McKnelly v. Sperry Corp.

• Decision Date: 16 March 1981
• Docket Number: No. 80-1046,80-1046
• Parties: 30 UCC Rep.Serv. 1533 Stuart McKNELLY, Appellant, v. SPERRY CORPORATION, a Delaware Corporation; Sperry Rand Corporation, a Delaware Corporation; Vickers, Incorporated, a Delaware Corporation; Vickers, Incorporated, a Delaware Corporation, d/b/a Tulsa Products Division and as Vickers Tulsa Division, Appellees, and Motor Truck Equipment Corporation, a Texas Corporation.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1101

642 F.2d 1101

30 UCC Rep.Serv. 1533

Stuart McKNELLY, Appellant, v. SPERRY CORPORATION, a Delaware Corporation; Sperry Rand Corporation, a Delaware Corporation; Vickers, Incorporated a Delaware Corporation; Vickers, Incorporated, a Delaware Corporation, d/b/a Tulsa Products Division and as Vickers Tulsa Division, Appellees and Motor Truck Equipment Corporation, a Texas Corporation.

No. 80-1046.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 10, 1980.

Decided Feb. 19, 1981.

Rehearing and Rehearing En Banc Denied March 16, 1981.

Lynn W. Toedte, Toedte & Sandblom, and Daniel Lee English, Denver, Colo., for appellant.

Ralph W. Gearhart, Richard S. Fry, of Shuttleworth & Ingersoll, Cedar Rapids, Iowa, for appellees.

Before LAY, Chief Judge, HEANEY, Circuit Judge, and PORTER, ^* District Judge.

DONALD J. PORTER, District Judge.

In this diversity action for personal injuries, Stuart McKnelly brought suit against Sperry Corporation upon theories of strict liability, negligence, and breach of express and implied warranties. Each of these theories related to the manufacture and sale by Sperry of a Model 23 Tulsa winch. McKnelly now appeals from a judgment on jury verdict for Sperry. For reversal, he urges the district court erred (1) in directing a verdict for Sperry on the warranty theories; (2) in answering the jury's inquiry during deliberations without securing the presence of McKnelly's counsel; and (3) in permitting Sperry's witness to answer an improper hypothetical question. We reverse in part, remanding the express warranty count for jury determination, but otherwise affirm the judgment of the district court.

FACTUAL BACKGROUND

On May 4, 1975, McKnelly was seriously injured in a fall from a radio tower near Hudson, Iowa. McKnelly was engaged in installing an FM antenna on the 400 foot tower. By means of a Sperry Model 23 Tulsa winch, he was being hoisted up the tower on a heavy metal cylinder attached to a steel cable, which was rigged to the tower with pulleys. The cable slipped over the edge or flange of the winch drum, and was somehow severed in the undercarriage of the winch. McKnelly fell one hundred feet.

McKnelly's employer, James Tiner, had purchased the winch in June 1970 through Motor Truck Equipment in Dallas, Texas. Motor Truck had been an authorized distributor At Tiner's request, a South Dakota truck equipment company added metal rings to extend the winch's drum flanges about three inches. There was testimony that this modification may have contributed to causing the cable to overrun the flange and be severed.

¹ of Sperry winches for years. Tiner testified that he told Motor Truck he needed a device suitable for hauling both personnel and materials to great heights, and that Motor Truck recommended modifying a Model 23 winch to increase its cable capacity.

Sperry had advertised the Model 23 winch in 1970 as a "general purpose winch". Sperry also warranted that the winch was free from material or workmanship defects and conformed to applicable specifications. Sperry's evidence indicated that as a matter of long-standing company policy, Sperry did not approve the use of Tulsa winches for personnel lifting. Sperry also maintained this policy was communicated to and generally known among distributors. However, the policy was not committed to writing until a written bulletin was issued to distributors in 1973. In 1975, the same warning was published in Sperry's catalog and the expression "general purpose winch" was deleted.

Sperry also maintained there is a distinction, generally known in the industry, between "winches" and "hoists". A winch was defined as a device for intermittent hauling of heavy loads at slow speed, while a "hoist" is for continuous pulling of light loads, commonly personnel, at high speeds. One of McKnelly's experts, however, testified that in the field, winches are commonly used to haul personnel, and that in his opinion, distributors who get out in the field would know of this practice.

In contrast to the winch used here, devices approved for personnel contain additional features to help prevent cable overrun or to prevent or slow a fall in the event of cable failure. These might include: cable leveling devices or cable guards, automatic braking or cable speed control devices; a secondary, backup cable or "lifeline", or a cage or compartment to contain personnel.

There was evidence that in addition to lacking such features, the winch spooled in cable under rather than over the drum, making it more difficult for an operator to see whether the cable is overrunning the flange. ²

At the close of the evidence, the district court refused to submit either implied or express warranty to the jury. The remaining theories went to the jury at 2:00 p. m., and counsel were asked to leave phone numbers where they could be reached in the event of verdict or a question. McKnelly's two attorneys left their hotel phone number. They called the court at 4:00 p. m. to say they were going to the airport to change ticket reservations, and again at 5:00 p. m., at which time they were given the bailiff's after-hours number.

At 5:08 p. m., the court received a note from the jury, reading, "Under strict liability list the items. Does defendant have to be guilty under all areas?"

The court directed the clerk to summon counsel. An attorney for Sperry reported promptly in response to a call, but the clerk could not reach McKnelly's counsel at their hotel number. A law clerk was sent to search the hotel's lobby and public areas.

He found the McKnellys, who said their attorneys had left to rent a car at the airport. McKnelly's parents then called two airport car rentals without success. Finally, the court three times had McKnelly's counsel paged at their hotel.

At 5:56 p. m., the court showed the inquiry to Sperry's counsel in chambers and, without objection, submitted a copy of the instructions and the following written response to the jury at 6:08 p. m.: "Members of the jury, in answer to your question, herewith is a copy of the Court's instructions that were read to you. Your attention is called to Instruction No. 14 (reciting the elements of strict liability) which should answer your inquiry".

McKnelly's counsel state that although they called the court's night number at 5:40 p. m. without answer, they did not return to their hotel until about 6:10 p. m., at which time they learned they had been required in court. On the way to the courthouse at about 6:20 p. m., counsel met the trial judge on the street, who advised that a question had been received at 5:08 p. m. and answered at 6:08 p. m. The judge continued in the opposite direction, and counsel obtained a copy of the question and answer from the bailiff at the courthouse. The jury reached a verdict at 6:45 p. m.

In the roughly twenty-minute period between counsel's learning of the question and answer and the jury's reaching a verdict, McKnelly's counsel did not attempt to contact the court or raise any objection. The first objection to the court's handling of the jury question was presented two weeks later, in McKnelly's motion for new trial.

DISCUSSION

I.

We first address the trial court's refusal to submit the implied and express warranty theories.

As we have held before, the Iowa and federal standards for passing on motions for directed verdict are substantially the same. Simpson v. Skelly Oil Co., 371 F.2d 563, 567 (8th Cir. 1967). Although varying formulations are possible, the test generally is whether, taking the evidence most favorably to plaintiff, and giving him the benefit of all inferences reasonably to be drawn in his favor, there is sufficient evidence to support a verdict. Id; see also Ozark Air Lines, Inc. v. Larimer, 352 F.2d 9, 11 (8th Cir. 1965); Bankers Life & Casualty Co. v. Kirtley, 307 F.2d 418, 421-22 (8th Cir. 1962); The trial court as well as this court may not consider the credibility of the witnesses or the weight of the evidence. ³ Bankers Life & Casualty Co. v. Kirtley, supra, 307 F.2d at 422.

We need not apply these standards, however, to the directed verdict on implied warranty. Although we assume without deciding that the evidence was sufficient to submit this theory, we must also recognize that as a matter of Iowa products liability law implied warranty ordinarily need not be submitted where strict liability and negligence are fully submitted. The Iowa Supreme Court takes the view that strict liability is ordinarily in lieu of a theory of implied warranty, and both theories should be submitted only in "exceptional situations." This is because, as a practical matter, the issues under implied warranty are adequately submitted under strict liability, particularly in a personal injury as opposed to an economic injury action. Hawkeye Security Insurance Co. v. Ford Motor Co., 199 N.W.2d 373, 381-82 (Iowa 1972) ("Hawkeye II "). Hawkeye Security Insurance Co. v. Ford Motor Co., 174 N.W.2d 672, 684 (Iowa 1970) ("Hawkeye I ").

We have carefully examined the record and are not persuaded the factual situation We turn next to the district court's refusal to submit express warranty. The district court recognized that Hawkeye I and II, supra, do not forbid submission of express warranty along with strict liability. The district court, however, determined that the evidence of express warranty was insufficient to go to the jury. ⁵ Applying the appropriate standards for a motion for directed verdict, we cannot agree.

                here was so exceptional that both strict liability and implied warranty theories should have been submitted as a matter of right.  4 Therefore, we find no prejudice to McKnelly in the directed verdict for Sperry on implied warranty
                

Sperry advertised the Model 23 as a "general purpose winch." The trial court, relying on the distinction in the industry between "hoists" and "winches", and upon testimony that Sperry never approved its winches for personnel lifting,...