Williams v. Steuart Motor Company, 72-1302

Citation494 F.2d 1074
Decision Date28 February 1974
Docket Number72-1306.,No. 72-1302,72-1302
PartiesBernice WILLIAMS v. STEUART MOTOR COMPANY, a corporation, Appellant, and Ford Motor Company, a corporation. Bernice WILLIAMS v. FORD MOTOR COMPANY, a corporation, Appellant, and Steuart Motor Company, a corporation.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

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Frank J. Martell, Washington, D. C., with whom Richard W. Galiher, William H. Clarke and William J. Donnelly, Jr., Washington, D. C., were on the brief, for appellant in No. 72-1306 and appellee in No. 72-1302.

John F. Mahoney, Jr., Washington, D. C., with whom Charles E. Pledger, Jr., Washington, D. C., was on the brief, for appellant in No. 72-1302 and appellee in No. 72-1306.

Solomon L. Margolis, Washington, D. C., with whom Stanley H. Kamerow, Allan L. Kamerow, David S. Greene and Joel I. Hoffman, Washington, D. C., were on the brief, for appellee Williams.

Before LEVENTHAL and ROBB, Circuit Judges, and MATTHEWS,* Senior United States District Judge for the United States District Court for the District of Columbia.

MATTHEWS, Senior District Judge:

Bernice Williams, plaintiff in the District Court, sued Ford Motor Company (hereinafter Ford) and its authorized dealer, Steuart Motor Company (hereinafter Steuart), for damages for injuries sustained when a new Ford automobile suddenly plunged out of control, allegedly due to a defective accelerator return spring.** Both defendants were charged by plaintiff with breach of warranty and negligence. The case was submitted to the jury under both theories of liability. It returned a general verdict against both defendants and awarded plaintiff $204,243.09 in damages.

Cross-claims were filed by the defendants, respectively, against each other claiming full indemnity or contribution. The trial court denied Ford's cross-claim against Steuart in its entirety and granted indemnification to Steuart against Ford on Steuart's cross-claim.

The defendants have appealed, presenting these questions:

(1) Was there sufficient evidence of negligence or breach of warranty to justify the submission of plaintiff\'s claims against the defendants to the jury?
(2) Did the trial court commit reversible error in refusing to allow Dr. Robert Maddin to testify?
(3) Was reversible error committed by the court in permitting counsel for Steuart to argue to the jury that a possible cause of the accident was the breaking of the accelerator return spring?
(4) Were the cross-claims of the defendants against each other for indemnity or contribution properly disposed of by the court?
(5) Was there an abuse of discretion by the court in refusing to set aside the jury verdict and grant a new trial as to defendant Ford, or in refusing to grant a new trial or remittitur as to defendant Steuart?

The record shows that the car in this case was manufactured by Ford, shipped to Steuart's plant in Washington, D. C., and from there driven a mile or so to Steuart's showroom in the same city. The record further shows that Steuart and Ford had an agreement whereby Steuart, before turning the car over to a purchaser, would inspect the car to check on its safety for sale and operation, and take such corrective action as might be indicated.

Plaintiff had told Steuart of her desire to turn in her old Ford car and to acquire a new 1966 Ford Fairlane. Following negotiations and by prearrangement with Steuart, plaintiff picked up the new Ford Fairlane here involved on Friday, December 3, 1965, at 7:00 p. m.

At the outset we note that when plaintiff acquired the new automobile there was by operation of law an implied warranty from both the manufacturer and the dealer that the vehicle was fit and suitable for the ordinary purposes for which an automobile is sold and used. D.C.Code § 28:2-314 (1973 ed.).1

We recognize that an automobile manufacturer owes to the public a duty irrespective of contract to use reasonable care in manufacture and to make reasonable inspection of construction prior to placing his vehicle in the stream of commerce as the nature of an automobile is such that it is likely to place life and limb in peril when negligently made. This doctrine was enunciated by Judge (later Justice) Cardozo in the celebrated case of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), and has the approval of the great weight of modern authority. Pierce v. Ford Motor Co., 190 F.2d 910 (4th Cir.), cert. denied, 342 U.S. 887, 72 S.Ct. 178, 96 L.Ed. 666 (1951); Duckworth v. Ford Motor Co., 320 F.2d 130 (3rd Cir. 1963); Hupp Motor Car Corp. v. Wadsworth, 113 F.2d 827 (6th Cir. 1940); General Motors Corp. v. Johnson, 137 F.2d 320 (4th Cir. 1943); Johnson v. Cadillac Motor Car Co., 261 F. 878 (2nd Cir. 1919); Birdsong v. General Motors Corp., 99 F.Supp. 163 (E.D.Pa.1951); Restatement (Second) of Torts, § 395; Prosser, Handbook of the Law of Torts, Ch. 17, § 96 (4th ed.). It was the duty of Steuart, the dealer, to exercise reasonable care in making the pre-delivery inspection and servicing of the car which it had agreed to perform.

In light of these principles, we discuss now the evidence which Ford and Steuart contend was insufficient to justify the submission to the jury of the plaintiff's claims of breach of warranty and negligence.

I

The plaintiff's testimony was as follows: After receiving the car from Steuart, Mr. Leftwich, a friend, drove the car home for her and noted a sticky accelerator pedal, and that the idle was faster than normal, all of which he attributed to the newness of the car. The couple had dinner and went in the new car to spend the evening with friends. Returning home, plaintiff drove the new car for the first time, experiencing no problem with the car's operation other than a fast idle. She parked the car in the alley parking place next to her apartment building. Back in her apartment, however, she glanced out and noted that the rear end of the car was projecting slightly into the alley. She went out to repark the car in a safer position.

After starting the car, plaintiff moved her right foot from the accelerator pedal to the brake pedal, and moved her left foot from the brake pedal to the floor. Then she released the emergency brake with her left hand and used her right hand to shift the gear lever from neutral into drive position at which time the car plunged forward out of control even though she had her foot mashed down tightly on the brake pedal, and the car crashed into a concrete embankment about 75 to 100 feet away.

James McMillan, who lived across the street from plaintiff, testified that he was up at the time of the accident, heard the screeching of brakes, the racing of an engine, the "lamentation" of the vehicle, and a sudden boom or crash; that he immediately went to the crash scene, saw plaintiff and noted that broken bones were protruding from her left ankle; that he saw skidmarks in the alley leading to the rear wheels of plaintiff's car; and that the car remained in its crash position over the weekend.

Hatie Wilborn, occupant of an apartment directly above that of plaintiff, testified that she was awakened by the sound of screeching brakes and went to her window where she could smell the odor of burning rubber; that later she went to the accident scene and observed skidmarks leading to the crashed vehicle.

Mr. Leftwich, plaintiff's friend, who had driven the car Friday evening, testified that on his return to plaintiff's apartment about six o'clock Saturday morning he saw the car in the alley in its crash position and examined it inside and out. He noted that the accelerator pedal was limp on the floor so that he could pick it up and on its release it would drop flat against the floor. He also saw skidmarks leading to the rear of the car and pointed them out in photographs introduced in evidence.

It was undisputed that the car had two miles on its odometer at the time it was delivered to plaintiff and 17 miles at the time of the crash.

Harry J. Brandt, an estimator for defendant Steuart, called by plaintiff, gave this testimony: He saw the car after it was towed into Steuart's service lane the Monday following the crash. He examined the accelerator return spring under the air cleaner as well as the rest of the engine compartment. The accelerator return spring attaches at two points, i. e., the bellcrank and the carburetor, but was unattached and hanging loose at the bellcrank on plaintiff's car. With the spring off at the bellcrank the car would operate at an excessive speed and would not be in proper operating condition.

The Pre-Delivery Service Sheet provided by Ford for its dealers contained a list of services to be performed by Steuart prior to delivering the car so as to check on whether the car was safe for sale and operation.

Richard Vanderhoof was called by plaintiff and qualified as an expert automotive mechanic. He testified that he had prepared the model being used at trial as Plaintiff's Exhibit 39, that it correctly and accurately represented the engine in question, that he had not seen plaintiff's actual car but had seen photographs of it, that he was familiar with this model and type car, its specifications and mechanical operation. He explained the workings of the car and its transmission, carburetor and accelerator systems. He said he had seen the schematic drawings provided by Ford of the car's accelerator linkage system, as well as the Pre-Delivery Check List provided by Ford to Steuart.

On the basis of a hypothetical question by plaintiff's counsel, Mr. Vanderhoof expressed an opinion that the probable cause of the car running away in the manner described was that the accelerator return spring came off at the bellcrank, resulting in the gas pedal pulling the throttle open and racing the engine. He also expressed the opinion that the probable cause of the spring coming off was an improper installation of the spring.

Further, Mr....

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