Nevels v. Ford Motor Company

• Decision Date: 24 March 1971
• Docket Number: No. 29105.,29105.
• Citation: 439 F.2d 251
• Parties: Mrs. Lois B. NEVELS, Plaintiff-Appellee, v. FORD MOTOR COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

439 F.2d 251 (1971)

Mrs. Lois B. NEVELS, Plaintiff-Appellee, v. FORD MOTOR COMPANY, Defendant-Appellant.

No. 29105.

United States Court of Appeals, Fifth Circuit.

February 25, 1971.

Rehearing Denied March 24, 1971.

COPYRIGHT MATERIAL OMITTED

Edmund A. Landau, Jr., James V. Davis, Landau, Davis & Farkas, Albany, Ga., for defendant-appellant.

Edward T. Hughes, Robert E. Hughes, Hughes & Hughes, Camilla, Ga., Hilliard P. Burt, Burt & Burt, D. D. Rentz, Albany, Ga., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and DYER and INGRAHAM, Circuit Judges.^*

DYER, Circuit Judge:

Jimmy Nevels was killed when the Mustang automobile in which he was a passenger went off the road and was demolished. Jimmy's mother, Mrs. Lois B. Nevels, claiming that the accident and her son's death was caused by a defective steering mechanism installed in the automobile by the Ford Motor Company, recovered judgment against Ford for the value of the life of her unmarried son. Asserting that there was insufficient evidence to submit to the jury, that leave to amend its pleadings and leave to take the deposition of a witness was erroneously denied, that opposing counsel made an improper and prejudicial argument, and that there was error in giving and refusing to give certain charges, Ford appeals. We affirm.

On October 13, 1967, about 10:30 p. m., Julian Pollack was driving a 1967 Mustang automobile, owned by his brother-in-law Hurst, in a northerly direction on old U. S. Highway 19 between Pelham and Camilla, Georgia. There were three passengers in the car. Beth Harris occupied the right front seat, Nevels was in the rear seat behind Harris, and Shelda Hurst was seated to the left of him. The accident occurred at an Scurve about three miles south of Camilla. Viewed from the south, the road first curves to the left, then straightens out on a bridge, and finally curves to the right.

Approximately 125 to 150 feet north of the bridge, the Mustang went off the highway onto the left shoulder, then came back on the highway and travelled in a diagonal direction across the road, leaving a 100 foot skid or scuff mark on the surface. The Mustang again left the highway and travelled 139 feet, striking three trees in succession during its journey. The car broke into three pieces. Pollack and Nevels were killed instantly. The two young ladies survived.

The wreckage was taken to a Chevrolet agency lot in Camilla, Georgia, where it was stored in the open until March 1, 1969. It was then taken to the rear of plaintiff's counsel's office, where it remained until trial. During this time witnesses for both parties examined the steering mechanism. Thus it is little wonder that the position of the steering wheel retaining nut was changed from time to time.

Plaintiff claimed that Ford was negligent in manufacturing or assembling the steering mechanism in that the steering wheel retaining nut was not properly torqued and was not secured with a sealing compound. This condition, it was argued, permitted slippage between the steering wheel hub and the steering wheel spline area, with consequent wear of the splines to the extent that steering became uncontrollable. Plaintiff also relied upon Ford's failure to give notice of this defect in accordance with the provisions of the National Traffic and Motor Vehicle Safety Act, 15 U.S.C.A. § 1402(a).

Each side produced five experts and two lay witnesses. Plaintiff called passenger Hurst, and defendant called passenger Harris and the state trooper who initially investigated the accident. The evidence, as might be expected, was in hopeless conflict concerning the speed of the Mustang prior to the accident and the condition of its steering mechanism, both of which were crucial factual issues.

Passenger Hurst and plaintiff's expert estimated the speed of the vehicle at 45 to 56 miles per hour. Passenger Harris, defendant's experts and the patrolman put the speed of the vehicle at approximately 100 miles per hour.

The experts were diametrically opposed concerning the condition of the splines and the retaining nut, as well as the cause of the conditions found. On the one hand, it was unequivocally stated that so long as the retaining nut was on the shaft, even in a loose condition, there could be no slippage of the shaft and no wear on the splines — that the splines showed no evidence of wear but showed only damage undoubtedly caused by the impact of the accident. On the other hand, it was stated, equally explicitly, that the splines showed considerable wear caused by the shaft slipping because the retaining nut was loose. This condition, it was said, made the steering virtually inoperable.

Prior to the accident Ford had received information that in "a few instances * * * steering wheels were reported to have become loose or disconnected in 1967 Mustangs manufactured at our Metuchen Assembly Plant between October, 1966 and January, 1967." Accordingly, it sent notices to each owner of such a car, including the purchaser and owner of the car here involved, Hurst (Pollack's brother-in-law),¹ to have the steering wheel retaining nut on his Mustang promptly inspected by the dealer at no cost, "to avoid any possibility of a dangerous disconnection and consequent loss of steering control." Every notice was sent to an address furnished to Ford by the dealer. Hurst's address proved incorrect; and by the time the correct address had been ascertained and the notice re-sent to and received by Hurst, the accident had occurred.

Ford's motions for a directed verdict, for judgment n. o. v., and for a new trial were denied. Ford complains that the plaintiff, relying on circumstantial evidence, did not carry her burden of proof that the Mustang left Ford's plant with the steering wheel retaining nut improperly secured and that Ford negligently failed to discover the defect by proper inspection.

In this diversity action, we are bound by Georgia law with respect to the measure of care owed by the manufacturer to a third person. The principle is succinctly stated in Griffith v. Chevrolet Motor Division, 1962, 105 Ga. App. 588, 125 S.E.2d 525, 527:

As we view it, this case is controlled by Washburn Storage Co. v. General Motors Corp., 90 Ga.App. 380(3), 83 S.E.2d 26, where it was held: "a manufacturer who sells an article knowing that it is likely to be resold or used by other people than the buyer will be held liable for an injury to a stranger caused by a defect which might be discovered by reasonable inspections by the manufacturer." This, or course, is the rule laid down by Justice Cardozo in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, * * * which has been approved in a number of Georgia cases. E. g., Simmons Co. v. Hardin, 75 Ga.App. 420, 426, 43 S.E.2d 553; Moody v. Martin Motor Co., 76 Ga. App. 456, 461, 46 S.E.2d 197; Chrysler Corp. v. Rogers, 92 Ga.App. 109, 112, 88 S.E.2d 318. See, Restatement, Torts § 395; Blashfield, Cyclopedia of Automobile Law & Practice § 4812 (1950, Supp. 1961); Hilkey, Actions for Wrongful Death in Georgia (Pt. 5), 22 Ga.B.J. 325, 337 (n. 62) (1960); Annot., 78 A.L.R.2d 460, § 3.

Ford, while not contesting the correctness of the standard imposed upon it, urges that under Georgia law the plaintiff's circumstantial evidence was insufficient to take the case to the jury. But "it is well settled in this Circuit that in diversity cases federal courts apply a federal rather than a state test for the sufficiency of evidence to create a jury question." Boeing Co. v. Shipman, 5 Cir. 1969, 411 F.2d 365. The proper test is:

On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover\'s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict and judgment n. o. v. should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses. Id. at 374-375.

We entertain no doubt that the evidence in this case sufficiently meets the Boeing test so as to require affirmance of the District Court's denial of Ford's motion for a directed verdict and judgment n. o. v. The jury could have fairly concluded from all of the evidence, though disputed, that Ford was negligent in not having tightened the wheel retaining nut by applying a proper torque on it, and in failing to properly secure the nut to the shaft by a sealer or an epoxy material. No error was committed in submitting the case to the jury. Indeed, it would have been error to do otherwise.

Ford next claims substantial prejudice in the refusal of the trial judge to permit it to take the deposition of an expert employed by the plaintiff. On September 12, 1969, in answers to interrogatories propounded by Ford, the plaintiff stated that Medsker was an expert, that he had been employed by the plaintiff, and that he had examined the scene of the accident. His address was noted as Atlanta, Georgia. On September...