Brown v. General Motors Corporation
| Decision Date | 13 January 1966 |
| Docket Number | No. 9925.,9925. |
| Citation | 355 F.2d 814 |
| Parties | A. L. BROWN, Appellee, v. GENERAL MOTORS CORPORATION, Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
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James B. McMillan, Charlotte, N. C., and Bynum M. Hunter, Greensboro, N. C., for appellant.
Lewis P. Hamlin, Jr., Salisbury, N. C. (Clarence Kluttz, Salisbury, N. C., on brief), for appellee.
Before BRYAN and BELL, Circuit Judges, and BARKSDALE, District Judge.
Damages for personal injuries resulting from breach of warranty in the manufacture and sale of a crawler tractor, familiarly known as a bulldozer, were adjudged in the District Court against General Motors Corporation. The plaintiff, Alexander L. Brown, had declared against G.M. in two counts, one in warranty and the other in negligence. In answer to specific interrogatories, the jury found no negligence and no contributory negligence but did find a breach of warranty. Because of misconduct of certain jurors and a conflict in an answer to another interrogatory, the Court set aside the verdict in respect to primary and contributory negligence but entered a final judgment on the warranty finding. G.M. appeals.
In our view the evidence was insufficient in law to establish liability either on warranty or in negligence. We reverse, and order entry of judgment for the defendant on its motion for a directed verdict at the conclusion of the evidence.
Brown, a mechanic, was employed by a subsidiary of Blythe Brothers Company, the lessee-purchaser of the machine. The machine was designated as a Euclid C-6 Crawler Tractor, weighing about 40,000 pounds, propelled by a diesel engine with automatic transmission and moving on belt treads. At the time of his injury Brown was employed to service this and other heavy pieces being used by Blythe Brothers Company on a road-building job at Anderson, South Carolina. The machine had been operating normally for the approximately three months preceding the accident.
About eight o'clock on the evening of November 10, 1960 Brown and a fellow employee, Gulley, were preparing the tractor for use the next morning. To grease the universal joints, Brown seated himself on the left track, facing the engine, his legs extending down between the track and the body. While the task could be performed in a safer manner, that is by removing certain floorboarding, it was frequently done at the point Brown had selected.
Gulley was in the driver's seat where he could reach the starter button, but as it was then dark, he could not see whether the tractor was in gear. At Brown's request, Gulley "bumped", that is touched momentarily, the starter button to rotate the drive shaft so as merely to turn the grease fitting toward Brown. Instead, the engine was started and the machine, then in gear, moved backwards, crushing Brown between the tread and the heavy fender projecting over it.
Manufactured in Hudson, Ohio, the machine had been sold and delivered by G.M. in Ohio on August 18, 1960 to the manufacturer's dealer, from whom it was lease-purchased by the plaintiff's employer, Blythe Brothers.
The centerpiece of the plaintiff's claim is the starter mechanism on this tractor, which was new and different from that of other and earlier earth-moving Euclids. The other units carried an instrument called a micro switch, which broke the starting circuit except when the range selector control lever (the gearshift lever) was in neutral. The purpose of the micro switch was to prevent unintentional starting of the machine while in gear. This was the type of starter system on the C-6 Crawler Tractors made by General Motors until July 1960 when it abandoned the micro switch for a new design which it considered more "rugged."
On the C-6 tractor which injured Brown, instead of a micro switch, the range selector control lever was equipped with a semicircular metal flange or shield (mechanical block), installed close to the starter button. Because of the position of the shield, an operator in the driver's seat could see the button only when the lever was in neutral. However, the button was accessible to an operator, though not without difficulty, if he reached his thumb or finger up behind the shield and into the space — measured as 1/8 or ¼ inch — between the shield and the button, as Gulley must have done.
Operator's Handbooks were issued by General Motors both for the pre-1960 and the subsequent C-6. The two publications are similar except that the later one includes a reference to the "mechanical block on the range selector lever". This book was delivered with the present tractor.
Under "Driving Instructions" is a description of each control, including the following:
Still under "Driving Instructions" are these directions, which are especially apposite because Brown was hurt in the starting of the engine:
Under a heading of "SAFETY", a list with illustrative cuts of specific things the operator should "never" do, and what he should "always" do, is this caution:
"Make sure no one is working on unit before starting engine or moving tractor." (Accent added.)
The premise of Brown's claim is the change in the starter appliance from micro switch to shield. This modification, he contends, resulted in the following contractual and tortious breaches of responsibility. It violated: (1) express warranties in the handbook because the shield did not prevent the engine from starting while in gear; (2) the warranty of merchantability and fitness implied by law, since the shield was a latent defect and the machine, therefore, not reasonably safe for its purposes; (3) the law of negligence, in that no adequate warning was given of the danger arising from the change from micro switch to shield; and (4) the doctrine of strict tort liability, in that the C-6 contained a defect, and the supplier, G.M., was answerable to the user, Brown, without proof of negligence in the manufacture.1 This last argument we are not compelled to classify precisely, as correctly relating to warranty or to negligence. Rather, we shall measure the facts of the case against this and the other contentions of the plaintiff as each becomes pertinent.
For our decision we may assume, as Brown avers, that the court of the forum (North Carolina) would apply Ohio law to the warranty phase of the case. See Price v. Goodman, 226 N.C. 223, 37 S.E. 2d 592 (1946). We assume, likewise, that under Ohio law the plaintiff, as one expected to use the unit, has standing to assert a breach of warranty against G. M. as the manufacturer, without proof of contract privity. Inglis v. American Motors Corp., 3 Ohio St.2d 132, 209 N.E. 2d 583 (Sup.Ct.1965). We assume, too, that Ohio has embraced the principle of strict tort liability. See Lonzrick v. Republic Steel Corp., 1 Ohio App.2d 374, 205 N.E.2d 92 (1965); Rogers v. Toni Home Permanent Co., 167 Ohio St. 244, 147 N.E.2d 612, 75 A.L.R.2d 103 (1958). As to negligence, concededly, the law of South Carolina, the lex loci delicti, controls.
On plaintiff's claim of breach of express warranty, we think, the language posed by the plaintiff does not constitute an express warranty. Taken from the Operator's Handbook, it is pleaded and relied upon as consisting of the following sentences, included in the excerpts just quoted:
Entirely overlooked is the obvious character and function of these statements. An express warranty is generally defined as a factual affirmation or promise, the natural tendency of which is to induce the buyer to purchase the goods. See Roscher v. Band Box Cleaners, 90 Ohio App. 71, 103 N.E.2d 404 (1951); Pritchard v. Liggett & Myers Tobacco Co., 350 F.2d 479, 483 (3 Cir. 1965). While actual reliance by the buyer is not a requisite of a warranty, the characteristic of inducement to purchase is an indispensable ingredient of an express warranty. The statements here are not representations to induce the buying of the machine. Merely "advisory", they only instruct the operator on how the machine should be operated. Ivey-Dale-Owen Co. v. Worthington Co., 29 F.2d 280 (5 Cir. 1928). Furthermore, they do not purport to vouch what could or could not be done with its mechanisms. The instructional character is manifested also by the associated directions in the manual. They all pertain to "Normal Starting". These explanations and directions are the only clauses on which the plaintiff structures his warranty claim. Plainly, he lifts them out of context.
However, if these statements in the handbook are to be treated as warranties, then all of them must be read, and read together, including for example this illustrated caution following the plaintiff's selections from the book:
"Make sure no one is working on unit before starting engine. * *"
Of course, a manufacturer may not avoid liability by general safety precautions, but here the warning specifically cautioned against the very conduct which led to the injury. Presently, to repeat, the manual was also most explicit in teaching the proper manner of starting the machine. As yet, a manufacturer is not obligated to define what can or cannot be done with its products, or to warn as to all possible dangers. Se...
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