Acord v. General Motors Corp., 16908
| Decision Date | 13 July 1983 |
| Docket Number | No. 16908,16908 |
| Citation | 657 S.W.2d 7 |
| Parties | Roy ACORD, Jr., Individually and as Next Friend of Aaron Acord, a Minor, Appellants, v. GENERAL MOTORS CORPORATION and Gilbert Johnson, d/b/a Johnson's Fleet Service, Appellees. |
| Court | Texas Court of Appeals |
Steve McManus, Victoria, for appellants.
Thomas H. Crofts, Jr., Joe Meador, Groce, Locke & Hebdon, San Antonio, for appellees.
Before CANTU, TIJERINA and DIAL, JJ.
This is an appeal from a take nothing judgment entered against appellants, the plaintiffs below, following a jury trial in which the jury failed to find liability against the various defendants under theories of negligence and strict liability.
Appellants' cause of action arose out of an intersection collision on March 2, 1978, involving the Acord automobile which was being driven by Karen Leinen Acord, wife of appellant Roy Acord. Mrs. Acord was killed in the accident and appellant's minor son was injured when a 1970 5500 GMC Stakebed truck, owned and operated by James Monroe Townsley, collided with the Acord vehicle at the intersection of Hallettsville Highway and McGruder Streets in Victoria, Texas.
The accident occurred when the brakes on Townsley's truck failed, rendering it unable to stop for a red light. The impact with the Acord vehicle resulted in the Acord vehicle being pushed into three other vehicles at the intersection.
Prior to the fatal collision, on November 29, 1977, Townsley drove his truck into the American Fire and Mileage Specialists (American Tire) shop in Travis County for the purchase and installation of four new tires on the rear axle of the truck.
On December 19, 1977, after Townsley had driven the truck less than 150 miles following the installation of the tires, while driving down a street in Austin, Texas, the left rear wheels ran off of the truck and the left rear wheel assembly, including the backing plate and the braking system fell to the pavement. Townsley immediately contacted American Tire and an employee was sent to the scene to investigate the incident. With the aid of a nearby welding shop the wheels were remounted on the vehicle and Townsley drove the truck back to the American Tire shop. Townsley was informed by the shop manager that the damage sustained could not be repaired by American Tire and the truck was referred to Gilbert Johnson, d/b/a Johnson's Fleet Service for the necessary repairs. Less than three months later the collision occurred in Victoria. Appellants sued General Motors Corporation, American Tire and Mileage Specialists and Gilbert Johnson, d/b/a Johnson's Fleet Service.
Appellants alleged that General Motors Corporation defectively designed the 1970 truck because it failed to contain a dual or redundant back-up braking system. Appellants further alleged that General Motors Corporation was negligent in placing into the stream of commerce a truck not reasonably suited for its intended use because it contained the defects previously stated. Appellants alleged that American Tire was negligent in failing to properly mount the left rear wheels onto Townsley's truck.
As to Gilbert Johnson, d/b/a Johnson's Fleet Service, appellants alleged that Johnson was negligent in failing to properly repair the truck.
Prior to judgment appellants entered into a compromise settlement agreement with American Tire.
By point of error number one appellants contend that the trial court erred in submitting the following instruction to the jury in connection with special issue number one:
* * * A manufacturer is not an insurer of the product he designs, and it is not required that the design adopted be perfect, or render the product accident proof, or incapable of causing injury, nor is it necessary to incorporate the ultimate safety features in the product.
Appellants contend that said instruction is a comment on the evidence, that it inappropriately injects negligence in a design defect case, and that it goes beyond the guidelines set out in Turner v. General Motors Corporation, 584 S.W.2d 844 (Tex.1979), in instructing the jury in a design case. It is appellants' argument that the instruction complained of injects the element of negligence by speaking in terms of a duty owed by the manufacturer.
The instruction approved of in Turner v. General Motors, supra, was included in the jury charge with the addition of the portion complained of above. In McCants v. Salameh, 608 S.W.2d 304 (Tex.Civ.App.--Waco 1980, writ ref'd n.r.e.), the identical instruction was complained of upon the very same contention that it constituted a comment on the weight of the evidence. The court in rejecting the argument of appellant recognized the instruction as a proper statement of the law. In doing so, the Court was aware of the Turner decision and the implication its holding had upon additional instructions in the charge not complained of on appeal. We think the reasoning of the court in McCants, in rejecting the contention regarding the instruction to be sound and equally applicable...
To continue reading
Request your trial
-
Acord v. General Motors Corp.
...to both defendants and the trial court rendered a take nothing judgment against Acord. The court of appeals affirmed the judgment. 657 S.W.2d 7. We reverse the judgments as to General Motors Corporation and remand the cause to the trial court. We affirm the judgments as to The trial court i......