Schemel v. General Motors Corporation

• Decision Date: 20 September 1967
• Docket Number: No. 16011.,16011.
• Citation: 384 F.2d 802
• Parties: Philip Michael SCHEMEL, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

384 F.2d 802 (1967)

Philip Michael SCHEMEL, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Appellee.

No. 16011.

United States Court of Appeals Seventh Circuit.

July 17, 1967.

Rehearing Denied September 20, 1967.

William J. Marshall, Princeton, Ind., for appellant.

Thomas M. Scanlon, Raymond W. Gray, Jr., Anton Dimitroff, Barnes, Hickam, Pantzer & Boyd, Indianapolis, Ind., for defendant-appellee.

Before KNOCH, KILEY and CUMMINGS, Circuit Judges.

Rehearing Denied September 20, 1967, en banc.

KNOCH, Circuit Judge.

Plaintiff-appellant, Philip Michael Schemel, brought this suit in the United States District Court to recover damages for personal injuries sustained by him while riding as a passenger in an automobile which was struck from the rear by a 1960 Chevrolet Impala automobile manufactured by the defendant-appellee, General Motors Corporation, and operated at that time by one Michael N. Bigham who is not a party to this suit,^* at a speed of about 115 miles per hour.

The plaintiff alleged that the defendant knew or should have known that there was no useful purpose in designing an automobile which could be driven at excessive speed, that defendant should have foreseen that the automobile would in fact be driven by someone at excessive and unlawful speed to the risk of the public in general and in particular to innocent bystanders such as plaintiff, and yet the defendant negligently designed, manufactured, and sold an automobile capable of being driven at such dangerous speed.

The plaintiff also alleged that the defendant was further negligent in truthfully advertising the speed at which its automobile could be driven thereby encouraging irresponsible persons to exceed lawful and reasonable speed limits.

The defendant's motion to dismiss plaintiff's action for failure to state a claim on which relief might be granted was sustained, and this appeal followed.

Plaintiff contends that the defendant owed a duty to use reasonable care in designing, manufacturing, selling and distributing its automobiles to avoid injuring plaintiff, that plaintiff has charged negligent acts or omissions by the defendant, resulting in injury to him, and that it was therefore for a jury to decide whether the defendant had breached its duty to exercise due care in the conditions and circumstances disclosed by the evidence.

The plaintiff does not allege that there was some defect in the automobile which prevented its driver from operating it at a lesser speed or that any defect in its brakes or steering mechanism caused the collision.

We agree with the District Judge that this Court's opinion in Evans v. General Motors Corp., 1966, 7 Cir., 359 F.2d 822, cert. den. 385 U.S. 836, 87 S.Ct. 83, 17 L.Ed.2d 70, is dispositive of the case before us. As we said there (at page 824 of 359 F.2d) the nature of the duty which the manufacturer owes presents an issue of law for the Court. Union Traction Co. of Indiana v. Berry, 1919, 188 Ind. 514, 520-521, 121 N.E. 655, 657, 124 N.E. 737, 32 A.L.R. 1171; Kahn v. Chrysler Corp., D.C., S.D., Tex., 1963, 221 F.Supp. 677, 678; Willis v. Chrysler Corporation, D.C., S.D., Tex., 1967, 264 F.Supp. 1010. We cannot accept the plaintiff's contention that once the Court determines that a relationship exists between the parties giving rise to some duty, the determination of the nature and extent of that duty becomes a question of fact for the jury.

The plaintiff invites our attention to § 398 of the Restatement of Torts, Second:

A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel or to be endangered by its probable use for physical harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design.

It is the plaintiff's theory that any automobile which can be driven at speeds of 110 to 115 miles per hour on roads not designed for such speeds is dangerous for the uses for which it is manufactured.

However, § 398 is characterized by the accompanying comment as a special application of the rule in § 395 which reads:

A manufacturer who fails to exercise reasonable care in the manufacture of a chattel which, unless carefully made, he should recognize as involving an unreasonable risk of causing physical harm to those who use it for a purpose for which the manufacturer should expect it to be used and to those whom he should expect to be endangered by its probable use, is subject to liability for physical harm caused to them by its lawful use in a manner and for a purpose for which it is supplied. (our emphasis)

The automobile in question was not dangerous for the use for which it was manufactured by its lawful use in the manner and for the purpose for which it was supplied.

The manufacturer is not an insurer. His duty is to avoid hidden defects and latent or concealed dangers. See Campo v. Scofield, 1950, 301 N.Y. 468, 95 N.E.2d 802, cited with approval in J. I. Case Co. v. Sandefur, 1964, 245 Ind. 213, 197 N.E.2d 519, 523. He is not bound to anticipate and guard against grossly careless misuse of his product by reckless drivers. The dangers attendant on excessive and unlawful speed are neither latent nor concealed.

We are not convinced by the plaintiff's contentions that Evans is not applicable. The plaintiff here, like the plaintiff in Evans, sought to impose on the automobile manufacturer a duty to design an automobile incapable of causing injury (or capable of minimizing injury) through foreseeable misuse for a purpose for which the automobile was never supplied.

As the District Judge said in his Memorandum Opinion:

The problem of devising standards of safety for the manufacturer of automobiles is a legislative problem.

We also hold that the defendant was under no duty in advertising its product to conceal the reserve power built into the machine, to avoid possible misuse of that power by a wantonly negligent driver.

We have carefully scrutinized the cases and other authorities cited by the plaintiff but find them of no avail to alter our opinion that the judgment of the District Court must be affirmed.

Affirmed.

CUMMINGS, Circuit Judge (concurring).

Feeling bound by this Court's recent opinion in Evans v. General Motors Corp., 359 F.2d 822 (7th Cir. 1966), certiorari denied, 385 U.S. 836, 87 S.Ct. 83, I join in the affirmance. It is true that Evans does not dispose of the parts of the complaint attacking defendant's offensive advertising.^* However, the complaint does not charge that defendant's advertising caused Michael Bigham to drive at a speed of 115 miles per hour, or even that Bigham read the reprehensible advertisements. Plaintiff's authorities simply do not support his theory of tort liability based on defendant's advertising methods. Cf. Restatement of the Law of Torts, Second, § 303. Therefore, reversal would not be justified on that ground.

KILEY, Circuit Judge (dissenting).

I respectfully dissent. In the first place, my view is that both the district court and this court violated the liberal spirit of federal rules of pleading by "pigeon-holing" plaintiff's complaint as though it were in two counts alleging separate claims for negligent design and negligent advertising. A fair reading of Schemel's complaint so "as to do substantial justice"¹ requires that we consider the allegations of unduly enticing advertising not only alone, but also in conjunction with the charges of designing an automobile with a lawless² speed capacity. My opinion is that the district court erred in dismissing the complaint because it does not "appear beyond all doubt" that Schemel can prove no set of facts entitling him to relief against General Motors. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

The majority opinion assumes that Schemel can prove one set of facts relating solely to negligent design, holds that set insufficient to state a claim, and only then turns to the allegations of negligent advertising. In my view, this reasoning is not adequate to uphold dismissal of a complaint under the Conley v. Gibson rule. I think Schemel's complaint states a claim against General Motors for its negligence in designing an automobile with a capacity for speeds far exceeding any legal or reasonable limit and inducing Bigham's use of that capacity by emphasizing speed in its advertising.

The majority has decided in the case before us, as in Evans v. General Motors Corp., 359 F.2d 822 (7th Cir.), cert. denied, 385 U.S. 836, 87 S.Ct. 83 (1966). that the question of the nature and extent of General Motors' duty is a question of law. Indiana law govern this diversity case, and under that law the nature of General Motors' duty is a question of law. Union Traction Co. v. Berry, 188 Ind. 514, 520-521, 121 N.E. 655, 657, 124 N.E. 737, 32 A.L.R. 1171 (1919). I disagree, however, that under that decision the extent of the duty is one of law. As the Indiana Supreme Court held in Union Traction:

Where a duty to exercise care exists, it is always the same, regardless of the nature of the relation out of which it arises. It cannot be said that the duty to use care which arises out of the relation of carrier and passenger differs in kind, character, or degree from the duty which arises out of the relation of master and servant, or out of any other relation which imposes the legal duty to use care.

* * * * * *

This duty is defined by the law as "due care," "ordinary care," or "reasonable care," which terms are regarded by the courts as having the same significance. * * * In defining the duty and fixing the standard of care by which the jury is to measure the conduct of the defendant, the court does not consider the facts of the particular case. The duty is the same under all relations, and the standard of care which will measure up to the duty in all cases is such care as a person of reasonable or ordinary

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