322 F.2d 267 (5th Cir. 1963), 20135, Ford Motor Co. v. Mathis

Docket Nº:20135.
Citation:322 F.2d 267
Party Name:FORD MOTOR COMPANY, Appellant, v. Marvin R. MATHIS, Appellee.
Case Date:September 04, 1963
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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322 F.2d 267 (5th Cir. 1963)



Marvin R. MATHIS, Appellee.

No. 20135.

United States Court of Appeals, Fifth Circuit.

Sept. 4, 1963

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[Copyrighted Material Omitted]

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Virgil T. Seaberry, Jr., Eastland, Tex., for appellant.

Frank Scarborough, Abilene, Tex., for appellee.

Before CAMERON and BROWN, Circuit Judges, and WHITEHURST, District judge.

JOHN R. BROWN, Circuit Judge.

We here deal primarily with the liability of an assembler-manufacturer for injuries caused by identifiable defects in a component part negligently produced by an independent supplier. Writing with an Erie-Texas pen, it might be that, as of old, the Moving Finger writes, and having write, moves on. But it may be that having written, what we write is soon erased. This is not the last word, only the latest. And before the slug drops in a St. Paul linotype, the first writing Texas court may melt down the lead to so much dross. Such are the perils of diversity jurisdiction. 1

The basic problem is presented by the questions of whether there is sufficient

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evidence to support the jury verdict and whether the Judge erred in his instructions to the jury. An additional and perhaps controlling question is whether the jury's answer to a particular interrogatory precludes Plaintiff's recovery. A careful review of the record and applicable state law convinces us that the Judge's charge was in conformity with the law, that the verdict is amply supported in the evidence, and that the Plaintiff is not precluded from recovery. The judgment is accordingly affirmed.

Plaintiff purchased a new 1961 Ford Sunliner convertible from an authorized Ford dealer in San Benito, Texas. Thirteen days and some 1795 miles later, while Plaintiff was travelling alone from his home in Sagerton, Texas to his Air Force duty station in Mississippi, the accident occurred which is the subject matter of this suit. Plaintiff testified that the accident occurred at about 10:00 p.m. He was driving at a normal rate of speed considering the time, weather, and road condition. He was not sleepy and had not gone to sleep at the wheel. Rather, fully awake and alert, he was driving around 55 to 60 m.p.h. on a straight stretch of road and met an oncoming car. Plaintiff dimmed his lights by use of that foot dimmer switch. As the other car passed, Plaintiff hit the dimmer switch to return his lights to bright. Instead of returning to bright, the headlights went out altogether. Immediately, he decreased speed, but felt the car edge off the road and onto an incline. He kept flicking the dimmer switch with his foot in an attempt to get some light. Eventually, in the near eternity of these fleeting seconds, the lights returned at a time when the car was about 20 feet from a tree. He applied immediate pressure to the brakes and braced himself for the resulting impact. The car hit the tree. There it stopped. Not surprisingly, Plaintiff received substantial injury to his person and damage to the automobile, as well as several items of personal property which he was transporting in the trunk of the car. Plaintiff instituted this suit against Ford Motor Company in the District Court seeking damages for these personal injuries and property losses. From a jury verdict and judgment entered thereon in favor of Plaintiff, Ford has appealed.

At the outset it is important to once again emphasize that in this diversity-Erie-Texas action we are bound by the applicable Texas law as we divine it today, not what it might be tomorrow. Duke v. Sun Oil Co., 5 Cir., 1963, 320 F.2d 583.

In its multi-count brief containing thirty-five points of error, Ford asserts that the evidence is not sufficient to support the verdict. We disagree, as did the Court below in overruling Ford's motions for instructed verdict, j.n.o.v., and for a new trial. Plaintiff's case was initially predicated upon alternative theories of breach of warranty and negligence. However, at the trial, Plaintiff apparently abandoned the express warranty aspects and relied on his negligence theory, although as always in these cases, language is used suggesting so-called implied warranties or similar concepts. It was under the negligence approach that the case was submitted to the jury. This forms the basis of the jury's verdict under

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special interrogatories, F.R.Civ.P. 49, the use of which we have so often extolled, 2 and which here excise for critical examination specific findings bearing on liability theories.

In the beginning, two things are significant. First is the fact that the dimmer switch in controversy was not manufactured by Ford, but by an independent supplier to Ford who is not a party to this suit. The second is that an identifiable defect in the dimmer switch was established.

Unlike so many of these cases where from ineptness, lack of resourcefulness, or sometimes the destruction of all means of knowledge, legal theories are orbited to an unheard of apogee, in this case facts, both actual and expert, were fully proved. The Plaintiff carefully negatived misuse or knowledge of any defect. He testified that from the time he purchased the car until the accident, he had done some night driving and had used his dimmer switch in the customary manner and that it had functioned normally. However, that at the time of the accident, his lights failed completely when he attempted to switch them form dim back to bright. Next the defect was affirmatively proved. It is undisputed that following the accident examination of the switch disclosed a small pin to be broken. This pin would have an effect upon the switching of the lights from bright to dim and vice versa. The mechanical-operational consequence of the defect was the subject of competing credible evidence. The testimony of Ford's experts was that the switch was so designed and manufactured that even with the broken pin, these was no way the switch could cause all the lights to go out. The Plaintiff's expert testified that he had examined and tested the switch, and that during the tests he conducted, the lights flickered several times and on one or two occasions they stayed off for several seconds. This testimony was substantiated by one of Ford's experts who was present at this testing. Plaintiff's expert further testified that in his opinion, a defect was in the switch when installed in the car, that the pin had broken when Plaintiff attempted to switch his lights, and that this breakage could have caused all the lights to fail.

Ford's experts testified to the contrary. They testified at length about the actual manufacture of switches and the various tests to which each switch or its components was subjected in the supplier's factory. Although each part of each switch was visually inspected during the manufacturing process, only a few random selected switches were subjected to the rigorous tests which they described. In one respect they were unequivocal. Without exception, these experts stated that a defective switch could not come out of the supplier's plant. And it was their opinion that the pin could only be sheared off by an extreme amount of pressure such as might result from a head-on collision of a car with a tree, particularly if the driver had his foot on the switch at the moment of impact.

So far as inspection by Ford is concerned this was largely visual plus assembly line test operations after installation in the car and during adjustment of headlights. Of course the switch on receipt from the supplier was assembled and ready for installation, and no effort was made, either as to all or random selections, to open up the switches for more minute inspection.

Plaintiff had his theory of how the accident happened. He flatly denied that he had gone to sleep and run off the road. His evidence, factual and expert, showed the dimmer switch was faulty when the car was placed on the market by Ford, and that this defect ultimately caused the failure of the lights. Ford's evidence was to the contrary. It is not our function to determine which side has produced the heavier evidence. Once the Court has determined that the Plaintiff has brought forward sufficient evi-

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dence to warrant jury submission, it then becomes the function of the jury to strike the balance between the parties. Employers Mutual Casualty Co. of Des Moines v. Mosqueda, 5 Cir., 1963, 317 F.2d 609.

The special questions pinpointed both fault and our legal problems. The jury found that when the automobile left the possession of Ford it was 'inherently dangerous' causing an unreasonable risk of injury because of the defective dimmer switch. 3 Next, it fixed responsibility for the defective switch by finding the manufacturer-supplier negligent in its production. 4 It then focused the legal problem by finding that Ford as the assembler could not have discovered the defective switch during the course of a reasonable inspection. 5 But it found that Ford was negligent in putting the car on the market in the condition then existing 6 and that this was a proximate cause of the accident. 7

Ford contends that the jury finding that Ford's employees could not have discovered the defective dimmer switch by reasonable inspection (see not 5, supra) precludes recovery by Plaintiff on the negligence theory. We disagree. Our discussion of this point and the Texas law concerning products liability will also dispose of Ford's additionally assigned errors that the Judge erred in jury charges given and refused.

At the outset, it is well to point out that we have not found, nor have we been cited to, any Texas case directly in point. The case of S. Blickman, Inc. v. Chilton, Tex.Civ.App., 1938, 114 S.W.2d 646, with its lengthy discussion of legal principles we believe to be...

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