De Pree v. Nutone, Inc.

• Decision Date: 26 January 1970
• Docket Number: No. 19091.,19091.
• Citation: 422 F.2d 534
• Parties: Stanley DE PREE and Winifred De Pree, Plaintiffs-Appellees. v. NUTONE, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

422 F.2d 534 (1970)

Stanley DE PREE and Winifred De Pree, Plaintiffs-Appellees. v. NUTONE, INC., Defendant-Appellant.

No. 19091.

United States Court of Appeals Sixth Circuit.

January 26, 1970.

Thomas F. Blackwell, Grand Rapids, Mich., for appellant; Smith, Haughey & Rice, Grand Rapids, Mich., on brief.

Peter Armstrong, Grand Rapids, Mich., for appellees; Varnum, Riddering, Wierengo & Christenson, Grand Rapids, Mich., on brief.

Before WEICK and McCREE, Circuit Judges, and McALLISTER, Senior Circuit Judge.

McCREE, Circuit Judge.

Defendant appeals from a judgment rendered by the court, sitting without a jury, awarding damages of $25,000 to Mrs. Winifred DePree for the loss of part of her right index finger and $3,000 to her husband, Stanley DePree, for loss of consortium. The injury occurred when Mrs. DePree used her finger to try to remove some partially ground chicken from the bottom of the cutter plate of a vertical meat grinder operated by a counter-sunk electric motor manufactured by defendant. As a result of the accident and ensuing infections, Mrs. DePree's finger was amputated at the middle phalanx.

The District Judge in his findings of fact and conclusions of law, filed pursuant to Fed.R.Civ.P. 52(a), found that defendant had breached express warranties that the operating instructions were adequate and complete to assure safe operation of the grinder; that plaintiff could use the grinder for its intended purpose in a manner recommended by the cautions and instructions of defendant in complete safety; that the only danger in using the grinder would be from the top end and from the feed screw; and that the grinder was completely safe in all other respects. He also found that defendant was negligent in that the use of the coarse cutter plate presented a latent danger not apparent to the user; that the grinder had not been adequately tested for safety; and that adequate warning and safety devices were not provided to guard against that danger. He found that defendant's negligence and breach of warranty were proximate causes of the mishap; that Mrs. DePree was not guilty of contributory negligence; and that her use of the grinder was in the intended manner and within the scope of defendant's warranties.

Appellant contends that the representations contained in its instruction booklets and related literature were not express warranties; that if they are held to be warranties they were not breached; that the product was not negligently designed or manufactured; that any breach of warranty or negligence was not the proximate cause of the injury; and that the verdict was excessive.

Michigan law, which governs in this diversity case, permits recovery for an injury which results from a defect in a product or as a consequence of negligence in its manufacture. The development of Michigan case law makes the elements of the actions basically similar, although recovery may be had for negligence even in the absence of an identifiable defect. The measure of damages is the same whether the action is one for breach of warranty or for negligence. Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich. 120, 90 N. W.2d 873 (1958); Piercefield v. Remington Arms Co., 375 Mich. 85, 133 N. W.2d 129 (1965); Comment, Products Liability in Michigan: Implied Warranty, Strict Tort, or Both? 15 Wayne L.Rev. 1558, 1564 (1969).

Here it is unnecessary to discuss all of appellant's arguments, because the verdict can be sustained on the District Court's finding of negligence. There was, first of all, evidence that appellant ignored the relevant Underwriters' Laboratories' safety standards in designing its coarse cutter plate so that the openings in the plate were large enough to permit the insertion of a human finger.¹ Furthermore, a jury could find that appellant's warnings and instructions were misleading. These instructions emphasized the possible dangers from placing one's hand near the feed screw or into the top of the grinder, but they were silent about any danger from placing one's fingers into the easily accessible bottom end of the machine. Appellant provided a wooden spatula for use (according to the instructions) only at the top end of the machine. Appellant, at one time, provided a special spatula for use at the bottom end of the grinder, but this accessory and the requisite instructions were not included with the grinder purchased by plaintiffs.

From these facts a jury could find that appellant acted negligently. They justified a conclusion that the warnings concerning the top end of the grinder strongly implied that there was no reason for caution in using the bottom end. Cf. Haberly v. Reardon Co., 319 S.W.2d 859, 867 (Mo.1948); Hopkins v. E. I. du Pont de Nemours & Co., 199 F.2d 930, 933-934 (3d Cir.1952). Here the District Judge, acting in place of a jury, made such findings. We hold that he did not err in considering the total product package: both the mechanism and the instructions and warnings which were provided with it. See Helene Curtis Industries, Inc. v. Pruitt, 385 F.2d 841, 856 (5th Cir.1968). The manufacturer of a meat grinder knows that his product can pulverize human fingers as well as chicken flesh. Appellant apparently recognized the duty to provide instructions and warnings which is imposed by Michigan law. Weekes v. Michigan Chrome & Chemical Co., 352 F.2d 603, 607 (6th Cir.1965); see also Comstock v. General Motors Corp., 358 Mich. 163, 176-177, 99 N.W.2d 627, 78 A. L.R.2d 449 (1959). And a mechanically unsophisticated housewife (which category doubtless includes a substantial number of the likely users of the product) is entitled to rely on the completeness and accuracy of the instructions and warnings provided by a responsible manufacturer.

We also determine that the District Court did not err in finding the appellant's negligence was a proximate cause of the injury. Although the trier of fact could have found that plaintiff...