Verhein v. South Bend Lathe, Inc., Civ. A. No. 76-C-273.

• Decision Date: 19 April 1978
• Docket Number: Civ. A. No. 76-C-273.
• Citation: 448 F. Supp. 259
• Parties: Dennis VERHEIN and Rose Verhein, Plaintiffs, v. SOUTH BEND LATHE, INC., a Foreign Corporation, and Travelers Indemnity Insurance Company, a Foreign Insurance Corporation, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

448 F. Supp. 259

Dennis VERHEIN and Rose Verhein, Plaintiffs, v. SOUTH BEND LATHE, INC., a Foreign Corporation, and Travelers Indemnity Insurance Company, a Foreign Insurance Corporation, Defendants.

Civ. A. No. 76-C-273.

United States District Court, E. D. Wisconsin.

April 19, 1978.

Edward Rudolph, Elm Grove, Wis., for plaintiffs.

Donald H. Carlson, Milwaukee, Wis., for defendants.

DECISION AND ORDER

REYNOLDS, Chief Judge.

Before the Court is the motion of the defendant manufacturer and its insurance company for summary judgment against the plaintiffs, and the motions of the plaintiffs to add a party defendant and to file an amended complaint. The defendants' motion is granted and the plaintiffs' motions are denied.

In their complaint, the plaintiff Dennis Verhein ("Dennis") and his wife Rose Verhein allege that Dennis was injured while operating an industrial punch press machine manufactured and sold by the defendant manufacturer to the said plaintiff's employer. The charge is that the machine was unreasonably dangerous for ordinary use. These allegations are denied by the defendant manufacturer and its insurer who contend in their motion for summary judgment and affidavit in support thereof that the machine which allegedly injured Dennis was actually made and sold by a different corporation, the Bontrager Corporation, which sold its assets, including those used to manufacture punch presses, to AMSTED Industries, Inc., one year after the machine which allegedly injured the plaintiff Dennis was sold to said plaintiff's employer. Some years later on June 30, 1975, AMSTED Industries, Inc., sold certain assets to Southbend Lathe, Inc., which assets may have included some of the punch press manufacturing assets.

By these allegations in its motion, the defendant manufacturer and its insurer are attempting to establish that the defendant manufacturer had nothing to do with the manufacture of the allegedly defective machine. The position of the defendants is that some other corporation was the maker of the machine and that the defendant manufacturer's only connection with that other corporation arises from the fact that at some time later it acquired some of the other corporation's assets, including some of the machinery used in making the punch press machines. The plaintiffs have not contradicted the defendant's affidavit, stating that the allegedly defective machine was made and sold by Bontrager Corporation, and the defendant manufacturer is correct in its assertion that as a matter of law it cannot be liable to the plaintiffs if its sole connection with the corporation making the machine is through the purchase of some productive assets. Forest Laboratories Inc. v. The Pillsbury Company, 452 F.2d 621 (7th Cir. 1971). Therefore, the defendants are entitled to summary judgment unless the plaintiffs have alleged some other basis under which the defendants may yet be liable.

No such other basis of liability is asserted by the plaintiffs against the defendants by way of pleadings or affidavits submitted by the plaintiffs. Instead, the plaintiffs have attempted to argue, without factual foundation, that the defendant manufacturer, AMSTED Industries, Inc., and the Bontrager Corporation are somehow so interrelated as to render the defendants liable for the actions of the Bontrager Corporation, the undisputed manufacturer of the allegedly defective machine. However, the plaintiffs have alleged no facts by way of pleadings or affidavits that tend to establish such a degree of...