{ "id": 8561511, "name": "RAY A. VEACH v. BACON AMERICAN CORPORATION and H. J. DAVIS", "name_abbreviation": "Veach v. Bacon American Corp.", "decision_date": "1966-03-02", "docket_number": "", "first_page": "542", "last_page": "551", "citations": [ { "type": "official", "cite": "266 N.C. 542" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "116 S.E. 2d 780", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "253 N.C. 243", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624197 ], "opinion_index": 0, "case_paths": [ "/nc/253/0243-01" ] }, { "cite": "111 S.E. 2d 884", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "251 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626919 ], "pin_cites": [ { "page": "666" } ], "opinion_index": 0, "case_paths": [ "/nc/251/0663-01" ] }, { "cite": "90 S.E. 2d 717", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "243 N.C. 292", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624576 ], "pin_cites": [ { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/nc/243/0292-01" ] }, { "cite": "96 S.E. 2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "245 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609392 ], "pin_cites": [ { "page": "246" } ], "opinion_index": 0, "case_paths": [ "/nc/245/0236-01" ] }, { "cite": "91 S.E. 2d 919", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "243 N.C. 695", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626932 ], "pin_cites": [ { "page": "700-701" } ], "opinion_index": 0, "case_paths": [ "/nc/243/0695-01" ] }, { "cite": "144 S.E. 2d 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "265 N.C. 362", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575361 ], "pin_cites": [ { "page": "370" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0362-01" ] }, { "cite": "131 S.E. 2d 601", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "259 N.C. 531", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561356 ], "pin_cites": [ { "page": "538" } ], "opinion_index": 0, "case_paths": [ "/nc/259/0531-01" ] }, { "cite": "117 S.E. 2d 21", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "253 N.C. 355", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625319 ], "pin_cites": [ { "page": "360" } ], "opinion_index": 0, "case_paths": [ "/nc/253/0355-01" ] } ], "analysis": { "cardinality": 921, "char_count": 25171, "ocr_confidence": 0.557, "pagerank": { "raw": 1.2819401717902483e-07, "percentile": 0.6177172877646535 }, "sha256": "f92156d9fd1eb6b1caf47dd19aa5510d1feb213e1fde26e4cfa19bfda8dd3c65", "simhash": "1:359f4753a2763efd", "word_count": 4276 }, "last_updated": "2023-07-14T18:16:51.556627+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Moore, J., not sitting.", "Pless, J., and Rodman, E.J., took no part in the consideration or decision of this case." ], "parties": [ "RAY A. VEACH v. BACON AMERICAN CORPORATION and H. J. DAVIS." ], "opinions": [ { "text": "Bobbitt, J.\nDEFENDANTS\u2019 APPEAL.\nThe partners purchased the Lodi Buffer with knowledge it was used equipment and upon receipt and installation thereof had knowledge the manufacturer of the buffer wheels (as shown on Exhibits 3 and 4) was the B & J Manufacturing Company.\nAs to the seller of a chattel known to have been manufactured by another, the rule has been stated as follows: \u201cA vendor of a chattel made by a third person which is bought as safe for use in reliance upon the vendor\u2019s profession of competence and care is subject to liability for bodily harm caused by the vendor\u2019s failure to exercise reasonable competence and care to supply the chattel in a condition safe for use.\u201d Restatement, Torts \u00a7 401. Under this rule, liability depends upon whether such seller, by the exercise of reasonable care, could have discovered the dangerous character or condition of the chattel. Restatement, Torts \u00a7 402; Wyatt v. Equip merit Co., 253 N.C. 355, 360, 117 S.E. 2d 21, and cases cited; Cf. Swaney v. Steel Co., 259 N.C. 531, 538, 131 S.E. 2d 601.\nIf, under the indicated circumstances, the seller knows or should have discovered a latent defect in the chattel of such nature that he, by the exercise of due care, could reasonably foresee it was likely to cause injury in the ordinary use thereof, and the seller fails to warn the buyer of such defect, the seller is liable to a buyer who, without any negligence of his own, makes ordinary use thereof and is injured on account of such defect. Douglas v. Mallison, 265 N.C. 362, 370, 144 S.E. 2d 138, and cases cited.\nAdmitted evidence, whether competent or incompetent, must be considered in passing on defendants\u2019 motion for nonsuit. Early v. Eley, 243 N.C. 695, 700-701, 91 S.E. 2d 919, and cases cited; Kientz v. Carlton, 245 N.C. 236, 246, 96 S.E. 2d 14.\nThe evidence, much of it circumstantial in nature, was sufficient, when considered in the light most favorable to plaintiff, to permit, but not to require, the jury to find as facts: (1) That the partners had no prior experience with buffers or other equipment used in connection with recapping tires; (2) that Davis was a man of knowledge and experience with reference to such equipment and the use thereof; (3) that plaintiff, while operating the buffer, was injured when struck by a blade that flew out from Exhibit 3 as the result of the breaking of the pins that had held it; (4) that on and prior to March 11, 1961, the pins of Exhibit 3, which held the blades and separators, had become worn to such extent as to constitute a hazard to the operator of the buffer, and that an inspection thereof by a person having knowledge and experience with such equipment would have disclosed the buffer wheel in this respect was unsafe for further use; and (5) that Davis failed to exercise due care to inspect Exhibit 3 in order to determine whether it was safe or unsafe or failed to exercise due care in his inspection thereof or after inspection thereof failed to warn the partners of the danger of using Exhibit 3 in the operation of the buffer.\nThe evidence, under the legal principles stated above, was sufficient, in our opinion, and we so hold, to require jury determination as to whether plaintiff was injured on account of the actionable negligence of defendants.\nTrue, there is evidence of plaintiff\u2019s contributory negligence. \u201cWhen a person has knowledge of a dangerous condition, a failure to warn him of what he already knows is without significance.\u201d Petty v. Print Works, 243 N.C. 292, 304, 90 S.E. 2d 717, and cases cited. Plaintiff testified he had disassembled Exhibit 3 a number of times in the process of inserting new blades. Each time the pins were completely exposed except the ends permanently imbedded in one of the plates. He had operated the buffer approximately four months. Even so, his lack of prior experience with such equipment and the assurances given by Davis as to the condition of the equipment are to be considered in determining whether plaintiff, in the exercise of due care, could and should have observed the pins were worn to such an extent that further use of the buffer wheel with these pins was dangerous. In our opinion, and we so hold, plaintiff\u2019s evidence does not establish his contributory negligence so clearly that no other reasonable inference may be drawn therefrom. Swaney v. Steel Co., supra.\nThe conclusion reached is that the issues of negligence and contributory negligence were for jury determination and that defendants\u2019 motion for nonsuit was properly overruled.\nThe court admitted, over objection, opinion testimony of Cecil Gladstone Mock. Mock testified he had been in the tire recapping business for eight years; and, while he was not familiar with a Lodi Buffer, he was familiar with buffer wheels similar to Exhibit 4. He was then questioned as indicated below concerning Exhibit 3. The challenged testimony must be considered in the light of testimony tending to show the facts narrated in the following paragraphs.\nMcKeown identified Exhibit 3 as the buffer wheel on the buffer when he arrived at the shop and cut off the motor. He testified, over objection, he \u201ccould see that the buffing wheel had flew apart and there was blades on the floor,\u201d and that glass from broken neon lights and other debris \u201cwas all over the floor.\u201d Referring to Exhibit 3, he testified the section \u201cwhere the two pins are broken\u201d was out except for the ends of the two pins imbedded permanently in the holes therefor in one of the plates. He testified that blades, some broken and others whole, were scattered around on the floor.\nPlaintiff testified he stopped at the shop on his way back to the hospital some two hours after his injury; that Exhibit 3 was \u201con the buffer, with one section out of it\u201d; and that he told McKeown \u201cto take it off and keep it.\u201d\nMcKeown testified Exhibit 3 was not used \u201cafter the date of the accident\u201d; that the condition of Exhibit 3 at trial was the same as when he found it after the accident except the separators and blades in three of the sections had been removed, thereby exposing the six (unbroken) pins that had held the separators and blades in these three sections; and that, on each of these pins, there were worn places or \u201cridges\u201d and \u201cthose are open and visible to the naked eye.\u201d McKeown testified Exhibit 3 was in his possession from the time he found it until he delivered it to plaintiff\u2019s attorney, and this occurred \u201cseveral years ago\u201d and since then Exhibit 3 had been \u201cin somebody\u2019s possession other than (his) own.\u201d\nNo missing blades, separators or pins, or fragments thereof, from the missing section, were offered in evidence. There is no evidence as to when and by whom the three complete sections, except for the pins, were removed from Exhibit 3. Nor is there evidence as to where or under what conditions Exhibit 3 has been kept since it passed from McKeown\u2019s possession several years ago.\nWhile there is evidence the Lodi Buffer was \u201ca trade-in,\u201d used equipment, there is no evidence as to the date of its manufacture or of its sale as new equipment. Nor does the evidence disclose by whom it had been used or the time and circumstances of its prior use.\nTestimony as to worn places or ridges or notches refers either to markings on the six (unbroken) pins presently available for inspection or to the ends of the two missing pins remaining in the holes in which they were permanently imbedded and the portion of the plate in the area of these holes and portions of pins.\nWhen plaintiff offered Mr. Mock \u201cas an expert in the field of tire recapping equipment, and particularly buffing wheels,\u201d the court stated: \u201cI think he can express an opinion, but I do not know I have to find he is an expert.\u201d Suffice to say, there was no finding that Mock was an expert of any kind.\nReferring to Exhibit 3, plaintiff\u2019s counsel asked this question: \u201cAssume these facts, Mr. Mock: that the wheel which you are holding had been reconditioned completely in or around March 11, 1961, (sic) and had been used in buffing tires every work day afternoon from 5:00 till 9:00, or approximately that length of time, and had been used all day on Saturday from March 11th till August 15, 1961; now, do you have an opinion satisfactory to yourself as to whether or not this wheel had been completely reconditioned on or about March 11, 1961?\u201d Defendants\u2019 objection was overruled and Mock answered: \u201cNo, sir, I don\u2019t believe it had.\u201d Defendants\u2019 motion to strike the answer was denied. Over defendants\u2019 objections, Mock was permitted to point out the bases for his opinion as to the condition of Exhibit 3 on March 11, 1961.\nReferring to \u201cwhere two pieces of spikes ... or pegs are still remaining in this wheel (plate on Exhibit 3),\u201d plaintiff\u2019s counsel asked this question: \u201cDo you have an opinion satisfactory to yourself as to what portions of these remaining pegs that are exposed on the top side, or the inside portion of it, was holding these pins together at the time it flew apart?\u201d Defendants\u2019 objection was overruled and Mock answered: \u201cYes, sir. It looks like a third \u2014 it was wore two-thirds through.\u201d\nIn other particulars, Mock was permitted to testify, over defendants\u2019 objections, to his opinions as to the condition of Exhibit 3 on March 11, 1961, and as to what occurred on August 15, 1961, on the basis of his inspection of Exhibit 3 in June 1965 and the assumed facts set forth in the first quoted question.\nOn cross-examination, Mock testified: \u201cI have not seen these exhibits (Exhibits 3 and 4) before today. I do not know what their condition was back on August 15, 1961.\u201d\nIn the absence of a finding or admission that the witness is an expert, the competency of opinion evidence must be considered in relation to the rules applicable to nonexpert witnesses. Kientz v. Carlton, supra, and cases cited. A nonexpert witness may testify only as to facts of which he has personal knowledge. Robbins v. Trading Post, Inc., 251 N.C. 663, 666, 111 S.E. 2d 884, and cases cited. In gist, Mock was permitted to testify over defendants\u2019 objections as to his opinion with reference to the condition of Exhibit 3 on March 11, 1961, and with reference to why the pins broke, solely on the basis of his inspection of Exhibit 3 in June 1965, and one assumed fact, namely, that Exhibit 3 was used by the partners during the hours indicated between March 11, 1961, and August 15, 1961. This testimony was incompetent and prejudicial. Indeed, a qualified expert could have testified to his opinion concerning the condition of Exhibit 3 on March 11, 1961, and as to what caused the pins to break, if they did break, only upon the hypothesis that the jury found as facts that Exhibit 3 was in the same condition in all relevant respects when exhibited to him in June 1965 as on August 15, 1961, immediately following plaintiff\u2019s injury. Stansbury, North Carolina Evidence, Second Edition, \u00a7 137.\nThe court charged the jury as follows: .. or if the plaintiff has satisfied you from, the evidence and by its greater weight that a reasonably prudent person in the same circumstances as that of the defendants would have delivered to the plaintiff a machine of this type with a guard over it; ... if the plaintiff has satisfied you in any one of these aspects, and . . . that such negligence on the part of the defendants was a proximate cause of the injury resulting to the plaintiff, and if you so find by the greater weight of the evidence, it would be your duty to answer the first issue Yes.\u201d (Our italics.) Defendants excepted to the italicized portion of said excerpt.\nThere is no reference to the absence of \u201ca guard over it\u201d in plaintiff\u2019s specifications of negligence. Plaintiff offered and the court admitted solely for the purpose of illustrating the testimony of witnesses Lodi Bulletin No. 288 on which is portrayed a Lodi Buffer referred to by plaintiff as \u201ca fair representation of the type machinery that I am talking about . . . with the exception that the guard and the dust collector shown here was not the type that we got.\u201d Plaintiff also testified the Lodi Buffer they got \u201cdid not have a guard.\u201d\nAssuming, but not deciding, it was contemplated that the Lodi Buffer involved herein would be equipped with a guard of some type, the absence of such guard was a patent, not a latent, defect, and hazards proximately caused by the absence of such a guard were reasonably foreseeable. Insurance Co. v. Chevrolet Co., 253 N.C. 243, 116 S.E. 2d 780, and cases cited; Douglas v. Mallison, supra.\nNeither plaintiff\u2019s pleading nor his evidence entitled plaintiff to recover on the ground his injury was caused by defendants\u2019 negligence in respect of failure to deliver a Lodi Buffer equipped with \u201ca guard over it.\u201d Hence, the challenged portion of the quoted instruction was erroneous.\nFor the reasons indicated, defendants are entitled to a new trial on the issues arising on the pleadings in respect of whether plaintiff is entitled to recover on account of the alleged actionable negligence of defendants.\nPlaiNtiff\u2019s Appeal.\nThe award of a new trial on defendants\u2019 appeal necessitates consideration of plaintiff\u2019s appeal from what was in effect a nonsuit as to his alleged cause of action for breach of warranty.\nA seller\u2019s liability for breach of warranty does not depend upon proof of his negligence but arises out of his contract. Wyatt v. Equipment Co., supra; Douglas v. Mallison, supra.\nThe partners, in said contract of March 11, 1961, ordered the equipment listed therein \u201cSubject to the Terms and Conditions of Sale on Reverse Side of This Sheet.\u201d\nUnder \u201cTerms and Conditions of Sale\u201d appear, inter alia, the following:\n\u201c9. Seller guarantees all equipment manufactured by it to be free from defects in workmanship and material when used in normal service for a period of 90 days from date of delivery to the original purchaser, the obligation being limited to making good any part or parts which are returned to the factory, transportation charges prepaid and which, upon seller\u2019s examination prove to be defective. Buyer specifically and generally waives any and all claims against seller for loss of use of equipment or any other damage of any kind or nature. This guarantee is in lieu of all other guarantees either expressed or implied and no salesman or other individuals are authorized to assume for seller any other liability in connection with the sale.\u201d (Our italics.)\nWhile Davis\u2019 statements, nothing else appearing, would seem sufficient to constitute an express warranty, Insurance Co. v. Chevrolet Co., supra, and cases cited, in view of the italicized portion of the \u201cTERMS AND CONDITIONS oe Sale,\u201d Davis\u2019 statements, being in conflict with the terms of the written agreement, do not constitute a warranty by the vendor, to wit, the corporate defendant, and are not competent as evidence of breach of warranty. Notwithstanding, as indicated above, Davis\u2019 statements with reference to the condition of the Lodi Buffer are relevant and competent as bearing upon whether plaintiff was contributorily negligent.\nOur attention is called to the following notation on said contract: \u201c$50.00 Max for Repairing Equipment.\u201d Much of the equipment sold under said contract was used equipment. There is no evidence as to what equipment was to be repaired or as to the nature of contemplated repairs. Suffice to say, the evidence to the effect the Lodi Buffer \u201chad been\u201d reconditioned and completely rebuilt at the time of the negotiations negates any suggestion that this notation refers in any way to it.\nThe conclusion reached is that the ruling involved in plaintiff\u2019s appeal, considered as a judgment of nonsuit in respect of plaintiff\u2019s alleged cause of action for breach of warranty, should be and is affirmed.\nOn defendants\u2019 appeal, new trial.\nOn plaintiff\u2019s appeal, affirmed.\nMoore, J., not sitting.\nPless, J., and Rodman, E.J., took no part in the consideration or decision of this case.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Roberts, Frye & Booth and White, Crampler, Powell, Pfeffer-korn & Green for plaintiff.", "Deal, Hutchins & Minor for defendants." ], "corrections": "", "head_matter": "RAY A. VEACH v. BACON AMERICAN CORPORATION and H. J. DAVIS.\n(Filed 2 March, 1966.)\n1. Sales \u00a7 16\u2014\nTlae seller of equipment manufactured by a third party may be held liable for injuries resulting to the purchaser in the use of the machinery only if the defect causing the injury was latent, and thus not reasonably discoverable by the purchaser, and the seller had knowledge or should have discovered the latent defect and, in the exercise of reasonable care, should have reasonably foreseen that it was likely to cause injury in ordinary use, and failed to warn the buyer of such defect.\n2. Appeal and[ Error \u00a7 51\u2014\nOn appeal from the denial of judgment of nonsuit, all the admitted evidence, whether competent or incompetent, must be considered.\nS.Sales \u00a7 16-\nIn this action by plaintiff, the purchaser of reconditioned recapping equipment, to recover for injuries received when a buffing wheel disintegrated and parts of same struck plaintiff, causing the injury in suit, the evidence is held, sufficient to permit the jury to find that the injury resulted from a latent defect of which the seller should have had knowledge, and that plaintiff, who was without prior experience with such equipment, was not guilty of contributory negligence as a matter of law.\n4. Evidence \u00a7 35\u2014\nThe testimony of a nonexpert witness must be based on facts of which he has personal knowledge, and therefore he may not testify upon the assumption of the use of machinery during a given number of hours each working day after its purchase by plaintiff, as to the condition of its buffer wheels, offered in evidence, at the time of purchase, or as to why its pins, holding its parts together, broke. An expert would not be competent to give such testimony without the additional hypothesis that the exhibit had remained in the same condition from the time of the accident to the time of the trial.\n5. Sales \u00a7 16\u2014\nThe purchaser of equipment, suing for personal injuries resulting from a defect therein, may not contend that the seller was negligent in failing to provide a guard for the equipment, since the absence of a guard is a patent defect. Further, in this case, plaintiff\u2019s complaint failed to specify the absence of the guard as an element of negligence.\n6. Trial \u00a7 33\u2014\nIt is error for the court to submit in its instructions to the jury a principle of law which is not supported by allegation and evidence.\n7. Sales \u00a7 14a\u2014\nLiability for breach of warranty arises out of contract, irrespective of negligence.\n8. Sales \u00a7 5\u2014\nStatement by a salesman that equipment had been completely rebuilt and reconditioned cannot constitute a warranty by the seller when the subsequently written agreement specifies that the seller guaranteed, for a specified period, that the equipment was free from defect in workmanship and material when used in normal service, and obligated itself only to make good defective part or parts returned, and that such guarantee was in lieu of all other guarantees, expressed or implied.\nMoore, J., not sitting.\nPiess, J., and Rodman, E.J., took no part in the consideration or decision of this case.\nAppeals by defendants and by plaintiff from McConnell, J., June 7, 1965, Civil Session of Fobsyth, docketed and argued as No. 457 at Fall Term 1965.\nPlaintiff alleged he was injured August 15, 1961, while \u201cbuffing\u201d a tire of a customer of the recapping business operated by plaintiff and his partner, Raymond John McKeown, Jr., in the Town of Clemmons, N. C.; that the buffing wheel on the used buffing machine the partners had purchased from defendants \u201cflew apart because of defective materials\u201d and \u201ca portion of said wheel . . . entered plaintiff\u2019s head\u201d; that the negligence of defendants in specified particulars in connection with the sale and installation of the buffing machine proximately caused plaintiff\u2019s injuries; and that plaintiff\u2019s injuries were proximately caused by defendants\u2019 breach of their warranty \u201cthat all used equipment purchased by the plaintiff was reconditioned and repaired and in all respects in the same condition as new equipment.\u201d\nDefendants, in a joint answer, denied all allegations as to negligence, warranty and breach thereof and the agency of Davis. They alleged the contract of March 11, 1961, covering the sale of equipment to plaintiff and his partner, was in writing. They pleaded, conditionally, that plaintiff\u2019s negligence in specified particulars was a proximate cause of his injuries.\nPlaintiff offered evidence tending to show:\nIn \u201cMarch or early April\u201d of 1961, plaintiff and McKeown, his partner, as a part-time venture, started a tire recapping business in Clemmons, N. C. A contract dated March 11, 1961, executed by each of the partners and in the name of Bacon American Corporation by \u201cH. J. Davis, Sales Representative,\u201d provided for the sale by the corporate defendant to the partners of the equipment listed therein for the total purchase price (payable in monthly installments) of $7,918.32. The list includes a \u201c5 h. p. Lodi Buffer,\u201d with attachments, the listed purchase price therefor being $750.00.\nIn negotiations prior to the execution of said contract, when reference was made to the high cost of a new buff\u00e9r, Davis stated \u201che had a good one, a used one that had been rebuilt and reconditioned in his shop in Raleigh ... it would be just as good . . . and was sitting in his warehouse on display.\u201d The partners did not see the Lodi Buffer until it was unloaded and installed in their place of business. At that time, Davis stated it was the Lodi Buffer \u201con the contract,\u201d \u201cthe one he had had reconditioned . . . (that) had been down in our warehouse\u201d and that \u201cit had been completely rebuilt.\u201d\nWhile described as a Lodi Buffer, the two buffer wheels furnished with this equipment were manufactured by the B & J Manufacturing Company of Chicago, Illinois. In the operation of the buffer, only one buffer wheel at a time was used. One of the two buffer wheels is the portion of equipment directly involved.\nIn the operation of the Lodi Buffer, the shaft from the motor causes the buffer wheel to spin. The face of the tire is brought into contact with blades protruding from the spinning buffer wheel. Uneven and excess rubber is removed as a prerequisite to recapping a tire.\nEach of the two B & J buffer wheels consisted of two circular metal plates, connected by eight metal pins, two pins for each of the four sections. Each pin passed from its terminal in the hole therefor in one plate, through each of six separators or \u201cspacers\u201d and through each of seven blades, to its terminal in the hole therefor in the opposite plate. In one plate, the pins were permanently imbedded (\u201cbradded in\u201d) in the holes therefor. Ordinarily, there was no occasion to separate this plate from the pins. The other plate may be and was frequently removed from the pins in the process of inserting new blades.\nWhile operating the buffer on August 15, 1961, plaintiff was struck and injured by a blade from the spinning buffer wheel. A customer took plaintiff to a doctor. The buffer continued to run. When McKeown arrived and cut off the motor, all of one section, blades, separators and pins, was gone with this exception: There remained in the plate where they had been permanently imbedded the ends of the two missing pins.\nExhibit 3 is the buffer wheel directly involved in plaintiff\u2019s injury. When offered and received in evidence, the separators and blades, but not the pins, in the three sections that were intact on August 15, 1961, had been removed. Exhibit 4, a complete buffer wheel, is the other buffer wheel included in the corporate defendant\u2019s sale to the partners.\nOther evidence pertinent to decision will be referred to in the opinion.\nAt the conclusion of plaintiff\u2019s (the only) evidence, defendants moved that plaintiff be required \u201cto elect upon which theory, namely, warranty or negligence,\u201d he intended to proceed. Thereupon, the court \u201cdirected that that portion of the plaintiff\u2019s action based upon breach of warranty be dismissed.\u201d Plaintiff excepted and appealed, basing his appeal solely on his exception to said ruling. Plaintiff seeks consideration of his appeal only in the event this Court should reverse or award a new trial in plaintiff\u2019s negligence action.\nThe court overruled defendants\u2019 motion for judgment of nonsuit \u201cas to that portion of the allegations and the evidence based upon negligence,\u201d and defendants excepted.\nThe court submitted, and the jury answered, the following issues: \u201c1. Was the plaintiff injured by the negligence of the defendants, as alleged in the Complaint? Answer: Yes. 2. If so, did the plaintiff, by his own negligence, contribute to said injuries, as alleged in the Answer? Answer: No. 3. Was H. J. Davis the agent of the defendant Bacon American Corporation and acting within the scope of his agency in the sale of the Lodi Buffer and attachments to the plaintiff and his partner on March 11, 1961? ANSWER: Yes. 4. What amount, if any, is the plaintiff entitled to recover? ANSwer: $8,750.00.\u201d\nJudgment for plaintiff, in accordance with the verdict, was entered. Defendants excepted and appealed.\nRoberts, Frye & Booth and White, Crampler, Powell, Pfeffer-korn & Green for plaintiff.\nDeal, Hutchins & Minor for defendants." }, "file_name": "0542-01", "first_page_order": 578, "last_page_order": 587 }