Ward v. Hobart Manufacturing Company
| Decision Date | 09 September 1970 |
| Docket Number | Civ. A. No. 3912. |
| Citation | 317 F. Supp. 841 |
| Parties | Mrs. Frances Buckley WARD, Plaintiff, v. The HOBART MANUFACTURING COMPANY, Defendant. |
| Court | U.S. District Court — Southern District of Mississippi |
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Len Blackwell, George Estes, Jr., Gulfport, Miss., for plaintiff.
P. D. Greaves, Jerry Terry, Gulfport, Miss., for defendant.
The plaintiff, Mrs. Frances Buckley Ward, an adult resident citizen of Harrison County, Mississippi, filed this diversity suit against the defendant corporation, The Hobart Manufacturing Company of Ohio, qualified to do business in the State of Mississippi, for compensation or damages resulting from a severe and crippling injury to her right hand which occurred on June 29, 1970, while cleaning a 1½ horsepower meat grinder manufactured by the defendant in 1948 and purchased as a used machine by plaintiff's husband from one E. C. Summerlin from Gulfport, Mississippi on August 17, 1965.
Plaintiff contends, and defendant denies, that it is liable to plaintiff because of negligence of design of the meat grinder and negligent failure to adequately and properly warn of the foreseeable dangers in the use thereof and particularly the use without the prescribed guard provided for and shipped with the grinder by the defendant manufacturer. Although plaintiff also contended in her complaint that the defendant was liable to her on the alternative theory of strict liability in tort, she has not in the trial of this cause sought "to press this theory," as evidenced by a statement to this effect on page 14 of her post trial brief filed with this Court.
Plaintiff and her husband owned and operated Ward's Barbecue, a restaurant business on Highway 49 in Harrison County, Mississippi wherein they made their own sausage and sold their own farm products as well as various other foods. On August 17, 1965 they purchased a second-hand or used Model No. 4332 Meat Grinder manufactured by the defendant, Hobart, from one E. C. Summerlin of Gulfport, Mississippi in order to utilize it in making sausage in their business establishment which they did from the date of purchase until June 29, 1967, when plaintiff was injured. This grinder had been manufactured by the defendant in 1948 and was sold and shipped as a new machine to Hinote Packing House in Robertsdale, Alabama on December 13, 1948 (Ex. D-3), and apparently after much use, eventually was purchased by plaintiff's husband.
At the time that the meat grinder in question and all similar models were shipped by the defendant manufacturer to their original purchasers there was also sent as standard separate equipment, a feed pan and guard as well as a stomper or feed stick, together with a catalog of replacement parts which included the feed pan and attached guard, as well as instructions which included a warning that hands should be kept out of the feed funnel or "bell" through which the meat is fed into the machine; however, there were no instructions sent that warned a user against using the grinder without the pan and guard attached thereto.
At the time that the plaintiff's husband purchased the used meat grinder from Summerlin in 1965, the pan and attached guard were not affixed to the grinder, were not mentioned in any way, and neither plaintiff nor her husband knew that there was an available existing pan or guard. It could not be ascertained that a pan and guard were standard equipment for this type meat grinder because there was no apparent place on the grinder where the pan and guard should be attached, and there was a complete absence of any mention of a pan and guard or warning against the use of the grinder without the pan and guard printed or appearing anywhere on the meat grinder or any of the component parts thereof either at the time it was manufactured or subsequent thereto. Also, neither plaintiff nor her husband were aware of the existence of nor were furnished with the above referred to written instructions which accompanied the meat grinder when it was originally sold by the defendant manufacturer to the original purchaser.
The meat grinder which caused plaintiff's injuries was at all times in good mechanical condition. The top of the bell or feed-funnel is approximately 7 inches above the top of the "worm" or "screw" and the top of the worm or screw is approximately 9 inches below the pan-guard if and when it is attached. From the inside bottom of the feed pan to the underside of the guard is 1¾ inches and the purpose of the guard is to prevent the inadvertent entry of the hand and yet allow meat to pass through. The diameter of each of the five holes contained in the pan-guard is 2½ inches. The guard is mounted on the feed pan approximately 1¾ inches above the bottom of the pan over the open bell and the pan itself is rectangular in shape and made of sheet steel with 4 inch sides.
It was further established by the evidence that there were five changes in the makeup of the meat grinder between the time of its manufacture and the time that plaintiff was injured by it, namely: (1) the detachable pan and guard were absent; (2) a new type cap or bell had been installed; (3) there had been a change in the stop stud on the cylinder; and (4) the machine was on a different type base. Although the on-off switch installed on the meat grinder at the time of trial was a domestic type made for 110 volts (Ex. D-8), as contrasted with the industrial type dyestamped switch rated for one or two horsepower and installed by the manufacturer (Ex. D-7), the latter requiring much more force to operate since it had a positive snap action as compared with the former, and although plaintiff and her husband did not at first recall any changes in the switch subsequent to the plaintiff's injuries, nevertheless they did apparently later recall that the industrial type switch had been replaced by Exhibit P-8, the domestic or home type, in December, 1968 by one Don Miller who is in the refrigeration service in Gulfport and who regularly did electrical work for plaintiff and her husband. This fact was confirmed by the witness, Miller, who testified that the industrial type switch similar to Exhibit D-7 which he removed from the meat grinder worked with the same ease as the home lighting type switch with which he replaced it and which was on the meat grinder at the time of this trial.
On the morning of June 29, 1967 plaintiff was wiping or finishing the cleaning of the Hobart meat grinder which had previously been taken apart and cleaned by her husband who had plugged the machine into the receptacle. However, it had not been used to grind meat, or to the recollection of plaintiff or her husband, been turned on or used on the day of injury but had been used on the previous day to grind the average daily amount of 100 pounds of sausage. Plaintiff does not ever recall intentionally or unintentionally turning the machine on or off while wiping it with a rag, but suddenly her right hand, which she had inserted into the feed funnel was caught, twisted and mangled by the worm although it apparently did not reach the blade or cutting area. Plaintiff stated that the machine is audible when running, even after the switch is cut off, but that she did not hear it at any time on this morning in question perhaps because so much noise was being made in the restaurant in preparing for the day's activity. She testified that to the best of her recollection the machine was not on and the worm was not turning at the time that she inserted her hand into the machine to wipe it and does not know whether she accidentally threw the switch thus turning the meat grinder on. She was alone at the time, and in response to her screams for help, her husband ran into the back room, disassembled the machine, and removed her hand which had been severely injured. At this time the switch apparently was off because the machine was not running and plaintiff was not in a position to, and did not, flip the switch off after her hand was caught therein.
In denying its liability to plaintiff, the defendant contends that the meat grinder was manufactured under all standard procedures, patterns and materials which are used by all other reputable manufacturers of such machines, and that, as a matter of fact, the defendant was the only manufacturer which provided any kind of guard for its meat grinder in 1948, when it was manufactured; that if the meat grinder had been used by the plaintiff as completely manufactured and equipped with all attachments on it which were provided by the manufacturer at the time of its original sale and if it had been reasonably and properly cared for and maintained, plaintiff would not have been injured in the manner alleged; that there was no defect whatsoever in its design; that adequate warning was given to the original purchaser, and all purchasers of a second-hand machine and those using it were charged with the obvious knowledge of the danger created by use of a machine which ground pieces of meat into mulch, the plaintiff particularly being aware of the potential danger of this grinder inasmuch as she admitted that at a time prior to her injuries the machine had ground up a hammer handle which plaintiff was using instead of the provided "stomper" or feed stick; that it was not negligently designed; that adequate warning was given of the obvious and open dangerous nature of the machine and the risk attendant with its use; and that the negligence of the plaintiff was the sole proximate cause of her injuries.
Since this is a diversity case, under the Erie Doctrine,1 it is necessary that this Court apply existing Mississippi law to the facts of this case and if there be none, then to engage in "rational divination" to determine what the Mississippi Supreme Court would decide the law to be if and when called on to do so.
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Ward v. Hobart Manufacturing Company
...district judge made extensive findings of fact and conclusions of law which are set forth in his memorandum opinion reported in 317 F.Supp. 841 (S.D.Miss. 1970). He determined damages to be in the amount of $30,000 but reduced that sum to $15,000 because of the contributory negligence of Mr......
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Alberg v. Hardin Marine Corp.
...on that ground. Mazzi v. Greenlee Tool Co., 320 F.2d 821, 826 (2d Cir.1963). These principles were applied in Ward v. Hobart Manufacturing Company, 317 F.Supp. 841 (1970 S.D.Miss.). In Hobart, defendant manufactured a meat grinder equipped with a guard-pan to preclude the insertion of a han......