Miller v. Bock Laundry Mach. Co.

• Decision Date: 12 May 1977
• Docket Number: No. 1004,1004
• Citation: 551 S.W.2d 775
• Parties: George MILLER, Sr., Individually and as next friend for George Miller, Jr., Appellant, v. BOCK LAUNDRY MACHINE COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 775

551 S.W.2d 775

George MILLER, Sr., Individually and as next friend for George Miller, Jr., Appellant, v. BOCK LAUNDRY MACHINE COMPANY, Appellee.

No. 1004.

Court of Civil Appeals of Texas, Tyler.

May 12, 1977.

Rehearing Denied June 9, 1977.

Blake Bailey, Wellborn & Houston, Henderson, for appellant.

Earl Sharp, Sharp, Ward & Ross, Longview, for appellee.

McKAY, Justice.

This is a products liability case in which George Miller, Jr., age 11, had his left arm amputated near the shoulder after the arm became entangled in a piece of laundry equipment. The laundry machine was known as a Bock Centrifugal Extractor, was manufactured by appellee, Bock Laundry Machine Co. (Bock), and was located and being used at the Blue Ribbon Cleaning Center in Henderson operated by Luther Jenkins (Jenkins). Appellant brought suit against Jenkins, United Furniture Co. (United), the seller of the machine to Jenkins, and Bock, alleging that the machine was defective in design and in manufacture and operation because the cage or basket inside the extractor continued its centrifugal rotation at a high rate of speed after the motor was disengaged and the lid raised. Bock by its answer alleged that there was no defect in design or manufacture, but if the machine was dangerous it resulted solely from unusual wear and tear use by customers and owners over a long period of time after its manufacture, that it was not operated and maintained in accord with good practices recognized in the general field and use of such equipment, and that any danger or defect claimed resulted from the failure to properly maintain, inspect and repair the equipment and so operating it or allowing it to be used by the public without proper maintenance and repair. Bock further alleged the injured minor was negligent and his parent was negligent, and that if the machine was dangerous because of lack of maintenance, inspection or repair it had no notice of same.

After Bock's motion for instructed verdict was overruled the court submitted issues to the jury and the jury found:

1. The Bock laundry machine was (a) defectively designed, and (b) was defectively manufactured at the time it left the Bock plant.

1A. Such defect was a producing cause of the injury to George Miller, Jr.

2. The laundry machine was still in such defective condition when sold by United to Jenkins.

2A. United expected the machine to be used by Jenkins' customers without substantial change in its condition.

3. United failed to properly inspect the laundry machine in question prior to selling it to Jenkins, but, (3A) such failure was not a proximate cause of the occurrence in question.

4. United failed to furnish operating instructions and warnings at the time it sold the machine to Jenkins and, (4A) such failure was negligence, but (4B) was not a proximate cause of the occurrence in question.

5. On the occasion in question the laundry machine was in such condition that the lid of the machine could be raised by an ordinary user while the spinning basket was still rotating, and (5A) Bock knew, or should have known in the exercise of ordinary care, of such fact, and (5B) Bock failed to properly warn the public using such machine of such fact which was (5C) a proximate cause of the occurrence in question.

6. United did not know, nor should it have known, of such fact.

7. George Miller, Jr., suffered damages in the sum of $250,000.00 and reasonable medical and hospital care expenses of $1,000.00.

9. Neither George Miller, Sr. nor his wife was negligent in failing to exercise parental supervision and control over George Miller, Jr 10. George Miller, Jr., was not negligent in playing or tampering with the lid of the machine or forcing the lid open and placing his arm into the extractor.

11. Jenkins was negligent (a) in operating and maintaining the extractor machine or in permitting it to be operated by the public without proper maintenance and repair; (b) in failing to inspect the machine; (d) in failing to comply with written instructions placed on the name plate of the machine; and (e) in failing to obtain a manual of instructions; but (11A) none of the above was a proximate cause of the occurrence in question.

12. United was not engaged in the business of selling commercial laundry extractors at the time the machine in question was sold to Jenkins in 1967.

14. George Miller, Jr., did not misuse the extractor.

At the beginning of the trial Jenkins settled plaintiff's claim against him for the sum of $45,000.00 under a compromise agreement.

After a hearing the trial court granted Bock's motion for judgment non obstante veredicto on the ground that the evidence raised no issue of fact and that a directed verdict would have been proper, and rendered judgment that plaintiff take nothing against Bock or against United.

Appellant by his one point of error contends the trial court erred by determining that the evidence raised no issue of fact and by granting a judgment non obstante veredicto based upon such finding. The trial court may render judgment non obstante veredicto if a directed verdict would have been proper. Rule 301, T.R.C.P. To sustain the action of a trial court in granting a judgment notwithstanding the verdict there must be no evidence having probative force upon which the jury could have made the findings relied upon. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 199 (1952); Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 550 (1962). We must, therefore, examine the record to determine whether there is evidence having probative force which supports the findings of the jury.

The record reveals that the machine in question was manufactured by Bock in 1957, sold to Hammond Laundry Cleaning Machinery Co., Shreveport, and shipped to Leon Crim Furniture Co., Henderson, on February 6, 1957. Bock had no further knowledge of the machine until notified of the accident and injury to George Miller, Jr.

Jenkins testified he bought the machine in July, 1968, from United, and United did not furnish or provide him with any operating, repair or maintenance instructions, nor did he receive any such instructions from Bock or anyone. He further testified there was a plate attached to the top of the machine with the words printed on it: "Read instructions for operation and care of machine before using," but there were no other instructions or warning that when the lid was opened the inner basket would continue to spin. Jenkins said he never oiled the machine. Jenkins further testified that from the time he acquired the machine the basket continued to spin after the lid was raised but "how fast, I couldn't say. Not too fast," and the machine was in that condition when the injury occurred. He said "it worked the same way when it was installed as it did when we finished with it." Jenkins tested the machine the day after the accident, and he testified that when he raised the lid the basket continued to spin faster than usual. He said he knew there was some type of safety device on the machine that prevented the tub from spinning with the lid open, but he did not know how it worked.

George Miller, Jr., age 11, at the direction of his mother to remove clothes from the machine, turned off the switch and opened the lid with his left hand. He saw the inner basket still rotating and changed to his right hand to hold the lid. His left arm was then pulled into the spinning basket and severed near the shoulder.

The witness L. A. Stern, a consulting engineer and a registered professional engineer in four states, testified as an expert for appellant. He had a college degree in Chemical Engineering, and he had been employed by the Water Department of the City of Dallas, the ordinance plant operated by the Federal Government in Texarkana during the war, and by Pittsburg Testing Laboratories from the early 1940's to 1970. He was general manager of Pittsburg Testing, where he had tested machinery, pipe, locomotives and component parts. Since 1970 he had been a consulting engineer and had tested products for quality control for many companies.

Shortly after the injury in question here Stern traveled to Henderson and saw the Bock extractor machine at Jenkins' laundry where the accident occurred. He turned on the machine for one-half to one and one-half minutes, then turned it off and lifted the lid. The basket continued to spin with great velocity which he later measured to be 1600 to 1700 rpms, by his description equivalent to 50 to 60 miles per hour. On later, more detailed examination and testing he testified the basket continued to spin for 24 seconds after the power was turned off and the lid raised. Stern testified that the safety device would not engage and operate to stop the spinning of the basket when the lid was raised because the rubber pads, upon which most of the operating mechanism rested, had deteriorated or shrunk causing the machine to slip down. Such dropping caused a rod which should have contacted a collar to go completely over the collar and fail to engage the safety device for the lid. He testified that these rubber pads could have deteriorated because of use, age, time or because they were attacked by some petroleum product such as oil, gasoline or grease. He further said that there was a design defect because the pad could have been made of material that would not deteriorate that, therefore, there was a manufacturing defect which created an unreasonable risk of harm to those using the machine in the future. Stern suggested that neoprene pads or metal springs would not have deteriorated, that a safety device should work as long as the machine with which it functions is operable, and that a timer or an electro-magnet safety device could have been used.

The witness John Vivian Perry, Jr. was a Professor of Mechanical Engineering at Texas A. & M. University. He had a B.S. degree from Virginia Polytechnical Institute, and his Masters and Doctors degrees from Texas A....