R.W. Murray Co. v. Shatterproof Glass Corp.
| Decision Date | 22 March 1985 |
| Docket Number | Nos. 83-2580,83-2651,s. 83-2580 |
| Citation | 758 F.2d 266 |
| Parties | 40 UCC Rep.Serv. 1283, 17 Fed. R. Evid. Serv. 999 R.W. MURRAY, COMPANY, The Citadel, Ltd., Robert Kresko, Harlan R. Crow, George A. Shutt, Appellees/Cross-Appellants, v. SHATTERPROOF GLASS CORPORATION, Appellant/Cross-Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Robert S. Allen, St. Louis, Mo., for appellant/cross-appellee.
W. Stanley Walch, St. Louis, Mo., for appellees/cross-appellants.
Before HEANEY and ROSS, Circuit Judges, and HENLEY, Senior Circuit Judge.
Shatterproof Glass Corporation (Shatterproof) appeals from a judgment entered on a jury verdict finding it liable for breach of an express warranty in connection with a sale of goods. Shatterproof alleges that the damage award was excessive, that the plaintiffs' claims were barred by their failure to give notice of breach and to file the suit within the statute of limitations, that the plaintiffs failed to establish that they complied with conditions of the warranty, and that the district court 1 committed reversible error in submitting certain jury instructions and in admitting certain evidence. We affirm the judgment of the district court.
In 1974, Shatterproof sold 2,004 reflective glass panels to Boain Glass Company, a subcontractor, for installation in a four-story office building owned by The Citadel, Limited (Citadel). The panels were installed into a curtainwall system composed of aluminum framing supplied by Anaconda Aluminum Company (Anaconda).
Shortly after completion of the building, a number of the panels began developing moisture accumulation between their panes. In 1977, Shatterproof supplied replacements, pursuant to its warranty, for 14 panels which had developed such problems. The following year, 28 more defective panels were discovered by R.W. Murray Company (Murray), the general contractor for the building. Murray obtained replacements for the 28 panels from Shatterproof and installed them. In 1979, however, Shatterproof disclosed that the panels were not supplied free of charge as per its warranty. Shatterproof then filed suit in state court against Murray, seeking to recover the price of the 28 panels. Murray counterclaimed for breach of warranty, but voluntarily dismissed its claim on May 21, 1981.
On July 15, 1981, Citadel and Murray (plaintiffs) sued Shatterproof and Anaconda, alleging breaches of express and implied warranties, negligence, and misrepresentation in connection with the sale of the panels and aluminum framing. The action was dismissed by the district court on Shatterproof's FED.R.CIV.P. 12(b)(6) motion for failure to state a cause of action. 529 F.Supp. 297. The dismissal was reversed by this court as to the causes of action against Shatterproof based on breach of express warranties and on misrepresentation. R.W. Murray Co. v. Shatterproof Glass Corp., 697 F.2d 818 (8th Cir.1983) (Shatterproof I).
On remand, Shatterproof's motion for a directed verdict at the close of plaintiffs' case was granted as to counts based on a ten-year express warranty and on misrepresentation, but denied as to a count based on a twenty-year express warranty. The twenty-year warranty provided, in pertinent part, as follows:
Subject to the conditions below, Shatterproof Glass Corporation warrants its insulating glass units for a period of twenty (20) years from the date of manufacture against defects in material or workmanship that result in moisture accumulation, film formation or dust collection between the interior surfaces resulting from failure of the hermetic seal
THE FOREGOING IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED WHETHER FOR MERCHANTABILITY OR OTHERWISE (Emphasis added.) (Footnotes omitted.)
At trial, plaintiffs' experts testified that they had disassembled 39 panels which had evidenced seal failure, conducted a visual inspection of all of the panels, and subjected a sample of visually nondefective panels to a dew-point test. Two hundred and thirty-one panels evidenced moisture accumulation between their panes upon visual inspection and 57% of the panels failed the dew-point test .
The experts testified that the facts established that two-thirds of the panels had experienced seal failure caused by Shatterproof's failure to properly treat or clean the metal spacer bars between the panes of glass (a workmanship defect). The seal failures prevented the necessary adhesion of the butyl sealant to the spacer bars, which permitted moisture accumulation between the panes and resulted in obscured vision. The experts added that, in light of the consistent and extensive nature of the failures which had occurred, it was likely that all of the panels would experience such premature seal failure.
Plaintiffs also adduced evidence that neither Shatterproof nor any other supplier could furnish glass with a color tint and reflectivity matching that of the original panels. Plaintiffs submitted that piecemeal replacement of defective glass panels would only worsen the unsightly checkerboard appearance of the building. 2 Their experts testified that, in order to restore the building to a commercially tolerable appearance, complete replacement of all the panels was necessary.
The jury found for the plaintiffs, awarding Citadel $1,096,000 and Murray $18,680.50. Citadel's award represents a recovery of $328,600 for 2,004 replacement panels, $671,100 for labor to remove the original panels and install replacement panels, and $96,400 for glazing materials needed for installation of the replacements. Murray's award represents a reimbursement of $10,325 paid to Shatterproof in 1982 for 60 replacement panels and $8,354.50 for labor expenses incurred in installing those panels and the 28 replacement panels supplied in 1979. 3
Shatterproof contends that plaintiffs failed to make a submissible case of breach of warranty as to all of the panels. The Missouri standard for testing the sufficiency of the evidence is treated as controlling in this diversity action, because "Missouri state standards for testing the sufficiency of the evidence are substantially the same as federal standards," and neither party has raised the issue as to whether the state or federal sufficiency of evidence standards should govern. McIntrye v. Everest & Jennings, Inc., 575 F.2d 155, 158 (8th Cir.1978). See DeWitt v. Brown, 669 F.2d 516, 523 (8th Cir.1982). Under Missouri law,
[i]t is well settled * * * that for the purposes of appellate review a plaintiff's verdict (defendant's motion for new trial standing overruled) is final on the fact issues if supported by substantial evidence; and whether plaintiff made a submissible case is determined in the appellate courts by a review of the probative facts not entirely unbelievable or opposed to the physical facts, * * * from the standpoint most favorable to the plaintiff, including facts established by defendant's evidence aiding plaintiff's case when not in conflict with plaintiff's testimony or plaintiff's fundamental theory, giving plaintiff the benefit of all legitimate favorable inferences and disregarding defendant's evidence unfavorable to plaintiff. * * * In the circumstances presented we do not weigh conflicting probative evidence. * * *.
Capra v. Phillips Investment Co., 302 S.W.2d 924, 929 (Mo.1957) (en banc) (citations omitted). See also Manley v. Horton, 414 S.W.2d 254, 257 (Mo.1967); Anderson v. Mutert, 619 S.W.2d 941, 946 (Mo.App.1981).
We find that the jury's verdict is supported by substantial evidence. First, the evidence establishes that two-thirds of the panels have actually failed and that their failures constitute breaches of Shatterproof's warranty. Second, the evidence supports a finding that the remaining panels will fail within the warranty period and that these failures will also constitute breaches of Shatterproof's warranty. Plaintiffs' experts were not engaging in mere speculation when they opined that all of the panels would fail prematurely. Their opinions were based upon the consistent and extensive nature of the failures which had occurred up to the time of trial. In the circumstances of this case, plaintiffs need not wait for all of the panels to actually fail in order to establish a breach of warranty as to all of the panels.
The trial court's damage instruction directed the jury as follows:
If you find in favor of Plaintiffs Citadel and Murray, then you must award plaintiffs:
(a) To Citadel such sum as you believe plus the difference between the fair market value of the insulating glass actually installed in the Citadel building when Plaintiff Citadel discovered or should have discovered that it did not conform to defendant's warranty and its fair market value had the insulating glass been as warranted by defendant, and
(b) If you find that defendant either failed to replace insulating glass in the Citadel building free of charge within a reasonable time after it received notice that the glass did not conform or is unable to match the color of the glass presently in the Citadel building, to Citadel and to Murray such additional sum as you believe will fairly and justly compensate Plaintiffs Citadel and Murray for any other damage plaintiffs sustained as a direct result of the glass failing to conform.
Shatterproof objects to the difference in value damages provided for in section (a) of the damage...
To continue reading
Request your trial
-
Canal Elec. Co. v. Westinghouse Elec. Corp.
...364 S.E.2d 215 (1988).4 See Fidelity & Deposit Co. of Md. v. Krebs Eng'rs, 859 F.2d 501 (7th Cir.1988); R.W. Murray, Co. v. Shatterproof Glass Corp., 758 F.2d 266 (8th Cir.1985); Fargo Mach. & Tool Co. v. Kearney & Trecker Corp., 428 F.Supp. 364 (E.D.Mich.1977); Directors of Harriman School......
-
State v. Ramseur
...social science research is discussed and summarized in Grigsby v. Mabry, 569 F.Supp. 1273, 1291-1304 (E.D.Ark.1983), aff'd, 758 F.2d 266 (8th Cir.1985) (en banc), rev'd sub nom. Lockhart v. McCree, ---U.S. ----, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986); see also Lockhart, supra, --- U.S. at --......
-
Ppg Industries v. Jmb/Houston Centers
...v. Winograd, 956 S.W.2d 529, 531 (Tex.1997). 76. Murphy v. Campbell, 964 S.W.2d 265, 272 (Tex.1997). 77. R.W. Murray Co. v. Shatterproof Glass Corp., 758 F.2d 266, 273-74 (8th Cir.1985). 78. See Cornerstones Mun. Util. Dist. v. Monsanto Co., 889 S.W.2d 570, 576-77 (Tex.App.-Houston [14th Di......
-
Myrtle Beach Pipeline Corp. v. Emerson Elec. Co., No. 3:86-1796-21.
...fails of its essential purpose, then the exclusion of consequential damages likewise fails. See, e.g., R.W. Murray Co. v. Shatterproof Glass Corp., 758 F.2d 266, 272 (8th Cir.1985). The Fourth Circuit has not directly taken a stance on this position, but it has observed that "recent cases i......
-
Section 15.25 Evidence Relevant to Defective Design
...1986); Keller v. Int’l Harvester Corp., 648 S.W.2d 584, 589 (Mo. App. W.D. 1983). But see R.W. Murray, Co. v. Shatterproof Glass Corp., 758 F.2d 266 (8th Cir. 1985) (the federal rule limiting admission of evidence of subsequent repairs does not apply to actions based on strict liability); R......
-
Shifting the burden in software licensing agreements.
...Givan v. Mack Truck, Inc., 569 S.W.2d 243, 247-48 (Mo. Ct. App. 1978). (37.) See, e.g., R.W. Murray, Co. v. Shatterproof Glass Corp., 758 F.2d 266 (8th Cir. 1985); Goddard v. Gen. Motors Corp., 396 N.E.2d 761 (Ohio (38.) See John B. Kennedy et al., U.S. State and Selected Federal Privacy an......
-
Section 45 Incidental and Consequential Damages
...of consequential damages seem to place significant weight on foreseeability. See, e.g., R.W. Murray, Co. v. Shatterproof Glass Corp., 758 F.2d 266, 273 (8th Cir. 1985) (applying Missouri UCC and reasoning that consequential damages were recoverable because seller had reason to know of the p......
-
Section 13 Generally
...may nevertheless pursue the remedies provided by the UCC. Section 400.2-719(2). See, e.g., R.W. Murray, Co. v. Shatterproof Glass Corp., 758 F.2d 266 (8th Cir. 1985) (limited and exclusive warranty providing for replacement of goods failed its essential purpose because seller did not make t......