Northrip v. Montgomery Ward & Co.

J. E. NORTHRIP, Appellant, foreign WARD

MONTGOMERY & cor CO., et poration, Appellees. al., 45677.

No.

Supreme Court Oklahoma.

Nov.

DOOLIN, Justice.

This matter before us from an sustaining order motions judgment in favor of Appellees (De below). upon fendants We feel called Appellees (Defendants first decide: If be present low) may issues, new arguments and authorities to sustain the trial court’s granting which, if motions, raised at time hearing would presented a material fact and issue for determination. they

holdWe cannot. A pleadings of the recital and facts is necessary. alleged pur- Plaintiff he that battery chased a Ward’s Riverside from Montgomery (Ward’s) Ada, Ward in Oklahoma, in October of thereafter installing same in his International bulldoz- 1,May er. about On or while the operated, dozer being battery was ca- loose; stopped opera- bles became he then tion, pair left running, the motor took a ordinary pliers adjust and commenced to battery alleged cables. He that he tapped lightly battery on the cables the ex- ploded, causing a destroyed fire that damaged equipment; his extent of $4,765.22. allegation explo- His proximate was the cause of the fire sion alleged and then Plaintiff followed Riverside was Ward’s brand name and battery was (cid:127)that manufactured for Inc., Gould, by the Defendants Ward’s ESB, Inc., and that Ward’s and either ESB, was the manu- Gould whichever facturer, impliedly expressly war- had battery ranted that was free de- workmanship in fects materials proper fit and safe for use. He then was allegation liability followed with tort Smith, Ada, appellant. Michael G. a-duty for the breach of owed (negligence) marketing battery dangerous failing Ada, Jaques, appellee, Frank H. highest use standards of workman- Montgomery & Co. Ward materials, finally ship quality etc. He Sanders, Jr., Carpеnter, Richard L. alleged manufacturer that Ward’s and the Tulsa, McElroy Carpenter, appellee, & theory under were liable ESB, Inc. liability prayer strict in tort. His was Lampton, Sapulpa, appel- Maurice E. out in the amount set aforesaid and that lee, Gould, Inc. parties required Defendant should parties in interest or the substantial inter- or to inform among themselves determine appears est of the Plaintiff. It that after battery. had made him as to who sustaining the trial court’s all Defendants’ motions, de- appearances, special Variоus summary judgment and after motions for etc., admissions, murrers, requests for peti- Appellant/Plaintiff had filed his were answers in due course followed perfected appeal his tion error of a in the form separately Gould filed 21, 1972, April on and after the Court denial; in the form general ESB Appellant July his brief had filed contributory negligence, denial, general Appellee/Defendant filed ESB O.S.1971, 2- 12A notify under § failure perpetuate court a motion to with the trial and, form of Ward’s 207(2) (c); On testimony O.S.1971, 538.7. under denial, contributory negligence, general 12, 1972, September Appеllee/Defendant product, and unavoidable misuse testimony perpetuate ESB’s motion cross-petition casualty. also filed interrogatories sustained and thereafter ESB, Inc., alleged had against Appellant/Plaintiff to the were submitted judg- battery, seeking the manufactured O.S.1971, 19, under 12 549. On October § ren- judgment was if against ESB ment 1972, Appellant the he had admitted been any sum. for against Ward’s dered paid by his fire insurance carrier at least filed, answers were and after the Before $4,765.22, the sum of the his amount of requests depositions and interrogatories, prayer, рayment and such was made by parties made the were for admissions prior petition. filing his to of the Defendant, May 1971 all and in 3, 1972, Appellees On November the for filed motions Defendants and filed motions to dismiss ESB Ward’s by trial heard the judgment which were Appellant’s in the alleging this Court 21, They were taken May court on $4,765.22 damages paid Ap- had been to advisement, upon on March and ruled under pellant by his fire insurance carrier and all 22, trial court sustained the 1972—when O.S.1971, Appellant that under 12 781 § summary judg- motions Defendants’ pecuniary had substantial no or /Plaintiff ment. litigation in interest thе outcome of the timely appeal. made Plaintiff thereafter aggrieved party an such was not under statute. indicates search of the record A by hearing Appel- or rul prior to the The motions to dismiss filed

that at no time lees lead us the con ing Defendants’ motions ESB to O.S.1971, upon the real made 12 2212—the an sideration of judgment was attack § every court, Savings in “The v. Home & State 1. 12 See also Swan § 78: O.S.1971 any disregard (1931) ; action, Bank, 42, stage or ‍​​​‌‌‌‌‌​​‌‌‌​‌‌​​‌‌​​‌‌‌​‌‌‌​​​‌​‌​‌​‌​‌‌‌‌‌​​‌‍error P. re must 297 250 148 Okl. 167, proceedings Muskogee Co., pleadings 83 Okl. or & Electric defect in the Gas rights Campbell, (1929) ; Muller v. 97 the substantial 201 P. 358 does not affect (1924) ; 91, party; re- American shall be 222 P. 980 Okl. adverse Fidelity Casualty by Bus such error or & v. American reason of Co. or affected versed (10th CA). Lines, F.2d Cir. 178 7 defect.” Whitman, P.2d 664 Whitman 397 See “Every (Okl., 1964) 2. 12 action must be § : O.S.1971 221: complained party adjudication prosecuted in of on in the name of the real “Where the provided by force, interest, except operate, in this ont its own as otherwise review does obligation impose and has no shall not be deemed to a burden or article but this section to action, thing rights, person assignment binding against in or of a authorize effect appeal, party seeking arising property such to out of contract.” thereby. particularly aggrieved party referred to McMahan We are is not by decision, McCafferty, party aggrieved Okl. To render a .443 direct, (1952), Syllabus must be subsist- 3: its adverse effect pays contingent company ing an insurance and immediate rather than “Where wrong by possible, consequence assured loss occasioned on some remote property possibility party, of the future even- third and the value mere unknown ” destroyed by tuality. fire not exceed . does . . statute, O.S.1971, рarty district, in and 12 guidance interest superior pleas state, 3—which allows an action be con to common courts of this as upon adopted ducted the death transfer of the on March should de- original party in name of his if assignee concerning nied the facts any issue in original party pleadings, the name of as raised as set in forth depositions, admissions, in party trustee the real interest. answers interrogatories, and affidavits on file Appellant, upon receipt of the motions filed, case when motion is such dismiss filed in this Court Ward’s as set forth in аffidavits filed thereafter ESB, took two actions. On November meeting opposition to such motion and 15, 1972,he Court a filed motion to requirements of said Rule $4,765.22 prayer his increase from men, if conflicting, or reasonable in the - $4,800.22, alleging additional $35.00 impartial exercise judg- of a fair and exploded replacing was the cost of bat- ment, might different reach conclusions and, 27, 1972, tery; on November he re- undisputed any facts is- concerning sponded to alleging the motions dismiss sue as set forth such instruments.” that Ward’s and had waived their ESB (Emphasis supplied.) right parties rаise the issue of and their rights by presenting substantial the is- this rule so We affirm and in demurrer, answer, to the trial sue court point doing, the motion (sum out that other pleading, including motions for mary) judgment where facts are contro summary judgment. verted should be “if the denied facts con cerning any by pleadings” issued raised the recently When we dealt with Rule disputed. or conflicting The issues Green, 12 App.4 Perry O.S. Ch. in v. argued by Appellees the here had not been 1970) (Okl. 468 489 we stated: court, nothing in although raised the trial precluded summary Appellees testing “A the judgment, motion under necessary parties Rule 13 of this or interest of said court’s uniform rules for paid Again by Tánes, company, see v. amount Great Western Motor insurance Inc. Cozarrl, supra. may company bring insurance an action against wrongdoer in its own name may party judg 4. Rule 13: “A move for property and recover the value of the de- ground dep inment his favor on the that the stroyed.” ositions, admissions, tories, interroga answers to continuing page and 446: file, and on filed with his mo affidavits plaintiff “Under this rule the was not enti- subsequently tion or filed with leave of court any amount, having titled to recovеr been controversy show that there is no substantial paid by company; in full an insurance and any party as to material fact. The adverse brought, the action should have been either may in file affidavits other materials by company name, in insurance its own opposition to the motion. The affidavits by plaintiff or as trustee for the in- by party which are shall filed either be made company.” surance personal knowledge, shall show that Lines, also See Great Western Motor Inc. testify competent is affiant mat as to the Cozard, (Okl., 1966). 417 P.2d 575 therein, tеrs stated and shall set forth facts 3. 12 “An in O.S.1971 235: that would be admissible § action does not evidence. by judgment disability appears abate party, therein, the death court shall or other render if it by any controversy or that there is substantial transfer interest any during pendency, any party its if material en the cause fact and judgment In action survive or continue. case titled to as matter of law. If the of the the disability party, death other court finds is no that there substantial con may troversy issues, court allow the action continue as to certain facts or shall it against representative specifying his make an the facts successors order or issues interest, upon may such and in terms such time as which are not in and direct that just pre- proceed under the the action determination of the circumstances ” n * * any In sented. est, case of other transfer facts of inter- or issues. may the action be continued the name We are that Rule been not unmindful 13 has original party, hearing summary may of the the court allow amended since motions for person judgment case; however, changes to whom transfer is made to be this in the action.” are not material. substituted 494 supports recovery (Okl., 1970) 2d our hold

parties in the at the time of summary ing, be- for as dicta we indicated: judgment. We motions for “ appeal inquiry on lieve we should limit the presently . . we are concerned . “any pleadings”, Per- issue raised with the state of the record at the time ry Green, supra, what could have not the motion have potentially might been an issue sustained.” Appellee. If all issues been raised In French we reversed the trial court’s parties in this and their sub- case sustaining a motion for рresented at the rights stantial had been of a material fact at issue on the existence level, an issue trial it becomes clear that O.S.1971, in 12A 2-709 as defined one then which was a material existed evi- refused to consider the after-discovered properly dealt until the same had been dence which would sustained de- with, granting summa- would be a bar satisfaction, simply fense be- of accord ry interpretation judgment. be- This we pleaded cause the same had been harmony lieve is in with the Federal Pro- French, page At was not an'issue. 56, U.S.C.A.) (see сedural Rules Rule supra, we stated: Practice, and 6 Moore’s Federal 2nd Edi- may how “We are advised we con- tion, 2051, 56.03. The discussion (answer alleging sider this accord and Practice, supra, Moore’s Federal indicates plaintiff’s under motion for satisfaction) that the Federal courts have held that a in the judgment, ... summary judgment goes motion is- raising absence of some pleading bar, merits and is in the nature of a not an (parenthetic sue in the District Court.” Certainly granting abatement. order phrase supplied). Appellant summary judgment against this next We should determine whether un- Appellant’s has not insurance barred the 13, supra, der Rule there was a substantial a cause of action. filing carrier from controversy as to a material fact. Motors, (3rd Reo 205 F.2d 685 Shafer v. CA) Cir. that court observed: petition alleges Plaintiff’s three recovery: warranty, negli theories of summary ruling “The on for motion gence, liability and strict de tort. We judgment is to made on record the be Motors, cided in v. 521 Kirkland General parties actually presented, not that P.2d 1353 that (Okl., prior 1974) potentially possible.” one adopted ‍​​​‌‌‌‌‌​​‌‌‌​‌‌​​‌‌​​‌‌‌​‌‌‌​​​‌​‌​‌​‌​‌‌‌‌‌​​‌‍liability case we had not strict many We have held times that the theory although may recovery of we Supreme Court is confined to issues tempted apply such be doctrines presented by Ajax the record. Con matter, See: that found therein to this we recall tractors, Myatt, (Okl., Inc. v. 424 P.2d 30 application adopted prospectively its was McAllister, 1967); v. 474 P.2d McGhee and for trial after the cases for from and County 940 (Okl., 1970), and Board of issuing of the mandate therein. noteWe Schuessler, Com’rs of Choctaw v. 358 Co. that the mandate has issued. 1961). Although (Okl., 830 can promulgated Rule 13 was this Court arguеd that the as now constituted record VII, powers under its Art. granted Sec.

does payment contain evidence of 6 of the Constitution and 12 O. Oklahoma $4,765.22, least under the facts nonetheless O.S.1971, 1971, The 24. S. 74 and 20 § presented and circumstances we refuse adopted by Rule this Court on March was appeal. this Although distinguish dismiss 15, Historically, summary judgment 1965. facts, able on the we believe recent applied were first to actions ex rules Co., case Sotheby probably originated of French v. & 470 P. contractu5 and most Summary Judgment, Practice, (1928); 5. The 38 Yale L.Rev. 423 6 Moore’s Federаl 2nd Edi tion, 2071, 56.05.

495 “ right from the law in trial courts . common general we start with the pleadings. proposition to strike sham and frivolous that issues of negligence, in- Cardozo, while an associate cluding such When related issues as wanton Justice Appeals justice contributory of the Court of in New negligence, ordinarily are 1925, Curry v. Mac- susceptible York noted adjudication Kenzie, 267, N.Y. 146 N.E. 239 375: either against claimant, Rogers v. Peabody Coal justify departure that course “To Cir., 749, (C.A. Co. 6th 342 9 1965) F.2d trial) award of (usual course 56c.41, 1; FR Serv.2d Ins. Case Aetna relief, the court must he con- Cooper Cir., Cо. v. &Wells Co. 6th (C.A. is not genuine, vinced that the issue but 342; 234 F.2d 1956) Roucher v. Traders feigned, is noth- and that there in truth & Ins. Cir., Gen. (C.A. Co. 5th 235 1956) phrase ing (parenthetical to be tried.” 6; F.2d 56c.41, FR23 Serv. Case supplied). Furlong v. (SD Stichman 24 NY 1959) applying renowned was Rule Justice 400; FRD Alabama Great R. Southern Act to of the New York Civil Practice 113 v.Co. (C. Louisville & Nashville R. Co. His an action ex reference to contractu. Cir., 1955) A. 5th 224 F.2d 1 (wanton quote the issue and the and viable alive involved; negligence summary judgment today for us in the consideration of mod- for defendant reversed); Cellini v. Moss rules, may on its pleading ern be fair (C.A. ‍​​​‌‌‌‌‌​​‌‌‌​‌‌​​‌‌​​‌‌‌​‌‌‌​​​‌​‌​‌​‌​‌‌‌‌‌​​‌‍1956) DC U.S.App.D.C. face false or frivolous in [98 114] but fact. 371; F.2d (C.A. 232 Stace v. Watson Perry Green, supra, v. v. and in Flick Cir., 715; 5th 1963) 316 F.2d Meeks v. Crouch, (Old., 1967), 434 P.2d 256 we ob- Appalachian (SD Power Co. VaW patterned after served Rule 13 1960) F.Supp. (denying 180 469 summa- Rule 56 of Federal Rules Procedure. ry judgment defendant); Calhoun Federal Rule therefore cases under 56 application special have undoubted 1959) Northeast Airlines (SD NY entitled such consideration F.Supp. summary judgment 532 (denying Court. ; Edwards Mas- plaintiff) v. Mazor terpieces (C.A. 1961) U.S.App. DC [111 any first instance Rule 56 was D.C. 295 F.2d 5 FR 8a.- Serv.2d 202] appli or statute which authorized rule for de- (Summary Casе procedures to cation any types reversed); fendant Hartsell Hickman all all civil actions and to in such may arise claims issues 1957) F.Supp. Ark 24 FR (WD ” * * * Practice, Moore’s Federal actions. See 6 56c.41, Serv. Case Edition, 2011, same This 2nd 56.01. dealt This has three times Court treatise notes in his last mentioned author since negligence in actions8 Rule 13 with 2583, 56.17(42) : at pres- occurred, pute the about how an accident Sterling Moore, of Professor 6. Wm. James negligence a remains or absence of often ence University. Law, Yale requires question under a trial of fаct which Summary Judgment. also 73 Am.Jur.2d See principles negligence. of the law of traditional 0:§ no cir- that under While it cannot be said summary judgment “Although is available question gross wan- or of cumstances can the negli- grounded proper in in a case actions in summary negligence disposed of on ton be negli- usually gence, in is as feasible not judgment, in have resulted most of the cases litigation, gence kinds of in other cases as summary judgment holding not a that including negligence, con- issues of because particu- proper the under the circumstances оf ordinarily tributory negligence, sus- are not summary cases, however, In lar case. some adjudication summary ceptible of cases) granted.” (citing judgment has been plaintiff against adds claimant. What the City, Purvis v. Midwest difficulty 8.In procedural of to the intrinsic both ques- applied 1969) (Okl., to a 13 was Rule the confu- to some of immunity governmental the to not tion of negligence dealing in with the device sion negligence. of or nonexistence existence though is no dis- there even that actions material, questions raise are ma- Crouch, supra; like which Per- adoption. Flick v. its Reid, only determined in nature and can be Green, Runyon terial supra; and ry v. indicate his ad- by jury. a Plaintiff did Flick of In denial (1973). 510 P.2d 943 at that he ivould have evidence in missions approved; judgment was as the the time of trial to chemical approved grant- the Runyon we Green and physical makeup battery of the view- case summary judgment. Each ing of believe, par- ing light a most favorable must, its this statement judged on own we be facts, sup- (Plain- party opposing’ the the motion to peculiar pleadings, ticular and affidavits, tiff) negli- an of certainly raises issue porting depositions, etc. gence. case, there is little In instant the deposition available to the trial pres pleadings indicate the that the doubt consideration, court for Plaintiff testified of fact. The conflicting of issues ence experienced being to and doz- mechanic on alleges breach in his Petition Plaintiff operator. equip- er He testified that the of the wet- part the manufacturer of ment which was sometimes had burned left its im battery question of storage cell it was where available or accessible to plied warranty of its intended fitness for public and was not under constant surveil- appear allega to use. This does not be an acknowledged lance. He he that did of a Commercial tion of breach Uniform question battery have the and had made warranty limi accompanying Code with its tests. Plaintiff described his action defense, are raised in but an' tations which explosion; the time of the he had been warranty of of fitness allegation of breach lightly battery tapping on the cables while Battery Company recognized in Marathon analyze running. dozеr was As we 1966). Kilpatrick, (Old., 418 P.2d 900 deposition, admissions, affidavits alleges Petition defec regard, In this pleadings, we them believe to be made of of sub negligent construction tive the “stuff reasonable men could differ battery. The answers of the ject storage “grist jury.” about” alleged battery of the and the manu seller battery deny allegation, deposition employees facturer of the had Ward’s put is conflicting it at issue as a and thus other than cumulative. There no effect sure, in go were, objections sue of The answers also be certain made fact. employees, terpose possible testimony defenses of contributo of the Ward's product, question una ry negligence, objections to the misuse but these went put hearsay credibility voidable accident. These defenses also conflicting regarding company. at issue issues of fact witnesses and the records explosion. They the Plaintiff’s conduct and were not sufficient to have ruled possibility proof out manu- Considering motions for facturer of the could not estab- light in the favorable most may lished, may or been applying the same stаndard Plaintiff and crucial to Plaintiff’s case. affidavits, deposition and admis- Analysis pleadings, depo- of all available sions, genuine there remains sitions, by the etc. on hand and considered quality the product, material at the motions for trial court time genuine There is suggesting a defect. summary leads us to believe that whether, judgment cir- controversy as to under the controversy of facts, a substantial material facts a was duty cumstances and breached this must be of existed and that cause one or of the Defendants and more in the exercise to reversed. men the Plaintiff should be entitled Reasonable course impartial might have prove judgment of fair and negligent explosion. a reason opposite or conclusions only pleadings frame the differed reached Not do the thrust, trial, actions of the at time Plaintiff issues but likewise explosion. and of the and of the scope purport affidavits

497 contained in such materials must be battery is unavailable is That light of in the most Certainly principles viewed favorable to the persuasive. not storage party opposing the mоtion.” wet-cell operation a common of court or to a trial battery are not unknown Kress, v. H. See also Adickes S. 398 U.S. say age, noth jury day in this and to to a 144, 1598, 142; 90 S.Ct. 26 L.Ed.2d United makeup, chemical ing of the fact that the Co., v. Kansas & Electric Gas 287 States battery easy danger of a is operation, and ; C.A.) (10th F.2d 601 Cir. United States battery alleged Plaintiff to establish. Association, v. Farmers Mutual Ins. 288 as a source of fit and safe for use (8th C.A.); F.2d 560 Cir. Moutoux v. alleged he a breach of power; electrical Inc., Electric, Gulling Auto 295 F.2d 573 and, explosion was the warranty; that and, Paroczay (7th Hodges, C.A.), Cir. and a re proximate damages cause his 362, U.S.App.D.C. 111 297 439. This F.2d alleged materials. He sult of defective summary proceed- approach judgment to owed a that and the manufacturer Ward’s court; by the ings was not followed trial battery duty produce highest a from the to adopt it for Oklahoma. we would materials, inspect products, their type of to is the Defendants inferred It manufacturing that procedure because the that duty. such defendant had breached developed expedite to has been judgment Defendants, short, us сon- ask is from the trial of relieve the court proof difficulty of defect clude exists, the trial sues when non-availability negligence, because of the considering the matter justified is court battery testing, for scientific should ultimately required be it will as whether deciding establishing element in be the party a verdict for one direct of fact. existence of controversial issues Company, v. Ford Motor In Pierce other. explosion In an This decline to do. we C.A.) that court Cir. (4th F.2d 910 190 product very may case it well held: it has been cannot be recovered because “ * * * perfect- only it is It is where find' no disintegrated or atomized. We issues in the are no ly clear that there authority, nor ‍​​​‌‌‌‌‌​​‌‌‌​‌‌​​‌‌​​‌‌‌​‌‌‌​​​‌​‌​‌​‌​‌‌‌‌‌​​‌‍we cited to convincing proper. summary judgment case that negli- any, proof allow that would not judge is of in cases where Even proof of defect circumstantial gence to direct ver- he will have opinion that evidence, expert opinion, other eviden- the is- the other on party or dict for one Co., supra, tiary Battery rule. Marathon raised, sues, he should or- that have been Court, dry-cell by this with a decidеd dealt direct the the evidence dinarily hear equally applicable battery, but we think it try the attempt rather than verdict dangerous an wet-cell even more for summa- on a motion case in advance represent prevailing Marathon did intended never which was ry judgment, hearing view of this Court the time jury trials or parties to evade to enable summary judgment. Un- motions See in ad- judge weigh evidence Anciaux, 69, 226 al. v. 68 Nev. derhill et * * *” presented. being its vance of dealing a case with (1951) P.2d 794 supplied.) (emphasis poisoning enough food where Arceo, N.M. 376 аlso Coca v. See sample existed to scien- bottled drink (1962). tifically analyze or test. unnecessary to consider find We authority than the Su No less may his Pe- party not a amend whether or preme has held Court of the United States lodged appeal has been after the tition Diebold, United States U.S. granting of Court, for we reverse 8 L.Ed.2d 176: S.Ct. re- in this case the District Court mand the same to the inferences “On incon- not County proceedings for underlying the facts Atoka to be drawn from months; container; opinion, noting it was not a sealed this however sistent with plaintiff it; it as сhecked and added water to herein is to be considered nothing the left trial court the bulldozer was unattended and third any way inhibiting the at parties finding tampered could have with the of the evidence bat- conclusion tery; upon were it to warrant no tests conducted insufficient submis- to same to be explosion; jury. determine cause and it is of the matter to the sion now available for tests. and Reversed remanded. ignores plaintiff’s This contention allega- HODGES, WILLIAMS, J.,C.V. duty tion had a him defendants to warn DOOLIN, JJ., concur.

LAVENDER dangers battery. involved in use of the defective, bаttery Even if the was not BARNES, JJ., concur IRWIN plaintiff might be if entitled to recover he result. duty could establish defendants breached battery explode to him the might warn BERRY, specially. J., concurs proximate the failure to warn was the cause damages. of his Technical Chemical DAVISON, dis- J., SIMMS, J., C. Tex., Jacobs, Co. v. 480 S.W.2d 602. sent. prof- evidentiary None of the materials BERRY, concurring) : (specially Justice provide any fered by defendants informa- majority opin- the specially in concur I propensities tion concerning of batteries of precisely it states do believе ion but any, giv- was type; warning, what if when rules determine summa- applicable ;en warn or whether failure to was for granted defend- ry judgment should be explosion. likely cause of most required to plaintiff when ant and failed to sustain their Since defendants opposition evidentiary present materials evidentiary producing materials burden of summary judg- defendant’s motion there was no substantial con- establish ment. material facts troversy as to one moves defendant When plaintiff’s under this theo- of action cause is no sub- show there he must duty produce evi- ry, plaintiff had no fact material controversy as to one stantial issue of fact dentiary materials show an and this fact action plaintiff’s cause of 6.Cir., Shappell, did exist. Fitzke favor, or show there is is in defendant’s ; Practice F.2d Moore’s Federal 1072 6 ' to all material substantial p. 56.15(3), constituting affirmative defense. facts grant- Therefore, erred in the trial court Reed, Okl., Runyon P.2d 943. summary judgment defendants. ing petition alleges Plaintiff’s Furthermore, evidentiary materials they manufacturer liable because plaintiff unable to do will be not establish potential dan- instruct as to failed to him. prove battery was defective. Mara- battery ger in use of the under normal Okl., Battery, Kilpatrick, thon Inc. v. conditions, principles of or are liable under battery exploded was a warranty, liability be- negligence, or strict creat- sealed container. We held this fact cause it was defective. jury’s ed an supported inference which Defendants contend battery at finding the defective was proper plaintiff prove because must possession time it left manufac- battery their was defective when left turer. evidentiаry in- possession and materials so. he will not to do dicate be able is distin- Defendants contend that case battery guishable in- because cell wet evidentiary 'materials indicate These container. was not sealed volved herein six least plaintiff had upon point evidentiary materials liquid only indicate one could add

battery. produced Defendants no eviden-

tiary concerning characteristics materials batteries, handling

of wet cell how battery subsequent plaintiff time explo-

acquired might caused the

sion.

Therefore, my opinion it is the eviden- plaintiff

tiary do not establish materials prove defect

will be unable to there left the ‍​​​‌‌‌‌‌​​‌‌‌​‌‌​​‌‌​​‌‌‌​‌‌‌​​​‌​‌​‌​‌​‌‌‌‌‌​​‌‍time it defend- possession.

ants’ not contend there was no

Defendants do any ma- controversy as to other

substantial action, or plaintiff’s cause of

terial fact of

that there was no substantial constituting an af- all material facts

firmative defense. I concur the reasons stated above

For majority opinion.

specially in the CARSON, Appellant, Jr.,

Kenneth Russell Appellee.

The STATE of Oklahoma, F-73-112,

Nos. F-73-410. Appeals of Criminal

Court of Oklahoma.

Dec. 1974.

Rehearings Denied Dec.

Case Details

Case Name: Northrip v. Montgomery Ward & Co.

Court Name: Supreme Court of Oklahoma

Date Published: Nov 12, 1974

Citation: 529 P.2d 489

Docket Number: 45677

Court Abbreviation: Okla.