McCants v. Salameh, 6019

• Decision Date: 30 October 1980
• Docket Number: No. 6019,6019
• Citation: 608 S.W.2d 304
• Parties: Annie McCANTS, Guardian for and on Behalf of the Minor, Vollie D. Brown, Appellant, v. Nadeem E. SALAMEH et al., Appellees.
• Court: Texas Court of Appeals

Page 304

608 S.W.2d 304

Annie McCANTS, Guardian for and on Behalf of the Minor Vollie D. Brown, Appellant, v. Nadeem E. SALAMEH et al., Appellees.

No. 6019.

Court of Civil Appeals of Texas, Waco.

Oct. 30, 1980.

Rehearing Denied Nov. 20, 1980.

Isaac E. Henderson, Henderson, Wiggins & Adams, Houston, for appellant.

James S. Kelly, Kelly & Weium, Daniel K. Hedges, William W. Vernon, Fulbright & Jaworski, Houston, for appellees.

OPINION

JAMES, Justice.

This is a products liability and negligence action. Plaintiff-Appellant Annie McCants, duly appointed guardian of Vollie D. Brown, a minor, brought this suit to recover damages in the amount of $419,500 for personal injuries sustained by Vollie Brown when he accidentally caught his right hand in a meat grinder manufactured by the Defendant-Appellee Hobart Manufacturing Co. Brown suffered this injury on the premises of a grocery store owned and operated by Defendant-Appellees Nadeem E. Salameh and Nicola E. Salameh. Plaintiff alleged that Brown was employed by the Salamehs and that the injury occurred while he was working in the regular course of his employment. Since the Salamehs did not have worker's compensation insurance, the action brought against them was a simple negligence action. Plaintiff's action against Hobart Manufacturing Co. was grounded in both negligence and in products liability, the primary contention being that the meat grinder in question was defectively designed.

Trial was to a jury which: (1) failed to find that Vollie Brown was an employee acting in the course of his employment by the Salamehs at the time the injury occurred; (2) failed to find that the Defendant Nick Salameh was negligent on the occasion in question; (3) failed to find that the meat grinder in question was defectively designed by Hobart Manufacturing Co.; (4) failed to find that the use of the machine in question without a hand guard exposed the users of the machine to an unreasonable risk of harm; (5) found the Vollie D. Brown was negligent on the occasion in question and that his negligence proximately caused the injury; and (6) found that the damages sustained by Vollie D. Brown could be adequately compensated by $00.00. On this verdict, the trial court rendered judgment that the plaintiff take nothing. We affirm the trial court's judgment.

Vollie Brown, who was fourteen years of age at the time of this accident, had been employed on an irregular basis to stock shelves at a small grocery store owned and operated by Appellees Salameh. He claimed that he was working on the afternoon of his injury, but Appellee owners disputed this claim. Appellees testified that Vollie Brown often hung around the store after school even though he was not working, but that Vollie had been told that he should report directly to them when he was working and that he had not reported for work the day of the accident. In any event, it is undisputed that on the afternoon in question an employee of the Salamehs, the butcher's assistant, asked Vollie Brown to carry some meat to the meat cooler for storage. Vollie Brown testified that he had never been in the meat cooler before; that his brother worked in the meat processing area with the butchers, but his brother had told him never to go into that area. Mr. Salameh also testified that he had told Vollie Brown never to go into the meat processing area. Nonetheless, on the afternoon of the accident Vollie Brown made two trips into the meat cooler. He testified that as he was leaving the meat cooler the second time he slipped on a wet spot on the floor and fell. As he fell his hand fell into a meat grinder that was sitting on a table in the meat cooler. The power to operate the meat grinder came through two switches arranged in series; one was located on the wall of the cooler and one was located on the table near the machine. The machine was not turned on when Vollie fell, but according to Vollie, he accidentally hit one or both of the switches that turned on the machine. It is unclear whether all of this happened at once or in what sequence these events occurred. Nevertheless, Vollie Brown suffered a partial amputation of his thumb and three fingers on his right hand.

The major thrust of Appellant's case in trial was the contention that the injury occurred because the meat grinder was defectively designed. The machine in question was a Hobart Model 4332 meat grinder, manufactured in 1948, the basic design of which is depicted in the following drawing:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In normal use, meat placed into the "feed pan" was pushed under a "guard" (not shown) into the inverted bell or bugle-shaped feed throat ("A"); the meat passed through the feed throat into the cylinder ("B") surrounding an auger-like shaft called a worm. When the motor was activated the worm turned, grinding the meat and forcing it out through holes in a plate affixed to the end of the grinder ("C"). As noted above, the feed pan atop the machine contained a "guard" (not shown) which, in place, acted as a safety device. The guard, which was located directly over the opening to the feed throat, essentially reduced the size of the opening to the grinder so that it would have been impossible for a hand to pass through into the grinder. A device called a "stomper" was furnished with this machine; the stomper passed easily through the openings in the guard and was designed to be used to push meat down into the feed throat.

The feed pan, and consequently the guard which was affixed thereto, was attached to the grinder by a single set-screw ("D"). Appellant attempted to prove in the trial court that the Hobart grinder was unreasonably dangerous because it was so easy to detach the feed pan and thus remove the safety device incorporated therein. The feed pan was not attached to the grinder at the time of the accident forming the basis of this suit.

Appellee Hobart defended against Appellant's allegations with testimony that the utility of this particular meat grinder would have been seriously reduced by a permanently-attached feed pan. Hobart introduced expert testimony that it was necessary to consider both safety and sanitation in designing a meat grinder. In order to maintain...