulted in his body being thrown against the "hot" wire.

The Liability Issue

Both defendants made motions for a directed verdict and for judgment notwithstanding the verdict, contending there was no evidence of negligence. Jack Manning and other employees of the Knoxville Utility Board testified that the bucket on the particular piece of equipment in question had tilted on previous occasions, beginning in the period one month to six weeks after the equipment was delivered to the employer and continuing to the morning of Manning's injury. A fellow worker who was on the ground testified as to Manning's position with respect to the energized wire immediately before the accident which he described as the normal position for the work he was doing and was permitted, on the basis of 17 years experience, to testify that in his opinion the injury was caused by a sudden movement of the bucket. Each side produced expert testimony on the function of the servo valve and the effect of a defective servo valve on the stability of the bucket. The expert for the plaintiffs characterized the servo valve as the heart of the system which keeps the bucket steady in a vertical position as the boom raises and lowers it. He stated that if the servo valve leaks the bucket would have a tendency to rock or tilt. In answer to a hypothetical question he said the only thing which could cause the unit to tilt would be a malfunction of the servo valve. Although there was testimony from the experts produced by the defendants which contradicted that of the plaintiffs' witness, this conflict only made a jury issue.

Altec further contended that it was entitled to a directed verdict because the servo valve was sealed inside of the equipment and it had no opportunity to inspect the valve and was really nothing more than a conduit between the manufacturer and the purchaser of the equipment. However, there was evidence that the servo valve was accessible for inspection and repair and that all that was required to inspect it was the simple removal of a small plate. The court was justified in refusing to treat the servo valve as a product in a sealed container. Cf. Walker v. Decora, Inc., 225 Tenn. 504, 471 S.W.2d 778 (1971). Mobile asserted that it should be relieved of liability because the servo valve had been overhauled and was not in substantially the same condition as when it left Mobile's hands. However, the evidence concerning repairs to the equipment was not sufficiently clear to justify this conclusion. An examination of all of the evidence in the case convinces us that the court correctly submitted the issue of liability to the jury. This was not a case where only one possible verdict could have been reached by a reasonable jury, and therefore it would have been improper to have granted a directed verdict or judgment notwithstanding the verdict. Reeves v. Power Tools, Inc., 474 F.2d 375 (6th Cir. 1973).

On appeal Altec complains that it was denied due process of law by the refusal of the trial judge to permit its counsel to cross-examine a witness produced by the co-defendant Mobile. The trial court ruled that the questions which counsel for Altec attempted to ask the witness were repetitive and stated that both defendants were in the same position in the case. Counsel for Altec did not challenge this ruling by the court and made no attempt to show that the witness would give different answers to his questions nor did he offer to the court an avowal concerning questions which he proposed to ask the witness and the answers he expected to receive. Any error by the trial court in this respect was waived by Altec. After the verdict was rendered Altec made a motion for judgment over against Mobile on the theory that it was entitled to indemnity for the full amount of the verdict under the evidence in this case. The court properly denied the motion since no cross-claim had been filed by Altec against Mobile.

Both defendants argued in the district court and in this court that Clara Ann Manning's cause of action for loss of consortium was barred by the applicable Tennessee statute of limitations. The right of a wife to recover damages for loss of consortium is created by statute in Tennessee. Tennessee Code Annotated (TCA) § 25-109. The general statute of limitations for personal tort actions, TCA § 28-304, has previously been construed to require the commencement of products liability actions within one year after the date of purchase of defective equipment rather than the date of injury. Jackson v. General Motors Corp., 223 Tenn. 12, 441 S.W.2d 482, cert. denied, 396 U.S. 942, 90 S.Ct. 376, 24 L.Ed.2d 243 (1969). As noted hereafter TCA § 28-304 has been amended since this decision was rendered. A second statutory provision, TCA § 50-914, provides that limitations do not begin to run in an employee's action for personal injuries against some person other than his employer until the date of the injury. This provision applies to the claim of Jack Manning. Dobbins v. Terrazzo Machine and Supply Co., Tenn., 479 S.W.2d 806 (1972). The district court held that Clara Ann Manning's claim for loss of consortium was derivative from Jack Manning's claim for personal injuries and that the same statute of limitations should apply to both claims. On April 4, 1972 the Tennessee General Assembly enacted an amendment to TCA § 28-304 to provide that no person shall be deprived of his right to maintain an action in a products liability case until one year from the date of his injury. The history of legislative amendments of TCA § 28-304 in response to Jackson v. General Motors Corp., supra, leads us to the conclusion that it would be against the public policy of Tennessee to hold that the right of action of Clara Ann Manning was barred by limitations because she did not file suit within one year after her husband's employer purchased the equipment even though she filed within one year after the date of his injury. Bradley v. General Motors Corp., 463 F.2d 239 (6th Cir. 1972). The district court correctly held that the action of Clara Ann Manning was timely filed.

The Remittitur Issue

Although constitutional objections have been raised, it is now settled that a trial court which deems a jury's award of damages excessive may order the plaintiff to remit a portion of the verdict or suffer a new trial. Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603 (1935). In diversity cases from the district courts in Tennessee this court has approved the Tennessee practice of permitting a plaintiff to accept remittitur under protest and then appeal the trial court's ruling. Mooney v. Henderson Portion Pack Co., Inc., 334 F.2d 7 (6th Cir. 1964). In the second appeal of the Mooney case this court discussed the underlying rationale of the practice of remittitur, holding that it is ". . . ancillary to . . . the right of the trial judge to grant a new trial because of the excessiveness of the jury verdict." Mooney v....