Weber v. Kamyr, Inc.
| Decision Date | 06 September 1974 |
| Citation | 525 P.2d 1307,269 Or. 617 |
| Parties | Frank C. WEBER, Appellant, v. KAMYR, INC., et al., Respondents. |
| Court | Oregon Supreme Court |
James B. Griswold, Portland, argued the cause for appellant. With him on the briefs were Green, Griswold & Pippin, Portland.
Edward H. Warren, Portland, argued the cause for respondent Worthington Corporation. With him on the brief were Hershiser, Mitchell & Warren, Portland.
John Gordon Gearin, Portland, argued the cause for respondent Kamyr, Inc. With him on the brief were Jeffrey M. Batchelor, and Gearin, Cheney, Landis, Aebi & Kelley, Portland.
Before O'CONNELL, C.J., and McALLISTER, DENECKE *, HOLMAN, HOWELL and BRYSON, JJ.
Plaintiff, an employee of Boise Cascade, brought an action against Kamyr, Inc., and Worthington Corporation to recover for injuries suffered during his employment when a flash tank pump exploded and sprayed him with a heated liquor used in the manufacture of paper pulp. Upon completion of the initial trial, Worthington was granted a directed verdict and the jury hung as to the defendant Kamyr. Upon retrial against Kamyr alone, the jury returned a defendant's verdict. Plaintiff appealed from both verdicts.
In order to increase its production facilities, Boise Cascade entered into a contract with Kamyr to build a digester system. Kamyr was responsible for building the complete digester system except for the flash tank pump, which Boise Cascade undertook to furnish and install and which was purchased by Boise Cascade from Worthington. Plaintiff charged Kamyr with negligence in the planning and construction of the digester system as well as with strict liability for furnishing a defective system. He charged Worthington with being strictly liable for furnishing a defective pump.
Plaintiff contends there was adequate evidence of the pump's defectiveness to go to the jury. The pump had a specified maximum operating pressure of 100 pounds per square inch gauge. All evidence, including that furnished by plaintiff, was to the effect that at the time the pump casing failed, it was being subjected to internal pressure far in excess of this amount. The pressure exerted from the discharge end of the pump was so great that the liquor was being forced through the pump in a direction opposite to that which the pump was pumping.
There was testimony about which there was considerable dispute concerning the extent of external stress which was placed on the casing by the expansion of heated pipes which led into the pump. In addition, there was testimony concerning hydraulic shock to which the pump would be subjected if it was started against a reverse flow of liquor going through the pump. Discounting completely, however, all evidence concerning external pressure and hydraulic shock, the witnesses were of the unanimous opinion that the internal pressure exerted by the liquor in the pump was in excess of that for which the pump was rated, sold, and purchased.
It is urged by plaintiff that the following testimony of his expert shows that the casing was defective:
However, the same witness testified that at the time the casing exploded it was being subjected to an internal pressure which was in excess of that for which the pump was manufactured. As the trial judge pointed out at the time he granted the directed verdict to Worthington, even if the unevenness in the thickness of the casing was a cause of its ultimate bursting, so long as it did not burst until greater pressure was applied than that which the pump was manufactured, sold and purchased to withstand, such unevenness could not be considered a defect for which the manufacturer was responsible. The trial judge did not commit error in ruling that there was no evidence of any defect in the pump which was a cause of the accident.
As to the defendant Kamyr, plaintiff first contends that the trial court erred in failing to grant his motion for a new trial. The first ground for a new trial arose out of a request made of the judge by the jury after it had commenced deliberations. The jury sent a note to the judge, asking for 'the number of the exhibit which was the contract between Kamyr and Boise Cascade.' In the absence of counsel, the judge answered that the exhibit was Number 40. Upon returning to the courtroom and being told of the jury's inquiry, counsel reminded the judge of existing additional exhibits which were supporting documents to exhibit 40. The court thereupon called in the jury, told it of the supporting documents and gave it the numbers of those exhibits.
Plaintiff now argues that 1) the judge's original answer to the jury's question was incorrect; 2) had it been correct, his statement would have been a comment on the evidence and therefore improper; and 3) when the trial judge reinstructed the jury, he should have told it that his first answer was in error, rather than telling it, as he did, that he was clarifying his prior instruction on the matter.
We believe plaintiff is being hypercritical when he says that answering such a question of the jury correctly would be improper as a comment on the evidence. Also, in the present case, the subsequent instruction to the jury corrected the judge's original error and properly clarified the matter. The jury ultimately received the correct information and no harm was done.
The second ground for a new trial was the alleged misconduct of a juror. Plaintiff's principal expert witness filed an affidavit in which he stated that an unnamed white male juror in the case approached him and said something about the case, but that he, the witness, did not respond. When this occurred, the witness had just finished testifying in this case and was sitting on a bench outside another circuit judge's courtroom on the same floor of the courthouse because he was a party to another case which was being tried at the same time in that courtroom. At that moment the witness's opponent in that trial came up, and upon recognizing the juror, spoke to him, and the two walked off together. The witness further stated in his affidavit that there was considerable animosity between his opponent and himself and that, if given the opportunity, his opponent would have maligned him to the juror. Upon being notified of this occurrence, after the completion of the trial the trial judge telephoned the only two white male jurors who sat on the case and inquired if either of them had had such a conversation or if either one knew anyone by the name of the witness's opponent in the other law suit, but both denied the conversation or knowing anyone by that name.
Plaintiff contends the trial judge abused his discretion by making the inquiry he did instead of allowing the jurors to be interviewed by counsel or to be brought into court of interrogation. Within reasonable limits this court should allow trial judges fairly wide discretion in handling such inquiries. Also, there is a public policy in not extending such inquiries past the point of making reasonably sure that the parties are not deprived of a fair trial. Allowing unnecessarily extended inquiries would provide too great an invitation to disappointed litigants to bring pressure upon members of the jury to repudiate their decisions. The public has an interest in the finality of litigation. State v. Gardner, 230 Or. 569, 573--575, 371 P.2d 558 (1962).
It was obvious the affiant could not specifically identify which of the jurors was allegedly involved; therefore, there was the possibility he was in error. The trial judge recognized this and also that even if the affiant was not mistaken, it did not necessarily follow that the affiant's opponent had spoken derogatorily of the affiant to the jeopardy of plaintiff's case. The court was concerned about the matter, however, and made the following comment:
'I will contact the two male jurors, make a preliminary inquiry as to whether or not the basic assertion made by Talbott is accurate, and if they are, I will order each juror, the two jurors, brought in for further examination.
'* * *.
The trial judge recognized the underlying interests and took the steps which appeared to him best suited to serve those interests. At this distance we cannot say the steps he took were inappropriate to the occasion and we therefore affirm them.
Plaintiff next contends the court erred in permitting Kamyr's attorney to ask a witness, contrary to the provisions of ORS 656.595(2), 1 whether his employer, Boise Cascade, had a direct financial interest in the case. The witness answered that Boise Cascade did have an interest in the outcome. Plaintiff claims this demonstrated to the jury that plaintiff was receiving Workmen's Compensation and therefore the question and answer were both improper and prejudicial.
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