Higginbotham v. Ford Motor Co.

Decision Date14 October 1976
Docket NumberNo. 74-3716,74-3716
Citation540 F.2d 762
Parties20 UCC Rep.Serv. 873 Grady Michael HIGGINBOTHAM, Plaintiff-Appellee-Cross Appellant, v. FORD MOTOR COMPANY, Defendant-Appellant-Cross Appellee, John Henry Lee and Veronica P. Lee, Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Ben L. Weinberg, Jr., F. Clay Bush, Atlanta, Ga., for appellant.

William O. Carter, Hartwell, Ga., Sam S. Harben, Jr., Gainesville, Ga., for Higginbotham.

Julius M. Hulsey, Gainesville, Ga., for J. H. Lee and V. P. Lee.

Appeals from the United States District Court for the Middle District of Georgia.

Before BROWN, Chief Judge, and GOLDBERG and RONEY, Circuit Judges.

GOLDBERG, Circuit Judge:

In this Georgia diversity case, confined as we are to the narrow tracks of Erie, 1 we must decide how the Georgia courts would treat a potpourri of issues arising out of a collision between two automobiles. Plaintiff Grady Michael Higginbotham sued Ford Motor Company and the Lees (Veronica P. and her father, John Henry) for the wrongful death of his wife of six months, Diann Bradshaw Higginbotham, and for his own personal injuries. 2 At the trial, the jury's answers to special interrogatories called for awards of $40,000 against Ford for the wrongful death and.$10,170 against the Lees for the personal injuries. Ford moved unsuccessfully for a judgment notwithstanding the verdict. It now appeals to this Court from the denial of that motion; Higginbotham cross-appeals, alleging that the lower court erred in permitting the jury to apportion damages between the two co-defendants and in refusing to grant a new trial limited to the issue of damages on his personal injury claims.

For the reasons developed below, we think that Ford must prevail in its direct appeal. Furthermore, we find an irreconcilable inconsistency in the jury's answers to the ambiguous proximate cause interrogatory and the personal injury damages interrogatory. Therefore, although apportionment of damages between Ford and the Lees was appropriate in principle, we must remand the issues of proximate causation and apportionment of the personal injury award to the district court for reconsideration by a new jury. Finally, because we agree that the amount of the damages for Higginbotham's injuries was not as grossly insufficient as he contends, we leave that finding from the first jury undisturbed. Thus, we affirm the district court's denial of a partial new trial on amount of damages and reverse and remand on the proximate cause and apportionment issues.

I. FACTS

On Wednesday, December 16, 1970, near Elberton, Georgia, Diann and Michael Higginbotham's 1970 Ford Maverick was involved in a left front to left front collision with the Lees' Dodge. According to testimony adduced at the trial, when the two vehicles met, the primary force of the impact was driven against the wheel assembly, which was tied to the suspension. The structure of 1970 Mavericks was such that the force on the left front side of the car caused the engine compartment to rotate counter-clockwise, but the passenger compartment did not rotate with the front half. Instead, the left frame rail bent and the front section of the car was crushed into the front seat, injuring Michael and killing Diann. 3

Plaintiff's expert testified that if the two frame rails of the car had been tied together with a solid piece, in a manner similar to the construction of Ford's Mustang, the frame rail would not have bent so badly. A logical deduction from this evidence is that the Mustang-type design would have substantially lessened the "second impact" injuries. 4

Plaintiff's complaint contained two counts. Count I alleged that Veronica Lee had operated the Dodge negligently, that Ford had negligently designed and manufactured the Maverick, and that the Maverick had latent defects of which Ford was aware; Count II charged that Ford had breached express and implied warranties, and that Ford's breach of warranty coupled with the Lees' negligence caused the injuries and death. In response to Count I, Ford decided the allegations of negligent design and manufacture and asserted as defenses that plaintiff was the negligent party, that Ford had breached no duty, and that other persons had caused the injuries. Similarly, in response to Count II Ford denied breaching any warranties and reasserted the Count I defenses.

II. Jury's Verdict

The trial court submitted both of plaintiff's theories to the jury in the form of special interrogatories under Rule 49(a), Federal Rules of Civil Procedure. 5 The interrogatories, with the jury's answers, were as follows:

As to defendants Lee:

1. Who was driving the Maverick?

Mr. Higginbotham ( )

Mrs. Higginbotham (X)

2. Was Miss Lee negligent and if so, was her negligence a proximate cause of the collision?

(X) Yes; ( ) No.

3. Was the driver of the Maverick negligent and if so, was that negligence a proximate cause of the collision?

(X) Yes; ( ) No.

4. If both Miss Lee and the Maverick driver were proximately negligent how much of 100% were they each proximately negligent?

Miss Lee 50%

Maverick driver 50%

(Must total 100%)

As to defendant Ford Motor Company:

1. (a) Did Ford perform its duty of designing and constructing an automobile that was reasonably safe for its intended use of being driven on the roads and highways?

(X) Yes; ( ) No.

(b) Did Ford perform its duty of designing and constructing an automobile that contained no latent or hidden defects which could cause an accident and subsequent injuries?

(X) Yes; ( ) No.

2. Was this Maverick automobile reasonably suited for the purposes for which it was commonly intended?

( ) Yes; (X) No.

3. If the answer to any portion of the preceding is No, was Ford's breach of its said duty a proximate cause of Mrs. Higginbotham's death and Mr. Higginbotham's injuries?

(X) Yes; ( ) No.

Damages:

1. (a) The "full value" of the life of Mrs. Higginbotham is $190,000.00. Expenses of her death $2,500.00.

(b) Ford is to pay $40,000.00 of that amount.

2. (a) Mr. Higginbotham's damages are $10,170.00.

(b) Ford is to pay $ none of that amount.

On May 28, 1974, the court entered a judgment for plaintiff in the amount of $42,500 against Ford and.$10,170 against the Lees. It amended this on May 31 to award only $40,000 against Ford. 6 Ford filed its motion for judgment n.o.v. or new trial on June 3, 1974, making vague allegations that the verdict was against the weight of the evidence and contrary to the evidence. On June 7, 1974, plaintiff filed a "motion to alter or amend the judgment," asserting that Georgia law forbids apportionment of verdicts between joint tortfeasors and that the full amounts of.$10,170, $190,000, and $2,500 should therefore run jointly and severally against Ford and the Lees. Also on June 7, plaintiff moved for a new trial limited to the issue of the amount of his personal injury damages, which he asserted were grossly inadequate. The district court denied both Ford's and Higginbotham's motions on September 13, 1974, and this appeal followed.

III. Ford's Appeal: Denial of Judgment Notwithstanding the Verdict

In its original briefs on appeal, Ford argued that its motion for judgment n.o.v. should have been granted because the pleading and proof showed that no defect peculiar to Diann Higginbotham's Maverick existed, yet the interrogatory that the jury answered unfavorably to Ford referred to "this Maverick automobile." After oral argument, in response to the Court's request, it added an argument to the effect that the Georgia Wrongful Death statute 7 does not comprehend an action for breach of warranty or an action under Georgia's new strict liability statute. 8 Although we are not persuaded by Ford's original argument, 9 our prediction of Georgia law compels us to hold that plaintiff cannot recover for his wife's wrongful death against Ford. 10 However, we hasten to add that the unavailability of the wrongful death statute has no effect on plaintiff's claims for his own personal injuries. We will discuss the wrongful death action first, and then the personal injury claim.

A. Wrongful Death of Diann Higginbotham

The Georgia wrongful death statute is unusual, in that it permits recovery only for the "homicide" of various family members, defining "homicide" to include "all cases where the death of a human being results from a crime or from criminal or other negligence." Ga.Code Ann. § 105-1301 (1968). 11 Thus, the question is whether the jury's finding that "this Maverick automobile" was not "reasonably suited for the purposes for which it was commonly intended" meant that Ford was guilty of "a crime or . . . criminal or other negligence."

The trial court's discussion with counsel prior to reading the charge to the jury indicates that Interrogatory 2 was based on the Georgia case of Friend v. General Motors Corp., 118 Ga.App. 763, 165 S.E.2d 734 (1968), appeal dism'd, 225 Ga. 290, 167 S.E.2d 926. In Friend, the court held that allegations that a 1962 Greenbriar truck was "unmerchantable and not reasonably suited for the use intended" stated a claim against General Motors for injuries suffered from the "second impact" of a collision. 12 This is the so-called crashworthiness doctrine, discussed by this Court in Perez v. Ford Motor Co., 5 Cir. 1974, 497 F.2d 82 (Louisiana law), and Wooten v. White Trucks, 5 Cir. 1975, 514 F.2d 634 (how Florida court would apply Kentucky law). See also Dreisonstok v. Volkswagenwerk, A.G., 4 Cir. 1974, 489 F.2d 1066. A "crashworthy" vehicle is "one which, in the event of a collision, resulting accidentally or negligently from the act of another and not from any defect or malfunction in the vehicle itself, protects against unreasonable risk of injury to the occupants." Dreisonstok v. Volkswagenwerk, A.G., supra, 489 F.2d at 1069. Interrogatory 2 invited the jury to consider the crashworthiness of 1970 Mavericks.

The court's instructions to the jury made it clear that the theory upon which...

To continue reading

Request your trial
59 cases
  • McGinnis v. Ingram Equipment Co., Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • November 27, 1990
    ..."[J]udicial economy is served and prejudice is avoided by binding the parties to the theories argued below." Higginbotham v. Ford Motor Co., 540 F.2d 762, 768 n. 10 (5th Cir.1976). We may, however, in the exercise of our discretion consider issues not preserved in the trial court "when a pu......
  • State v. Paz, 17452
    • United States
    • United States State Supreme Court of Idaho
    • June 13, 1990
    ...facts would have been developed in the trial court if the theory had been presented there. [118 Idaho 552] Higginbotham v. Ford Motor Co., 540 F.2d 762, 768 n. 10 (5th Cir.1976); Bogacki v. Board of Supervisors, 5 Cal.3d 771, 97 Cal.Rptr. 657, 489 P.2d 537 (1971), cert. denied, 405 U.S. 103......
  • State Farm Fire and Cas. Co. v. Sweat
    • United States
    • U.S. District Court — Northern District of Georgia
    • March 11, 1982
    ...doctrine requires this Court to make its best guess as to the decision of a Georgia court on this issue. Higginbotham v. Ford Motor Co., 540 F.2d 762, 771 n.16 and 772 (5th Cir. 1976). This Court's best guess is that the Georgia courts would not apply Jones 6. Conclusion State Farm brought ......
  • Kudlacek v. Fiat S.p.A.
    • United States
    • Supreme Court of Nebraska
    • January 7, 1994
    ...to occupy during a foreseeable collision, and because of this defect the plaintiff's injuries were enhanced. See, Higginbotham v. Ford Motor Co., 540 F.2d 762 (5th Cir.1976); Glyn-Jones v. Bridgestone/Firestone, Inc., 857 S.W.2d 640 (Tex.App.1993); Reed v. Chrysler Corp., 494 N.W.2d 224 (Io......
  • Request a trial to view additional results
1 books & journal articles
  • Product Liability - Franklin P. Brannen, Jr. and Jacob E. Daly
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 60-1, September 2008
    • Invalid date
    ...701 (1997); Brinks, Inc. v. Robinson, 215 Ga. App. 865, 866, 452 S.E.2d 788, 790 (1994) (en banc). 75. Higginbotham v. Ford Motor Co., 540 F.2d 762, 766 n.4 (5th Cir. 1976). 76. 63A Am. Jur. 2d Products Liability Sec. 1020 (1997). 77. Id. Because automobile accidents are foreseeable by the ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT