Rodibaugh v. Caterpillar Tractor Co.

AGEE, J.

This is an action for damages for personal injuries allegedly sustained as a proximate result of a defect in a bulldozer manufactured by defendant and purchased by plaintiff’s employer.

Plaintiff appeals from a judgment entered upon an order sustaining defendant’s demurrer to each of the two counts in

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the amended complaint without leave to amend. The first count alleges breach of warranty and the second count alleges negligence.

The lower court, in compliance with section 472d of the Code of Civil Procedure, stated that its order was based upon the ground that “ [t]he period of limitations runs from the sale [of the bulldozer] and not from the date of the accident, and therefore the Complaint shows on its face that both counts are barred by the statute of limitations. ’ ’

The second count incorporates paragraphs 2, 3, 4, 5, 8 and 11 of the first count by reference. The relevant allegations of these paragraphs may be summarized as follows: that at some time prior to August 31, 1957, defendant manufactured a certain specified bulldozer and a certain pin inserted in a hinge to the front blade thereof; that on August 31, 1957, plaintiff’s employer purchased said bulldozer; that on February 13, 1961, while acting in the course and scope of his employment by said purchaser, plaintiff attempted to extract said pin from the hinge of said bulldozer; that he was using the customary and usual method of extracting said pin, by striking the upper flange of the same with a wedge-shaped hammer (how injury occurred described below); that plaintiff sustained general and special damages for which he seeks a money judgment.

It appears that paragraph 9 of the first count was inadvertently left out of the paragraphs thereof which were incorporated in the second count by reference. Said paragraph 9 alleges that at the time plaintiff was engaged, as aforesaid, “a piece of metal flew off said pin and pierced plaintiff’s right eye, causing him to lose all sight therein.” This oversight may easily be remedied by plaintiff in an amended pleading.

The second count concludes with the charging allegation that the defendant “so carelessly and negligently manufactures [sic], processed, distributed and sold said machine and the pin therein, as to proximately cause the damages herein complained of. ’ ’