Miller v. International Harvester Co.

• Decision Date: 20 October 1976
• Docket Number: No. 2--57817,2--57817
• Citation: 246 N.W.2d 298
• Court: Iowa Supreme Court
• Parties: Eldon K. MILLER and Virginia E. Miller, Appellees, v. INTERNATIONAL HARVESTER COMPANY, Appellant.

Page 298

246 N.W.2d 298

Eldon K. MILLER and Virginia E. Miller, Appellees, v. INTERNATIONAL HARVESTER COMPANY, Appellant.

No. 2--57817.

Supreme Court of Iowa.

Oct. 20, 1976.

Jones, Hoffmann & Davison, Des Moines, for appellant.

C. M. Manly and Tomasek & Vogel, Grinnell, for appellees.

Heard by MOORE, C.J., and MASON, RAWLINGS, HARRIS and McCORMICK, JJ.

RAWLINGS, Justice.

On injury-related products liability and negligence action trial jury returned a verdict for plaintiff Eldon K. Miller (plaintiff). His wife was concomitantly awarded loss of consortium damages. Defendant, International Harvester Company (International), appeals from judgment attendantly entered. We affirm.

March 12, 1969, plaintiff, a Poweshiek County farmer, purchased a Model 155 International Harvester manure spreader from Brannian Implement in Brooklyn, one of defendant's franchised Iowa dealers. The preassembled machine was ready for use when delivered to plaintiff.

November 5, 1971, plaintiff's son Arlo (also a farmer) first used the spreader while his father plowed an adjacent filed. Arlo then reloaded the spreader, moved it by use of his tractor back to the field, and traded positions with plaintiff who thereafter operated the tractor with spreader attached.

After the load had been scattered by plaintiff some manure remained on the sides of the machine and in the 'slurry pan' at the rear. He stopped the tractor in order to clean the spreader and before dismounting pulled a lever known as the 'beater shifting lever retention device'. This mechanism, when engaged, caused the beater blades at the back of the spreader to rotate. They, in turn, served to pulverize and scatter the manure. By pulling said lever plaintiff disengaged both beaters and they stopped whirling. Plaintiff testified he looked to be sure the beaters were 'out of gear', but did not turn off the tractor 'power take-off' switch. The pulling tractor provided power for both the apron (conveyor belt) and beaters.

Evidence was introduced disclosing it is standard operating procedure to leave the apron in motion while cleaning the sides and slurry pan. After alighting, plaintiff started scraping manure from the left side of the machine and slurry pan with a screwdriver. Suddenly and unexpectedly the lever retention device engaged, thus causing the beaters to start rotating. Plaintiff's clothing became entangled in the whirling blades and he was seriously injured.

By virtue of the fact we are here concerned only with jury instructions a description of plaintiff's injuries is unnecessary.

In support of a reversal International contends trial court erred in (1) refusing to submit two requested jury instructions and (2) instructing the jury as to the doctrine of strict liability in tort. These assignments will be entertained in reverse order.

I. As a preface to our consideration of this case some basic rules are noted.

We have repeatedly held it is trial court's duty to submit to the jury all issues presented by the pleadings upon which there is evidence tending to support them. See e.g., Dobson v. Jewell, 189 N.W.2d 547, 553 (Iowa 1971). Conversely, it is error to instruct upon an issue having no substantial evidential support or which rests only on speculation. See Dobson v. Jewell, supra. See also Mercer v. Ridnour, 218 N.W.2d 625, 627 (Iowa 1974).

And, '(S)ufficiency of the evidence to warrant submission of a pleaded or properly litigated issue to the jury is determined by giving the evidence the most favorable construction it will reasonably bear in favor of the party urging submission.' Gunnison v. Torrey, 216 N.W.2d 361, 364 (Iowa 1974).

Notably, rule 196, Iowa R.Civ.P. requires that a party objecting to instructions specify the grounds for complaint. In other words, an objector must state the complaint in such manner as to permit a ruling or correction of error by trial court. See Rush v. Sioux City, 240 N.W.2d 431, 441 (Iowa 1976); State v. Blyth, 226 N.W.2d 250, 273 (Iowa 1975). See also State v. Youngbear, 202 N.W.2d 70, 72 (Iowa 1972). On appeal no other objection will be considered. See Dickman v. Truck Transport, Inc., 224 N.W.2d 459, 465 (Iowa 1974).

II. Mindful of the foregoing principles we first entertain defendant's contention to the effect trial court erred in giving jury instructions 16, 20, 21, 23 and 25. In argument, International does not specifically allude to several of these instructions but rather treats all of them cumulatively under the umbrella of strict liability in tort. The assignment will be accordingly entertained.

Plaintiff's petition clearly states, in part, a cause of action against defendant based upon strict liability in tort as postulated in § 402A, Restatement, Second, Torts. Defendant contends the evidence did not suffice to justify submission of such issue to the jury. This points up the problem instantly presented.

In Hawkeye-Security Insurance Co. v. Ford Motor Co., 174 N.W.2d 672, 684 (Iowa 1970), we adopted § 402A, Restatement, Second Torts. See also Kleve v. General Motors Corporation, 210 N.W.2d 568, 570 (Iowa 1973).

Among the elements giving rise to such an action are proof (1) the product was in a defective condition and (2) the defect existed at time of sale. See Kleve, 210 N.W.2d at 570--571.

Plaintiff's expert witness, Dr. Leo Peters, testified at length concerning the structure, mechanics, and operation of the International Harvester 155 manure spreader. In relevant part this is his testimony, given absent any objection:

'Q. As a result of these (prior) examinations, did you make an analysis of the machinery for the purpose of determining what defect or defects, if any, existed in the machinery, and what the effect of such defects, if any, was on the operation of the machinery and particularly of the spreader? A. Yes, I did.

'Q. Did you observe any defect or defects in the operation of the spreader? A. Yes, I did.

'Q. And state to the jury what the defect or defects were. A. I found that the--that a portion of the shifting lever retention means for engaging the beaters was not adjusted properly so that the beaters could not be shifted out of gear and held out of gear by the retention means that was designed to do this.

'Q. What was the effect of this defect? A. The effect of this defect was that you could shift the shifting lever in so the clutch would be in a disengaged position but then it was very easy to move the lever out of this position and suddenly engage the beaters.

'Q. As a result of your observation and study of the spreader, do you have an opinion as to whether there has been any change or adjustment in the beater shifting lever retention device after the original manufacture and assembly of the spreader? A. Yes, I have an opinion.

'Q. And what is that opinion, please? A. It is my opinion that there appears to be no movement or change of any of the components of the shifting lever retention device from the time of assembly.

'* * *

'Q. * * * Do you have an opinion, based on engineering knowledge and practice and on reasonable scientific certainty as to whether the beater shifting lever retention device is properly assembled and adjusted on this spreader? A. Yes, I have an opinion.

'Q. What is that opinion? A. My opinion is that it is improperly adjusted and assembled as it now stands.

'Q. Please state to the Court and jury your reasons for that opinion. A. This design of the retention device depends upon the pawl being located in such a way that when it contacts the back of the groove it will stay in the back of the groove. In this case the sector groove is low with respect to where the pawl is mounted so there is nothing in the groove as this is supposed to be used to hold this lever in the disengaged position. By very carefully setting this pawl on a corner of the sector, the lever will stay in position; but as far as the operation it is designed for by pulling with a rope and letting this pawl fall down into a slot, it will not hold it in place.

'Q. You have an opinion, please, based on engineering skill and experience and to a reasonable scientific certainty, as to whether this condition or defect as you have described it constituted a condition dangerous to the operator of the spreader when it was used in the manner and for the purpose for which it was intended to be used? A. Yes, I have an opinion.

'Q. And state that opinion, please. A. Yes, it was dangerous to the operator of the spreader when the spreader was used in the manner for which it was intended.

'Q. State the reason for that opinion. A. With the retention means as it is there, a person could put this lever in a position such as I have done here to disengage the beaters while still running the apron to clean out the spreader after a load has been spread. And he would be relying upon this lever and this mechanism to hold the beaters from being engaged. And this mechanism will not necessarily do that. It depends upon very exact positioning of this pawl in this position, whereas a simple adjustment on this would set the mechanism in such a way that it could be relied upon to hold the beaters out of engagement with the power take-off running.

'Q. What is the fact, Dr. Peters, as to whether the normal and safe operation of the manure spreader requires a proper setting and adjustment of the component parts of the beater shifting lever retention device? A. It does require proper adjustment and setting.

'Q. What are your reasons for that opinion? A. If you are relying upon this device to work and hold the beaters out of engagement, and it will not, the beaters can become engaged unexpectedly and are a hazard.

'Q. Dr. Peters, referring to the spreader, the manure spreader before you, do you have an opinion as a result of examining the beater shifting lever retention device as to whether there has been any change of any kind in it since its construction, and I refer particularly to the beater shifting lever retention device. A...