Lumbard, Chief Judge, and Smith and Anderson, Circuit Judges.
The Warner & Swasey Co., Inc. and Comad, Inc. appeal from a judgment entered in these consolidated diversity actions after a trial before Judge Mansfield and a jury in the Southern District of New York. The judgment awarded plaintiff, Salvatore J. Sylvestri, $25,000 against both appellants jointly and severally for personal injuries sustained by plaintiff when he was thrown from the operator's seat of a backhoe manufactured by Warner & Swasey and sold by a predecessor of Comad to Sylvestri's family-owned construction corporation as part of a combined equipment unit. The judgment, in addition, dismissed each appellant's cross-claim for indemnity against the other, the determination of these cross-claims having been reserved to the court. Comad also appeals from an interlocutory order by Judge Wyatt denying its motion for judgment on the pleadings.
Warner & Swasey contends that there was insufficient evidence to support the jury's finding of liability on the basis of breach of express warranty; that, as the backhoe was a component part, no express warranty ran from Warner & Swasey, the manufacturer, to plaintiff; and that the jury's finding of breach of express warranty cannot be sustained because of inconsistencies in the jury's answers to special interrogatories. Warner & Swasey also contends that its liability is without fault, and therefore the trial court erred in dismissing its cross-claim against Comad.
Comad, in addition to questioning the sufficiency of the evidence upon which the jury found it negligent, argues that the action against it was not timely commenced within the applicable period of the New York statute of limitations, and that therefore Judge Wyatt erred in not granting its motion for judgment on the pleadings. Judge Wyatt, in denying the motion, held that Hanna v. Plumer, 380 U.S. 460, 85 S. Ct. 1136, 14 L. Ed. 2d 8 (1965), overruled Ragan v. Merchants Transfer and Warehouse Co., 337 U.S. 530, 69 S. Ct. 1233, 93 L. Ed. 1520 (1949), so that "commencement" of a diversity action for statute of limitations purposes is to be tested by Rule 3, Fed.R.Civ.P., rather than by the state standard. 244 F. Supp. 524 (S.D.N.Y.1965). Furthermore, both Warner & Swasey and Comad challenge the admission of certain evidence on the question of damages and the court's charge with respect to this evidence. We find that all the contentions of both appellants are without merit, and we affirm the judgment.
A backhoe is a piece of construction machinery consisting principally of an inverted scoop at the end of a shaft, an operator's seat, and two stabilizers or outriggers or "jacks" which are designed to rest on the ground to prevent the backhoe from tipping over when the scoop is extended and moved from side to side. The backhoe is not operative by itself but must be attached to another piece of equipment, in this instance a tractor called a Michigan Front Loader 85A, which provides the hydraulic power necessary to operate not only the scoop and shaft but the stabilizers as well.
Warner & Swasey sold the backhoe involved in Sylvestri's accident to Comad's predecessor (hereinafter referred to simply as Comad). On March 27, 1961 Comad, having attached the backhoe to a Michigan Front Loader, sold the combined unit to Sylvestri who was operating as the Lincoln Contracting Corporation of Yonkers, New York, a corporation whose stock was owned solely by Sylvestri and his wife.
Between March 27, 1961 and August 18, 1961, the date of Sylvestri's accident, Sylvestri used the backhoe for digging trench and lifting pipe. Throughout this period, beginning as early as March 30, 1961, Sylvestri made numerous complaints to Comad that the stabilizers did not remain in place on the ground when the backhoe was in operation, and as a result the machine wobbled. In response, Comad made service calls and attempted to rectify the situation by adjustments to the hydraulic system in the stabilizers, including replacement of the stabilizers' piston rings. Comad, however, advised Sylvestri to continue to use the machine as there was no danger.
On August 18, 1961, while working on a project in Yonkers, Sylvestri for the first time began to use the backhoe as a crane to move boulders needed in the construction of a retaining wall. He attached a chain to a bolt on the end of the shaft behind the scoop and then looped the other end of the chain around a boulder. He then used the backhoe to lift the boulder and swing it around to where it was needed. According to Sylvestri's uncontradicted testimony, after several such maneuvers while he was lifting another rock, the stabilizers again failed to remain in place. As a result, the backhoe tilted to one side, and Sylvestri was thrown to the ground and suffered a fractured wrist.
Breach of Express Warranty by Warner & Swasey
The trial court submitted Sylvestri's action against Warner & Swasey to the jury on theories of breach of express warranty and negligence. In answers to special interrogatories the jury found in favor of Warner & Swasey on the issue of negligence but against Warner & Swasey on the issue of breach of express warranty.
Warner & Swasey maintains that there was insufficient evidence to support a jury finding that it had expressly warranted that the backhoe could be used to lift and move boulders in the manner in which Sylvestri was using it at the time of the accident. A Warner & Swasey advertising brochure, which Sylvestri received prior to his purchase of the backhoe and which Sylvestri introduced into evidence, contains a picture of the backhoe being used to lift a length of pipe and states that the "hydraulic system provides powerful lift force for material handling, sewerpipe laying, etc." The brochure also states that the backhoe was "constructed of strong boxed sections, electric-welded to form an extremely rigid foundation for digging and loading at any angle up to 90 degree right or left from centerline of tractor." Warner & Swasey does not dispute that the boulder being moved by plaintiff at the time of the accident was well within the intended weight capacity of the backhoe. While Sylvestri apparently did not attach the rock to the backhoe in exactly the same manner that the pipe was attached in the brochure picture, and while lifting rock may in some way be different from lifting pipe, we conclude that the jury was properly left to determine under the applicable New York law whether the brochure picture and statements as a whole represented an affirmation of fact or promise that the machine could be used as Sylvestri used it.*fn1 It is the "essential idea" conveyed by the advertising representations which is relevant, Rachlin v. Lib-by-Owens-Ford Glass Co., 96 F.2d 597, 599 (2 Cir. 1938), and the representations made here by Warner & Swasey support a jury finding favorable to Sylvestri.
Warner & Swasey claims that it was prejudiced by the admission of evidence that a Comad salesman showed plaintiff the backhoe being used by a third party in a lifting-operation. This evidence was clearly admissible against Comad, and Warner & Swasey was not prejudiced because the Court in its charge omitted all reference to this evidence when instructing the jury what it could consider in determining the express warranty claim.
We find adequate evidence to support the jury's further finding that the express warranty was breached and that this breach was a proximate cause of the accident. Warner & Swasey's District Manager testified that the backhoe was not in fact designed for the use to which it was put at the time of the accident. That was in effect an admission that Warner & Swasey had not complied with the warranty that the jury ...