Rhoads v. Service Machine Company

• Decision Date: 21 July 1971
• Docket Number: No. B-70-C-9.,B-70-C-9.
• Citation: 329 F. Supp. 367
• Parties: Georgia I. RHOADS, Plaintiff, v. SERVICE MACHINE COMPANY, Inc., Defendant.
• Court: U.S. District Court — Eastern District of Arkansas

329 F. Supp. 367

Georgia I. RHOADS, Plaintiff, v. SERVICE MACHINE COMPANY, Inc., Defendant.

No. B-70-C-9.

United States District Court, E. D. Arkansas, N. D.

July 21, 1971.

COPYRIGHT MATERIAL OMITTED

John T. Lavey, of Walker, Kaplan, Lavey & Mays, Little Rock, Ark., for plaintiff.

Jeff Davis, Jr., of Teague, Bramhall, Davis & Plegge, Little Rock, Ark., for defendant.

Memorandum Opinion

HENLEY, Chief Judge.

This is a products liability case in which the plaintiff, an injured factory worker, recovered a jury verdict of $50,000 against the defendant, the manufacturer of the machine which plaintiff was operating or about to operate when she received her injury. Federal diversity jurisdiction is established; the governing law is that of Arkansas, the State wherein the accident occurred. The cause is now before the Court on alternative post-trial motions filed by the defendant. Defendant seeks alternatively, entry of a judgment notwithstanding the verdict, a new trial, or a remittitur in an amount equal to the sums that plaintiff has received or will receive in the future under the provisions of the Arkansas Workmen's Compensation Act. Initiated Act No. 4 of 1948, as amended, Ark.Stats.Ann. § 81-1301 et seq.

The historical facts of the case are not seriously disputed. The accident occurred on the factory premises of plaintiff's employer, Al-Craft Products Company of Newport, Arkansas, a maker of aluminum products of various kinds including window frames for mobile homes. The task of the plaintiff was to operate a 25 ton punch press into which material to be punched was fed manually; the machine was activated by electric current, and, as used in the employer's particular operation, was controlled by a foot pedal that was placed underneath the machine. The operating cycle of the machine was 1/20th of a second.

The accident presently to be described occurred in 1969. Al-Craft had purchased the machine and its accessories, including the foot pedal, from the defendant manufacturer, Service Machine Company, Inc. The machine itself was designed and manufactured by the defendant; the defendant did not design the foot pedal but furnished it as a component part of the machine. The machine was not equipped with any screen or guarding devices designed and intended to prevent the hands or arms of operators from being accidentally inserted into the press while the machine was in operation. The machine was built so that it could be equipped with dual hand controls to provide an alternative means of activating the press, and had those controls been in a useable condition and had they been used by plaintiff, her injury probably would not have occurred.

Al-Craft had purchased a number of these machines from the defendant, and Al-Craft had done the installing of the machines. Al-Craft elected to have its employees, including plaintiff, operate the presses by the use of the foot pedals that came with the machines and did not activate the dual hand controls. Al-Craft employees stood in front of the presses while operating them. The floor of the Al-Craft factory was concrete; moisture was generated in the course of the manufacturing process and water tended to collect on the concrete floor underneath the presses. In order to keep their feet from getting wet employees customarily operated the machines while standing on wooden pallets placed on the floor, which pallets kept the feet of the operators about an inch above the floor. The foot pedals were customarily placed on the pallets in positions convenient to the operators. The pallets were not secured to the floor, and the pedals were not secured to the pallets.

As stated, the faces of the presses had no safety guards. On each press there was a warning sign immediately facing and easily read by an operator. The text of the sign was as follows:

"WARNING

"Never Place Hands Under Ram Or Within Die Area.

"Stop Motor And Block Ram When Changing Dies.

"Adequate Safety Guards Must Be Provided By The Owner Of This Press To Prevent The Operator's Hands From Entering Die Area."

At some time prior to the accident the Al-Craft premises and equipment had been inspected by representatives of the Arkansas State Department of Labor who had required that guards be placed on the presses; however, at the time of the accident there had been no compliance with that requirement.

At the time of the accident plaintiff was an experienced punch press operator and she was fully familiar with the particular machine involved in the case. She knew that the machine had no guard across the face of it to prevent her hands from getting into the die area; and it was obvious to her, as it would have been obvious to anyone of common sense, that if her hand and arm did get into that area while the press was in operation they would almost inevitably be mangled.

Plaintiff operated the press without incident throughout the morning of the day on which the accident occurred. Upon her return to the machine following her lunch period, she took her position on the pallet in front of the machine, and ran one piece of material through the machine to see that it was operating properly. At this point the pallet tilted for some reason, and the tilting caused plaintiff to lose her balance. As she sought to regain her balance, her right hand and arm slid into the die area and were crushed and mangled when the ram came crashing down upon them a fraction of a second later.

Her injuries necessitated the amputation of plaintiff's right arm a short distance below the elbow. That injury, of course, is a permanent one, and in her case it is a disabling one, particularly in view of the fact that she cannot make use of an artificial arm which has been provided for her. She has unquestionably endured a great deal of pain and mental anguish and will endure the same in the future, at least to some extent; she has lost earnings, and her ability to earn money now and in the future essentially has been destroyed.

Following her injury plaintiff received compensation as provided by the Arkansas statute. That compensation was plaintiff's sole remedy against Al-Craft, but under the provisions of section 40 of the Act, Ark.Stats.Ann. § 81-1340, she had the right, which she exercised, to bring suit at common law against the manufacturer of the machine as a third party tort feasor.

Ultimately, it was the theory of the plaintiff that her injury was proximately caused by negligence on the part of the defendant in designing and manufacturing a dangerous machine without adequate safety devices and in failing to give adequate warnings about the danger of using the machine without such devices.

Throughout the case the defendant has contended consistently that it was not guilty of any negligence, that no act or omission on its part was a proximate cause of plaintiff's loss of her arm, that the failure of the employer to equip the machine with proper devices was an intervening cause of plaintiff's injury, that plaintiff was herself guilty of negligence that was equal to or greater than the alleged negligence of the defendant,¹ and that plaintiff voluntarily assumed the risk of the injury that she received.²

The Court takes up first defendant's alternative motion for a remittitur. That motion is based on defendant's contention that plaintiff's injury was due in large measure if not entirely to the alleged negligence or misconduct of Al-Craft in failing to provide plaintiff with a safe place to work and in assigning her to a machine that was not safe for operation. Omitting formal parts, the motion is as follows:

"Comes now the defendant and moves the court to enter a remittitur in the amount paid or due to be paid by workmen's compensation carrier of the employer, Al-Craft, Inc., on the grounds that this portion of the judgment should not inure to the benefit of the employer as a matter of law, for the reason that under the circumstances in this case a grossly negligent employer should not be rewarded at the expense of the defendant in this case, because such would violate the letter and intent of the workmen's compensation act and also would be against the public policy of the State of Arkansas."

That motion is without merit and seems to the Court to be an effort to revive indirectly the effort of the defendant to secure contribution or indemnity from plaintiff's employer. At an early stage of the proceedings defendant filed a third party complaint against Al-Craft which was dismissed without published opinion on motion of that corporation. There was no contract of indemnity between defendant and Al-Craft, and, as has been seen, plaintiff had no cause of action against her employer in view of her workmen's compensation coverage. In those circumstances the Court held that defendant was not entitled under Arkansas law to either indemnity or contribution. Cf. C. & L. Rural Electric Cooperative Corporaion v. Kincaid, 221 Ark. 450, 455-458, 256 S.W.2d 337; Fidelity & Casualty Co. of New York v. J. A. Jones Construction Co., 8 Cir., 325 F.2d 605, 612. In its memorandum opinion filed on June 1, 1970, the Court stated, among other things, that if the defendant is liable to the plaintiff, its liability is not diminished by the fact that the employer may have been negligent also.

The Court finds no basis whatever in the Arkansas Workmen's Compensation Act for the entry of a remittitur in this case based on what plaintiff has received or may receive in the future by way of workmen's compensation payments. Nor does the Court see how full recovery by plaintiff will in any way be of any benefit to Al-Craft.

Under Ark.Stats.Ann. § 81-1340(a), the receipt of plaintiff of workmen's compensation does not affect her right to recover full compensation from the defendant, assuming that she is entitled to recover. Under section 81-1340(b) Al-Craft's workmen's compensation insurance carrier is entitled to subrogation and is entitled to have its subrogation claim...