General Motors Corporation v. Walden, 9729.

Decision Date15 January 1969
Docket NumberNo. 9729.,9729.
Citation406 F.2d 606
PartiesGENERAL MOTORS CORPORATION, Appellant, v. Dorethea M. WALDEN, the surviving spouse of Homer L. Walden, Deceased, Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

John C. Mott, Denver, Colo. (Zarlengo, Mott & Carlin, Denver, Colo., and Ross L. Malone, Roswell, N. M., were with him on the brief), for appellant.

John A. Criswell, Englewood, Colo. (Myrick, Criswell & Branney, Englewood, Colo., were with him on the brief), for appellee.

Before JONES,* BREITENSTEIN and HOLLOWAY, Circuit Judges.

BREITENSTEIN, Circuit Judge.

The jury awarded appellee-plaintiff, Dorethea M. Walden, $95,000 for the death of her husband in a one-car automobile accident occurring in Arizona. The appellant-defendant, General Motors Corporation, seeks a reversal of the judgment because of claimed errors in the instructions.

On October 9, 1965, the decedent was driving south towards Tucson in a Corvair automobile which he had purchased about one month before and which had been driven 3,210 miles. The paved, double-lane, 41-foot highway had a slight turn to the decedent's right. The driver of a car approaching from the south first saw the Corvair when it was about 1,000 feet away. At that time it was slightly to the left of the painted dividing line. As it neared the other car, the Corvair turned back into its lane of traffic. The driver of the northbound car and a passenger testified that, when the Corvair was three or four car-lengths away, they saw smoke coming from the left rear wheel. After the cars had passed, the Corvair spun into a ditch. The decedent was thrown out and killed. He had not been using the safety belt with which the car was equipped.

The weather was clear and dry and the sun was shining. The northbound car was traveling at about 50 or 60 miles an hour. The driver of that car and a passenger guessed the speed of the Corvair at 55 to 70 miles an hour. The patrolman who investigated the accident calculated the speed from the skid marks at 56 or 57 miles per hour. An expert for the plaintiff fixed the speed at 61.4 miles per hour.

A chemist from the Tucson police laboratory testified that an examination of a sample of the blood taken from the decedent's body showed .19% alcohol by weight. The validity of the blood test was contested by the plaintiff. A defense expert testified that the amount of alcohol found was sufficient to make a person unfit to drive a motor vehicle. No evidence of alcohol or intoxicants was found at the scene of the accident.

The theory of the plaintiff, substantiated by an expert witness, was that the universal-joint bearings on the left rear drive shaft flange were improperly assembled and that the bearing retainer strap separated with a comparatively loud noise. When the brakes were applied, the drive shaft on the left side was freed, the left rear wheel locked, and the car started to move to the left. The driver tried to steer out of his predicament. The right rear wheel and then the front wheels locked. By that time the driver had over steered and the car spun off the road. The defendant had witnesses testifying on proper assembly but such testimony is omitted from the record. A defense expert said that the accident was caused by the application and locking of the brakes while the front wheels were turned to the right.

An affirmative defense was that the accident and death were proximately caused by the sole or contributory negligence of the decedent. The defendant urges that the judgment must be reversed because its theory of the case was not presented to the jury in the court's instructions.

A party is entitled to have the jury instructed properly on his theory of the case if such theory is supported by competent evidence.1 This is a product liability case in which the plaintiff introduced evidence of defective workmanship. The sufficiency of the evidence to sustain the verdict is not questioned.

The argument of General Motors is that the decedent was contributorily negligent and that the court erred in not instructing the jury on all of the aspects of contributory negligence which it urged. At the time of the trial the applicability of the defense of contributory negligence in a product liability case had not been clearly resolved by the courts2 and had not been settled in Arizona. Since then, the Arizona Supreme Court has decided O. S. Stapley Company v. Miller, 103 Ariz. 556, 447 P.2d 248, a product liability case. The court said that in such a case there are three separate divisions of what is loosely termed contributory negligence. These are (1) failure to discover a defect which should have been discovered by reasonable diligence, (2) use of the product notwithstanding the discovery of the defect, and (3) use of the product in a manner or for a purpose not reasonably foreseen by the manufacturer. It characterized (1) as contributory negligence, (2) as assumption of risk, and (3) as misuse.

Here we have no claim that the decedent knew, or by the use of reasonable diligence could have known, of the defect. Our concern is with misuse. We view the instructions in the light of the Arizona law which has been declared since the trial.

The court told the jury that the plaintiff claimed that the Corvair was improperly assembled; that General Motors denied improper assembly and asserted that, if there was, the accident was not proximately caused thereby. The court pointed out that General Motors affirmatively claimed that the decedent was negligent in not using his seat belt and in driving while under the influence of intoxicating liquor and that such negligence was the proximate cause of the accident and death. The court instructed that the jury should first determine the question of improper assembly and, if there was, whether it was the proximate cause. The court said that if the jury found in the affirmative on these issues, it must then consider

"whether or not Walden was negligent in either of the respects claimed by the defendant, and if you find that Walden was guilty of negligence, and that such negligence was the sole or a contributing proximate cause of the accident and Walden\'s death, then your verdict shall be for the defendant and against the plaintiff.
If you find that there was an improper assembly and that it was a proximate cause of the accident and Walden\'s death, and you further find that Walden was not guilty of negligence which was a proximate or contributing cause of the accident and Walden\'s death, then your verdict shall be for the plaintiff and against the defendant."

We believe that the instructions were proper. The first consideration was whether the product was improperly made and, if so, whether the faulty make was the proximate cause. A negative answer on either point requires a verdict for the defendant. An affirmative answer on each point makes necessary consideration of the claimed misuse by the decedent.

General Motors says that reference in...

To continue reading

Request your trial
37 cases
  • Colo. Interstate Gas v. Natural Gas Pipeline Co.
    • United States
    • U.S. District Court — District of Wyoming
    • May 29, 1987
    ...instead waited to object until long after a verdict was returned. NGPL consequently waived its claim of error. General Motors Corp. v. Walden, 406 F.2d 606, 610 (10th Cir.1969). Moreover, NGPL exaggerates the significance of the poem. Interpreting the poem as a criticism of NGPL's witnesses......
  • Bendorf v. Volkswagenwerk Aktiengeselischaft
    • United States
    • Court of Appeals of New Mexico
    • April 5, 1977
    ...sole proximate cause of the accident. Fields v. Volkswagen of America, Inc., 555 P.2d 48 (Okl.1976). Contra, General Motors Corporation v. Walden, 406 F.2d 606 (10th Cir. 1969). The Federal court misconstrued Arizona law stated in O. S. Stapley Company v. Miller, 103 Ariz. 556, 447 P.2d 248......
  • People v. France
    • United States
    • Michigan Supreme Court
    • September 12, 1990
    ...of administrative communication is an instruction which encourages a jury to continue its deliberations. In General Motors Corp v. Walden, 406 F.2d 606 (CA 10, 1969), after the jury had deliberated for some time, it sent a note to the court which read, " 'Your honor, we are sitting five to ......
  • Bendorf v. Volkswagenwerk Aktiengeselischaft, 1651
    • United States
    • Court of Appeals of New Mexico
    • August 6, 1975
    ...Whether a given misuse is foreseeable or unforeseeable is a question of fact for the jury in each case. General Motors Corporation v. Walden, 406 F.2d 606 (10th Cir. 1969); Olsen v. Royal Metals Corp., 392 F.2d 116 (5th Cir. 1968); Helene Curtis Indus., Inc. v. Pruitt, 385 F.2d 841 (5th Cir......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT