Adkins v. Ford Motor Company

• Decision Date: 27 July 1971
• Docket Number: No. 71-1020.,71-1020.
• Parties: Vernon ADKINS, Plaintiff-Appellee, v. FORD MOTOR COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

446 F.2d 1105 (1971)

Vernon ADKINS, Plaintiff-Appellee, v. FORD MOTOR COMPANY, Defendant-Appellant.

No. 71-1020.

United States Court of Appeals, Sixth Circuit.

July 27, 1971.

Louis C. Woolf, Knoxville, Tenn., for defendant-appellant; McCampbell, Young, Bartlett & Woolf, Knoxville, Tenn., of counsel.

Hiram G. Tipton, Knoxville, Tenn., for plaintiff-appellee; Poore, Cox, Baker, McAuley, Ray & Byrne, Knoxville, Tenn., of counsel.

Before WEICK and BROOKS, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

WEICK, Circuit Judge.

In this appeal defendant, Ford Motor Company, seeks to overturn a judgment entered on a jury verdict in favor of plaintiff Adkins, in the amount of $7,500, for property damage to his truck and for loss of its use, the truck having been badly damaged in an accident allegedly caused by a defect in its manufacture by defendant. The defendant's contentions are all related to the weight and sufficiency of the evidence.

Plaintiff owns and operates a trucking business, and is primarily engaged in the hauling of coal. He has used Ford trucks for many years. In March, 1967, plaintiff traded with East Tennessee Motors Company, a Ford dealer, turning in two old trucks on two new Ford trucks, one of which is the truck in question. Plaintiff used trucks with both a main and an auxiliary transmission, which operated to retard the speed of the trucks when coming down from the mountain where they were loaded with coal.

Ford trucks previously purchased by plaintiff had been equipped with synchronized main and auxiliary transmissions manufactured by Spicer, which had operated satisfactorily. The two trucks purchased by plaintiff in 1967 were equipped with Fuller non-synchronized main and auxiliary transmissions. When plaintiff asked the dealer about the change to Fuller transmissions, he was told that Spicer transmissions were not available because Spicer had "labor problems," so Fuller transmissions had to be accepted by him in order to obtain the trucks. There is no evidence in the record, however, to indicate that plaintiff ever received any assurance that Fuller transmissions would function as well as Spicer transmissions.

The transmissions in the new trucks began to malfunction almost immediately upon delivery of the trucks, unexpectedly jumping out of gear when the driver took his foot off the gas pedal to slow down. One truck experienced such difficulty on the day of delivery of the truck. The truck in question first had such a malfunction about three to four weeks after delivery to plaintiff.

Plaintiff attempted on several occasions to have the condition corrected. In July, 1967, the trucks were returned to East Tennessee Motors, where the transmissions were "pulled", checked, and reinstalled. Malfunctions continued, and the trucks were again taken to East Tennessee Motors in December, 1967, where a representative of Fuller tore down, inspected and repaired the transmissions. The repairs did not correct the condition, so plaintiff complained by telephone directly to Mr. McDonald, the division head of Ford Motor Company, in Louisville, Kentucky. Mr. Ray, of the division office, was also involved in this conversation. Plaintiff informed McDonald and Ray of the malfunction; he told them the kind of trucks he had purchased and the loads they normally carried. The Ford representatives told plaintiff that he had a "good truck," and said that they had offered to pay East Tennessee Motors one-half of the cost of replacing the Fuller transmissions with Spicer transmissions, in the interest of customer good will, but that East Tennessee Motors had declined to pay the other half. Plaintiff again took the trucks to East Tennessee Motors for repair in February, 1968.

Between five days and a week after the last "repair," on February 21, 1968, plaintiff's son, a regular and experienced driver, was driving the truck in question, fully loaded, down a mountain, when the transmission disengaged. Normally when the truck jumped out of gear the driver could get it back in gear without stopping, but occasionally it was necessary to stop in order to engage the transmissions again. On this occasion, plaintiff's son was unable to re-engage the transmissions while the truck was moving. When he applied the brakes, however, the air line to the brakes failed and he had to jump from the truck. The truck went over the side of the mountain, down an embankment, and crashed into some trees, causing major damage to the truck.

Plaintiff instituted this action, founded upon diversity of citizenship jurisdiction, seeking to recover for the damage to his truck and for the loss of its use which he suffered while the truck was not in service. He essentially founded his action on the two theories of recovery embodied in sections 402A and 402B of the Restatement of Torts, Second, i.e., strict liability in tort, and misrepresentation of a material fact concerning quality or fitness. Both theories are recognized in Tennessee. Ford Motor Co. v. Lonon, 217 Tenn. 400, 398 S.W.2d 240 (1966).

The case was tried before a jury, and the parties agree that the legal principles enunciated by the Court in its instructions were correct. It is the defendant's contention, however, that the case should not have been submitted to the jury. Defendant argues that there is no evidence of misrepresentation; that there is insufficient evidence of defect in manufacture and proximate causation; and that the evidence established that plaintiff and his son assumed the risk. It contends that the Court erred in denying its motion for a directed verdict.

We agree that there is insufficient evidence of misrepresentation to warrant submission of that issue to the jury. The only evidence tendered to support this count is the bald assertion of plaintiff that he was furnished materials by Ford, consisting of pamphlets and advertisements,...