O. S. Stapley Co. v. Miller, 1

• Decision Date: 27 July 1967
• Docket Number: No. 1,CA-CIV,1
• Citation: 6 Ariz.App. 122,430 P.2d 701
• Parties: O. S. STAPLEY COMPANY, an Arizona corporation, Seth Smith Boat Works, Inc., an Arizona corporation, American Chain and Cable Company, a New York corporation, Appellants and Cross-Appellees, v. Elizabeth (Hartzell) MILLER, a/k/a Elizabeth Miller Proulx, Appellee and Cross-Appellant, and O. S. Stapley, an Arizona corporation, Seth Smith Boat Works, Inc., an Arizona corporation, American Chain and Cable Company, a New York corporation, Appellees and Cross-Appellants. 300.
• Court: Arizona Court of Appeals

Page 701

430 P.2d 701

6 Ariz.App. 122

O. S. STAPLEY COMPANY, an Arizona corporation, Seth Smith Boat Works, Inc., an Arizona corporation, American Chain and Cable Company, a New York corporation, Appellants and Cross-Appellees, v. Elizabeth (Hartzell) MILLER, a/k/a Elizabeth Miller Proulx, Appellee and Cross-Appellant, and O. S. Stapley, an Arizona corporation, Seth Smith Boat Works, Inc., an Arizona corporation, American Chain and Cable Company, a New York corporation, Appellees and Cross-Appellants.

No. 1 CA-CIV 300.

Court of Appeals of Arizona.

July 27, 1967.

Rehearing Denied Sept. 1, 1967.

Review Denied Oct. 17, 1967.

On Reconsideration, Review Granted Oct. 31, 1967.

Fennemore, Craig, Allen & McClennen, by Philip E. von Ammon and Linwood Perkins, Jr., Phoenix, for appellant American Chain & Cable Co.

Snell & Wilmer, by Arthur P. Greenfield and Roger W. Perry, Phoenix, for appellant-appellee O. S. Stapley Co.

Moore, Romley, Kaplan, Robbins & Green, by Robert H. Green and Kenneth J. Sherk, Phoenix, for appellant-appellee Seth Smith Boat Works, Inc.

Langerman, Begam & Lewis, by Samuel Langerman and Robert D. Myers, Phoenix, for Elizabeth Miller Proulx, appellee and cross-appellant.

CAMERON, Chief Judge.

This is a 'products liability' or 'strict tort liability' case in which the plaintiff brought suit against the manufacturer, seller, and installer of a steering mechanism for a boat and outboard motor. The plaintiff also brought suit against Leo Villalpondo, the driver of the boat, at the time she was injured, but her claim against the said driver was settled prior to trial and is not a part of this appeal.

Trial was held before a jury and at the conclusion of all evidence the court directed a verdict on the issue of liability for the plaintiff against all three defendants, and granted the motion of O. S. Stapley for judgment over against Seth Smith and granted the motions of Seth Smith and O. S. Stapley Company for judgment over against defendant American Chain and Cable Company. Judgment was rendered by the jury in the amount of $175,000. Defendant American Chain appeals the granting of the motion for directed verdict and the granting of the motions for judgment over against American Chain. American Chain also appeals from the refusal of the court to submit the issue of contributory negligence to the jury. Defendants O. S. Stapley and Seth Smith had cross-claimed against American Chain and after judgment filed a statement of costs against American Chain. From the order of the court sustaining American Chain's objection to part of the costs O. S. Stapley and Seth Smith appeal.

We are called upon to determine:

1. Whether the doctrine of 'products liability' or 'strict tort liability' applies in the State of Arizona and, if so, in the instant case.

2. Whether the court erred in granting the motions of the seller and installer for judgment over against the manufacturer.

3. Whether the doctrine of contributory negligence applies in a products liability case.

4. Whether the court erred in sustaining American Chain's objection to the statement of costs of Seth Smith and O. S. Stapley.

Our Supreme Court has stated:

'It is well settled that upon appeal from a directed verdict, the evidence will be viewed in the light most favorable to the appellant; whatever competent evidence appellants have introduced, including all inferences that can be reasonably drawn therefrom, is assumed to be true; and if the evidence is of such character that reasonable minds may differ on the inferences to be drawn therefrom, the case must be submitted to the jury. Sturm v. Heim, 95 Ariz. 300, 389 P.2d 702.' Heth v. Del Webb's Highway Inn, 102 Ariz. 330, 429 P.2d 442, filed 22 June 1967.

The facts viewed in the light indicated by our Supreme Court are as follows. In March of 1960 one Harry Hartzell purchased from the O. S. Stapley Company a Glasspar G-3 boat hull. Although the testimony of Robert B. Stapley, the employee of O. S. Stapley Company, was to the effect that the recommended horsepower limitation on the boat purchased was a maximum of 60 horsepower, the purchaser Harry Hartzell insisted upon putting a 75 horsepower outboard motor on the hull. The testimony indicates that both Johnson and Evinrude had, in the fall of 1959, brought on the market a new 75 horsepower outboard motor. The maximum horsepower motor produced by Evinrude or Johnson prior to this time had been 50 horsepower.

Robert Stapley and Harry Hartzell then went to defendant Seth Smith Boat Works, Inc. and purchased a SteerMaster guidance assembly and Number RCA 116 Tiller Kit. The SteerMaster and the RCA 116 Tiller Kit was and is manufactured by the defendant American Chain. The SteerMaster Tiller Kit number RCA 116, upon its envelope, indicates that it is manufactured for a Johnson or Evinrude 35 horsepower or 50 horsepower motor and the instructions in the kit indicate different attaching points when a 35 horsepower motor or 50 horsepower motor is used. Robert Stapley and Harry Hartzell modified the RCA 116 Tiller Kit so that it could be used with the 75 horsepower motor.

The SteerMaster unit is designed to turn the outboard motor which is placed at the rear of the hull so that the motor acts as a rudder for the boat. Because it is necessary at times to tip the outboard motor to a horizontal position, as for example when the boat is being pulled on a trailer or because it strikes an object in the water, the motor itself is connected to the steering unit by means of an item (in the tiller kit) called a 'quick-disconnect'. This is a ball and socket joint held in place by a sleeve under pressure of a coiled spring. Whenever the motor must be tipped the sleeve is pushed back against the spring and the ball comes out of the socket. The quick-disconnect unit in question had a socket which was drilled completely through so that the socket was a hole rather than a socket itself. The testimony of the representative of American Chain was to the effect that this was done sometime after the quick-disconnect unit left the manufacturer and was not done by American Chain.

In April of 1960 with the use of the then new 75 horsepower Johnson or Evinrude motor American Chain marketed an RCA 188 and RCA 191 SteerMaster Tiller Kit. The testimony was to the effect that the RCA 188 was the tiller kit designed by American Chain for a Johnson or Evinrude 75 horsepower motor and that the RCA 191 was a modification to be used with the 116 Tiller Kit in modifying the SteerMaster unit for use with a 75 horsepower motor. Although the testimony is ample that Mr. Smith of Seth Smith Boat Works, Inc. knew that Hartzell was using a 75 horsepower motor with an RCA 116 Tiller Kit, no effort was made in April, 1960, to notify or contact Mr. Hartzell of the new kit.

Robert Stapley physically altered the transom clamp and bracket in order to make the steering work properly. Hartzell and Stapley tested the boat on several occasions, and after delivery to Hartzell the boat was used for water-skiing in and around the Phoenix area on several occasions with no problem or malfunction. When waterskiing, the tow line (or lines) was attached by way of a 'bridle' to the end or rear of the boat hull on both sides of the outboard motor. The bridle joined behind the motor and the lines were so attached that they not only touched the motor housing during operation but could come into contact with the 'quick-disconnect unit'.

On 22 August 1960 Hartzell, defendant Villalpondo, plaintiff, and others were water-skiing on a lake near Phoenix. The plaintiff was seated on the dash or front deck of the boat in which position the defendant, Villalpondo, testified:

'Q It's your testimony, however, you did suggest she remove herself from the position which she occupied?

'A Yes, sir.

'Q That was not a safe position, was it?

'A No, I don't believe it was.

'Q In your judgment, she would have been well advised to have settled herself in the seat, isn't that right?

'A Yes, sir.

'Q I fact, there was room where she could have settled herself in the seat; is that not right?

'A Yes, sir, there was.'

The boat and skiiers had been in operation for about an hour when the accident occurred. The boat was going ahead at about 25 miles per hour. The boat suddenly swerved, the plaintiff fell from the boat, and the propeller cut and seriously injured the plaintiff's foot. After the accident it was observed that the 'quick-disconnect' was disconnected which would have allowed the motor to suddenly turn and swerve the boat. The testimony of the expert for the plaintiff was that the probable cause of the disconnection and the accident was the ski bridle tow coming in contact with the quick-disconnect link. The expert also testified under cross-examination:

'By Mr. Beshears

'Q Mr. Blewett, as I understand it, then, in this extension which is provided by American Chain and Cable Company in their 191 and 188 Miller Kits, if that had been inserted on the boat, then the accident could not have happened merely by virtue of the skiiers being pulled, is that right?

'A Yes, sir. Under the hypothetical conditions given me, and assuming other thigns being equal, that's absolutely true.

'Q By virtue of the fact that that extension was not put on the connection, according to your opinion the accident was enabled to happen, is that right, sir?

'A Well, working back the other way, I would have to say yes.'

The trial court denied the defendants' request for instructions on contributory negligence, directed a verdict as to liability for the plaintiff against all three defendants, and granted the defendant Seth Smith and O. S. Stapley Company's motion for judgment over against American Chain for any judgment returned. The court, after the jury verdict, sustained American Chain's objection to the statement of costs filed by Seth Smith and O. S. Stapley Company against American Chain, and all parties except the plaintiff appealed.

DOES...