Summers v. Interstate Tractor and Equipment Co.

• Citation: 466 F.2d 42
• Decision Date: 18 August 1972
• Docket Number: No. 25740.,25740.
• Parties: Dorothy V. SUMMERS, individually and as Executrix of the Estate of John M. Summers, Deceased, et al., Plaintiffs-Appellees. v. INTERSTATE TRACTOR AND EQUIPMENT CO., a corporation, Defendant-Appellant, and General Motors Corporation, a corporation, Defendant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

466 F.2d 42 (1972)

Dorothy V. SUMMERS, individually and as Executrix of the Estate of John M. Summers, Deceased, et al., Plaintiffs-Appellees. v. INTERSTATE TRACTOR AND EQUIPMENT CO., a corporation, Defendant-Appellant, and General Motors Corporation, a corporation, Defendant.

No. 25740.

United States Court of Appeals, Ninth Circuit.

August 18, 1972.

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George M. Joseph (argued), of Bemis, Breathouwer & Joseph, Portland, Or., for defendant-appellant.

Raymond J. Conboy (argued), John Haugh, Richard Noble, of Pozzi, Wilson & Atchison, Portland, Or., for plaintiffs-appellees.

Before DUNIWAY and TRASK, Circuit Judges, and FERGUSON,^* District Judge.

FERGUSON, District Judge:

This appeal is from a jury verdict in a diversity action. We affirm.

The action was filed against Interstate Tractor and Equipment Company (Interstate) and General Motors Corporation (General Motors) for the wrongful death of the deceased. The action was tried on the theory of strict liability. The verdict was against Interstate only, and it has appealed.

The appeal involves three issues:

(A) The sufficiency of the evidence to permit the issue of liability to go to the jury.

(B) The refusal of the district court to apply the Oregon $25,000 limitation on wrongful death recoveries.

(C) The capacity of the plaintiff to sue in Oregon.

Sufficiency of the Evidence

Plaintiffs are the widow-executrix and the children of John Summers, who was killed when a dump truck which he was driving failed to negotiate a turn and went over an embankment into the Columbia River at a construction project in the State of Washington. The dump truck was leased to the deceased's employer, a construction company, by Interstate. The case was tried on the theory of strict liability by reason of an allegedly unreasonably dangerous and defective condition of the steering mechanism of the truck.

A summary of the evidence in the light most favorable to the plaintiff, Girardi v. Gates Rubber Co. Sales Division, Inc., 325 F.2d 196 (9th Cir.1963), is as follows:

(1) The decedent had been employed as a truck driver in the construction industry for some sixteen years and was an excellent driver. He enjoyed good health and had no history of heart or respiratory diseases.

(2) At the time of the accident, decedent was delivering fill for the build-up of a cofferdam. He was working on the Washington side of the river, and had been driving along the same route for the preceding six weeks. His routine, repeated continuously, was to load his truck at the company's fill pile, drive down the cofferdam road, dump the fill, and return. Each trip would take some 12 to 15 minutes. He had driven the route from 800 to 1,000 times prior to the accident without incident.

(3) The dump truck had been leased by decedent's employer from Interstate some 15 days prior to the accident. During that time it saw only limited service. It was used only as a "spare" from the outset, because of poor steering. As a spare, it would only be operated when another truck was being overhauled or oiled. It was operated only between the fill pile and the cofferdam, a distance of about one-fourth mile.

(4) Except for a minor valve adjustment, there was no evidence that the truck had been altered, repaired, abused or involved in an accident during its limited service at the dam site.

(5) The dirt road from the fill pile to the cofferdam had a gradual curve with a slight downhill slope which was easily negotiable.

(6) On the evening of the accident, the dump truck had been briefly operated by one of decedent's fellow drivers, McKissen, while his regular vehicle was being repaired. At about 7:30 p. m. (the accident occurred at 11:00 p. m.) McKissen noticed that the truck's steering became faulty. He found it necessary to race the engine to increase pressure to the steering. However, even with the "revving," McKissen found he could not turn adequately. He drove the truck to the employer's maintenance shop, where the foreman checked the truck's power steering pressure and found it to be low. The model truck in question needed 1100 to 1150 psi for adequate steering, but the pressure in this truck had dropped to 800 psi. The foreman adjusted a valve in the steering booster system to raise the pressure to 1200 psi.

(7) After the pressure was boosted, the truck was put back into service as a standby and later in the evening was driven by Patterson, whose regular truck was being oiled. Patterson drove the truck for roughly an hour. He noted that the steering was not as good as his own vehicle's. While driving this vehicle, Patterson met Summers on the cofferdam road. Summers had brought Patterson's regular truck out from the shop, after leaving his truck there for a checkup. Summers and Patterson switched trucks, with Patterson taking his regular vehicle and Summers operating the truck in question.

(8) The accident occurred about thirty minutes later. As decedent was driving along the cofferdam road and beginning to negotiate the gradual curve on that roadway, the truck, which was fully loaded, left the roadway and plunged into some 30 to 40 feet of water. Just prior to leaving the roadway, the truck was "revved up" high. McKissen characterized what he heard as the highest rpms he had ever experienced. The significance of this "revving" is that when experiencing inadequate steering in general, and with the vehicle in question in particular, it was imperative for the driver to "rev" the engine to increase steering ability.

(9) Decedent's body was recovered from the cab by a diver some two hours after the accident. The cause of death was asphyxia due to drowning.

(10) When the vehicle was recovered two months later, it was taken to Interstate's maintenance shop in Oregon without notification to the Washington authorities. While the truck was in Interstate's shop, some 28 parts of the steering assembly were replaced, including a piston rod connected to the steering assembly, a steering valve, a steering pump and gears in the steering pump. The piston rod was found to have been bent. The parts replaced were later destroyed. Had the piston rod, steering valve or steering pump been defective prior to the accident, these defects could have affected the steering and the ability of the driver to control the truck.

(11) Talbott, plaintiffs' consulting engineer, and Kerns, a mechanic retained by the Washington authorities, examined the truck in question some 20 months after the accident. Both found during their inspections that the spline and shaft of the steering mechanism were in poor condition, allowing slippage in the steering, and further found loose fittings over the end of the input shaft. Kerns, who had a great deal of experience working on the truck model in question, testified that this particular model had a history of steering difficulty and that he had often repaired the steering mechanism. He concluded that the design of the yoke and spline parts was inferior and led to serious steering problems.

(12) It would be virtually impossible to steer the truck when fully loaded if its power steering became inoperative or seriously impaired.

The issue is whether there was sufficient evidence for the jury to conclude that the truck became uncontrollable in normal operation due to a defect in the steering mechanism. In determining that there was, the trial court applied the law of Oregon. No conflict of laws problem is presented, for the parties agree that Oregon and Washington both have adopted Section 402 A¹ of the Restatement (Second) of Torts, the controlling substantive law on the issue of liability.

The Oregon law on the issue of proof in products liability cases is clearly set forth in Heaton v. Ford Motor Co., 248 Or. 467, 435 P.2d 806 (1967):

"In the type of case in which there is no evidence, direct or circumstantial, available to prove exactly what sort of manufacturing flaw existed, or exactly how the design was deficient, the plaintiff may nonetheless be able to establish his right to recover, by proving that the product did not perform in keeping with the reasonable expectations of the user. When it is shown that a product failed to meet the reasonable expectations of the user the inference is that there was some sort of defect, a precise definition of which is unnecessary. If the product failed under conditions concerning which an average consumer of that product could have fairly definite expectations, then the jury would have a basis for making an informed judgment upon the existence of a defect." 435 P.2d at 808.

This rule was reaffirmed in Brownell v. White Motor Corp., 490 P.2d 184 (Or.1971):

"When the jury reasonably can find that the product is unchanged from the condition it was in when sold and the unusual behavior of the product is not due to any conduct on the part of the plaintiff or anyone else who has a connection with the product, logic dictates that it is a distinct possibility that there is some defect in the product." 490 P.2d at 187.

See also, Vanek v. Kirby, 253 Or. 494, 450 P.2d 778 (1969).

In the instant case, plaintiff satisfied the requirements of Oregon law. She produced evidence from which the jury could logically conclude that the steering in this dump truck was deficient or completely inoperative at the time of the accident, that the accident was caused by such defective steering and not by decedent, and that the defects in the steering were present at the time the vehicle was leased by Interstate to decedent's employer. To be sure, plaintiff was not able to produce any direct evidence of a defect. This is not necessary under Oregon law.

While the jury could have drawn other inferences from the evidence, the fact remains that plaintiff's evidence was not devoid of probative value and a jury could rationally have reached the verdict based upon a fair appraisal of the evidence. Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 (194...