Texas Bitulithic Co. v. Caterpillar Tractor Co.

• Citation: 357 S.W.2d 406
• Decision Date: 06 April 1962
• Docket Number: No. 15997,15997
• Parties: TEXAS BITULITHIC COMPANY, Appellant, v. CATERPILLAR TRACTOR COMPANY, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 406

357 S.W.2d 406

TEXAS BITULITHIC COMPANY, Appellant, v. CATERPILLAR TRACTOR COMPANY, Appellee.

No. 15997.

Court of Civil Appeals of Texas, Dallas.

April 6, 1962.

Rehearing Denied May 11, 1962.

Brundidge, Fountain, Elliott & Bateman, Harold A. Bateman, Dallas, for appellant.

Malone, Seay & Gwinn, Robert A. Gwinn, Dallas, for appellee.

DIXON, Chief Justice.

This is an appeal from a summary judgment in favor of a third party defendant, Caterpillar Tractor Company, appellee here. The suit seeks to hold appellee liable for breach of warranty and negligence in the design and manufacture of a large, heavy piece of equipment known as a maintainer.

The litigation originated when plaintiff Ange Lee Roe, widow of John Roe, Sr. deceased, and Alonzo Odom, Guardian of the six minor children of Ange Lee Roe and John Roe Sr., sued appellant Texas Bitulithic Company for damages for the wrongful death of John Roe, Sr. The deceased was killed when he was run over by a No. 12 Maintainer, operated at the time by an employee of appellant.

Appellant Texas Bitulithic Company, impleaded Caterpillar Tractor Company, manufacturer of the maintainer, as a third party defendant, praying for judgment over against appellee in the event judgment should be rendered in favor of plaintiffs against appellant.

Appellee as third party defendant answered denying any breach of warranty, denying any negligence in the design and manufacture of the maintainer, and alleging that there had been no contractual relations between appellant and appellee. Appellee also pled the defense of volenti non fit injuria and incurred risk.

Appellee filed a motion for summary judgment. The motion was sustained. A judgment was entered in favor of appellee that appellant take nothing by its third party action. Later the cause of action of Ange Lee Roe and Alonzo Odom, Guardian, against appellant Texas Bitulithic Company was settled for $21,000, thus disposing of all parties to the litigation. In the final judgment it was stipulated that appellant by its settlement with the original plaintiffs did not waive its action against appellee as third party defendant. This appeal involves only summary judgment in favor of appellee.

FACTS

The evidence in this case consists of the answers of appellee to requests for admissions, and the depositions of several witnesses.

The physical facts are established by uncontradicted evidence. If there are any fact issues they must rest on inferences to be drawn from the established physical facts. However, the contentions of the parties call for a somewhat detailed statement of the facts.

The accident occurred December 9, 1959. The maintainer which was being operated by Eugene Hanks, appellant's employee, was being used to level out earth in connection with 'back filling a curb' in a new industrial real estate development which was being laid out. The machine was being operated backward and forward to utilize a large blade in the middle and under part of the machine. The blade is 12 feet long and 18 inches high. It can be placed in various positions. It can be put into a position straight across, or slanting, or parallel with the maintainer. It can be raised or lowered.

On the occasion in question Hanks had placed the blade in a slanting position from front to rear. He had also elevated the blade so that it would go over a concrete curb. While in this position, which was a somewhat unusual but not an abnormal position, the blade was so placed as to block the throttle. The machine was so designed. This fact was unknown to Hanks.

The deceased, John Roe Sr., was digging a small excavation about three feet square and two feet deep which was to serve as an inlet beneath the curb for the drainage of water. Hanks was backing the maintainer toward the place where Roe was working. When about ten or fifteen feet away he tried to stop the machine. He attempted to release the throttle and apply foot brake, but the throttle was blocked by the blade. The maintainer continued on its path despite Hanks' efforts to stop. It ran into and over the body of Roe, killing him.

The maintainer had been manufactured in the year 1948 by Caterpillar Tractor Company. It had been sold that year to a purchaser named Skinner, a contractor in Austin, Texas. Some time thereafter the machine came into the possession of R. B. George Equipment Company. The latter Company sold the machine on or about January 9, 1953 to appellant Texas Bitulithic Company. There was no privity of contract between the latter company and the Caterpillar Tractor Company.

Texas Bitulithic Company maintains a central machine shop as well as field mechanics for the maintenance and repair of its equipment. This maintainer had been repaired several times. It had been taken apart and reassembled at times in the course of being repaired and maintained, but its design had not been changed.

Hanks, 24 years of age, the operator of the machine testified that no one had told him or warned him that the throttle would be blocked when the blade was raised to a certain elevation in a certain position. He did not know it. He had been employed by appellant as a maintainer operator a little over a year.

Lloyd Chapman, supervisor and general foreman over Hanks, had been employed by appellant over eight years. He gave Hanks instructions about being cautious. He knew the machine was so designed and constructed that the throttle would be blocked when the blade was placed in the position where Hanks had placed it. It had happened to him one time several years before. He did not inform Hanks or warn him about it at safety meetings or elsewhere.

Wilson Byers, foreman over Hanks, had been employed since 1949 by appellant except for a term in the military service. He had been four years a foreman. He did not know that the blade in a certain position would block the clutch. Regular safety meetings were held but the matter had never been mentioned at a safety meeting.

Jack Dunn, foreman for five years and former maintainer operator, knew that the blade if placed in a certain position would block the clutch. It had happened twice to him while he was operating a maintainer of the same model. Regular safety lectures were given to appellant's employees, but no instructions or warning had ever been given to the employees in regard to the blade's blocking the clutch when in a certain position.

J. T. Williams, Jr. field mechanic, employee of appellant 19 years, knew that the blade could be put in position where it would block the throttle. He had repaired the machine, putting in clutches. After this accident appellant's mechanics installed a safety device, a bar, on all its maintainers so that the blade cannot now be raised high enough to block the clutches on the machines.

OPINION

Appellant's action is based on its claim that appellee was negligent in the manner of planning or designing the No. 12 Maintainer. It is not contended that there was any failure, malfunction or breakage of any part of the machine.

Appellant's first three points on appeal allege in substance that the court erred in rendering the summary judgment because there were controverted issues of fact as to negligence and proximate cause (1) in so designing the maintainer that the blade thereon could be placed in a position where it would be impossible to depress the clutch pedal and thus disengage the clutch and place the gears in a neutral position while attempting to stop the machine by the use of the brakes; (2) in manufacturing and placing on the market the maintainer designed as above stated; and (3) in failing to install a metal bar across and in front of the clutch pedal to prevent the blade from blocking the clutch pedal.

The law pertaining to the liability of a manufacturer for injuries suffered by third parties not in privity of contract with the manufacturer has undergone great changes over the years. Originally it was held that a manufacturer under such circumstances was not liable for its negligence in the manufacturing and marketing of its product. Later the manufacturer was held liable for its negligence in the manufacture of articles inherently dangerous and destructive, such as poisons, explosives and weapons. Still later liability was extended to include articles not inherently dangerous, but which due to a defect in materials or workmanship, became imminently dangerous when used for the purpose for which they were intended. And in comparatively recent years liability has been still further extended to include articles which are not defective as to the quality of materials or workmanship, but are so designed that they are dangerous when used for their intended purpose by persons who are not aware of the danger in the design.

Space will permit us to name only a few of the numerous authorities through whom this expanded liability may be traced and studied. Flies v. Fox Bros. Buick Co., 196 Wis. 196, 218 N.W. 855, 857, 60 A.L.R. 357; MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050; Smith v. Atco Co., 6 Wis.2d 371, 94 N.W.2d 697. The subject is discussed with annotations in 65 C.J.S. Negligence Sec. 100, p. 618-638; 46 Am.Jur. Sec. 812, page 61 of 1961 Cumulative supplement; 39 A.L.R. 992-994; 74 A.L.R.2d 1111.

We believe that a correct statement of the present rule pertaining to a manufacturer's liability is to be found in 'Restatement of the Law of Torts' Sec. 395, p. 1073, and Sec. 398, p. 1084. We quote Sec. 398:

'A manufacturer of a chattel made under a plan or design...