Marshall v. Ford Motor Company, 468-70.

• Citation: 446 F.2d 712
• Decision Date: 16 August 1971
• Docket Number: No. 468-70.,468-70.
• Parties: Fernon D. MARSHALL, Plaintiff-Appellant, v. FORD MOTOR COMPANY, a foreign corporation, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

446 F.2d 712 (1971)

Fernon D. MARSHALL, Plaintiff-Appellant, v. FORD MOTOR COMPANY, a foreign corporation, Defendant-Appellee.

No. 468-70.

United States Court of Appeals, Tenth Circuit.

August 16, 1971.

David H. Sanders, Tulsa, Okl. (Tom Mason, and Sanders & McElroy, Tulsa, Okl., of counsel, with him on the brief), for plaintiff-appellant.

Wm. S. Hall, Tulsa, Okl. (Green, Feldman & Hall, Tulsa, Okl., of counsel, with him on the brief), for defendant-appellee.

Before BREITENSTEIN, ALDISERT,^* and BARRETT, Circuit Judges.

BREITENSTEIN, Circuit Judge.

In this products liability case the plaintiff-appellant Marshall claims defective design because of the failure of an automobile manufacturer to provide a lock or catch on the folding back of a split front seat. Jurisdiction is based on diversity. The jury found for the defendant and this appeal followed.

On December 5, 1968, plaintiff was a passenger occupying the right front seat of a 1966 Ford Galaxie 2-door automobile owned and driven by Leona Hamilton. There were two passengers in the rear seat. The car was equipped with seat belts in both front and rear seats. The plaintiff and the driver were using their seat belts but the two passengers in the rear seat were not. The car was in an intersectional accident in Oklahoma. Prior to the accident, the car was driven at an estimated speed of about 45 miles per hour, well within the speed limit. Forty-eight feet of skid marks were left before the point of impact. The passenger in the right rear seat was a man weighing 205 pounds. The force of the collision threw him against the folding back of the right front seat. The plaintiff was restrained by his seat belt and his body was compressed by the intensity of the impact when the rear passenger hit the folding back of the front seat. Plaintiff received severe, crippling, and permanent injuries.

The separate backs of the split front seat folded forward to provide easier access to the rear seat. They were not equipped with any locking or latching device. Plaintiff, to sustain his claims of express and implied warranty, presented evidence showing the existence of devices for the locking of folding backs and asserted faulty design because of the failure of the manufacturer to provide such devices. Evidence for Ford was that the front seat design was consonant with the state of the art at the time of manufacture. Further evidence for Ford was that no locking mechanism would have prevented the injury because of the force applied when a 205-pound man was hurled against the back of the front seat at the car speed when the impact occurred. Ford also urged that the forward propulsion of the rear passenger would not have happened if that passenger had used the rear seat belt which it, the manufacturer, had provided. It is enough to say that the plaintiff does not question the sufficiency of the evidence to sustain the verdict for the defendant.

Plaintiff urges that the trial court unduly restricted discovery proceedings in overruling his motion to produce documents and in sustaining defendant's objections to interrogatories and admissions and to the taking of the deposition of the defendant's president. The claimed failures of the defendant to respond to various discovery proceedings are said to entitle plaintiff to a default judgment under Rule 37, F.R.Civ.P. We are not persuaded. The record before us shows a plethora of discovery. The protections and sanctions found in the discovery rules are not absolute and contemplate the use of judicial discretion. See Norman v. Young, 10 Cir., 422 F.2d 470, 474, and Robison v. Transamerica Insurance Co., 10 Cir., 368 F.2d 37, 39. We find no abuse of discretion in any of the trial court's rulings in connection with the discovery proceedings.

When defense witness Snyder was called to the stand, the plaintiff objected on the ground that he had not been listed as a witness. In a hearing out of the presence of the jury, the circumstances relating to the appearance of Snyder were explored. The court noted that the pre-trial order did not require the parties to divulge names of witnesses and did not prohibit the use of a witness whose name had not been disclosed by a date certain. The court found that there was no calculated effort by the defendant to avoid disclosure of witnesses and permitted Snyder to testify. In so doing the court did not abuse its discretion. Cf. Globe Cereal Mills v. Scrivener, 10 Cir., 240 F.2d 330, 335.

The court permitted the defense to read the deposition of one Fredericks over plaintiff's objection that the deposition should be suppressed because of Fredericks' failure to supply certain documents sought by a subpoena duces tecum. The court was satisfied with Fredericks' explanation. Here again we find no abuse of discretion.

The remaining arguments go to the instructions. Plaintiff characterizes his case as based on "strict liability, for breach of implied warranty of fitness." The court properly instructed the jury on both express and implied warranty. It told the jury that "a manufacturer is strictly liable for an injury caused by its product when being properly used." The court went on to instruct the jury in almost the identical language of § 402A of the Restatement of the Law, Torts 2d, including the statement that "one who manufactures, distributes, or sells any product in a defective condition, unreasonably dangerous to the user or consumer, or to his property, is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property * * *."

We know of no Oklahoma case which adopts or rejects the principles of § 402A. In Speed Fastners, Inc. v. Newsom, 10 Cir., 382 F.2d 395, 398, a products liability case arising in Oklahoma, we were faced with a claim of implied warranty of merchantability under the Uniform Commercial Code as adopted in that state, and permitted recovery in the absence of privity. Our decision in Schenfeld v. Norton Company, 10 Cir., 391 F. 2d 420, 424, comments at some length on § 402A and says that strict liability in terms of tort seems to be "the more rational approach" in products liability cases. Be that as it may, we are not here concerned with whether § 402A will receive the approval of the Oklahoma courts. The plaintiff insists on strict liability and the defendant is not objecting.

We find nothing in Bower v. Corbell, Okl., 408 P.2d 307, or in Barnhart v. Freeman Equipment Co., Inc., Okl., ...