Ford Motor Co. v. Henderson

• Decision Date: 06 September 1973
• Docket Number: No. 7469,7469
• Parties: FORD MOTOR COMPANY et al., Appellants, v. Irene S. HENDERSON et vir., Appellees. . Beaumont
• Court: Texas Court of Appeals

Page 709

500 S.W.2d 709

FORD MOTOR COMPANY et al., Appellants, v. Irene S. HENDERSON et vir., Appellees.

No. 7469.

Court of Civil Appeals of Texas.

Beaumont.

Sept. 6, 1973.

Rehearings Denied Nov. 1, 1973.

Finis E. Cowan, Baker & Botts, B. Jeff Crane and Daniel A. Hyde, Vinson, Elkins, Searls, Connally & Smith, Houston, Tex., for appellants.

W. James Kronzer, W. W. Watkins and Tom Edwards Kronzer, Abraham, Watkins & Steely, Houston, Tex., for appellees.

STEPHENSON, Justice.

This is a products liability case. Trial was by jury and judgment rendered for plaintiffs upon the verdict. The parties will be referred to by name or as they were in the trial court. Plaintiffs are Mrs. Irene S. Henderson and her husband. Defendants are the Ford Motor Company, hereafter referred to as 'Ford', and the dealers, hereinafter referred to as 'Snelling'.

Plaintiffs alleged that while Mrs. Henderson was driving their Lincoln automobile, when she exerted pressure upon the brake pedal, the automobile accelerated and she was compelled to steer the automobile intentionally into a light pole. She was seriously injured.

Plaintiffs alleged a cause of action upon theories of strict liability in tort, defective design, and defective assembly of designated parts of the automobile. The jury found that the design of the air filter housing on this automobile was defective and that such defective design was a producing cause of this accident. The jury failed to find that the gasket on this automobile was defectively installed by Ford's employees before it was delivered to Snelling and failed to find that such gasket was defectively installed at the time this automobile was sold by Snelling to plaintiffs.

Defendants have a series of points of error complaining of the refusal of the trial court to allow them the defenses of contributory negligence and voluntary assumption of risk.

Defendants' pleadings contained allegations that if the vehicle in question did malfunction, that Mrs. Henderson discovered such malfunctioning a substantial period of time before her injuries occurred and was negligent in failing to stop the vehicle by a brake application, bu putting the gear shift in neutral, or by switching off the ignition. Plaintiffs' motion in limine was sustained and defendants were ordered by the trial court not to bring such matters before the jury in any form or manner, directly or indirectly. Defendants' requested issues, submitting those defensive matters, were denied.

Defendants concede that a defense of negligence in failing to discover the defect or to guard against the possibility of its existence is not available under the established law in the State of Texas, citing McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967), and Shamrock Fuel & Oil Sales Co. v. Tunks, 416 S.W.2d 779 (Tex.1967). However, the essence of their argument is that negligence on the part of Mrs. Henderson after the discovery of the defect is available as a defense. The uncontroverted evidence shows Mrs. Henderson continued to drive her car some nine-tenths of a mile after such discovery before driving into the light pole.

Justice Norvell in the Tunks case, supra, quotes Prosser, Law of Torts (3d ed.) 656, as follows:

"There has been ostensible, and quite superficial, disagreement over whether contributory negligence is available as a defense where the action is one for breach of warranty. A few decisions have said flatly that it is not. The greater number have said quite as flatly that it is. The conflict is, however, more apparent than real. If the cases are examined, it readily appears that those which refuse to allow the defense have been cases in which the plaintiff negligently failed to discover the defect in the product, or to guard against the possibility of its existence. They are entirely consistent with the general rule that such negligence is not a defense to an action founded upon strict liability. Those which have permitted the defense all have been cases in which the plaintiff has discovered the defect and the danger, and has proceeded nevertheless to make use of the product. They represent the form of contributory negligence which consists of deliberately and unreasonably proceeding to encounter a known danger, and overlaps assumption of risk. They are quite consistent with the general rule that this is a defense to strict liability. There are only a few cases which have recognized the distinction; but it seems quite clear that it is made in fact." (416 S.W.2d at 783)

Also quoted in that opinion is Dean John Wade's article, 'Strict Tort Liability,' from 19 Sw.L.J. 5, 21 (1965):

"The cases appear to be in disagreement as to whether contributory negligence of the plaintiff bars his recovery in an action for strict products liability. In general, however, they can be reconciled by adverting to the customary distinction between contributory negligence and assumption of risk. If the plaintiff's negligence was in failing to discover the unsafe condition of the product he can usually recover; if his negligence was in continuing to use the product after learning of the dangerous condition, his recovery is usually barred." (416 S.W .2d at 783)

In effect, the Supreme Court held in the Tunks case that the jury findings as to contributory negligence did not constitute a bar to recovery in a strict liability case because, as submitted, such issues included 'improper use' of the product as well as continued use of the product after discovering that it was dangerous. As submitted, it was not possible for the trial court or appellate courts to determine which of the two findings the jury was actually making.

In the concluding paragraph of the Tunks case, supra, 416 S.W.2d at 786, this statement is made:

"Consumer reliance upon the integrity of the manufacturer and his product is the foundation of warrant liability. It therefore appears that, short of actual knowledge of a defect (or circumstances charging him with knowledge as a matter of law), and continued use of the product with such knowledge, the consumer's failure to conform to the standard of care of the reasonably prudent man when using the defective product may merely be a manifestation of his reliance upon both the reputation of the manufacturer and his product.' Comment, Contributory negligence as a...