Thiele v. Chick

• Decision Date: 04 February 1982
• Docket Number: No. 18086,18086
• Citation: 631 S.W.2d 526
• Parties: Kettenfabrik August THIELE, Appellant, v. Fred K. CHICK, Jr. et al., Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 526

631 S.W.2d 526

Kettenfabrik August THIELE, Appellant, v. Fred K. CHICK, Jr. et al., Appellee.

No. 18086.

Court of Appeals of Texas, Houston (1st Dist.).

Feb. 4, 1982.

Rehearing Denied March 11, 1982.

Don Weitinger, Weitinger, Steelhammer & Tucker, Percy L. Wayne Isgitt, Isgitt & Associates, Houston, for appellant.

Riddle & Allen, Bill Allen, Houston, for appellee.

Before BASS, SMITH and DYESS, JJ.

BASS, Justice.

This is a products liability case.

On November 10, 1980, the court granted a motion for partial summary judgment by August Thiele and Kulkoni, Inc., that Ethel Chick take nothing individually because Mrs. Chick's cause of action was barred by the two-year statute of limitations. The cause of action by an adult survivor, Carrie Tiemann, was held barred by the statute of limitations.

On January 27, 1981, this cause came before a jury; the plaintiffs were Fred Kennedy Chick, Jr., Anna Ruth Chick and Linda Sue Chick, minors, represented by Mrs. Ethel Chick. The defendants were Kulkoni, Inc. and August Thiele.

The following evidence was received:

1) The deposition of Officer C. L. Taylor, a traffic reconstruction expert who investigated the scene of the accident, was admitted. There was no eyewitness to the accident; the officer spoke with a man who had been driving along side Mr. Chick's truck just prior to the accident and who said that both trucks were doing about 30 mph. This man had pulled into a nearby service station as Chick's truck proceeded around the curve and overturned; when he pulled into the station he heard a loud pop and a rattling sound.

2) The deposition of Dr. Alvin D. Thomas, Jr., Technical Director of the Failure Analysis Laboratory for the Radian Corporation, a metallurgical engineer, who was asked to perform tests upon a load boomer by Dr. Thomas S. Mackey. He filed a report with Dr. Mackey.

3) The deposition of Dr. Thomas S. Mackey, the President of Key Metals and Minerals Engineering Corporation, a consulting engineering company, who is a metallurgical engineer. Mackey identified a load boomer he received from the plaintiff's attorney; one unit was intact, and the other had a separated hook.

After reading the Radian Corporation report, Dr. Mackey concluded that the load binder had both design and manufacturing defects in the socket and in the ball. The ball was "out of round" and pulled out of the socket. The tolerances that were measured by Radian Corporation were such that the original design made it difficult to produce a uniform, concerted load binder that would not be out of round in the socket and would not be out of round in the ball. In his opinion, the defect in the ball and socket existed before the accident. He testified that this boomer was bound to fail and that the faulty manufacture was a producing cause of the accident.

4) The testimony of Mr. E. E. Bollinger, Chief Dispatcher and Terminal Manager for Woodard Trucking. He testified that Mr. Chick's truck should have weighed between 26,000 and 27,000 pounds and that his load was between 40,000 and 42,000 pounds. The policy of Woodard was to have at least four chains on this type of load, and he felt that the other chains were lost at the scene of the accident.

5) The testimony of Dr. Rex McLellan, Professor of Material Science at Rice University, with a degree in metallurgy. He testified that he performed metal structure tests of the boomer that failed and of a new boomer supplied by Thiele. McLellan concluded that the metal was not fatigued and that it had been torn by mechanical overloading. The boomer had a working load limit of about 8,000 pounds and a proof load limit of about 16,400 pounds. He found no great malformation in the ball.

6) The testimony of Mr. Joe Bob Duncan, a fellow trucker who observed Mr. Chick's load on the day of the accident, testified that he saw four chains on the truck.

7) The testimony of Mr. George Greene, Jr., a consulting mechanical engineer. He testified that he ran microscopic tests on the boomer and relied upon a previous metallurgical report for some of his findings; that he found no metallurgical problems with the steel; that he felt it was important for the manufacturer to notify consumers as to the load capacity of the boomer; that this was a defective design for a boomer; and that a boomer should last longer than this one, which was manufactured sometime between 1968 and 1972, did.

A letter written by Mr. Greene to Mr. Greg Laughlin, attorney, was admitted. The letter stated that:

failure of the ball socket ... is imminent with usage. The design is such that no warning is apparent of an impending failure. The subject load binder is defectively designed and unreasonably dangerous to the user while being utilized in its intended manner.

8) The deposition of Douglas Muster, Professor of Engineering at the University of Houston, was suppressed as to the appellant, Thiele, and applied only to Kulkoni. Muster testified that the boomer failed as a result of its faulty design and production.

9) The testimony of Ernest Craig, general manager for Triangle Transportation Company, was admitted. He was a truck driver in 1973 and for a total of eight years. He testified that an experienced truck driver can earn between twenty and thirty-five thousand dollars income per year.

10) The testimony of Mrs. Ethel Chick, widow of the deceased, confirmed that the deceased's salary was $200 per week and that he was in excellent health. "He was family-oriented. He liked ... to get together to go places, do things, go visit family, take the kids on trips. He hoped to buy a home for the family and to send the children to college." The son has been affected psychologically by his father's death. His school grades have deteriorated, and his mind wanders.

11) Freddie Chick, Jr., the deceased's son, age 11, testified that he remembers all the nice things he used to do with his dad.

The court granted appellant Thiele's motion that the court take judicial notice of the rules and regulations of the Federal Highway Administration, Department of Transportation, including Motor Carrier Safety Regulations, 49 C.F.R. § 313.85 (1972). Appellee argued they did not have proper notice of this evidence. The judge took notice of the regulation under the condition that it not be submitted to the jury. The regulation apparently requires more boomers per load weight than was on Mr. Chick's truck.

The plaintiffs, Freddie Chick, Jr. and Anna Ruth Chick, through their guardian and attorney ad litem, and the defendants, August Thiele and Kulkoni, entered into a damage limitation agreement. This agreement was read to the judge in open court. The court approved the agreement.

The case was submitted to the jury in the form of nine special issues. Before submission, the appellee objected to Issues No. 7 and No. 8 on the grounds that there was no evidence to support the issues and because an affirmative finding as to these issues would not prove a breach of any duty by the decedent to the appellant. The objections were overruled. The appellant, August Thiele, objected to Special Issues No. 1, No. 2, No. 3, No. 4, No. 5, No. 6, and No. 9 because there was no evidence and/or insufficient evidence to support affirmative findings. Thiele asserted also that there were no pleadings to support No. 1, No. 2, No. 5 and No. 6. These objections were overruled.

The jury found that the boomer was not defectively designed but that it was defectively manufactured by Thiele. It found that the defective manufacture was "a producing cause of the wreck" in which Fred Chick was killed. It did not find that the boomer was defective because of failure of the manufacturer to warn the user of the load capacity of the boomer. It found that two load binders were used to secure Mr. Chick's load, but that the use of two load binders was not a producing cause of his accident. The jury awarded $200,000 to Fred K. Chick, Jr. and $225,000 to Anna Ruth Chick.

Appellant, Thiele, filed a motion for judgment "non obstante verdicto" and, alternatively, a motion to disregard special issues and for additional findings. Thiele's bases for these motions were that the evidence was insufficient to sustain the verdict and that the jury's findings were incomplete. The appellee filed a motion for judgment on the verdict.

At the hearing on the appellee's motion for judgment the attorneys for both sides testified as to the damage limitation agreement and as to Thiele's alleged repudiation of the agreement. The appellees stated that they had been willing to settle according to the agreement. Thiele's attorney testified that he had not been instructed by Thiele to pay the settlement amount. "My instructions are to proceed with the Motion for judgment n. o. v., and to ... proceed with possible appeal, if indeed such an appeal is warranted."

In the final judgment the court overruled Thiele's motions. The court found that Thiele had renounced and repudiated the damage limitation agreement. The court further ordered that Kulkoni, Inc. recover by way of indemnity against Thiele.

Both Thiele and Kulkoni filed motions for a new trial which were overruled. August Thiele has prosecuted this appeal.

The appellant has fifteen points of error. The first ten points deal with the sufficiency of the evidence: The appellees, Fred Chick, Jr. and Anna Ruth Chick, reply to the appellant's first nine points with three reply points.

The evidence for both sides in this case has been shown so as to dispense with the necessity of discussing the sufficiency of the evidence. The evidence was sufficient: to support the overruling of the appellant's motion j. n. o. v.; to overrule the motion to disregard the jury's findings on special issues; to support the overruling of the appellant's objections to the court's charge; to support the jury's finding that the boomer was defectively manufactured, and that the boomer was the producing cause of the accident; and...