George MILLER, Individually and as next friend for George Miller, Jr., Petitioner, v. BOCK LAUNDRY MACHINE COMPANY, Respondent, 568 S.W.2d 648

BARROW, Justice. This is a products liability case. George Miller, Jr., then eleven years old, had his left arm severed at the shoulder when it became caught in a centrifugal extractor, a type of clothes dryer manufactured by Bock Laundry Machine Company. At the time of the accident, it was installed in the Blue Ribbon Cleaning Center, a laundromat in Henderson.

George Miller, Sr. filed suit individually, and as next friend of George Jr., seeking to recover damages jointly and severally from Bock; from Luther Jenkins, d/b/a Blue Ribbon Cleaning Center; and from United Furniture Company, who had sold the equipment to Jenkins. Miller settled with Jenkins just before trial for $45,-000 and agreed to hold Jenkins harmless from Bock’s plea for indemnity or contribution. The jury found that the extractor was defectively designed by Bock and that the defect was a producing cause of the boy’s injury.

The jury also found that Jenkins and United Furniture were guilty of negligence, but that such negligence was not a proximate cause of the occurrence in question. The trial court concluded that there was no evidence to support the jury’s findings that the extractor was defectively designed and granted Bock’s motion for a take-nothing judgment non obstante vere-dicto. Miller perfected an appeal as to Bock and the court of civil appeals affirmed. 551 S.W.2d 775. We reverse the judgments of the lower courts and render judgment on the jury verdict.

To overrule the action of the trial court in granting the motion for judgment non obstante veredicto, we must determine that there is more than a scintilla of evidence upon which the jury could have made the findings against Bock. In making this determination, we must review the e vddence in its most favorable light, considering only the evidence and inferences which support the findings, and rejecting the evidence and inferences contrary to the findings. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974); Douglass v. Panama, Inc., 504 S.W.2d 776 (Tex.1974).

The extractor was designed and manufactured by Bock. It was designed to extract water from the clothes by means of the centrifugal force generated by the clothes basket rotating at about 1,725 revolutions per minute, the equivalent of over 60 miles per hour. This particular machine was originally sold by Bock in 1957 to Hammond Laundry Cleaning Machinery Company of Shreveport, Louisiana, and shipped directly to the Crim Furniture Company in Henderson.

Jenkins, who operated several laundromats in and around Henderson, was contacted by a salesman for United Furniture Company around the latter part of July, 1968, in regard to the purchase of some laundry equipment, including the Bock Centrifugal Extractor, which had been used by a Mr. Neal, who was terminating his laundry business. The record does not show how ownership passed from Neal to United Furniture. The extractor was purchased by Jenkins from United Furniture and installed at the Blue Ribbon Cleaning Center. No operating instructions or equipment manual were with the extractor or furnished to Jenkins.

The machine was placed in operation and apparently worked satisfactorily until the unfortunate accident which is the basis of this suit. On September 1, 1975, George Jr. accompanied his mother to the Blue Ribbon Cleaning Center for the purpose of helping with the family laundry. While there, she told George to remove a load of clothes from this extractor. George turned off the machine and, after a short delay, opened the lid. The extractor was equipped with a safety device to prevent the lid from opening while the basket was still spinning.

However, when George lifted the lid of this machine, the safety device did not operate. Although the lid opened easily, the basket was still rotating at a very high rate of speed. George’s arm was caught in the machine and severed almost immediately. There was testimony that the energy created by the rotating basket was so great it could have actually sucked the boy’s arm into the machine when the lid was opened. The evidence is uncontradicted that the safety device on the machine was defective at the time of the accident and that the defect was a producing cause of George’s injuries.

It is now firmly established in Texas that a manufacturer is liable for unreasonably dangerous products— whether designed defectively and manufactured as designed, or whether designed perfectly, but defectively manufactured. Henderson v. Ford Motor Co., 519 S.W.2d 87 (Tex.1974); Otis Elevator Co. v. Wood, 436 S.W.2d 324 (Tex.1968); Restatement (Second) of Torts §§ 395, 398 (1965). A defect in a product at the time of an accident is not alone enough to render the manufacturer strictly liable.

Therefore, the question before us is whether there is evidence to support the jury finding that the machine was defectively designed at the time it was sold, and that the defect was a producing cause of the failure of the safety device on September 1, 1975. At trial two expert witnesses testified that they had examined the machine. Mr. Stern, a licensed professional engineer with nearly 40 years experience as a private consulting engineer, examined the machine at the request of Miller two or three days after the accident. Dr.

Perry, a licensed professional engineer who has taught mechanical engineering at Texas A & M University since 1948, examined the machine at the request of Jenkins a few days after the accident and also at his laboratory in Bryan. Both testified directly and unequivocally that the failure of the safety device was the result of defective design.

Bock urges that the direct testimony of the two experts is without probative force in that the evidence conclusively establishes that the extractor, specifically the safety device, was not defective at the time of manufacture, and in fact, it had worked satisfactorily for over 18 years. It urges it was thus entitled to a directed verdict under the rule established in Henderson v. Ford Motor Co., supra.

The issue posed in Henderson can be paraphrased to apply to this case as follows: Did some feature of the form or material or operation of the extractor threaten harm to persons using the machine to the extent that any extractor so designed would not be placed in the channels of commerce by a prudent manufacturer aware of the risks or to the extent that the extractor would not meet the reasonable expectations of the ordinary consumer or user as to its safety? See also General Motors v. Hopkins, 548 S.W.2d 344 (Tex.1977).

To answer this question, we must consider the expectations of the manufacturer and the nature of the defect. Mr. Clement, the president of Bock, testified that these extractors were manufactured to last for many years — certainly more than 18 years with proper service and maintenance. Some were in service that were 30 to 40 years old. He also stated that the safety device is supposed to last the life of the machine. The two experts emphasized that the minimum requirement of any safety system is to outlast the useful life of the machine.

This evidence supports an inference that this extractor was designed with the intent it would still be in service on September 1, 1975. Clement admitted that an unreasonable risk of harm to the user would exist if the lid could be raised while the basket was still spinning. To understand the nature of the defect, one must understand the operation of the safety device. The hinged lid of the extractor is connected at the back to a metal rod which runs down the side of the machine. This vertical rod is then linked by a lever to a spring-loaded rod which runs horizontally underneath the clothes basket.

If the lid is raised, the vertical rod is necessarily pushed down, which in turn moves the horizontal rod. However, when the basket begins to rotate, the centrifugal force created raises a metal collar up, along the axle on which the basket rotates, into a position behind the horizontal rod. This prevents the rod from moving and the lid from opening. Most of the operating mechanism as well as the clothes basket is a self-contained unit apart from the exterior housing to which the safety rods are attached.

This mechanism is connected to the housing only at a ledge or rim which runs around the inside of the housing near the bottom. To prevent noise and vibration, there are four rubber pads on this ledge on which the operating mechanism rests. The two expert witnesses testified that the failure of the safety device to operate on this extractor was brought about as a result of a deterioration or shrinking of one of the pads which caused the unit containing the operating mechanism to slip down about an eighth of an inch.

This allowed the rod to pass completely over the collar, permitting the lid to be raised even though the basket was rotating. These witnesses expressed the opinion that the design was defective in that rubber was used for the pads despite the fact that rubber was known to deteriorate when in contact with oil and the ozone given off by the electric motor. One of the rubber pads was located close to the tube where the machine was oiled before it left the factory and was thus very likely to get oil drops on it. This pad, on which traces of oil were found, had deteriorated appreciably more than the other pads.

While Clement did not contradict the testimony of the two expert witnesses, he emphasized that this type safety device had been successfully used for years in the laundry industry. The expert witnesses testified, however, that a prudent manufacturer in 1957 should have made the pads of neo-phrene or chloroprene in lieu of rubber in that these products were known to be impervious to oil deterioration. There was also testimony that, in any event, an electrically operated magnetic or time latch should have been attached to insure that the lid could not be opened while the machine was running.

Bock also urges that the defect was brought about by lack of any type of maintenance by Jenkins during the seven years he owned the extractor. Issues were submitted to the jury to establish this contention. Although the jury found that Jenkins was negligent in failing to inspect the extractor and in failing to obtain a manual of instructions, it found that none of such acts was a proximate cause of the occurrence in question. No complaint is here made of these findings. Nor can it be said that these essential findings are established as a matter of law.

A prudent manufacturer could anticipate that the manual of instructions would become separated from the machine over the years, yet there was nothing printed on the extractor itself which called attention to the necessity for inspecting the rubber pads to prevent this unreasonable risk of harm to users. The pads could not be seen without dismantling the machine or, at least turning it over on its side and removing the housing. In the meantime, the extractor worked satisfactorily and there was nothing to alert Jenkins to the impending failure.

We conclude that there is evidence, and clearly more than a scintilla, to support the findings of the jury that the extractor was defectively designed and that this defect was a producing cause of the injuries to George Miller, Jr. Therefore, the trial court erred in granting Bock’s motion for judgment non obstante veredicto and entering the take-nothing judgment.

When a trial court has entered judgment non obstante veredicto, and an appellate court concludes that this was error, it must reverse the judgment of the trial court and enter judgment in harmony with the verdict, unless the respondent presents by cross-points grounds sufficient to vitiate the jury’s verdict or to prevent affirmance of the judgment had one been entered on the verdict. Jackson v. Ewton, 411 S.W.2d 715 (Tex.1967).

Bock filed six cross-points in the court of civil appeals whereby it complains of (1) the exclusion from the jury of evidence of the settlement made by Jenkins with the Millers; (2) the refusal to grant a mistrial because of a question by Jenkins’ attorney to Bock’s president regarding an alleged similar accident; (3) and (4) improper argument by Miller’s attorney; (5) exclusion of evidence offered by Bock; and (6) submission of the question of design defect by general issue. All of these cross-points are within our jurisdiction.

Bock urges that the trial court committed reversible error in refusing to admit evidence showing that Jenkins had settled Miller’s suit against him and that he had been effectively indemnified from further loss by Miller. ’In General Motors Corp. v. Simmons, 558 S.W.2d 855 (Tex.1977), we held that it was reversible error to exclude evidence of a “Mary Carter” settlement agreement whereby the settling defendant acquired a direct financial interest in plaintiff’s lawsuit. In so holding, we distinguished that type of settlement agreement from an ordinary settlement agreement which is properly excluded from the jury.

The settlement agreement entered into here was not a “Mary Carter” agreement because Jenkins did not acquire a financial interest in Miller’s recovery against Bock. Accordingly, the trial court did not err in excluding evidence of this settlement agreement. McGuire v. Commercial Union Insurance Co. of New York, 431 S.W.2d 347 (Tex.1968). Bock asserts by its second cross-point that the trial court erred in not granting a mistrial because counsel for Jenkins asked Clement if he did not know of a similar accident which had occurred in Odessa, Texas, prior to the accident in question.

This question was probably invited by the testimony of Clement on direct examination regarding Bock’s long and satisfactory use of this design. In any event, the trial court promptly sustained the objection to the question and instructed the jury to disregard it. Bock complains by two points that the attorney for Miller was guilty of improper jury argument when he argued that the accident could have been avoided if the machine had been equipped with a locking device and also in arguing that Bock made no effort to send out warnings about the need for maintenance of the machine.

Only the opening argument of the attorney for Miller is in the record, and the record does not show that any objection was made during the argument. There is a hand-written sheet of paper in the transcript which reads as follows: Bock objects to argument by Rex Houston—request court to instruct jury not to consider—

(1) Safe way was to use a latch on machine.

(2) Bock made no effort to send out warnings to dealers Hammond, Crim or anyone.

(3) Because it is unsworn testimony of attorney Houston—no testimony on the latch.

(4) Court has ruled out Exhibits DB # 18 and # 19. Unsworn testimony of Attorney Rex Houston. /s/ Earl Sharp Attorney for Bock Overruled /s/ Harold D. Bateman, Judge 5-10-76 10:15 a.m. This instrument was filed on June 18,1976. Even assuming that it constitutes a valid objection by Bock’s attorney to the argument of Miller’s attorney, it is apparent that the objections were not made so as to permit any opportunity to “cure” any error. They were all presented to the trial judge at the same time although they have obvious references to different portions of the argument.

Any error in this argument could have been cured by prompt objection, and instruction by the trial judge. By failing to timely object, Bock has waived his right to complain of the argument. Otis Elevator Company v. Wood, 436 S.W.2d 324 (Tex.1968).

Bock also urges that the trial court erred in excluding a copy of a letter purportedly written by Bock to all its dealers in November, 1964, and an insertion in a July, 1965, trade magazine wherein Bock offered to supply stickers to be applied to all extractors with the warning: FOR YOUR SAFETY DO NOT FORCE THE LID DO NOT ATTEMPT TO LOAD OR UNLOAD IF BASKET IS SPINNING There was no showing that either of these excluded documents was seen by Jenkins or United Furniture and, admittedly, there was not a sticker on the machine in question.

Finally, Bock asserts that the issue inquiring whether or not the machine was designed defectively was submitted too broadly. The trial court did not err in submitting the question of whether the Bock laundry machine was designed defectively at the time the machine left the Bock plant to enter the channels of commerce along with the

definitions of “Defective Design” and “Unreasonable Risk of Harm.” A broad submission such as this is fully authorized under Rule 277, Tex.R.Civ.P. We have considered all of Bock’s cross-points in the light of the record before us. It cannot be said that any error of the trial court complained of by Bock amounted to such a denial of Bock’s rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Accordingly, the cross-points are overruled. Rule 503, Tex.R. Civ.P.

The judgments of the lower courts are reversed and judgment is here rendered in accordance with the jury verdict that George Miller, Sr., as next friend of George Miller, Jr., shall recover of and from Bock Laundry Machine Company the sum of $250,000 for injuries to George Jr., and that George Miller, Sr., individually, shall recover the sum of $1,000 for necessary medical expenses, together with all costs of court and interest as provided by law.