O'BRIEN v. Willys Motors, Inc., 17610.

• Decision Date: 20 November 1967
• Docket Number: No. 17610.,17610.
• Parties: Barbara O'BRIEN, Administratrix of the Estate of Richard J. O'Brien, Deceased, Plaintiff-Appellant, v. WILLYS MOTORS, INC., a foreign Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

385 F.2d 163 (1967)

Barbara O'BRIEN, Administratrix of the Estate of Richard J. O'Brien, Deceased, Plaintiff-Appellant, v. WILLYS MOTORS, INC., a foreign Corporation, Defendant-Appellee.

No. 17610.

United States Court of Appeals Sixth Circuit.

November 20, 1967.

Sterling W. Schrock, Hancock, Mich. (Wisti, Jaaskelainen & Schrock, Hancock, Mich., on the brief), for appellant.

Charles M. Humphrey, Jr., Ironwood, Mich. (Humphrey & Weis, Ironwood, Mich., on the brief), for appellee.

Before McCREE and COMBS, Circuit Judges, and CECIL, Senior Circuit Judge.

CECIL, Senior Circuit Judge.

This appeal arises out of an action in the United States District Court for the Western District of Michigan wherein Barbara O'Brien, Administratrix of the Estate of Richard J. O'Brien, Deceased, sought to recover damages from Willys Motors, Inc. for the alleged wrongful death of the deceased. The parties will be referred to as plaintiff and defendant, respectively, as they were in the trial court.

On the evening of June 18, 1964, Richard J. O'Brien, deceased, and husband of the plaintiff, was driving his 1963 Willys Jeep Four Door Wagoneer on Highway M-26 near the town of Toivola, Michigan. While so driving in a northerly direction on Route M-26 an accident occurred which caused the death of the deceased. There were no witnesses to the accident but the deceased was seen between 8 and 8:30 p. m. driving his jeep at about forty or forty-five miles per hour one quarter of a mile before the scene of the accident. The deputy sheriff was notified of the accident at 8:40 p. m.

The sheriff found the jeep with its front wheels on the paved portion of M-26 and the rear wheels on the shoulder of the highway. Mr. O'Brien was lying on the highway two feet away from the vehicle. He was severely injured and was dead on arrival at the hospital. The tracks made by the tires of the vehicle indicated that the jeep gradually left the highway at an angle of two or three degrees and travelled forward in a straight path approximately 266.4 feet. It appeared that the jeep had rolled over at least twice before coming to rest 369.2 feet beyond the point at which the right front wheel first left the highway.

It was claimed by the plaintiff that the accident was caused by a defect in the steering mechanism. The complaint charged the defendant with common law negligence in the design, manufacture and assembly of the steering mechanism and with breach of implied warranty. The defendant denied negligence on its part and denied that it had breached any warranty. It alleged affirmatively that the deceased was guilty of contributory negligence and that the plaintiff and deceased had failed to give any notice of breach of warranty. Jurisdiction was invoked by reason of diversity of citizenship. (Section 1332, Title 28, U.S.C.) The case was tried before a jury and a verdict of no cause of action was returned in favor of the defendant. This appeal followed.

One of the assignments of error is that the trial judge failed to instruct the jury that the burden was on the defendant to prove contributory negligence by a preponderance of the evidence.

In a District Court where jurisdiction is based on diversity of citizenship, the substantive law of the forum state is applicable. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. The federal rule in such cases is that the District Court follows the state practice in the matter of burden of proof. Palmer v. Hoffman, 318 U.S. 109, 63 S. Ct. 477, 87 L.Ed. 645, rehearing den. 318 U.S. 800, 63 S.Ct. 757, 87 L.Ed. 1163; Cincinnati, N. O. & T. P. Ry. Co. v. Eller, 197 F.2d 652 (C.A.6), cert. den. 344 U.S. 864, 73 S.Ct. 105, 97 L.Ed. 670. Until June of 1958, under the law of Michigan it was incumbent on a plaintiff to establish that he was free from contributory negligence. By Supreme Court Rule 23, section 3a, effective June 1, 1958, contributory negligence was made an affirmative defense to be pleaded and proved by the defendant. City of Dearborn v. Bacila, 353 Mich. 99, 90 N.W.2d 863.

The defendant does not deny that the burden was on it to prove contributory negligence by a preponderance of the evidence. The defendant seeks to justify the trial judge's instructions on two grounds: first, counsel for plaintiff made no objection to the judge at the conclusion of the charge and, second, that the charge, although not specific, adequately covered the subject.

Rule 51 of the F.R.Civ.P. provides,

"No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection."

Counsel for plaintiff claims that Rule 51 is aided by Rule 46 of the F.R.Civ.P. and that under this rule the Court can consider the error even though no objection was made to the charge. Rule 46 abolishes exceptions and provides,

"(I)t is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him."

Here, counsel at no time made any request for a charge on contributory negligence nor did he make any objection to the charge as given, although he had an opportunity to do so. Rule 46 therefore is not applicable nor does Fuller v. King, 204 F.2d 586, 591 (C.A.6), cited by counsel apply. There the matter in issue had been called to the court's attention prior to the giving of the instructions.

We conclude that, in the interest of justice, a reviewing court may consider an error in instructions given or the failure to give an instruction where the error is obvious and prejudicial to a party. And such a review may be had even though the Federal Rules of Civil Procedure make no specific provision for such review. In United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555, the Court said:

"In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings."

See also Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 85 L.Ed. 1037; Johnson v. United States, 318 U.S. 189, 200, 63 S.Ct. 549, 87 L.Ed. 704, rehearing den. 318...