Nerud v. Haybuster Mfg., Inc.
| Decision Date | 10 November 1983 |
| Docket Number | Nos. 82-716,82-717,s. 82-716 |
| Citation | 340 N.W.2d 369,215 Neb. 604 |
| Parties | , 37 UCC Rep.Serv. 703 Frank T. NERUD, Appellee, v. HAYBUSTER MANUFACTURING, INC., Appellant, and Bridgeport Equipment Co., Appellee. Frank T. NERUD, Appellee, v. HAYBUSTER MANUFACTURING, INC., and Bridgeport Equipment Co., Appellants. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Appeal and Error. Errors assigned but not argued will generally not be considered on appeal.
2. Appeal and Error. This court will not consider generalized and vague assertions of error which do not advise as to the issues submitted for decision.
3. Judgments: Appeal and Error. Findings of a court in a law action in which a jury has been waived have the effect of a jury verdict and will not be disturbed on appeal unless clearly wrong. In such a circumstance it is not within our province to resolve conflicts in or to weigh the evidence; if there is a conflict in the evidence, this court will review the judgment rendered and will presume that controverted facts were decided in favor of the successful party.
4. Judgments: Appeal and Error. A proper judgment will not be reversed even if the trial court did not give the right reason for its rendition; a trial court's judgment is to be affirmed if the evidence sustains any theory of recovery pled by the plaintiff, irrespective of which theory the trial court relied upon.
5. Products Liability: Negligence. In an action for negligent manufacture an inference of negligence arises from proof that a defect existed at the time of manufacture.
6. Products Liability: Negligence. The plaintiff in a negligence case must, in order to prove that a particular product is defective in its design, show both that the product presented an unreasonable risk of danger and that the manufacturer failed to exercise reasonable care in adopting its design.
7. Products Liability: Words and Phrases. A product is "unreasonably dangerous" when it has a propensity for causing physical harm beyond that which would be contemplated by the ordinary user or consumer who purchases it, with the ordinary knowledge common to the foreseeable class of users as to its characteristics.
8. Products Liability: Strict Liability. In a strict liability in tort case, the plaintiff, in order to prove that a particular product is defective in its design, must show that there was some practicable way in which the product could have been made safer.
9. Contracts: Warranty. A warranty that goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.
John W. Ballew, Jr., of Raymond, Olsen, Ediger & Ballew, P.C., Scottsbluff, for appellant Haybuster Manufacturing, Inc.
Wright, Simmons & Selzer, Scottsbluff, for appellant Bridgeport Equipment Co.
James W. Ellison of Holtorf, Kovarik, Nuttleman, Ellison, Mathis & Javoronok, P.C., Gering, for appellee.
These consolidated appeals arise from combined bench trials of suits resulting from the destruction by self-generated fires of two haystacking machines. In the first case the trial court entered judgment in favor of the plaintiff purchaser, Frank T. Nerud, against the defendant manufacturer Haybuster Manufacturing, Inc., and in favor of the other defendant, the seller Bridgeport Equipment Co., on its cross-claim against Haybuster. In the second case the trial court entered judgment in favor of Nerud against both Haybuster and Bridgeport and in favor of Bridgeport on its cross-claim against Haybuster. For the reasons hereinafter discussed we reverse and remand and direct dismissal of the first case, and in the second case we reverse the judgment for Nerud against Haybuster and remand and direct dismissal of the action as between the two of them, but affirm the judgment for Nerud against Bridgeport. No appeal was taken by Haybuster of the judgment against it in favor of Bridgeport.
Nerud, a Morrill County farmer, purchased a "Stack-Eze" model 1800B haystacking machine, manufactured by Haybuster, from Bridgeport in November of 1976. The machine was designed to be towed behind a tractor, collect previously cut plantings, and compact them into 5- to 6-ton haystacks.
On September 6, 1979, while Nerud was using the stacker, a fire broke out near the top of the machine's conveyor. Nerud was unable to douse the fire and the machine was destroyed. On the morning of September 8, 1979, Nerud took delivery of an identical model "Stack-Eze" from Bridgeport. This machine had been used previously to gather about 40 stacks and was therefore sold to Nerud as a demonstrator. Nerud immediately put that machine to its intended use, and by the afternoon of the same day of delivery it too was consumed by fire.
On September 11, 1981, Nerud brought two lawsuits against Haybuster and Bridgeport. In each petition Nerud alleges breach of express and implied warranties, negligent design, construction, and dealer preparation, and strict liability for producing and marketing a defective product. The first suit, case No. 82-716 herein, concerns the first fire, involving the machine purchased in 1976. The second, case No. 82-717, is based on the second conflagration.
Bridgeport cross-claimed against Haybuster for indemnification in both cases.
At trial both Nerud and his expert witness, Richard Crawford, testified that the apparent cause of each fire was the overheating of a bearing on the conveyor shaft, which ignited the hay being gathered. The bearings which failed were in identical locations in each machine. Crawford further testified that the overheating was due to undersized conveyor assembly shafts. The design called for a 1.5-inch shaft to turn within a 1.5-inch bearing. Crawford testified that he measured the shafts on both machines and found them both to measure 1.485 inches, .015 inches undersized. According to him, the use of undersized shafts caused a high degree of shaft deflection, placing a heavy load on the bearings; as a result, the bearings failed prematurely. The failure of the bearings caused the generation of heat in excess of 1,700? Fahrenheit, up to 2,600? Fahrenheit, resulting in the fires. Crawford testified that other than the undersized shafts, he knew of no other improper assembly.
In the courtroom Haybuster's expert witness, Henry Kucera, measured the two shafts with a micrometer and demonstrated that Crawford's measurements were wrong. The in-court measurements were taken at two points on each shaft. The shaft from the first machine was found to measure 1.500 inches at one end and 1.499 inches at the other. Kucera attributed this .001 undersizing at the latter point to the repair efforts of Nerud, who had admitted using a torch to replace a bearing on this end of the shaft. On the shaft from the second machine, he found it to measure 1.501 and 1.500 on each end. All the in-court measurements taken at points on the shafts which were untouched by Nerud's repair efforts indicated that the shafts were not impermissibly undersized, according to the evidence of industry standards for 1.5-inch shafting introduced by both parties.
The remainder of Nerud's evidence of negligence dealt with the design of the machine. Crawford testified that the haystacker was designed by a trial-and-error method and that since there were no "layout drawings," there was, in essence, no design to the machine. He contended that Haybuster just "assembled a bunch of parts." He did not, however, state in what manner, if any, the method of developing the machine proximately caused the fires.
Crawford also opined that the use of four fixed bearings on the conveyor shaft was a design to be avoided because of the strong potential for bearing overload due to misalignment. Again, however, there was no testimony that the use of the fixed bearings caused the fires. In fact, the trial judge specifically asked Crawford: "Well, isn't it a fact that because combustible material is so close to the bearing it's causing the problem of why we're here in court today?" Crawford retorted: "No. I think it's because of the high heat that's generated." That is, the high heat was thought by Crawford to have been generated because of the allegedly undersized shafts, which were in fact correctly sized.
The only other evidence in connection with the design of the machine related to the placement and adequacy of certain deflectors at the top of a conveyor belt for the purpose of directing the hay toward the center of the belt away from the bearings. In that regard Kucera was asked (or told) by plaintiff's attorney: Kucera replied:
On the basis of the foregoing evidence the trial court found that the machines were "negligently designed in positioning the bearings in such a place that hay ignited when the bearings failed."
The court entered judgment in the first case in favor of Nerud against only Haybuster in the sum of $7,400, plus the costs of suit, on the ground Haybuster was negligent. It dismissed Nerud's warranty claims against Bridgeport, on the ground any warranty claim was barred by the period of limitations.
In the second case the trial court entered judgment in favor of Nerud against both Haybuster, on the ground it was negligent, and Bridgeport, on the ground it breached its implied warranty of merchantability, in the sum of $11,200, plus the costs of suit. It also entered judgment in the same amount in favor of Bridgeport against Haybuster.
Haybuster assigns as its sole operative claim of error the trial court's finding that Haybuster negligently designed the machine. It also asserts the trial court erred in "rendering judgment" and in "assessing damages" against it, but it does not...
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