McClanahan v. Deere & Co.

• Decision Date: 08 March 1983
• Docket Number: No. 12650,12650
• Citation: McClanahan v. Deere & Co., 648 S.W.2d 222 (Mo. App. 1983)
• Court: Missouri Court of Appeals
• Parties: Goldie Evelyn McCLANAHAN and LaRita DeAnn McClanahan, a minor, by her Next Friend, Goldie Evelyn McClanahan, Plaintiffs-Respondents, v. DEERE & COMPANY, a Corporation, Defendant-Appellant.

Page 222

648 S.W.2d 222

Goldie Evelyn McCLANAHAN and LaRita DeAnn McClanahan, a minor, by her Next Friend, Goldie Evelyn McClanahan, Plaintiffs-Respondents, v. DEERE & COMPANY, a Corporation, Defendant-Appellant.

No. 12650.

Missouri Court of Appeals,

Southern District,

Division Two.

March 8, 1983.

E.C. Curtis, Phillip R. Garrison, Farrington, Curtis, Knauer, Hart & Garrison, Springfield, Edison Kaderly, Lamar, for plaintiffs-respondents.

Jon Dermott, Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for defendant-appellant.

PREWITT, Judge.

Plaintiffs, the wife and daughter of Robert L. McClanahan, sought damages for his wrongful death. He was killed when struck by moving parts of a combine manufactured by defendant. Plaintiffs contend this occurred due to a defective switch on the combine. A jury awarded plaintiffs $300,000 and judgment was entered accordingly.

Defendants contend here that appellants failed to make a submissible case, that the trial court erred in admitting certain answers to interrogatories in evidence and in refusing to permit defendant to present the testimony of an expert witness who defendant had added to its answers to interrogatories five days before trial. We deny these contentions for the reasons stated.

We first discuss whether plaintiffs made a submissible case. In making that determination the evidence and its reasonable inferences are considered in the light most favorable to plaintiffs. Ogle v. Webb, 623 S.W.2d 582, 583-584 (Mo.App.1981). Plaintiffs submitted their claims on strict liability in tort. To make a case on that theory plaintiffs must prove that when the combine left defendant it contained a defect which made it dangerous when put to a use reasonably anticipated and that the combine was being used in a manner reasonably anticipated when decedent was killed as a direct result of the defect. Rogers v. Toro Manufacturing Company, 522 S.W.2d 632, 637 (Mo.App.1975); Higgins v. Paul Hardeman, Inc., 457 S.W.2d 943, 948 (Mo.App.1970). See also Moslander v. Dayton Tire and Rubber Company, 628 S.W.2d 899, 904 (Mo.App.1981).

Mr. McClanahan was a farmer who died November 5, 1979, from injuries he sustained when he became entangled in the header of his 4400 series John Deere self-propelled combine. He had purchased it new in 1977. On the day of his death, McClanahan was combining soybeans at the James Clubb farm. Chuck Clubb observed him cutting beans with the combine around 11:30 a.m. At approximately 12:15 p.m. Chuck Clubb again saw McClanahan and the combine. The combine was stopped although the engine was running. The header was raised and not operating. McClanahan waved at Chuck, walked over to about the middle front of the header and squatted down and looked into the header. Chuck then left the area. At approximately 1:00 p.m. McClanahan was discovered by his wife. Apparently he was dead when she arrived. His body was underneath the reel located on the header and entangled in the auger and sickle bar. The engine of the combine was running. Dirt was in the header and a small pile of dirt was in front of the header.

A "push-pull" switch, which plaintiffs contend was defective, turns on or off the components of the header. The header is located at the front of the combine. Its components are the reel, cutter bar, and auger. The reel picks up the crop and pulls it into the cutter bar which cuts it so that it falls into the auger. To operate the header the switch is pulled out and to shut it off, the switch is pushed in. An electromagnetic clutch controlled by the switch allows the header to be disengaged while leaving the rest of the combine running. The switch had not been altered since it was manufactured.

In cutting soybeans or other short crop, if the ground is uneven soil often gets in the header. By shutting off the header you can clean it by hand. The operator ordinarily leaves the separator on the combine running while he is cleaning out the header because if he turns it off, clogging can occur. The customary way of cleaning dirt out of the header is to take the clutch out of gear by using the switch so that the header stops, raise the reel, then get off the combine and clean it by hand with the engine and separator running. Plaintiffs contend that a defect in this switch allowed the header to start and strike McClanahan after he had disengaged it and started to clean dirt from it.

The switch is located on an instrument panel on the right side of the combine. The inner chamber of the switch is pushed or pulled, by means of the knob, along the outer chamber or casing. The top and bottom of the inner chamber fit snugly against the top and bottom of the casing. When the switch is pulled all the way out, the inner chamber fits into two "detents" or "dimples" in the casing. The detents hold the inner chamber in the "on" position. Similar detents hold the inner chamber in the "off" position when it is fully pushed in. Between the "full on" and "full off" position there is a space of approximately one-eighth inch described as an intermediate position.

Dr. Gibson, an expert witness for plaintiffs, testified that when the switch is in the intermediate position the header clutch may go off and then intermittently engage and disengage due to engine vibrations which makes it defectively designed for its function. He said that other types of switches adequate for this function were available. He said that while the switch was in the intermediate position with just a slight distance between the know of the switch and a nut holding the switch to the instrument panel the header intermittently engaged several times with the engine running but no one operating the combine during tests that he supervised on the combine. Video tapes of this occurring during Gibson's tests were introduced in evidence and shown to the jury.

One of the people who came on the scene before decedent was removed was George Walz. No one touched the controls of the combine until the coroner arrived. Walz then got in the cab to raise the reel to make it easier to remove the body. He noticed that the switch controlling the header appeared to be in the off position. He testified that the separator was in gear and he decided "to bump the starter and see if it is really in gear. I just bumped, turned on the key, bumped it and when I done that, the reel shook or jerked and I knew then something was wrong." He then shut the separator off and "started it up and raised the reel up and then killed it."

After decedent was removed, Walz drove the combine to the Clubb barn where it was going to be washed off. The header switch appeared to be in an off position and while he drove the combine toward the barn the reel and auger jerked two or three times. Until he started washing the combine he did not touch the switch. After partially washing it, he started the separator and then touched the switch and it "didn't feel like it was plumb off." He "leaned over and looked" and saw a "little hairline crack, you could just barely see daylight" between the bottom of the knob on the switch and a nut which holds the switch on the instrument panel.

After cleaning the combine Walz drove it to the McClanahan farm. While taking the combine there Walz pulled the switch out until there was a "hairline crack" and shortly thereafter the header jerked and tried to make contact. It did that three or four times within the quarter of a mile distance. He positioned the switch like he found it while he was washing it for Dr. Gibson's tests.

Defendant presented evidence that the switch would not return to "on" due to engine vibration but could be carefully placed in the intermediate position where heat from "the arcing process" would cause intermittent operation of the header.

Defendant contends that plaintiffs failed to make a submissible case because (1) plaintiffs did not prove that the defect alleged in the switch was the cause of Robert L. McClanahan's death as the evidence showed that the most likely cause of decedent's injuries was that the header was not functioning properly and decedent worked on it with the electromagnetic clutch engaged; and (2) because the combine was not shown to be defective when put to a use reasonably anticipated because defendant "could not reasonably anticipate that the switch would be carefully pushed to just the point where the header goes off and manipulated carefully down into an exact location, not fully down." Defendant contends that there was no "probative evidence that the design of this switch is defective", but "[e]ven if the alleged defective position of the switch could be shown to have existed at the time of the injury, respondents have not shown that the switch was being used in a manner anticipated by defendant."

As a part of this contention defendant contends that George Walz' testimony "is such as to require disbelief" and that reasonable minds could not differ about the probative value of his testimony. Walz is a close friend of the McClanahans. When one of plaintiffs' attorneys, who is also a close friend of Walz, asked him about the incident of Robert McClanahan's death, he said he told him what he observed. He could not say when he first told anyone that he noticed the "hairline crack" while washing the combine. He said he did not mention seeing it in his deposition because no one asked him about it. He testified that he did not say anything at his first two depositions about touching the switch as he drove the combine to the McClanahan farm. Why he did not was not asked or otherwise explained.

We believe that Walz' credibility was for the jury to determine. His testimony was consistent and positive and he was not clearly impeached. He may not have understood the importance of the position of the switch when he initially talked to plaintiffs' attorney.

The evidence showed that when the header accumulated dirt, as it often did when harvesting a short crop such as...