United States Rubber Company v. Bauer

• Citation: 319 F.2d 463
• Decision Date: 26 June 1963
• Docket Number: No. 17128.,17128.
• Parties: UNITED STATES RUBBER COMPANY, Appellant, v. Eugene BAUER, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

319 F.2d 463 (1963)

UNITED STATES RUBBER COMPANY, Appellant, v. Eugene BAUER, Appellee.

No. 17128.

United States Court of Appeals Eighth Circuit.

June 26, 1963.

Russell R. Mather, of Jansonius, Fleck, Mather & Strutz, Bismarck, N. D., Walter Barthold, of Arthur, Dry, Kalish, Taylor & Wood, New York City, for appellant.

Floyd B. Sperry, Bismarck, N. D., for appellee.

Before VOGEL, BLACKMUN and RIDGE, Circuit Judges.

BLACKMUN, Circuit Judge.

Eugene Bauer, a North Dakota farmer, was injured on August 6, 1959, when the drive belt on his combine broke and struck him on the head. He instituted this diversity action against the manufacturer of the belt. By his twice amended complaint he based his suit on negligence and implied warranty.

The case was tried without a jury. The court found that the "belt and the series in which the same was manufactured, were defective" and concluded that the plaintiff was entitled to prevail because the belt "was not reasonably fit for the purpose for which it was intended and sold". There was no specific finding or conclusion as to negligence. In an accompanying unreported memorandum the court concluded that privity of contract was no longer essential under North Dakota law in order to recover for breach of implied warranty, citing North Dakota Century Code § 51-01-16, par. 1 (the Uniform Sales Act); Wood v. Advance Rumely Thresher Co., 1931, 60 N.D. 384, 234 N.W. 517; Deere & Webber Co. v. Moch, 1942, 71 N.D. 649, 3 N.W.2d 471, 139 A.L.R. 1270; State Farm Mut. Auto. Ins. Co. v. Anderson-Weber, Inc., 1951, 252 Iowa 1289, 110 N.W.2d 449; and Beck v. Spindler, 1959, 256 Minn. 543, 99 N.W.2d 670. Judgment was entered in favor of the plaintiff. The defendant has appealed.

Bauer, at the time of the accident, was about 37 years of age. He was an experienced farmer and conceded that he had "been around farm machinery all my life", except for a 4-year period, and that he was "well acquainted with farm machinery" and with "other belt drive mechanisms". He had purchased the combine new in August 1953 from a farm supply company in Beulah, North Dakota. This firm in turn had acquired it from its wholesaler at South St. Paul, Minnesota. Bauer had covered between 1500 and 2000 acres a year with the combine from 1953 through 1958 and "had good service out of it".

A belt which came as original equipment on the combine had, by August 1958, "stretched out so it would slip". Bauer bought a new replacement belt from the Beulah firm and installed it himself. He then was able to complete the remaining 20 acres of his harvesting for that year. He used the combine with the new belt for about 430 acres in 1959. He had finished his wheat and had started cutting barley. He was at this the morning of August 6 when he thought he heard noise in the machine. He stopped. He examined the combine but could find nothing wrong with it. He greased it. He did not at that time check the belt. He returned to his harvesting. In the early afternoon he was moving along at a speed slower than usual. This reduction was occasioned by the shortness of the grain and the fact the hopper was filling. The ground was fairly level and not rocky. The barley was not heavy. The belt suddenly broke and Bauer's injuries were inflicted.

The defendant raises three points on this appeal. It asserts, first, that the court's finding that the belt was defective was clearly erroneous within the meaning of Rule 52(a), F.R.Cv.P. It claims, next, that the requirement of the Rule that "the court shall find the facts specially" has not been met and the vagueness of the finding as to the condition of the belt constitutes reversible error. It argues, last, that the court's conclusion as to liability was erroneous as a matter of law because of the absence of privity of contract essential under North Dakota law for an action based on implied warranty.

It may be well at this point to recite established principles which have application here:

1. North Dakota law, of course, governs the substantive issues in this diversity case. Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188.

2. Burden of proof is "substantive". Dick v. New York Life Ins. Co., 1959, 359 U.S. 437, 446, 79 S.Ct. 921, 3 L.Ed.2d 935; Guaranty Trust Co. of N. Y. v. York, 1945, 326 U.S. 99, 109, 65 S. Ct. 1464, 89 L.Ed. 2079.

3. Under North Dakota law that burden is on the plaintiff, whether the action sounds in negligence, Stokes v. Dailey, N.D.1957, 85 N.W.2d 745, 751; Schmitt v. Northern Improvement Co., N.D.1962, 115 N.W.2d 713, 718, or in breach of warranty, Citizens' Bank v. Crane Creek Tp., 1930, 59 N.D. 604, 610, 231 N.W. 281, 283. See Jessen v. Schuneman's, Inc., 1955, 246 Minn. 13, 16, 73 N.W.2d 786, 788.

4. Of course a question of negligence or proximate cause is ordinarily for the trier of fact. Myers v. Mandan Consumers Coop. Ass'n, N.D.1958, 93 N.W.2d 51, 53; United States Fire Ins. Co. v. Milner Hotels, Inc., 8 Cir., 1958, 253 F.2d 542, 546; Greene v. Werven, 8 Cir., 1960, 275 F.2d 134, 137.

5. In the Dick case, supra, pp. 444-445 of 359 U.S., pp. 925-926 of 79 S.Ct., 3 L.Ed.2d 935, the Supreme Court specifically did not decide whether, in a diversity action, a state or a federal test of the sufficiency of the evidence is to be applied. It refrained from so doing because "both parties assumed that the North Dakota standard applied". The question has not since been resolved by that Court. We have noted its existence on more than one occasion but we, too, have not resolved it, either because litigants have assumed the state standard applied or because we concluded that the state and federal standards were substantially alike, or both. Ford Motor Co. v. Mondragon, 8 Cir., 1959, 271 F.2d 342, 345; Bennett v. Wood, 8 Cir., 1959, 271 F.2d 349, 351; Lewis v. Nelson, 8 Cir., 1960, 277 F.2d 207, 209-210; Hanson v. Ford Motor Co., 8 Cir., 1960, 278 F.2d 586, 589-590; Bankers Life & Cas. Co. v. Kirtley, 8 Cir., 1962, 307 F.2d 418, 421-422. For the same reasons we need not decide the question in this case.

6. "Negligence on the part of a defendant is never presumed merely from proof of the accident, but must be affirmatively proved." Severinson v. Nerby, N.D.1960, 105 N.W.2d 252, 255; Mischel v. Vogel, N.D.1959, 96 N.W.2d 233, 236. See Young v. Willys Motors, Inc., 8 Cir., 1959, 271 F.2d 209, 213.

7. The same is true with respect to an alleged defect in a products liability case. Rexall Drug Co. v. Nihill, 9 Cir., 1960, 276 F.2d 637 (applying California and North Dakota law).

8. This does not mean that this proof may not be supplied by circumstantial evidence. Mischel v. Vogel, supra, p. 236 of 96 N.W.2d; Farmers Home Mut. Ins. Co. v. Grand Forks Implement Co., 1952, 79 N.D. 177, 55 N.W.2d 315, 318.

9. A verdict may not rest on guess or speculation, Rexall Drug Co. v. Nihill, supra, pp. 644-645 of 276 F.2d; Meehan v. Great Northern R. Co., 1904, 13 N.D. 432, 101 N.W. 183, 186, or emerge from "equally probable" causes, Farmers Home Mut. Ins. Co. v. Grand Forks Implement Co., supra, p. 318 of 55 N.W.2d; Myers v. Mandan Consumers Coop. Ass'n, supra, p. 53 of 93 N.W.2d; Farmers Mercantile Co. v. Northern Pacific R. Co., 1914, 27 N.D. 302, 146 N.W. 550, 555.

10. In a products liability case it is not necessary that the product be perfect or accident proof. It need only be reasonably fit for the use for which it was intended. N.D. Century Code 51-01-16, par. 1; Cretors v. Troyer, 1933, 63 N.D. 231, 247 N.W. 558; Campo v. Scofield, 1950, 301 N.Y. 468, 95 N.E.2d 802, 804; Watts v. Bacon & Van Buskirk Glass Co., 1959, 18 Ill.2d 226, 231-232, 163 N.E.2d 425, 428; Hunt Truck Sales & Service, Inc. v. Omaha Standard, S.D. Ia., 1960, 187 F.Supp. 796, 802.

11. In the absence of proof of the existence of a defect a defendant may not be held liable for negligence in manufacture. Rexall Drug Co. v. Nihill, supra, p. 643 of 276 F.2d; Hofstedt v. International Harvester Co., 1959, 256 Minn. 453, 459-461, 98 N.W.2d 808, 812-813; Wojciuk v. United States Rubber Co., 1963, 19 Wis.2d 224, 120 N.W.2d 47, 52. Contrast Ford Motor Co. v. Zahn, 8 Cir., 1959, 265 F.2d 729, 731. Similarly, in the absence of such proof, a defendant may not be held responsible on the theory of implied warranty. Jessen v. Schuneman's, Inc., supra, p. 17 of 246 Minn., p. 789 of 73 N.W.2d; Frame v. Hohrman, 1949, 229 Minn. 468, 475, 39 N.W.2d 881, 885; Moore v. Hecht Co., 4 Cir., 1962, 298 F.2d 892; Superior Combustion Indus. v. Schollman Bros. Co., 8 Cir., 1959, 271 F.2d 357, 363; Rexall Drug Co. v. Nihill, supra, p. 643 of 276 F.2d; Dotson v. International Harvester Co., 1955, 365 Mo. 625, 285 S.W.2d 585, 593. See Citizens' Bank v. Crane Creek Tp., supra, p. 283 of 231 N.W.

The replacement belt in question placed in evidence by the defendant, was about 11 feet long, 2 inches wide, and 1½ inches thick. It weighed about 5 pounds. It was a type known as TXS-67. The Beulah firm where Bauer obtained the belt purchased it from the same South St. Paul wholesaler which had sold the combine. The defendant had been manufacturing the TXS-67 since 1953. The belt which came as original equipment on the combine when it was new was not manufactured by the defendant. In addition, there was evidence to the following effect:

1. The wholesaler for some years had had TXS-67 belts returned. These included belts which had been original equipment and not manufactured by this defendant.

2. The belt which injured the plaintiff was itself replaced by still another from the Beulah firm. Over the defendant's objection Bauer and another witness testified that this third belt also broke in 1959 after it had been used for 330 acres.

3. Bauer traded the combine in to the Beulah firm in 1960. That firm made no adjustments or repairs on it. It first leased and then sold it in March 1961 to another farmer in the area.

4. Richard Teske testified that since 1957 he had worked at the Beulah firm's service station; that he had...