Ford Motor Co. v. Mahone, 6569.

• Decision Date: 09 June 1953
• Docket Number: No. 6569.,6569.
• Citation: 205 F.2d 267
• Parties: FORD MOTOR CO. v. MAHONE.
• Court: U.S. Court of Appeals — Fourth Circuit

205 F.2d 267 (1953)

FORD MOTOR CO. v. MAHONE.

No. 6569.

United States Court of Appeals Fourth Circuit.

Argued April 16, 1953.

Decided June 9, 1953.

Aubrey R. Bowles, Jr., Richmond, Va. (H. Armistead Boyd, Jack N. Herod, and Bowles, Anderson & Boyd, Richmond, Va., on brief), for appellant.

George E. Allen and Ashby B. Allen, Richmond, Va. (Allen, Allen, Allen & Allen, Richmond, Va., on brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

This is the second appeal in an action to recover damage on account of personal injuries sustained when a new Ford automobile was wrecked as the result of the blowing out of one of its tires. Plaintiff alleged that the blowout was caused by faulty workmanship in the assembly of the turnbuckle or adjusting sleeve on the left front tie rod, and that this allowed the turnbuckle to move and thus throw the front wheels out of proper alignment. On the former appeal we reversed a summary judgment for defendant and remanded the case for trial before a jury. Mahone v. Ford Motor Co., 4 Cir., 190 F.2d 910. On the trial had pursuant to the remand, a verdict was rendered in favor of plaintiff for the sum of $234,330, which was reduced with the consent of plaintiff to $135,000 upon an intimation by the trial judge that he would set aside the verdict unless plaintiff gave such consent. From judgment on the verdict as thus reduced the defendant has appealed. Three questions are presented by the appeal: (1) whether there was error in denying defendant's motion for a directed verdict; (2) whether there was error in permitting plaintiff to recover as an element of her damages for the loss of consortium sustained by her husband as the result of her injury; and (3) whether the verdict should have been set aside notwithstanding plaintiff's willingness to remit the excess above $135,000.

We think that the motion for a directed verdict in favor of the defendant was properly denied. In our opinion on the prior appeal we considered, in the light of the record then before us, whether there was sufficient evidence to take to the jury the issue of neglect on the part of the Ford Motor Company in allowing the automobile to leave its factory without sufficiently tightening the nuts and bolts on the turnbuckle on the left front tie rod. A new element was introduced into the case in the second trial in the District Court where there was evidence to the effect that, after the automobile was delivered by Ford to the Richmond Motor Company, its dealer in Richmond, and before the car was sold to the plaintiff's husband, the dealer inserted a device called a "shim" in the mechanism of the left front wheel assembly in order to alter the toe-in of the front wheel of the car. There was evidence to the effect that it was a mechanical impossibility to insert the shim and make the necessary adjustments without loosening and retightening the nut whose faulty condition caused the accident, and it was contended on behalf of Ford that the defective condition of the car and the injury of plaintiff were thus produced by an intervening and superseding cause so that the negligence of Ford was not the proximate cause of the injury even if the nut was loose when the car left the factory. Much evidence, both factual and expert, was offered by the Ford Company tending to support its position on this point; but there was countervailing evidence sufficient in our opinion to take the case to the jury. Much of the evidence was of a technical nature and a discussion of the details at this time would serve no useful purpose and would not be desirable since the judgment must be reversed on another ground and the case remanded for a new trial. The evidence as to contributory negligence was conflicting and was properly submitted to the jury.

The second question is whether the District Judge erred in instructing the jury that if they found for the plaintiff she was entitled to recover not only for her bodily injuries, but also for the loss of consortium on the part of the husband, as well as for medical and hospital expenses. It is contended that this instruction was wrong in so far as it related to damages for the husband's loss of consortium, but the majority of the court is of the opinion that there was no error in this respect for the following reasons.

In the opinion of the majority, the Supreme Court of Appeals of Virginia, whose interpretation of Virginia statutes is binding on this court, has clearly held in Floyd v. Miller, 190 Va. 303, 57 S.E.2d 114, 116, that in a suit for personal injuries in Virginia a wife may recover not only for such injuries but also for all expenses and for the husband's loss of consortium incident to the injuries, and that the husband is deprived of the right to recover for these two elements.

In that case the court traced the legislative history by which the husband's right at common law to recover for the loss of the domestic services and consortium of the wife were modified by statute. It showed that the husband's right to recover for the loss of the domestic services of his wife was taken from him and given to his wife, but that his right to recover for the loss of her consortium was left undisturbed, by section 5134 of the Virginia Code of 1919 which was as follows:

"In an action by a married woman to recover for a personal injury inflicted on her, she may recover the entire damage sustained, notwithstanding the husband may be entitled to the benefit of her services about domestic affairs; and no action for such services shall be maintained by the husband."

The court further said that the husband's right to recover for loss of consortium was also taken from him and conferred upon his wife by an amendment of section 5134, which was enacted in 1932 as follows:

"In an action by a married woman to recover for a personal injury inflicted on her, she may recover the entire damage sustained including the personal injury, expenses arising out of the injury (whether chargeable to her or her husband) notwithstanding the husband may be entitled to the benefit of her services about domestic affairs and consortium; and no action for such injury, expenses, or loss of services or consortium, shall be maintained by the husband."

Speaking of this amendment, the court said:

"In clear, positive and inclusive language, it enumerates and expressly gives to the wife the right to recover every item of damage incident to her injury. By language equally clear, explicit and inclusive, it expressly provides that no action for any element of damage incident to such personal injury of the wife, can `be maintained by the husband.\'

"* * * Undoubtedly his right to maintain an action against the tort feasor for any element of damage is taken from him and granted to the injured wife as was the right to recover for domestic services of his wife taken from him and vested in her by the amendment in that respect made by the Code Revisors in the Code of 1919. * * * The language of the amendment made by the Acts of 1932, ch. 25, p. 21, and now a part of sec. 5134, is equally as clear and even more positive in its terms that its purpose and intent are to deprive the husband of the right to recover the other two elements of damage incident to her injury, i. e., loss of consortium and all expenses chargeable to him which he had theretofore enjoyed, and vest these remaining two elements of damage in the injured wife."

The court concluded in the case before it that the husband could not recover from the wife's estate expenses actually incurred by him as the result of the injury. There was a dissent on this point, but the writer of the dissent, speaking on behalf of the dissenting judges, agreed that the statute conferred the initial right upon the wife to recover for all damages flowing from the injury. He said:

"* * * As I view the statute, it was intended to effect merely a change in the form of the remedy theretofore available to the husband to recover, for his own benefit, these damages sustained by him. The primary purpose was to avoid harassment of the defendant by multiple litigation and to insure that all of the issues arising out of the tort committed by him would be settled in one action. The wife\'s action to recover personal injury expenses should therefore be regarded as for the benefit of her husband, to the extent above indicated."

The view of the dissenters that the husband should be allowed to recover from the wife for expenses actually incurred by him was incorporated in an amendment of section 5134 which was passed in 1950 and now appears as section 55-36 of the Virginia Code. That section as amended now provides:

"A married woman may contract and be contracted with and sue and be sued in the same manner and

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