{ "id": 8551041, "name": "SAM ZAHREN and wife LUCY I. ZAHREN v. THE MAYTAG COMPANY and HOLMES ELECTRIC, INC.", "name_abbreviation": "Zahren v. Maytag Co.", "decision_date": "1978-07-11", "docket_number": "No. 7712SC160", "first_page": "143", "last_page": "149", "citations": [ { "type": "official", "cite": "37 N.C. App. 143" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "168 S.E. 2d 686", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "5 N.C. App. 345", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550036 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/5/0345-01" ] } ], "analysis": { "cardinality": 585, "char_count": 14658, "ocr_confidence": 0.83, "pagerank": { "raw": 2.0446031217563963e-07, "percentile": 0.7530682290743591 }, "sha256": "a5b70e8a4534077645ad628fc64b126c15db62c49e570989c6b2dd2e83a8bfcd", "simhash": "1:812bfa061a5ecd0a", "word_count": 2329 }, "last_updated": "2023-07-14T22:58:37.287571+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Vaughn and Erwin concur." ], "parties": [ "SAM ZAHREN and wife LUCY I. ZAHREN v. THE MAYTAG COMPANY and HOLMES ELECTRIC, INC." ], "opinions": [ { "text": "BROCK, Chief Judge.\nPlaintiffs\u2019 first assignment of error is based upon 16 exceptions to the testimony of Gerald Weaver, supervisor of quality control engineering for defendant Maytag, and requires little discussion. Weaver was permitted to testify, over objections, as to whom manufactured the allegedly defective thermostats for Maytag, as to testing and inspection procedures employed by Maytag in 1972, as to operating temperatures of the thermostats as indicated by numbers printed thereon, and as to whether the thermostats and the Maytag dryer were UL approved. Plaintiffs\u2019 contention, basically, is that the witness was incompetent to testify as to these matters, as they did not constitute facts within his personal knowledge. However, contrary to plaintiffs\u2019 assertion, it is clear from the record that Mr. Weaver testified from his own personal knowledge. He was admonished on several occasions by the trial court to answer only of his own personal knowledge. On other occasions, questions directed to Mr. Weaver were prefaced with \u201cDo you know . . .\u201d and received affirmative responses. Plaintiffs failed to show, on cross-examination or otherwise, that the witness was not competent to testify on these matters.\nPlaintiffs also contend that the trial court erred in denying their motion to conduct a voir dire of Mr. Weaver on his personal knowledge of 1972 testing procedures for thermostats. The witness at one point had testified that he was not familiar with Maytag\u2019s inspection system for purchase parts in 1972. Later he stated that he was familiar with Maytag\u2019s testing procedures for thermostats during 1972. It was at this point that plaintiffs moved to voir dire the witness in light of his inconsistent testimony. This motion having been denied, the witness was allowed to testify as to the testing procedures. Still later, Mr. Weaver testified on redirect examination that during 1972 he was a quality control engineer for Maytag and had set up the testing procedures which he had described on direct examination and had observed their performance. Although the trial court clearly had the authority to allow the voir dire which plaintiffs requested, see Hughes v. Lundstrum, 5 N.C. App. 345, 168 S.E. 2d 686 (1969), the error, if any, in its denial was clearly rendered harmless by the witness\u2019 testimony on redirect.\nPlaintiffs argue only the competency of the witness himself and not the competency or relevance of the matters to which he testified. Having determined that Mr. Weaver was a competent witness as to the testimony challenged by the plaintiffs, the first assignment of error is overruled.\nBy their second assignment of error plaintiffs argue that much of the testimony of defendants\u2019 expert witness, Hinkle, was incompetent and prejudicial. Obviously Hinkle\u2019s testimony was highly prejudicial to plaintiffs\u2019 efforts to establish negligence or breach of implied warranty, but that does not render it incompetent. We shall explore only the competency of the challenged testimony.\nDr. Hinkle was qualified and permitted to testify as an expert in physical science and fire analysis. There is no controversy but that this was proper.\nPlaintiffs undertake to argue their exception number 17 regarding certain testimony of Hinkle. While it is true that the court first overruled plaintiffs\u2019 objection, after a conference at the bench the court sustained the objection. This renders the matter academic and we decline to discuss it.\nPlaintiffs argue that it was error to allow defendants\u2019 expert, Hinkle, to answer a hypothetical question which included his opinion from \u201can examination of the photographs taken at the scene by Mr. Wallace, testimony of Mrs. Zahren and the testimony of Mr. Wallace.\u201d\nThe photographs in question were taken by plaintiffs\u2019 expert, Wallace, described by him in detail, and introduced by plaintiffs into evidence. Defendants\u2019 expert, Hinkle, testified that he had examined the photographs in detail, that he heard all of the testimony of Mrs. Zahren and Mr. Wallace, and that he did not dispute what they did or what they saw. The exhibits and the testimony were already before the jury, and defendants\u2019 expert, Hinkle, obviously took plaintiffs\u2019 entire factual evidence into consideration in rendering his opinion. He merely arrived at a different conclusion. We find no merit in plaintiffs\u2019 argument upon this point.\nPlaintiffs argue that it was error to allow defendants\u2019 expert, Hinkle, \u201cto testify as to the basis of his opinion after having previously given that opinion in response to a hypothetical question.\u201d Plaintiffs argue that the expert did not base his opinion on the evidence referred to in the hypothetical. We disagree. The defendants\u2019 witness merely explained how he arrived at his opinion from an examination of the factual evidence already offered by plaintiffs.\nThe remaining arguments of plaintiffs under this assignment of error assume error in the admission of defendants\u2019 expert\u2019s opinion in response to their hypothetical question. We having already determined that plaintiffs\u2019 exception to the hypothetical question is without merit, we hold that the remaining arguments in this assignment of error are likewise without merit. Plaintiffs\u2019 assignment of error number 2 is overruled.\nPlaintiffs\u2019 remaining assignments of error are related to the trial court\u2019s instructions to the jury.\nUnder assignment of error number 3 in all but one instance plaintiffs argue that it was error for the court to fail to instruct the jury that plaintiffs \u201calleged and contended\u201d certain negligence. We find no merit in these arguments. The court is required to state the evidence sufficiently to permit it to apply the law thereto. It is not required to state the allegations of the parties. It is not required to state the contentions of the parties, although if it does it must give equal stress to the contentions of the various parties. There is no argument that equal stress was not given in the contentions that were stated.\nUnder this same assignment of error plaintiffs argue that it was error for the court not to instruct that the failure of defendant Maytag to install a \u201cfail-safe\u201d device on the machine could be negligence. The only evidence about a \u201cfail-safe\u201d device came from the testimony of plaintiffs\u2019 expert, Wallace. This same witness testified that he had never seen a dryer with a \u201cfail-safe\u201d device, and did not know of any standard that would require a \u201cfail-safe\u201d device on a clothes dryer. There was absolutely no evidence to support a finding that failure to install a \u201cfail-safe\u201d device on a clothes dryer could be negligence. The trial court was correct in not so instructing the jury. Plaintiffs\u2019 assignment of error number 3 is overruled.\nUnder assignment of error number 4 plaintiffs argue that it was error for the trial court to fail to instruct that a clothes dryer was a dangerous instrumentality and the duties of a defendant who manufactures a dangerous instrumentality. There was absolutely no evidence to support such a charge and the trial judge was correct in not doing so. The only testimony concerning a dangerous instrumentality came from plaintiffs\u2019 expert, Wallace. He stated: \u201cMy opinion is that a drier equipped with two thermostats that are defective, can\u2019t be anything but a dangerous machine.\u201d This is a far cry from evidence to support an instruction that the manufacture of a clothes dryer is the manufacture of a dangerous instrumentality. Plaintiffs\u2019 assignment of error number 4 is overruled.\nUnder assignment of error number 5 plaintiffs argue that the following instruction was unsupported by evidence: We disagree. While there is no direct testimony of observation of such vapors or substance being pulled into the dryer from an outside source, clearly these are legitimate inferences which could be drawn from the evidence presented. Plaintiffs\u2019 assignment of error number 5 is overruled.\n\u201cNow I instruct you that if you should find that the alleged buyer damage sustained by the plaintiffs and other damage was proximately caused by volatile vapors or some other substance being pulled into the clothers drier from an outside source, then such would not constitute negligence in this case even if there was a failure on the part of the manufacturer to exercise due care in the manufacture of the drier.\u201d\nAssignments of error numbers 6, 7 and 8 have been reviewed and considered. We do not feel that a discussion would be of any value to the bench or bar. In our opinion the case was presented to the jury under applicable principles of law, the jury understood its duties, and the results were just although disappointing to the plaintiffs. The whole case depended upon the credit the jury might give to the testimony of plaintiffs\u2019 expert and of defendants\u2019 expert. Apparently the jury chose to rely on the testimony of defendants\u2019 expert.\nNo error.\nJudges Vaughn and Erwin concur.", "type": "majority", "author": "BROCK, Chief Judge." } ], "attorneys": [ "Anderson, Broadfoot & Anderson, by Henry L. Anderson, Jr., for the plaintiffs.", "Nance, Collier, Singleton, Kirkman & Herndon, by James R. Nance, Jr., for defendant The Maytag Company.", "Berry & Caudle, by H. Dolph Berry, for defendant Holmes Electric, Inc." ], "corrections": "", "head_matter": "SAM ZAHREN and wife LUCY I. ZAHREN v. THE MAYTAG COMPANY and HOLMES ELECTRIC, INC.\nNo. 7712SC160\n(Filed 11 July 1978)\n1. Evidence \u00a7 40; Sales \u00a7 14.1\u2014 clothes dryer \u2014 negligent manufacture \u2014 breach of warranty \u2014 procedures of manufacturer \u2014 personal knowledge of witness\nIn an action to recover for the negligent manufacture of a clothes dryer and for breach of warranties of merchantability and fitness of the dryer, the supervisor of quality control for defendant manufacturer was properly allowed to testify as to who made the allegedly defective thermostats for the manufacturer, the operating temperature of the thermostats, testing and inspection procedures employed by the manufacturer, and whether the thermostats and dryer were UL approved, where the supervisor was testifying from his own personal knowledge.\n2. Witnesses \u00a7 1; Trial \u00a7 15\u2014 inconsistent testimony \u2014 competency of witness-denial of voir dire \u2014 harmless error\nError, if any, in the trial court\u2019s denial of a motion to conduct a voir dire to determine a witness\u2019s personal knowledge of defendant\u2019s testing procedures about which he testified, made after the witness gave inconsistent testimony as to his familiarity with the procedures, was rendered harmless when the witness on redirect examination testified that he had set up the testing procedures which he described and had observed their performance.\n3. Evidence \u00a7 49.1\u2014 expert testimony \u2014 hypothetical question \u2014 photographs and testimony presented by plaintiff\nDefendants\u2019 expert was properly allowed to answer a hypothetical question which included his opinion from an examination of photographs taken by plaintiffs\u2019 expert, testimony by plaintiffs\u2019 expert, and testimony by the female plaintiff.\n4. Evidence \u00a7 49\u2014 expert opinion \u2014 hypothetical question \u2014 explanation of opinion\nThe trial court did not err in permitting defendants\u2019 expert, who had given his opinion in response to a hypothetical question, to explain how he arrived at his opinion.\n5. Negligence \u00a7 37\u2014 instructions \u2014 \u201calleged and contended\u201d\nIt was not error for the court to fail to instruct that plaintiffs \u201calleged and contended\u201d certain negligence.\n6. Sales \u00a7 22\u2014 absence of fail-safe device on clothes dryer \u2014 no negligence by manufacturer\nThe trial court did not err in failing to instruct the jury that the failure of the manufacturer of a clothes dryer to install a \u201cfail-safe\u201d device on the dryer could constitute negligence.\n7. Sales \u00a7 23\u2014 clothes dryer \u2014 no dangerous instrumentality\nThe trial court did not err in failing to instruct that a clothes dryer was a dangerous instrumentality and to instruct on the duties of a defendant who manufactures such a dangerous instrumentality.\n8. Sales \u00a7 22\u2014 fire in clothes dryer \u2014 vapors from outside dryer \u2014 instructions \u2014 inference from evidence\nIn an action to recover damages caused by a fire in a clothes dryer, the trial court\u2019s instruction that defendant manufacturer was not liable if plaintiffs\u2019 damages were caused by volatile vapors or another substance being pulled into the dryer from an outside source was supported by legitimate inferences from the evidence presented although there was no direct testimony of any observation of such vapors or substance.\nAPPEAL by plaintiffs from Herring, Judge. Judgment entered 28 October 1976 in Superior Court, CUMBERLAND County. Heard in the Court of Appeals 10 January 1978.\nThe facts giving rise to this lawsuit can be briefly summarized as follows: On or about 10 April 1972, plaintiffs purchased from defendant Holmes Electric, Inc. of Fayetteville, an electric clothes dryer manufactured by defendant Maytag Company. The dryer was installed in plaintiffs\u2019 home in Fayetteville by Holmes Electric. From 10 April 1972 to 23 February 1973, plaintiffs experienced no problems with the Maytag dryer.\nOn 23 February 1973, Mrs. Zahren put a load of sheets and towels in the dryer and went upstairs in her house. When she came back downstairs, she smelled something burning. She cut off the dryer, opened its door, and found the fabrics inside of the tumbler tub of the dryer in flames. She grabbed a burning towel and took it to her kitchen to extinguish it. By the time she returned to the dryer, the fire had spread to an adjoining sofa and ultimately caused extensive damage to plaintiffs\u2019 home.\nIn their complaint plaintiffs alleged negligence of defendant Maytag in several respects, including, inter alia, negligence in the design, construction and testing of two thermostats and a clock motor which allegedly malfunctioned and allowed the dryer to overheat and cause ignition of fabrics inside of the tumbler, negligence in the failure to provide fail-safe devices, and negligence in the failure to provide adequate warning as to the danger of the dryer overheating. Plaintiffs\u2019 complaint further alleged that both defendants breached implied warranties of merchantability and fitness of the dryer.\nAt the trial of the case, the issues submitted to the jury without objections were the negligence of defendant Maytag and breach as to both defendants of the implied warranties of merchantability and fitness for ordinary purpose. The jury answered the issues in favor of the defendants, finding that plaintiffs were not damaged by negligence of defendant Maytag, that both defendants had impliedly warranted the dryer but that there was no breach of the implied warranties by either defendant.\nFrom judgment that they have and recover nothing of defendants, plaintiffs appeal.\nAnderson, Broadfoot & Anderson, by Henry L. Anderson, Jr., for the plaintiffs.\nNance, Collier, Singleton, Kirkman & Herndon, by James R. Nance, Jr., for defendant The Maytag Company.\nBerry & Caudle, by H. Dolph Berry, for defendant Holmes Electric, Inc." }, "file_name": "0143-01", "first_page_order": 171, "last_page_order": 177 }