Cooper v. Bishop Freeman Co.

495 So. 2d 559
CourtSupreme Court of Alabama
DecidedAugust 22, 1986
Docket84-571
StatusPublished
Cited by34 cases

This text of 495 So. 2d 559 (Cooper v. Bishop Freeman Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cooper v. Bishop Freeman Co., 495 So. 2d 559 (Ala. 1986).

Opinion

495 So.2d 559 (1986)

Sylvia COOPER
v.
BISHOP FREEMAN COMPANY and Jerry Russell.

84-571.

Supreme Court of Alabama.

August 22, 1986.

*560 Michael Jackson of Prestwood, Prestwood & Jazwinski, Andalusia, for appellant.

W. Beatty Pearson of Powell, Powell & Pearson, Andalusia, for appellee Bishop Freeman Co.

J.M. Albritton of Albrittons & Givhan, Andalusia, for appellee Jerry Russell.

PER CURIAM.

The plaintiff-appellant, Sylvia Cooper, suffered burns on her left arm and hand while operating a fabric pressing machine at her place of employment. Plaintiff filed suit against the machine's manufacturer, Rheem Textiles Systems, Inc. (designated in plaintiff's complaint as New York Pressing Machinery Corporation), alleging that the machine was defective and that the defendant had breached an implied warranty of merchantability. Plaintiff also sued Bishop Freeman Company, which manufactured a steam diffusing plate ("gird plate") that was a component part of the machine. In addition, plaintiff sued a co-employee maintenance mechanic, Jerry Russell, for negligence in maintenance of the machine.

Rheem Textiles Systems, Inc., was dismissed as a defendant by the trial court because of insufficient contacts with the state of Alabama to be subject to the jurisdiction of the trial court. Plaintiff's case proceeded to trial with Bishop Freeman Company and Russell as defendants.

The pressing machine that plaintiff was operating is composed of a table with a flat *561 surface and hot overhead pressing apparatus (head) which travels downward to make contact with the table surface when the operator manually presses a recessed starting switch located below the table's surface. The steam diffusing plate manufactured by Bishop Freeman Company was attached to the underside of the head. The diffusing plate is a flat metal surface with perforations that is designed to evenly distribute steam across the pressing surface of the head.

Plaintiff alleged that the loosening of a bolt on the pressing machine allowed the machine's table top to make contact with the starting switch when pressure was applied to the work surface, which in turn caused the head to unexpectedly drop to the work surface without the operator's manually depressing the starting switch. Plaintiff's left arm was positioned beneath the head when the head fell upon her arm and caused a burn injury.

Pursuant to the Alabama Extended Manufacturer's Liability Doctrine (AEMLD), plaintiff alleged that Bishop Freeman Company had failed to warn plaintiff of the propensity of the steam diffusing plate to become extremely hot during the machine's operation and had failed to adequately guard it. Plaintiff also alleged that Russell was negligent in failing to discover the loose bolt on the pressing machine, or, if he had discovered it, was negligent in failing to warn plaintiff of it.

The case was tried in November 1984, and the jury returned a verdict for the defendants. Plaintiff's motion for new trial was denied by the trial court and plaintiff appeals.

Plaintiff asserts that the trial court erred in denying her new trial motion, and she asserts the following reasons:

(1) The trial court abused its discretion by sustaining defendants' objection to plaintiff's proposed voir dire questions to the jury venire concerning potential relationships of the venire members and their families with liability insurance companies;

(2) The interjection of workmen's compensation insurance during trial irreparably prejudiced the jury against plaintiff;

(3) The trial court impermissibly charged the jury on contributory negligence and assumption of risk; and

(4) The trial court incorrectly charged the jury on the law of assumption of risk.

The denial of a motion for new trial is within the sound discretion of the trial court, and this Court will not disturb the trial court's denial of the new trial motion unless some legal right was abused and error is plainly shown within the record. Hill v. Cherry, 379 So.2d 590 (Ala.1980).

Cooper's counsel filed requested voir dire questions, which included the following inquiries:

"7. Are you employed by an insurance company, or is any member of your family so employed?
"8. Have you ever worked for an insurance company claims department?
"9. Are you related by blood or marriage to any insurance adjuster?"

Defense counsel objected to these questions as being overly broad, and the trial court sustained the objection. Although the record is scanty, it appears that the trial court limited its inquiry into the insurance carrier relationships of the jury to asking if any venire member was an agent, stockholder, or officer of the two liability carriers at risk in the case. At trial, Cooper's counsel requested that the venire be asked whether any member was related to any insurance adjuster employed by either of the two liability carriers at risk in the case, but the trial court denied the request.

Such an inquiry was sanctioned by a majority of this Court in Alabama Power Co. v. Bonner, 459 So.2d 827 (Ala. 1984). Upon reconsideration, however, we have concluded that this aspect of the majority opinion in Bonner is incorrect. Therefore, the view expressed in the dissenting opinion in Bonner is hereby adopted as the law in this jurisdiction, and insofar as the majority opinion in Bonner departed from the principles expressed in *562 that dissenting opinion, it is expressly overruled. (The dissenting opinion in Bonner is set out as an appendix to this opinion.) Accordingly, the trial court in this case did not err by denying Cooper the opportunity to qualify the venire as requested.

Neither did the trial court err by denying plaintiff's new trial motion on the basis of the interjection of workmen's compensation insurance during the trial. The record reveals the interjection of workmen's compensation insurance on four occasions; three references by defense counsel and one reference by the plaintiff in response to a question propounded by her attorney. Plaintiff's counsel objected to each reference to workmen's compensation insurance by defense counsel, and each objection was sustained by the trial court. Plaintiff's counsel requested and received a limiting instruction to the jury by the trial court after each objection was sustained. However, no motion for mistrial was ever made by plaintiff's counsel.

This Court has held:

"In a case where objection to improper argument is made and sustained, with immediate and strong action by the trial court instructing the jury that such argument was not correct and admonishing them not to consider it, the test on motion for new trial and on appeal is whether the argument was so harmful and prejudicial that its influence was not or could not be eradicated by the action of the court. McLemore v. International Union, etc., 264 Ala. 538, 88 So.2d 179...."

Otis Elevator Co. v. Stallworth, 474 So.2d 82 (Ala.1985). Or, as put forth in Louisville & N.R.R. v. Wade, 280 Ala. 453, 457, 195 So.2d 101, 104 (1967):

"[A] court which does all it is asked to do in sustaining objection to argument will not be placed in error for failing to do more, unless the argument is so grossly improper and highly prejudicial that its sinister influence cannot be destroyed by the action of the trial court. Ledbetter-Johnson Co. v. Hawkins, 267 Ala. 458, 103 So.2d 748."

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495 So. 2d 559, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cooper-v-bishop-freeman-co-ala-1986.