Vroman v. Sears, Roebuck & Co.

• Decision Date: 24 January 1968
• Docket Number: No. 17216.,17216.
• Citation: 387 F.2d 732
• Parties: Donald VROMAN, a Minor, by James R. Vroman, his next friend, Plaintiff-Appellee, v. SEARS, ROEBUCK & CO. and George D. Roper Corporation, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

387 F.2d 732 (1967)

Donald VROMAN, a Minor, by James R. Vroman, his next friend, Plaintiff-Appellee, v. SEARS, ROEBUCK & CO. and George D. Roper Corporation, Defendants-Appellants.

No. 17216.

United States Court of Appeals Sixth Circuit.

November 24, 1967.

Rehearing Denied January 24, 1968.

Louis A. Lehr, Chicago, Ill., for appellants, George E. Bushnell, Jr., Gilbert E. Gove, Miller, Canfield, Paddock & Stone, Detroit, Mich., Arnstein, Gluck, Weitzenfeld & Minow, Chicago, Ill., on brief.

Philip C. Kelly, Jackson, Mich., for appellee, Kelly, Kelly & Kelly, Jackson, Mich., on brief.

Before EDWARDS, CELEBREZZE and PECK, Circuit Judges.

JOHN W. PECK, Circuit Judge.

This action was brought by the plaintiff-appellee to recover damages for personal injuries suffered by him when in the operation of a gasoline powered rotary lawn mower. The mower had been sold by defendant-appellant Sears, Roebuck & Co. under its trade name "Craftsman," and had been manufactured by its wholly owned subsidiary, the defendant-appellant George D. Roper Corporation. The parties will herein be referred to as they were in the trial court, and the corporations as "Sears" and "Roper" respectively.

At the time of the occurrence giving rise to this action, the then seven year and two months old plaintiff was operating a mower which had been purchased almost exactly three years earlier from Sears by his grandfather. Some months prior to the accident, the grandfather gave the lawn mower to plaintiff's uncle, who operated a gasoline service station at Homer, Michigan. Plaintiff was cutting grass at this service station when he suffered the injury complained of. The lawn mower was not self-propelled, and moved only when and to the extent that it was pushed by the operator. It is conceded by the parties and here determined that the law of Michigan is applicable. This obviates the need for discussion of the lack of privity of contract between the plaintiff and the defendants, which might elsewhere have been urged as a defense. Bahlman v. Hudson Motor Car Co., 290 Mich. 683, 288 N.W. 309 (1939); Bosch v. Damm, 296 Mich. 522, 296 N.W. 669 (1941); Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich. 120, 90 N. W.2d 873 (1958); Comstock v. General Motors Corp., 358 Mich. 163, 99 N.W.2d 627 (1959); Manzoni v. Detroit Coca-Cola Bottling Company, 363 Mich. 235, 109 N.W.2d 918 (1961); Hill v. Harbor Steel & Supply Corp., 374 Mich. 194, 132 N.W.2d 54 (1965); Piercefield v. Remington Arms Co., Inc., 375 Mich. 85, 133 N.W.2d 129 (1965).

The evidence establishes that the mower was operated over a ball of wire, and that a piece of the wire entered the left eye of the plaintiff, resulting in permanent loss of sight in that eye. The roll or ball of wire was received in evidence, and unrebutted testimony established that a bit of wire of similar nature was removed from plaintiff's eye. The wire is a fine copper wire of the general type used in winding small transformers or armatures. While there is some testimony indicating that at the time of the accident it was in a loose roll about the size of a basketball, in size it now more nearly resembles a small, flat skein of knitting yarn.

Trial of the cause to a jury resulted in a verdict for plaintiff in the amount of $75,000 and this appeal has been perfected from the judgment entered thereon. The parties are in agreement as to the questions presented by the appeal, the first of which is whether the District Court erred in submitting the issue of alleged negligence to the jury. Such alleged negligence related, first, to Sears's failure to warn that foreign objects could be expelled from the mower's discharge chute and, second, to the alleged improper design of the machine.

In support of its contention that no warning was given, plaintiff first offered and there were received in evidence copies of four Sears's advertisements which appeared in Detroit newspapers of identical or similar lawn mowers which contained no warnings of any kind. However, these were received in evidence without any showing that plaintiff's grandfather (the purchaser of the mower here in question) ever saw any such advertisement and the objection to their introduction was well taken. Without relying on this further circumstance as a ground for such exclusion, it is observed that a newspaper advertisement setting forth the possible dangers to users of the product sought to be sold would be unique. However, a failure to warn was established separately by the grandfather, who testified that no warning was given him at the time of purchase and that the mower was not accompanied by any instructions or safety rules other than the verbal instructions of the salesman as to how to start and stop it.

The grandfather further testified that when the mower was in operation "you wouldn't want to get hit with anything that was underneath it coming out of the discharge chute." He testified that when he turned the mower over to his son he told him of this danger, and that the son knew of it "because he had run a mower before. * * *" The record then establishes that that son (plaintiff's uncle) and plaintiff's parents discussed his using the mower to cut grass "to earn a little extra money," and that they "instructed him on the general use of the lawn mower and, of course, told him to stay away from the discharge chute and showed him how to push it." The uncle and the parents both together and separately instructed the plaintiff in the mower's operation, it being recognized that such operation was "dangerous, everyone knows that." Plaintiff's uncle further testified as follows:

"A. We watched him, I know, the first time he used it, you know, to get him started, and he seemed to be able to manage it all right.

"Q. Now, when you were telling him these things, did you tell him when he was in the station or at your house or at his folks house or did you show him —

"A. We demonstrated to him on the lawnmower.

"Q. That is it. Thank you. It takes me a long time to get the question out but that is it. You demonstrated it to him on the lawnmower?

"A. Yes, that is right.

"Q. Will you step down, sir, with this lawnmower and show the ladies and gentlemen of the jury and the rest of us — let me turn it around so that you are full face — where you told Donald to stand when he was operating it?

"A. Stand behind the lawnmower so that you don\'t get hit from anything coming out of the exhaust chute or discharge chute."

In the light of this testimony and the record as a whole it is clear that the plaintiff himself, his grandfather (who purchased the mower), his parents and the uncle under whose direction he was ostensibly working when injured all knew of the danger existing by reason of the possible projection of foreign objects from the discharge chute, and any additional warning given to any or all of them would have been merely cumulative and thus without legal significance. See Morrocco v. Northwest Engineering Co., 310 F.2d 809, 810 (6th Cir. 1962); Sawyer v. Pine Oil Sales Co., 155 F.2d 855 (5th Cir. 1946); Hobart v. Sohio Petroleum Company, 255 F.Supp. 972 (N.D.Miss.1966); Pedroli v. Russell, 157 Cal.App.2d 281, 320 P.2d 873, 876 (1958). Plaintiff offers no clue as to the manner in which a warning to his grandfather of a danger already known to him three years prior to the occurrence in controversy could have been a proximate cause thereof, and we hold that it could not.

Had the court's instructions to the jury been inconsistent with this conclusion they would have been prejudicially erroneous, but such is not the case. On the contrary, the court's charge included the following:

"You are instructed that there is no duty to warn a person of a danger in the operation of a product when such danger is already known to the user.

"Therefore, even though you find there was a danger present in the operation of the lawn mower involved in this action, which danger caused an injury to the plaintiff, I charge you that there was no duty on the part of defendants to warn of this danger, and I charge you that you may not find any liability based upon the defendants\' failure to warn plaintiff, if you find that such danger was already known to the plaintiff herein."

As has been indicated, the record affirmatively discloses that plaintiff's older relatives had pre-existing knowledge of the danger, and that this seven year and two months old boy also had such knowledge. Having thus had before it only this unchallenged evidence and the trial judge's correct statement of the applicable law, the jury could not have resolved this issue negatively to the defendants. See: Delahunt v. Finton, 244 Mich. 226, 221 N.W. 168 (1928); Hoholik v. Metropolitan Life Ins. Co., 289 Mich. 242, 286 N.W. 228 (1939); Deffenbaugh v. Interstate Motor Freight Corp., 254 Mich. 180, 235 N.W. 896 (1931). Carrying this line of reasoning a step further, it may be said that this combination of proven fact and statement of law was tantamount to an instructed verdict on this issue, and standing alone the error in receiving the newspaper advertisements and other evidence of a lack of warning would therefore not have been prejudicial. Whether in cumulative effect with other error prejudice resulted will be subsequently determined.

We pass to a consideration of the second aspect of the first question presented by this appeal, namely whether the court erred in submitting to the jury the issue of alleged breach of implied warranty or negligence in the design of the mower. At the outset of this phase of our discussion, we point out counsel and the trial judge throughout the briefs and the instructions properly use such phrases as "breach of implied warranty" and "negligence of design" synonymously and interchangeably in context, since under Michigan law even though a plaintiff may claim "under the theory of an implied warranty, the real question is whether or not defendant was negligent." Ebers v....