Tracy v. Finn Equipment Company
| Decision Date | 09 May 1961 |
| Docket Number | 14218.,No. 14217,14217 |
| Citation | 290 F.2d 498 |
| Parties | John TRACY, Plaintiff-Appellant, v. FINN EQUIPMENT COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Foster D. Arnett and Jack B. Draper, Knoxville, Tenn. (Zelenko & Elking, New York City, of counsel), for appellants.
John H. Doughty, Knoxville, Tenn. (Richard L. Carson, Knoxville, Tenn. of counsel, Hodges, Doughty and Carson, Knoxville, Tenn. on the brief), for appellee.
Before McALLISTER, Chief Judge, SIMONS, Senior Circuit Judge, and O'SULLIVAN, Circuit Judge.
Tracy was employed as a landscape laborer by Meadowbrook Nurseries, Inc., a New Jersey corporation. On September 10, 1958, he was injured while operating a mulching machine which had been purchased by Meadowbrook, a month earlier, from The Finn Equipment Company, the defendant-appellee. Tracy is a citizen of New York, Finn is an Ohio corporation having a principal place of business in Tennessee. The machine was delivered to Finn at Brooklyn, New York, where Meadowbrook was engaged in landscaping work. On the day of the accident, Tracy had been assigned, as a laborer, for two weeks, and was injured while manually clearing a blower which had been clogged but had not been disengaged. He suffered severe injuries, including the required amputation of his left hand.
Tracy sought recovery on two theories, (1) negligence on the part of Finn in the design of the machine, in that it contained a hidden or latent hazard, which was the proximate cause of his injuries and (2) breach of implied warranty of the safety of the machine for the use to which it was to be put. Finn denied negligence; denied the existence of implied warranty and asserted that if there was such warranty, it had not been breached, and, in any event, did not inure to Tracy's benefit.
Prior to the trial, Finn moved for a judgment on the pleadings or for a partial summary judgment on the claim of breach of implied warranty. The motions were overruled, the case proceeded to trial, was submitted to the jury on both the negligence and the warranty counts and a general verdict returned for Tracy which simply stated that the jury found for the plaintiff and fixed his damages at $65,000. Neither party had requested a special verdict or had submitted interrogatories. Judgment for Tracy was entered by the Court. Finn moved for judgment notwithstanding the verdict, or in the alternative for a new trial. However, the District Judge found that he had erred in submitting the implied warranty count to the jury since, upon a reexamination of the applicable law, he concluded that such warranty did not extend to a corporate employee who was not a purchaser. While he overruled the motion for judgment N.O.V., he did set aside the verdict and granted a new trial.
In response, Tracy filed a motion asking the Court to set aside its order granting a new trial or, in the alternative, that the order be modified to permit application to this court for an interlocutory appeal, pursuant to Section 1292(b), Tit. 28 U.S.C.A., based upon the breach of implied warranty so as to make possible an immediate appeal.
The parties had stipulated that the law of New York applied to the negligence phase of the litigation. The District Judge held that Ohio law applied to the implied warranty count because (under Ohio law), a warranty does not extend to a corporate employee who was not a purchaser since there was no privity between the manufacturer and an employee of the purchaser. The Court declined to set aside its order granting a new trial but did modify it in order to make possible an application for an interlocutory decree. Two appeals have, however, been perfected and are here argued. Tracy urges that the verdict should be reinstated on both counts. He asserts that while the Judge was correct in holding that Ohio law determines the implied warranty issue, he was incorrect in holding that it does not extend to Tracy. Secondly, he urges that even if Tracy's claim on the implied warranty was improperly submitted to the jury, the Tennessee statutes make it mandatory that the verdict be upheld, since there was at least one good count correctly submitted to the jury and supported by substantial evidence, namely, the negligence count, and it is this contention that we must first consider, for the...
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