McBride v. Ford Motor Co.

• Decision Date: 27 October 1983
• Docket Number: No. 13441,13441
• Citation: 673 P.2d 55,105 Idaho 753
• Court: Idaho Supreme Court
• Parties: Charles H. McBRIDE and Sandra McBride, husband and wife, Plaintiffs-appellants and Cross-respondents, and Aetna Casualty & Surety Co., and Davey Tree Expert Co., Plaintiffs, v. FORD MOTOR CO., and KPS Manufacturing, Defendants-respondents and Cross-appellants.

Page 55

673 P.2d 55

105 Idaho 753

Charles H. McBRIDE and Sandra McBride, husband and wife, Plaintiffs-appellants and Cross-respondents, and Aetna Casualty & Surety Co., and Davey Tree Expert Co., Plaintiffs, v. FORD MOTOR CO., and KPS Manufacturing, Defendants-respondents and Cross-appellants.

No. 13441.

Supreme Court of Idaho.

Oct. 27, 1983.

Rehearing Denied Dec. 22, 1983.

John Hepworth, of Hepworth, Nungester & Felton, Twin Falls, for plaintiffs-appellants and cross-respondents.

Robert J. Koontz, and Robert M. Tyler, Jr., of Elam, Burke, Evans, Boyd & Koontz, Boise, for defendants-respondents and cross-appellants Ford Motor Co.

William McCurdy, of Quane, Smith, Howard & Hull, Boise, for defendants-respondents and cross-appellants KPS.

BAKES, Justice.

This products liability action arose from injuries suffered by plaintiff appellant, Charles McBride, on June 24, 1974, while McBride was operating a branch chipping machine in the course of his employment with Davey Tree Expert Co. A blade from a disintegrating radiator fan separated from the motor and struck McBride in the back, severely injuring him. The branch chipping machine involved, known as a B-702 Chipmore Chipper, was designed and manufactured by defendant respondent KPS Manufacturing. It contained a 240 cubic inch power unit, manufactured by defendant respondent Ford Motor Company, which was cooled by a six-blade fan assembly. The 240 power unit was an industrial motor manufactured by Ford and sold to various manufacturers or individuals for a number of different power uses such as pumps, generators, various industrial machine power sources, etc. There was testimony to the effect that for some of the industrial uses for the 240 motor side panels would be appropriate for protective or other purposes, but that for some other purposes they might not. Accordingly, according to Ford, the power unit was manufactured without side panels, the side panels being available as an option depending upon the use to which the motor was to be put.

The record indicates that KPS purchased approximately five hundred of the 240 power units for use in chipping machines which it designed and manufactured, and purchased some side panels to go with them and made them available as an option to the purchasers of the chipping machines. The founder of KPS testified that he purchased the power units without side panels in most instances to facilitate ventilation of the engine. He testified that he informed customers that side panels were optionally available, but that KPS had recommended to Davey Tree that it purchase the chipping machines without the side panels on the power unit, which Davey Tree did. There was also evidence that prior to the accident the plaintiff McBride had complained to Davey Tree that the power unit needed some type of shroud around the power unit to prevent foreign materials from getting into the engine, or to prevent injury to the employees, but Davey Tree refused to order the side panels which were available and have them installed on the machine.

Plaintiff McBride and his wife, together with co-plaintiff Aetna Casualty & Surety Co., filed this action against defendants KPS and Ford, seeking recovery for the personal injuries suffered by McBride in the 1974 accident. The amended complaint was based solely upon the theory of strict liability in tort, alleging that the power unit and/or chipper was defective, and requested damages for the McBrides' injuries and losses as well as reimbursement of $21,857.15 in workmen's compensation benefits that Aetna, as surety for Davey Tree, had paid to McBride. Defendants KPS and Ford answered separately, each denying responsibility for the McBrides' injuries, and filing crossclaims against one another seeking contribution and indemnification in the event they were held liable. Upon motion by defendant KPS, the trial court ordered that Davey Tree be brought into the case as an involuntary plaintiff for the purpose of determining whether Davey Tree was negligent, a determination which would, in the event of recovery by McBride, affect Aetna's claim for reimbursement from Ford and KPS for the workmen's compensation benefits paid to McBride.

At trial the expert witnesses for all parties agreed that the fan blades separated and flew off the power unit as a result of metal fatigue. Witnesses for the plaintiffs were of the opinion that the fatigue was caused by excessive resonance produced by the defective design. Witnesses for defendants KPS and Ford, on the other hand, were of the opinion that the fatigue resulted from damage to the fan caused by improper or poor maintenance and misuse of the chipper by Davey Tree.

At the conclusion of trial, the jury returned a special verdict containing the following specific findings: that McBride had not misused the chipper; that Davey Tree was negligent in the maintenance, operation and/or use of the chipper and that such negligence was a proximate cause of the damages sustained by McBride; that Davey Tree misused or failed to properly maintain the chipper and that such misuse was a proximate cause of McBride's damages; that there was no design defect in the Ford 240 engine; that the Chipmore Chipper was not defective when it left the control of KPS; that 100% of the responsibility for McBride's alleged damages was attributable to Davey Tree and 0% to McBride, Ford and KPS; and, that the amount of damages sustained by McBride was $0.

Following entry of judgment, the McBrides filed motions for judgment notwithstanding the verdict and, in the alternative, for a new trial. Defendants Ford and KPS filed memoranda of costs and attorney fees. Following oral argument and briefing, the district court entered an order denying the McBrides' motions for judgment notwithstanding the verdict and new trial, and denying the defendants' requests for attorney fees under I.C. § 12-121 and discretionary costs under I.R.C.P. 54(d)(1)(D). The district court subsequently entered an order that each party bear its own costs, in effect denying the defendants' requests for costs as a matter of right under I.R.C.P. 54(d)(1)(C). The McBrides appeal from the judgment entered against them and the district court order denying their post-trial motions. Both defendants cross appeal from the court's order denying costs and attorney fees.

I.

On appeal the McBrides urge that the district court erred in denying their motions for judgment notwithstanding the verdict and for new trial; that the district court erred in allocating only four peremptory challenges to the plaintiffs; the court erred in admitting and allowing defendants to use certain photographic evidence at trial; the jury was not properly instructed; and, the form of the special verdict was confusing to the jury and that the jury's answers to the questions in the special verdict form were irreconcilably inconsistent. Because we find no reversible error in any of appellant's allegations of error, we affirm the judgment entered against the McBrides.

A. Peremptory Challenges

The McBrides argue that the trial court erred in allocating only four peremptory challenges to the plaintiffs while allocating four peremptory challenges to each of the defendants, KPS and Ford. The McBrides claim that the positions of each of the plaintiffs were sufficiently antagonistic to require that they each should have been allowed to exercise four peremptory challenges.

I.R.C.P. 47(j) vests broad discretion in the trial court in allocating peremptory challenges among co-parties, and provides, in relevant part:

"In the event there are coparties as plaintiffs, defendants or otherwise, the court shall determine the degree of conflict of interest, if any, between or among the coparties and shall in its discretion allocate the full number of peremptory challenges authorized by this rule to each of the coparties, or apportion the authorized peremptory challenges between and among the coparties, or in its discretion allocate an equal or unequal number of peremptory challenges to each of the coparties."

The trial court reviewed the record and found nothing to indicate an antagonistic position between the plaintiffs. The trial court allowed the McBrides to exercise all of the four peremptory challenges allocated to the plaintiffs. No conflict or antagonism arose between the plaintiffs during the course of trial, the plaintiffs pursuing a uniform approach throughout the proceedings. Under these circumstances, we find no abuse of discretion in the trial court's allocation of peremptory challenges. See Stoddard v. Nelson, 99 Idaho 293, 297, 581 P.2d 339, 343 (1978).

B. Photographs

Defendants' Exhibits 124A through -J, consisting of ten photographs of the Davey Tree B-702 chipper taken by Ford's witness, Mr. Charles Stocks, shortly before trial, were admitted over objection at trial. The McBrides argue that since the injury caused by the disintegrating fan blade occurred in 1974, photographs of the same chipper taken just prior to trial in February, 1978, were irrelevant to the issues being tried.

The photographs constituting Defendants' Exhibits 124A through -J were first introduced by defendant Ford on March 9, 1979. On objection by plaintiffs' counsel and questioning by the court, counsel for Ford expressly stated that the photographs were not offered to establish the condition of the chipper at the time of McBride's accident, but were offered to impeach the credibility of plaintiffs' witnesses who had earlier testified that Davey Tree properly and consistently followed a program of maintenance of its machines. The court overruled plaintiffs' objections and admitted the photographs, warning the jury that they "[did] not in any way purport to represent the condition of B-702, that particular chipper, at the time of Mr. McBride's injury." The court again admonished the jury later in the day as to the limitation on the admissibility of the photographs. ¹

This Court has...