Uder v. Missouri Farmers Ass'n, Inc.

• Decision Date: 26 July 1983
• Docket Number: No. WD,WD
• Citation: 668 S.W.2d 82
• Parties: James D. UDER, Administrator of the Estate of Charles David Uder, Deceased, and James D. Uder and Mary Uder, Appellants. v. MISSOURI FARMERS ASSOCIATION, INCORPORATED, and Dempster Industries, Inc., Respondents. 32478.
• Court: Missouri Court of Appeals

Page 82

668 S.W.2d 82

James D. UDER, Administrator of the Estate of Charles David Uder, Deceased, and James D. Uder and Mary Uder, Appellants. v. MISSOURI FARMERS ASSOCIATION, INCORPORATED, and Dempster Industries, Inc., Respondents.

No. WD 32478.

Missouri Court of Appeals Western District.

July 26, 1983.

Motion For Rehearing and/or Transfer to

Supreme Court Overruled and Denied

Sept. 28, 1983.

Application For Transfer Sustained

Nov. 22, 1983.

Case Retransferred May 3, 1984.

Court of Appeals Opinion Readopted

May 14, 1984.

Lynn Myers and Paul Rittershouse, Springfield, for appellants; Daniel, Clampett, Rittershouse, Dalton & Powell, Springfield, of counsel.

David W. Ansley, Springfield, for respondent Dempster Industries, Inc.; Woolsey, Fisher, Whiteaker, McDonald & Ansley, Springfield, of counsel.

Lincoln J. Knauer, Jr., and E.C. Curtis, Springfield, for respondent MFA; Farrington, Curtis, Knauer, Hart & Garrison, Springfield, of counsel.

Before SHANGLER, P.J., and PRITCHARD and DIXON, JJ.

PRITCHARD, Judge.

Plaintiffs sued both defendants for the wrongful death of their son, Charles David Uder, who lost his life by having his clothing entangled in a power take-off shield of a fertilizer spreader being used by him. It was alleged in Count I of the third amended petition that the fertilizer spreader and the power take-off shield were defective, dangerous and unsafe in that they were improperly designed and constructed, being made of plastic of insufficient strength, and the nylon bearings were insufficiently protected from contamination; it contained a split in the shield; it was improperly mounted; it was deceptive in appearance in that it gave the appearance of being able to support the weight of a normal adult when in fact it could not; it was not free floating; it was, because of defects in design, manufacture and material, unable to withstand the rugged and heavy use for which it was intended; it was unable to protect the user from injury; and it gave no warning to the user of the danger of coming into contact with the shield. Plaintiffs had dismissed Counts II and III of the petition without prejudice.

A third party claim against G & G Manufacturing Company, which manufactured a conversion kit for the power take-off shaft for the spreader, and cross-claims between Dempster and M.F.A. were ordered severed for separate trial.

Dempster had manufactured the spreader and sold it to M.F.A., which leased it to Mr. Uder and his deceased son on February 7, 1976. Plaintiffs submitted their case against both defendants upon the theory that when the spreader was sold and leased it was in a defective condition, unreasonably dangerous when put to a reasonably anticipated use. The jury verdicts were in favor of both defendants, and judgment thereon was accordingly entered by the court.

At the time the fertilizer spreader was originally purchased from Dempster, there was a metal protective shield on the power take-off shaft. M.F.A. experienced difficulty in keeping the metal shields in operating condition because of damage occurring in their use by farmers in spreading fertilizer over rough farm terrain. In 1974, Dempster sold to M.F.A. a conversion kit (manufactured by G & G to Dempster's specifications) which contained parts to raise the power take-off shaft farther away from the spreader tongue, with a new power take-off shaft with a plastic shield, the conversion kit being one unit or package as sold. This conversion kit was installed on the instant spreader by M.F.A. in August, 1974, and there was no further maintenance on the shield, nor was it removed nor the bearings changed up to February 7, 1976. From 1974 up to that time, the spreader had been rented out twenty times, with no trouble, once to the Uders on January 24, 1976.

After the two rented spreaders were pulled to the Uder farm, deceased connected an International tractor to the one with the plastic power take-off shield and went to a river bottom field to spread his load of fertilizer. After a time James Uder went down to check on his son's progress and saw that he had made three rounds on a 10 acre field, at which time the equipment was working. A little later he checked upon him again and discovered him entangled in the plastic shield of the power take-off, and determined that he was dead. After getting help, it was determined that deceased's entangled clothing, which had been stripped and bunched around his waist, was wound tightly around the front half (the female portion) of the plastic power take-off shield. Deceased was suspended from the power take-off shaft of the spreader, and was not resting on its tongue.

The plastic shield is made in two telescoping parts so that it may extend to make contact with the splines on a tractor PTO shaft. The back part is the male section which fits into the front female part. Each end has a protective bell-shaped portion of the plastic shaft which fits over a part of the universal joints at either end. Just back of the bell-shaped portions are nylon doughnut-shaped bearings which ride on the inside PTO shaft on smooth metal surfaces (the inside "race"), and on the outside race which is the plastic shield. The nylon bearings are held in place by snap rings, which must be depressed with a tool to remove the bearings.

At the time the deceased was found, the tractor was not running, its gear transmission was in neutral, but the power take-off was engaged. David Deputy, related to deceased by marriage, went to the scene with Kenneth Uder, deceased's uncle. Deputy found the deceased hung up in the machinery, the top part toward the tractor. His clothing which he helped cut away, was wrapped around the front portion of the power take-off shaft. No clothing was located to the rear of the front shield, none was below the bell of that female portion, and there was nothing in the U-joint of the tractor connection or in its locking pin. Where the wrapped-around portion of the clothing quit, there was a three-cornered tear in the plastic with a little area flap. Deputy did not see whether the back (male) portion of the shield was in place.

Kenneth Uder observed deceased's clothing wound around and four inches from the back half of the front shield. A rope was around the shaft, not around deceased's body. A pant leg was caught on a little piece of the shield that was sticking up. He could see the inside shaft through a split in the shield, but at no other place--the back shield was on the shaft.

Deceased's cousin, C.A. Uder, went to the scene after the body was removed. The PTO shaft was frozen on the shield. He grabbed hold of it and tried to turn it but it would not turn. Witnesses Sanders and Deputy both also tried to turn the shield on the date of the accident, but the shield would not turn. C.A. testified that the back half of the shield was then on the shaft, but he could not remember that fact at the time his deposition was taken 1 1/2 years prior.

Deceased's brother, James Bruce Uder, went to the accident scene after the body was removed. He examined the tractor and found the PTO locked in gear, the throttle in idle position and the transmission in neutral. Both halves of the PTO (plastic) shield were on. The shield was pretty well twisted and had some splits on it. He attempted to rotate the shield and it could be turned, but with difficulty. He had taken off the master shield on the tractor (which is above where the spreader PTO shaft connects to the tractor's spline) which deceased knew about. They discussed the danger--not to get close to the U-joint. He testified that it is easier to hook up power equipment when the tractor shield is off. Sometimes it must be driven on with a hammer.

The next day Wendell Uder, for about an hour to an hour and a half, spread the remaining fertilizer in the spreader. There is no evidence as to how the plastic shield and shaft operated at that time. Conceivably, if it was still frozen to the inner shaft, it would continue to turn therewith, and there was no evidence that the outer shield would then stop if there was some contact with it.

Plaintiffs' expert witness was L.W. Knapp, a professor at the University of Iowa. He had a Master's Degree in Agricultural Engineering, and had made studies for farm safety and power take-off accidents. He examined the instant plastic shield which looked like a wrung-out towel. [Knapp examined the power take-off shaft and shield without taking them apart. The trial court had apparently ordered that the power take-off or the power take-off shield not be dismantled or taken apart, that order being omitted from the legal file. M.F.A.'s expert, Gibson, however, apparently after the order was entered, did take the apparatus apart twice, once in M.F.A.'s counsel's office, and about a year later during Gibson's deposition while plaintiffs' counsel was present and acquiesced therein. The matter of interior inspection of the equipment is touched upon further below.] When he attempted to turn the shield, it was highly resistant. He testified that the shield is designed "to prevent injury to someone who inadvertently comes in contact with it while it is operating. The principle being that the shield is to stand still upon contact with some foreign object. * * *." The stopping motion is allowed by retainer rings, usually made of nylon, at either end of the shield.

Knapp's opinion as to what failed when deceased got caught by his wrapped around clothing on the front (female) portion of the shield was that it failed to stand still upon contact, thereby seizing in some manner clothing of the individual and removing it to the point where he was drawn into it. That failure was due to the fact that it was not able to turn free upon the front portion of the power take-off drive. The failure to turn would, in his opinion, certainly be a defect in the shield.

On cross-examination, Knapp testified the two splits in the female shield, towards...