United States Court of Appeals Tenth Circuit
United States Court of Appeals Tenth Circuit
2d 395
Hensley, for use. Hensley had difficulty in getting the desired penetration and
changed to a heavier powder charge and a shorter plunger setting. The effect of
these changes was to increase the driving force of the gun.
3
The ricocheting shank of the stud hit plaintiff in the abdomen and lodged in a
nerve center of the pelvic region. According to the medical testimony, it cannot
be removed safely. The gun used by Hensley was a "Ramset" which is
manufactured by a competitor of defendant Speed Fastners. The powder charge
was contained in "Omark" cartridges, the product of another manufacturer. No
claim is made by either party of a defect in the gun or the cartridge.
Speed Fastner asserts that the evidence does not establish that the stud which
separated was manufactured by it. Both Ramset and Speed Fastner studs were
used on the job and in the area where Hensley was working separated heads of
both types were found. On the day of the accident a quantity of Speed Fastner
studs had been delivered to the employer. Plaintiff testified positively that
Hensley was using Speed Fastner studs. Hensley did not say what brand he was
using. He said that the studs and shells were brought out to him and that he put
them in the nail pocket of his apron. He described the studs thus:
"There's some that's an inch-and-a-half nail, that there was a in a red and
white box, and they had a little plastic affair around them to keep them from
going a little white plastic farrow [ferrule], to keep them from going through
the gun."
Speed Fastner studs come in a red and white box. No showing was made of the
type of box for Ramset studs. Speed Fastner studs have a white plastic ring or
ferrule around the shank about midway between the head and the point. Ramset
studs have a red plastic cap which covers the point and extends a short distance
up the shank. Although the plaintiff's self-serving statement may be suspect, it
finds support in the quoted testimony of Hensley. Taken together, they amount
to more than a scintilla and are sufficient to justify the submission to the jury of
the question of identity of the stud. The jury resolved that issue in favor of the
plaintiff and we cannot say as a matter of law that the verdict was wrong in this
regard.
The plaintiff's theory is that the manufacturer of the stud is liable under either
an express or an implied warranty. The court submitted the case to the jury on
each theory and specifically instructed that the plaintiff need not prove
negligence on the part of the manufacturer.
On the question of express warranty, the evidence is that, prior to the accident,
some unknown person gave to the plaintiff a copy of a pamphlet which was
issued by the manufacturer and which described certain of its products. Failure
to prove agency of the distributor of the pamphlet is said to be unimportant
because the pamphlet was an advertisement to the public and, hence, within the
modern concept of express warranty.1 The point is unimportant because the
representations were made to the plaintiff not to the purchasing employer.
There is no showing that the plaintiff had or exercised any control or right of
suggestion over the purchase of studs. He supplied his crew with the studs
furnished by the employer.
In any event, the record does not establish a breach of an express warranty as
the cause of the accident. The plaintiff relies on statements in the pamphlet that
there is an elimination of the possibility of an overdriven stud and of the
possibility of a ricochet. Such statements in the pamphlet refer to a "Safti-Flite
Speed Fastner" gun not to the studs. The only pertinent references to the
studs are that they are "aus-tempered" and "tested by Pittsburgh Testing
Laboratory." The studs were made of "Tempered Martensite." The terms "austempered" and "Tempered Martensite" refer to a manufacturing process. There
is no evidence that one process is better than the other. The studs were not
tested in the Pittsburgh Laboratory but no connection is shown between the
lack of such testing and the separation of the head and shank of the stud.
10
11
The implied warranty issue is more difficult. The Uniform Commercial Code,
adopted in Oklahoma, provides for an implied warranty of merchantability.3
12
13
The plaintiff was neither the buyer nor the user. The buyer was his employer
and the user was a fellow workman. The plaintiff insists that in the situation
presented the principle of strict liability applies and that even a bystander might
recover. The manufacturer argues that, except in food and drink cases,
Oklahoma has never applied the theory of strict liability in implied warranty
cases. It points out that in Marathon Battery Company v. Kilpatrick, Okl., 418
P.2d 900, the Oklahoma Supreme Court extended to a purchaser from a retailer
the right to recover against the manufacturer for breach of implied warranty but
did not extend that right to a person who was neither a purchaser nor user. No
Oklahoma decision has considered the specific issue with which we are
confronted.
14
15
16
"* * * the manufacturer's liability was established when it was shown that the
plaintiff was injured while using the battery for the purpose intended by reason
of a defect as to which he was not aware, and could not have ascertained by
examination." 8
17
The defect claimed here is the separation of the head from the shank of the
stud. The separation could have been caused either by a defective stud or by an
overcharge in, and improper setting of, the gun. An expert for the plaintiff
testified that the separation was caused by a tensile failure. He said that the
Rockwell Hardness Test showed "industrial strength somewhat below the
optimum hardness," but declined to say that this condition caused the failure.
He also found "inclusions" in the studs and testified that: "I believe they were
weaker than they should have been to sustain the stress required to maintain the
nail from breaking at the head." Defense experts gave contradictory testimony.
18
Thus, our case is somewhat stronger than Marathon. There no defect in the
battery was shown. It simply exploded. Here the fact of separation is bolstered
by expert testimony of insufficient tensile strength. It is enough to sustain
liability unless the separation was caused by improper use.
19
20
The manufacturer says that the accident to the plaintiff resulted from misuse of
the equipment and that such misuse relieves it from liability. The claim of
misuse is based on the facts that Hensley used a stronger cartridge than that
prescribed by his superior and changed the plunger setting. The effect of these
changes was to secure greater striking power and greater penetration. Also they
imposed a greater strain on the tensile strength of the stud.
21
The stud was used for the "ordinary purposes" for which it was made and
sold,10 that is, to fasten a wooden board to a steel I-beam. When used for that
purpose, the head and the shank should not separate. The fact that they did
separate shows either that the stud was defective or that the gun was not used
properly. The question was one of fact for jury determination.11 We are
convinced that the submission of the case to the jury on the theory of implied
warranty was proper.
22
The final claim of the manufacturer is that the plaintiff was contributorily
negligent by his presence in an area where a ricochet was possible. We have
doubt whether contributory negligence is a defense to an action on implied
warranty.12 Our attention is called to no Oklahoma decision on the point. If the
defense is permissible in that state, the question of contributory negligence was
submitted to the jury and resolved against the manufacturer. The verdict is
supported by substantial evidence in this regard.
23
In view of our holding that the judgment must be reversed because the evidence
does not sustain a claim of express warranty, the question of misconduct of a
juror is moot.
24
Reversed and remanded for a new trial consistent with the views expressed
herein.
Notes:
*
See Connolly v. Hagi, 24 Conn.Sup. 198, 188 A.2d 884, 886, and Henningsen
v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, 83, 84, 75 A.L.R.2d 1
It is provided in 12A Okl.St.Anno. 2314 that "a warranty that goods shall be
merchantable is implied in a contract for their sale" and that: "Goods to be
merchantable must be at least such as * * * (c) are fit for the ordinary purposes
for which such goods are used; * * *." Section 2-315 covering implied
warranties of fitness for a particular purpose does not apply because we are
concerned with a use customarily made of a product
In the comment following 2-318 appears the following: "3. This section
expressly includes as beneficiaries within its provisions the family, household,
and guests of the purchaser. Beyond this, the section is neutral and is not
intended to enlarge or restrict the developing case law on whether the seller's
warranties, given to his buyer who resells, extend to other persons in the
distributive chain."
See Prosser, Law of Torts, Ch. 19, 97, p. 672 et seq.; 2 Harper & James,
Torts, p. 1570 et seq.; and Restatement, Torts 2d 402A, p. 347 et seq. A
comprehensive annotation is found in 75 A.L.R. p. 49 et seq. In the Tenth
Circuit we have Burgess v. Montgomery Ward and Company, 10 Cir., 264 F.2d
395, and B. F. Goodrich Company v. Hammond, 10 Cir., 269 F.2d 501, both
Kansas cases, and Quick-Way Truck Shovel Co. v. Great American Insurance
Company, 10 Cir., 314 F.2d 702, affirming and adopting, D.C., 204 F.Supp.
847, a Colorado case concerned with an Idaho accident
See Delta Oxygen Company v. Scott, 238 Ark. 534, 383 S.W.2d 885, 893;
Childs v. Austin Supply Co., 408 Pa. 403, 184 A.2d 250, 252; and Peterson v.
Lamb Rubber Company, 54 Cal.2d 339, 5 Cal. Rptr. 863, 353 P.2d 575, 581
418 P.2d 915. Although this decision predated the adoption of the Uniform
Commercial Code by Oklahoma, nothing in the Code changes the principle
announced by the court
A defense witness who worked at the accident site as a glazier and who used
the type of equipment here under consideration testified as to the observance on
occasions of richochets
10
11
12
See Dallison v. Sears, Roebuck and Co., 10 Cir., 313 F.2d 343, 346