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Dunham v. Vaughan & Bushnell Mfg. Co.

AUGUST 31, 1967.

BENJAMIN E. DUNHAM, PLAINTIFF-APPELLEE

v.

VAUGHAN & BUSHNELL MFG. CO., A CORPORATION, AND BELKNAP HARDWARE AND MFG. CO., A CORPORATION, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Macoupin County; the Hon. PAUL C. VERTICCHIO, Judge, presiding. Judgment affirmed.

TRAPP, J.

Rehearing denied October 2, 1967.

Defendants Belknap Hardware and Mfg. Co., hereinafter called Belknap, and Vaughan & Bushnell Mfg. Co., hereinafter called Vaughan, appeal from a judgment in the sum of $50,000 entered upon a jury verdict in favor of the plaintiff Benjamin E. Dunham, for injury incurred when a chip from the head of a hammer entered his eye.

Belknap, using its trade name "Blue Grass," distributes a hammer manufactured by Vaughan. Vaughan manufactures substantially the same hammer for distribution under its own name and also manufactures hammers for another distributor known under the trade name of "Keen Cutter." The hammer at issue was a claw hammer, sometimes known as a carpenter's hammer, weighing approximately 16 ounces and with a length of some 13 inches. Plaintiff obtained it through the Heyen Implement Company, a retail seller of hardware and implements, which is not a party to the suit.

The action is treated by the parties as a products liability case in which plaintiff seeks to impose strict tort liability for a condition of the product under the doctrine announced in Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182. While the pleadings, at the time the case was submitted to the jury, referred to an action in implied warranty, the parties do not urge the issue as to the pleadings. We note further that the instructions as to the issues in the case, and as to the burden of proof, required the plaintiff to prove the exercise of ordinary care for his own safety. People ex rel. General Motors Corp. v. Bua, 37 Ill.2d 180, 226 N.E.2d 6. These instructions also refer to the affirmative defense of Vaughan alleging that the plaintiff was using the hammer in a violent, unreasonable manner in excess of the purpose for which manufactured and that such use brought about the injury, and "not any defective condition in the hammer."

Each defendant contends that the trial court erred in refusing to direct a verdict, or enter judgment n.o.v., for failure of the plaintiff to prove necessary elements in a case of strict liability in tort, it being urged that there was a failure on the part of the plaintiff to prove: (1) that the hammer was in an unreasonably dangerous condition which existed at the time it left the defendants' control, (2) that he was using the hammer in a manner for which it was designed and intended, and (3) that the court erred in admitting the testimony of several farmers showing a custom of farm users of the hammer to employ it for all manner of farm work, including its use for work upon farm machinery, and for general utility use. This testimony was limited by the trial court to the issue of due care upon the part of the plaintiff, and the jury was so instructed. Belknap contends that, as a wholesaler, it was merely a conduit of the product and that the doctrine of strict liability has no application to it.

The evidence discloses that the hammer at issue was obtained from Heyen Implement Company as a replacement of a hammer, also designated a "Blue Grass" hammer, the handle of which had been broken. The replacement hammer was the same as the replaced hammer, except for a change in the design of the handle. Plaintiff testified that he asked for the best grade of hammer. Plaintiff used the hammer in connection with his farming and custom machine work, and had used it for repairing a corn crib, but also used it as a hammer in working upon his implements and machinery. At the time of the injury it had been used approximately 11 months. The injury occurred while the plaintiff was connecting his tractor to a manure spreader, which procedure involved the fitting of a pin into a clevis. It appears that he had connected the machinery on one side by inserting the pin. At the time of the injury he was lying on his right side beneath the tractor. In inserting the second pin he used the hammer extended some 2 1/2 feet above his head, the hammer moving through an arc of a stated 8 inches. As he undertook to "tap" the pin into the clevis, a chip from the bevelled edge of the face of the hammer, known as the chamfer, broke off and struck him in the eye. As a result he lost the eye.

Plaintiff insisted in his testimony that he was tapping the pin as distinguished from defendants' contention that he was striking hard, swinging blows. Plaintiff urges that in the position in which he lay, violent blows were impossible. There is only plaintiff's testimony upon this issue.

Both the plaintiff and the defendants presented expert testimony of metallurgists and engineers concerning the condition of the hammer. It was the consensus of the experts that they could find no flaws in the forging of the hammer and that metallurgically there were no defects due to the process of manufacture. It seemed equally the consensus that the use of the hammer produced a condition or state described as "work hardened" and that a "work hardened" hammer was more likely to shear or break off chips. The metallurgical test made showed that the hammer had a Rockwell test hardness of C52, while the pin had a Rockwell test hardness of C57. By Rockwell standards the pin with its C57 hardness is harder than the hammer head, which tested C52. Plaintiff's Exhibit No. 23 consists of certain specifications, adopted by the General Services Administration as approved for the use of all Federal Agencies. A sort of comparison is achieved by noting the following Rockwell "C" hardness specifications: (1) carpenter's claw hammer, 50-60, (the hammer at issue comes within this specification); (2) farrier's hammer (horseshoers), 50-60; (3) machinist's ball peen, 50-57; (4) riveting hammer, 50-57; (5) blacksmith and engineer's hammer, 44-55 and (6) spike maul, 44-55.

As we understand the purpose of the standards, a hammer meets the specification if it comes within the ranges indicated. It would appear that the ranges of hardness in the specifications between the several types of hammers designed for various sorts of work is relatively small and that a blacksmith and engineering hammer, or a ball peen hammer, could meet the respective specifications with a Rockwell hardness C52, and could be used upon a pin with the Rockwell hardness C57, so that they are not clearly distinguishable from the carpenter's hammer.

Each qualified witness expressed the opinion that there were many factors other than the Rockwell C hardness rating involved in the matter of chipping. The witness Siegal suggested that a hammer with a 1050 carbon steel formula would be less likely to chip than a hammer with the 1080 carbon steel formula, as this hammer was. This witness stated an opinion that the harder the steel, the more likely it was to chip.

In Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182, the Supreme Court stated the elements of proof in strict liability as follows:

"The plaintiffs must prove that their injury or damage resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer's control."

In this opinion the Supreme Court cited § 402A, Restatement of the Law of Torts, 2d, which refers to "a defective condition." The court also quotes from Justice Traynor in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal Rptr 697, 377 P.2d 897, wherein he speaks of "defective products." Our court, in stating its rule, speaks of a "condition of the product" rather than a "defective product."

Defendants argue that there was no defect in the hammer when it left the manufacturer or the distributor. While Mr. Justice Traynor has spoken of defects as a deviation from the norm, he has said that there is no definition of a defect which resolves all cases. See 32 Tennessee Law Review, p 363, The Ways and Meanings of Defective Products and Strict Liability. Perhaps the most common notion of a defect is in the sense of a flaw in the product resulting from a miscarriage of a manufacturing process. See Keeton, Products Liability — The Nature and Extent of Strict Liability, 1964, University of Illinois Law Forum, p 692, at p 702. It appears to be essentially in such sense that defendants argue the absence of a defective product. It has been suggested, however, that the case law should progress with the progress of technology and the changing notions of justice, and that "defect must remain an open ended term." See Kessler, Products Liability, The Yale Law Journal, Vol 76, p 887, at p 929.

In this case it may be concluded from the evidence that there was no production flaw in the hammer and no step in the process of manufacture which could be criticized by the experts. Upon such contention, the doctrine of Suvada would not apply, for defendants urge that the use of the flawless hammer subsequent to purchase results in ...


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