Marshall v. H. K. Ferguson Co.

• Decision Date: 05 May 1980
• Docket Number: Nos. 79-1079,79-1080,s. 79-1079
• Citation: 623 F.2d 882
• Parties: Ralph G. MARSHALL, Appellant, v. The H. K. FERGUSON COMPANY, an Ohio Corporation, and Ponndorf Maschinenfabrik KG, a West German Limited Partnership, Appellees. Ralph G. MARSHALL, Appellee, v. The H. K. FERGUSON COMPANY, an Ohio Corporation, Defendant, and Ponndorf Maschinenfabrik KG, a West German Limited Partnership, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 882

623 F.2d 882

Ralph G. MARSHALL, Appellant, v. The H. K. FERGUSON COMPANY, an Ohio Corporation, and Ponndorf Maschinenfabrik KG, a West German Limited

Partnership, Appellees.

Ralph G. MARSHALL, Appellee, v. The H. K. FERGUSON COMPANY, an Ohio Corporation, Defendant, and Ponndorf Maschinenfabrik KG, a West German Limited

Partnership, Appellant.

Nos. 79-1079, 79-1080.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 5, 1979.

Decided May 5, 1980.

John J. Sabourin, Jr., Fairfax, Va. (Hazel, Beckhorn & Hanes, Fairfax, Va., Lloyd Rials, Williamsburg, Va., on brief), for appellant, Ralph G. Marshall.

Richard Wright West, Newport News, Va. (West, Stein, West & Smith, Newport News, Va., on brief), for appellee, The H. K. Ferguson Company.

John S. Norris, Jr., William T. Prince, Norfolk, Va. (Williams, Worrell, Kelly & Greer, Norfolk, Va., on brief), for appellee, Ponndorf Maschinenfabrik K.G.

Before FIELD, Senior Circuit Judge, and MURNAGHAN and SPROUSE, Circuit Judges.

FIELD, Senior Circuit Judge:

The plaintiff, Ralph G. Marshall, filed this action against The H. K. Ferguson Company, an Ohio corporation, (Ferguson) and Ponndorf Maschinenfabrik KG, a West German Limited Partnership, (Ponndorf) to recover damages for personal injuries which he sustained on July 22, 1976, in the course of his employment at the Anheuser-Busch brewery in Williamsburg, Virginia. ¹ Marshall was severely burned by the emission of steam, hot water and hops from a spent hops conveyor when he opened the cleaning flap of the machine. At the conclusion of the plaintiff's evidence the trial court granted the motion of Ponndorf for a directed verdict, and thereafter the jury returned a verdict in favor of the remaining defendant, Ferguson. Judgment was entered for both of the defendants and the plaintiff has appealed.

The brewing facility at Williamsburg was designed and constructed by Ferguson working jointly with technicians and engineers of Anheuser-Busch. Under such an arrangement, Ferguson constructed five breweries for Anheuser-Busch in various parts of the country, including the one at Williamsburg. All of these breweries included the same spent hops conveyor system as that used in Williamsburg when Marshall was injured. Each of these systems employs, as one of its components, a conveyor manufactured and sold by Ponndorf designated as the Ponndorf Model 150 (the Ponndorf). The Ponndorf upon which Marshall was working at the time of his injury had been purchased for the Williamsburg brewery some time in 1970 and had been in use since that time. ²

The Ponndorf is a relatively simple piece of equipment, consisting of a screw or auger mechanism which is housed in a cylindrical casing some ten feet in length. Its function is to move spent hops, which have been discharged from a brew kettle and separator located on the floor above, into a disposal tube. The spent hops enter the Ponndorf by gravity through a chute attached to an opening in the top of one end of the Ponndorf. The function of the separator is to remove the spent hops, a thick pulpy material, from the liquid called wort which is a preliminary form of beer. Once the spent hops have fallen down the chute into the Ponndorf, they are carried forward by the turning of the auger to the downstream end. (For purposes of clarification, the end of the Ponndorf closer to the chute will be designated the "upstream" end, while the other end of the Ponndorf will be referred to as the "downstream" end).

When the hops have reached the downstream end of the Ponndorf, they enter the disposal tube into which hot air or steam is injected to propel the hops through the tube where they are ejected into a storage tank. A motor is attached to the upstream end of the Ponndorf and is the source of power for the auger. Directly beneath the chute at the upstream end of the Ponndorf, but not a part of the Ponndorf itself, is a metal plate which can be removed for the purpose of entering the bottom portion of the chute. Below this plate is a series of "weep holes" and underneath the upstream end of the Ponndorf is a circular opening to which a drain valve is attached. At the extreme downstream end of the Ponndorf is the opening from which the hops are emitted into the tube leading to the storage tank, and near this downstream end is the clean-out port which is situated on the upper side of the Ponndorf.

This spent hops disposal system extends over three floors of the brewery, and because of the nature of the material being conveyed, the entire system has the potential for clogging or plugging. To minimize such plugging, the system is ordinarily cleaned every other day by using a caustic agent in a process which is termed "solutioning". Among the various valves in the overall system is a knife valve which is located directly beyond the downstream end of the Ponndorf. It is situated between the end of the Ponndorf and the intake area of the disposal tube for air and steam pressure. The purpose of this valve is to permit the buildup of pressure within the disposal tube to propel plugs of hops toward the storage tank. With the knife valve closed, air or water pressure cannot escape back into the Ponndorf nor up through the chute leading from the upper floor.

Proper use of the knife valve also assists Anheuser-Busch personnel determine the location of a clog in the disposal system. If, with the knife valve closed, an injection of water or steam fails to produce an expulsion of material in the storage tank end of the tube, the source of the clog must, necessarily, be within the disposal tube itself. If, on the other hand, the injection of water or steam into the disposal tube, with the knife valve closed, passes freely into the storage tank, it indicates that the clog is somewhere upstream of the knife valve. In either event, the buildup of water or steam pressure in the disposal tube can be safely released by opening the valve directly below the upstream end of the disposal tube. After permitting the back flush of water or steam out of the disposal tube through this valve, the knife valve can be opened without permitting steam or water pressure to infiltrate the Ponndorf. This permits safe inspection of the Ponndorf end of the system to determine the source of the clog. Under such circumstances the only pressure within the system upstream of the knife valve is of a minimal nature caused by the force of gravity from the hops within the chute. Thereafter an examination for the clog can be done either from the upper level through the chute opening or by releasing the drain outlet beneath the upstream end of the Ponndorf. The plate beneath the chute can also be safely opened, and as a final check the clean-out port near the downstream end of the Ponndorf can be opened to determine if that is the site of the clog.

Marshall had been employed by Anheuser-Busch since March of 1972, and worked as a laborer performing many different tasks. On the day of his injury, Marshall was working under the supervision of Clifton E. Gardner who was thoroughly familiar with the disposal system of the brewery. A clog had developed and Gardner and Herman Parks, a brew kettle operator, tried unsuccessfully to flush out the plug. Incident to their efforts, they opened and closed the knife valve several times and also injected water into the system. Gardner concluded that the clean-out flap of the Ponndorf should be opened to determine whether the clog was in that area. Since Gardner was a supervisor, the union rules did not permit him to work on the machine itself, and he called upon Marshall to remove the clean-out flap. Marshall was not familiar with the system and Gardner gave him a wrench and instructed him to remove the two bolts which secured the clean-out flap. Marshall made two or three turns on both the top and bottom bolts, and when he started to make another turn on the top bolt the cleaning flap blew off and Marshall was struck by scalding water, steam and hops. At trial Gardner testified that he warned Marshall of the pressure buildup within the Ponndorf, but Marshall testified that the only cautionary remark made by Gardner was to "watch it".

The plaintiff, challenging the directed verdict for Ponndorf, contends that the conveyor designed, manufactured and sold by Ponndorf was defective. Specifically, the plaintiff argues (1) that the pressure within the Ponndorf rendered it an unreasonably dangerous product; (2) that the Ponndorf was defectively designed; and (3) that Ponndorf breached its duty to warn the plaintiff of the inherent and non-obvious danger incident to the use of the machine.

On his first point the plaintiff concedes that in order to establish liability he must prove (1) that the Ponndorf was unreasonably dangerous either for the use to which it would ordinarily be put or for some other reasonably foreseeable purpose, and (2) that the unreasonably dangerous condition existed when the machine left the defendant's hands. See Logan v. Montgomery Ward & Co., Incorporated, 216 Va. 425, 528, 219 S.E.2d 685, 687 (1975). We agree with the district court that the plaintiff failed to make out a prima facie case under this theory of liability. There is no evidence whatever that the Ponndorf contained any defect. Indeed, the evidence showed that the machine operated precisely as it was designed to do. Marshall's unfortunate injury was not caused by any defect inherent in the design or construction of the Ponndorf, but resulted from the procedures followed by the employees of Anheuser-Busch in their attempt to locate and relieve the clog in the disposal system.

We find little merit in the plaintiff's charge...