261 F. 878 (2nd Cir. 1919), 20, Johnson v. Cadillac Motor Car Co.

Docket Nº:20.
Citation:261 F. 878
Case Date:November 12, 1919
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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261 F. 878 (2nd Cir. 1919)




No. 20.

United States Court of Appeals, Second Circuit.

November 12, 1919

Homer J. Borst, of Schenectady, N.Y. (Andrew J. Nellis, of Albany, N.Y., and Daisy L. Snook, of Amsterdam, N.Y., of counsel), for plaintiff in error.

William Van Dyke, of Detroit, Mich. (William L. Carpenter, of Detroit, Mich., of counsel), for defendant in error.

Before WARD, ROGERS, and MANTON, Circuit Judges.

ROGERS, Circuit Judge.

This is an action against a corporation manufacturing automobiles, and which sold one of its cars to a retail dealer, who resold to the plaintiff. The car was defective, and while being used by plaintiff, broke down and overturned, seriously injuring

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the plaintiff, who brought this action to recover damages in the sum of $40,000.

The action was commenced in the Supreme Court of the state of New York in 1910, and was regularly removed to the United States Court for the Northern District of New York, where it was tried and judgment obtained in plaintiff's favor in the amount of $8,000. The judgment was brought to this court on writ of error covering some 500 pages. This court reversed the judgment upon the ground that, as no contractual relation existed between plaintiff and defendant, there could be no recovery. 221 F. 801, 137 C.C.A. 279, L.R.A. 1915E, 287, Ann. Cas. 1917E, 581.

The action was tried again before the court, and without a jury this time, and judgment was entered dismissing the complaint. The trial court found as a fact that the injuries were occasioned by the negligence of defendant, and that plaintiff was free from any contributory negligence, and that the damages amounted to $10,000. The dismissal of the complaint was based on the decision of this court upon the former writ of error, when we held that no contractual relation existed.

The plaintiff, in February, 1909, purchased from the Utica Motor Car Company a Cadillac touring car manufactured by the Cadillac Motor Car Company, a foreign corporation, organized under the laws of the state of Michigan, and having its principal office in Detroit. The Utica Motor Car Company is a dealer in motor cars and purchased to resell. It was the original vendee or immediate buyer, and plaintiff is the subvendee of the car.

The plaintiff, who was an experienced driver of automobiles, stored the automobile in question for some months. But, after some little previous use of it, he was on July 31, 1909, driving it on a main public highway and one in good condition at the time. The car was running between 12 and 15 miles an hour, when the front right wheel of the car suddenly and without any notice broke down, and the car turned over on the plaintiff, and, as the trial court found, 'cut, mangled, and seriously and permanently injured him. ' The court also found that plaintiff had not recovered from the injuries which resulted from the accident and that he never would recover. The finding is that--

'His face and ear and eye are distorted, and the sight of his one eye is partially destroyed and so injured as to affect the sight of the other; plaintiff's shoulder and ribs were broken; his mouth and face was paralyzed; he cannot work his jaws at all, cannot smile, whistle, nor spit, nor control his lips at all; some of the nerves of his throat are paralyzed; he cannot speak clearly or distinctly; his right ear was torn out and the inner ear fractured. The plaintiff to the present time has been in part unable to do work or to look after his business to any extent; and he never will be able to look after his said business, or to conduct and manage any business. That prior to the time of the said accident, plaintiff was in good health, free from pain and suffering, and of the age of 44 years.'

The court has also found as a fact that this automobile was manufactured, assembled, and put on the market by the defendant with a weak, inadequate, and defective wheel thereon, and that this defective condition

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was the proximate cause of the accident, and that the car, when defendant put it on the market, was dangerous to human life and unsafe for use, and that defendant ought to have known it, and, had it exercised ordinary care, would have known it.

The defendant did not manufacture the wheels, but purchased them of another company. The court found that defendant carelessly and negligently failed and omitted to use reasonable inspection and tests to discover the real condition and weakness of the wheels. There were other findings, some of which will be considered in a subsequent part of this opinion.

The amended complaint upon which the present action was tried is the same as that upon which the former action was tried. Nothing has been added to it, and nothing has been subtracted from it. The basis of the action is negligence. 1

The amended complaint does not contain any allegation of deceit or fraud, and those words are not to be found anywhere therein. There are no allegations that any representations were fraudulently or deceitfully made. The only allegation as to any representation is found in the following:

'It (defendant) had represented and declared to such ultimate purchaser, who relied thereon, that the machine was capable of enduring such use and operation, its wheels were the best obtainable, and equal to those of the highest priced cars, made from well-seasoned second-growth hickory, with steel hubs, the spokes special strength, wide spokes of ample dimensions to secure great strength.'

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The complainant goes on to say that, if the wheels were not as represented, the car would be a deadly instrument. Then it alleges that defendant 'carelessly and negligently omitted and failed to' use a reasonable inspection to discover the real condition of the wheels. There is no allegation that any representation was made with a fraudulent intent, and fraudulent intent is in most jurisdictions an essential element in every actionable fraud.

As the cause of action stated in the pleadings is the defendant's negligence, and not defendant's fraud, whatever judgment is entered must conform to the cause of action stated in the plaintiff's pleadings. It must conform, not only to the proofs, but to the issues tendered by the pleadings. When a complaint tenders one cause of action, judgment cannot go upon another and different cause of action. But, whatever the cause of action is, it cannot be denied that it is the identical cause of action that was here, and upon which this court passed, when the case was here before; and so far as the evidence or proof in the record is concerned that is in no respect different.

When the second trial was begun, it was stipulated that the testimony introduced by the plaintiff on the first trial should be considered in evidence as the plaintiff's case on the second trial, and that no other testimony should be introduced, except that the plaintiff might introduce the testimony of one additional witness, who was specified, to establish the same facts which that witness had testified to in another case. As matter of fact, however, no such testimony was introduced. The defendant was content to have the case disposed of upon the testimony presented by the plaintiff, and no testimony for defendant is found in the record.

The first time the case was tried by a jury, and the second time, as already stated, by the court. So that we have before us now certain findings of fact which were not in the record when the case was here before. Some of these findings are without warrant, there being nothing in the record to support them; as for example:

'Nevertheless defendant carelessly and negligently failed and omitted to use reasonable inspection and tests to discover the real condition and weakness of the wheels on said machine as hereinafter described, and the several parts of each of them, and to conceal any defects in the spokes of the wheels on the said machine so purchased by the plaintiff it painted and varnished the same, so that the defective condition thereof and the spokes in said wheels were rotten and dozy could not be seen nor determined by the plaintiff or other purchaser by any reasonable inspection.'

There is no evidence that the spokes were painted and varnished with intent to conceal their defective condition. That they were painted and varnished the evidence showed, but it did not show the intent. There is evidence showing that paint hardens the surface of hickory spokes and gives them a glossy appearance.

Counsel in the argument to this court put stress upon certain representations made by defendants in their catalogues and literature in reference to the wheels with which their cars are equipped, to the effect, as found by the trial judge, that such wheels were the best obtainable, and equal to those used on the highest priced cars; that they were of the artillery type, made from well-seasoned second-growth hickory,

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with steel hubs and spokes of ample dimensions to insure great strength. And the judge has found the plaintiff purchased his car relying upon the representations. But this finding clearly cannot change the issue made by the pleadings, which we have already considered.

The question presented, and which this court decided on the former appeal, was whether defendant owed a duty of care to the plaintiff, who was not the immediate purchaser of the car, but a subvendee. This court then held that, as there was no contractual relation between plaintiff and defendant, there could be no recovery. This court, in an opinion written by Judge Ward and concurred in by Judge Lacombe (221 F. 801, 137 C.C.A. 279, L.R.A. 1915E, 287, Ann. Cas. 1917E, 581) stated the law governing the liability...

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