World Airlines, Inc., 201 F. Supp. 791 (M.D.Pa.1962) Rules 59(b) and 6(b).
BREACH OF WARRANTY
Early in 1959, Crossett, by inquiries to three dealers in heavy machinery, evidenced interest in a prospective purchase of a crane. One of the dealers was Southern. After discussions with sales representatives of Southern and Baldwin, Crossett selected a specific crane from a Baldwin catalogue. During the negotiations Crossett was made aware that the particular crane it eventually selected was capable of performing several operations, including lifting and digging with a shovel attachment. Crossett advised Baldwin that it needed a crane only for lifting and hoisting loads.
The crane selected by Crossett from the Baldwin catalogue was a type 24-W crane, mounted on rubber wheels. Detailed specifications were submitted to Southern by Crossett and Southern prepared and transmitted its detailed order, pursuant to these specifications, to the Baldwin factory in Lima, Ohio (Exhibit D-3). The order provided that the crane was to be shipped F.O.B., from Lima, Ohio to Southern, c/o Crossett Paper Mill, Crossett, Arkansas.
Upon its arrival in June, 1959 on a railroad flat car the crane was unloaded, assembled for operation and tracked into the Crossett mill under the supervision of T. C. Hembree, Sr., of Southern. Mr. Hembree explained the operation and maintenance of the crane to various personnel of Crossett. When the crane arrived, its locked cab was opened with a key delivered by Southern to Crossett. Inside the cab was a pamphlet entitled "Operator's Manual - Lima-Shovel Crane, Clamshell, Dragline and Pull Shovel - Type 24." (Exhibit P-5).
Mr. Hembree discussed certain of the contents of the manual with some of Crossett's personnel and advised them to familiarize themselves thoroughly with its contents. Mr. Wiggins, who was a Crossett employee in charge of its heavy machinery, read the entire manual to acquire understanding of the operation of the machine. Hembree made approximately six trips to Crossett during a 30 day period after delivery to explain further the operation and maintenance of the machine to Crossett employees and officials.
On one of these visits to Crossett, Hembree tightened the springs of a built-in device known as the crowd-retract lever to impede its operation. It was the operation of this device which gave rise to the claims involved in this litigation.
The crane has a side-stand control panel in the cab, opposite the operator's right arm, which regulates the shifting of the crane from a lifting operation (boom hoist) to a shovel operation (crowd-retract). These operations are controlled by a poppet valve known as lever number 3. Lever number 3 is an air and spring-operated mechanism, which physically resembles a spoon handle. It is about 1/4 of an inch thick, flat in appearance, with a slightly rounded tip and protrudes from the panel about 1 inch.
When lever number 3 valve is in an upward position, the boom-hoist gear is engaged for lifting and its drum is locked. When lever number 3 is depressed downward, air is admitted to a cylinder ("F") located beneath the floor plate of the cab, the brake is released and a portion of the clutch-shifter lever beneath the floorplate moves to the left on its pivot causing a spring (B) to compress, which actuates the movement of the jaw clutch on its spline shaft to the right approximately 3/16ths of an inch before air is "dumped" out of another air cylinder (E) located beneath the floorplate of the cab, which in sequence releases a spring operated piston from inside the cylinder (E) that moves on a fulcrum attached to a safety ratchet or "dog" which is then locked into the flange of the boom-hoist drum to prevent the boom from falling when the jaw clutch is disconnected from the boom-hoist to crowd-retract position.
See Exhibit P-12A.
The plaintiffs offered testimony by Mr. Wiggins that two or three days after the crane was delivered, a Mr. Schumpert, now deceased, of Baldwin came to Crossett and introduced himself as a service engineer. In support of this testimony the plaintiffs offered Page 5 Part No. 1 of the Operator's Manual (Ex. P-5) which states: "An experienced LIMA Service Engineer is usually present as soon as possible after the machine makes its destination."
Mr. Wiggins queried Mr. Schumpert on the function of the "crowd-retract" device and allegedly was told by Mr. Schumpert: "I am going to disconnect that particular part. You don't have to worry about it."
These statements attributed to Schumpert are claimed by the plaintiffs to create an express warranty that the "crowd-retract" and all its sequellae had been shut off by adjustments made by both Schumpert and Hembree underneath the crane shortly after its arrival. In this context the plaintiffs further contend that the quoted portions of the manual vested Schumpert with both implied and apparent authority to make the warranty claimed.
We instructed the jury that as a matter of law, the representation allegedly made by the agent of the defendant after the machine was sold and delivered could not be considered a warranty, because it was not a part of the contract and was not supported by a separate consideration. We did instruct the jury, however, that such a representation "can be negligence, if that representation was in fact untrue, and if the persons who heard it relied on it, then it might be negligence." (n.t. 793).
The plaintiffs further urge that we erred in charging the jury that delivery had been completed and that the latest time that representations could be considered as warranties was on the physical delivery of the crane. They contend that completion of delivery was postponed by the Operator's Manual Page 5, which represented that a Lima Service Engineer would arrive soon after delivery of the crane.
The Uniform Sales Act was in effect as the law of Arkansas at the time of the sale of the crane and at the time the injury occurred. An express warranty is defined in Vol. 6A Ark.Stat.Ann. § 68-1412 as follows:
" Express warranty defined