MacKenzie v. Chrysler Corp.

Decision Date07 December 1979
Docket NumberNo. 79-1850,79-1850
Citation607 F.2d 1162
PartiesGeorge A. MacKENZIE, Plaintiff-Appellant, v. CHRYSLER CORPORATION, Defendant-Appellee. Summary Calendar. *
CourtU.S. Court of Appeals — Fifth Circuit

George A. MacKenzie, pro se.

Bourdeaux & Jones, William C. Hammack, Thomas D. Bourdeaux, Meridian, Miss., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before AINSWORTH, FAY and RANDALL, Circuit Judges.

AINSWORTH, Circuit Judge:

This Mississippi diversity case was tried to a jury on a suit involving two causes of action: (1) breach of warranties, express and implied, and (2) tortious interference with plaintiff's employment contract, arising from the purchase by plaintiff-appellant George A. MacKenzie of a 1976 Dodge Aspen station wagon from Jones Motor Company of Amory, Mississippi. Defendant-appellee is Chrysler Corporation, manufacturer of the automobile in question. At the close of plaintiff's evidence, defendant moved for a directed verdict which was denied as to defendant's motion regarding breach of warranties, but granted on the issue of defendant's alleged tortious interference with MacKenzie's employment contract. The case was finally submitted to the jury on the issues of breach of Chrysler's express warranty 1 and the implied warranty of merchantability 2 arising from the sale of the automobile. The jury awarded plaintiff damages of $3,500, in response to special interrogatories in which it found that Chrysler did not breach its express warranty covering MacKenzie's automobile, but did breach the implied warranty of merchantability imposed by Mississippi law. MacKenzie has appealed, assigning several errors during the trial of the case. After a careful review of the proceedings below, we affirm.

Chronologically, the facts disclose that on December 1, 1972, MacKenzie entered into a contract with Memphis Publishing Company to distribute The Commercial Appeal, a Memphis newspaper. The contract was terminable by the company "at any time without cost or prejudice upon seven days written notice" to appellant.

On April 30, 1976, while MacKenzie was still a distributor of the paper, he purchased a new 1976 Dodge Aspen automobile from Jones Motor Company for a purchase price of $5,453. Incident to his purchase Chrysler issued to MacKenzie its express limited warranty, which included among other provisions a "Free Loaner" clause. Under this provision, the dealer agreed to supply a rental car to the customer for overnight use if warranty repairs could not be completed in one working day. The clause further provided that to be eligible for a "loaner," the customer was required to make an appointment in advance to insure that a rental car would be available.

Between April 30 and September 30, 1976, MacKenzie had numerous problems with his automobile. Upon each occurrence, he brought his car to Jones Motor Company, where it was repaired at no cost to appellant, other than charges for replacement of the oil and filter. Sometime in late September, MacKenzie wrote a letter to Action, Please, a consumer column published in The Commercial Appeal, stating the problems he was having with his automobile. Mark Hanna, the columnist who received the complaint, sent copies of the letter to Jones Motor Company and Chrysler's regional office in Memphis. Roy Cash, Chrysler's Memphis representative, telephoned Hanna concerning the letter and notified him that Chrysler was attempting to correct the problem. Cash then had MacKenzie take his car to Jones Motor Company where it remained overnight for major repair work. MacKenzie was not given a "loaner" at this time because, according to the dealer, no rental cars were available. Appellant then became angry and prepared several copies of a note which he attached to the papers he delivered late that evening. The note stated:

PAPER LATE TODAY BECAUSE JONES MOTOR DOES NOT HONOR WARRANTY ON MY NEW CAR. CAR HAS BEEN IN FOR REPAIRS 25 TIMES SINCE MAY 1.

One copy of the paper with a note attached was delivered to Jones Motor Company. The owner, Jack Jones, called Roy Cash at Chrysler's Memphis office on September 30 and told him about the note. Cash then called Hanna of Action, Please and complained about MacKenzie's actions. Subsequent to this call Hanna wrote a memorandum 3 to Maurice Sparby, Circulation and Advertising Director of The Commercial Appeal, concerning the conversation with Cash. The memo ultimately reached David Ceasar, Mid-South Circulation Director for The Commercial Appeal. Ceasar contacted T. L. McCoy, the newspaper's District Manager in MacKenzie's district, who informed him of numerous other complaints from subscribers concerning MacKenzie's collection practices. McCoy also told Ceasar that appellant had been admonished by him in the past for inserting in papers he delivered circulars advertising his roof cleaning business in violation of the company's policies. On October 11, 1976, Ceasar wrote MacKenzie terminating his employment contract effective October 31, 1976. This lawsuit followed.

Appellant challenges the district court's granting of a directed verdict on the issue of Chrysler's alleged tortious interference with MacKenzie's employment contract, and also the court's refusal to submit to the jury certain instructions concerning warranties. With regard to the directed verdict, application of the test enunciated by this court in Boeing Co. v. Shipman, 5 Cir., 1969, 411 F.2d 365, 4 requires us to conclude that the district court properly granted defendant's motion. After a consideration of all of the evidence in the light most favorable to appellant, it is clear that MacKenzie offered proof of no facts that would allow "reasonable and fair-minded men in the exercise of impartial judgment," 411 F.2d at 374, to find that Chrysler tortiously interfered with appellant's contract with Memphis Publishing Company. There is no "conflict in substantial evidence" as required by Boeing, 411 F.2d at 375, since plaintiff failed to present facts sufficient to establish the elements necessary to create a jury question. Under applicable law, an action for tortious interference with a contract will lie only where a party "maliciously interferes with a valid and enforceable contract." Mid-Continent Telephone Corp. v. Home Telephone Co., N.D.Miss., 1970, 319 F.Supp. 1176, 1199. Malice in this context is defined as "the intentional doing of a harmful act without justification or excuse." 319 F.Supp. at 1200. Here, there is no evidence in the record that Chrysler or any of its agents did or were in a position to maliciously interfere with MacKenzie's employment contract. 5 Cash's call to Hanna at The Commercial Appeal following MacKenzie's note was no more than a justifiable circulation complaint, which does not give rise to an inference of malice or intent to do harm to appellant's contractual relationship with his employer. Subsequent to this call, Chrysler had no other communications with the newspaper or Memphis Publishing Company concerning MacKenzie's actions. Thus, the district court committed no error in granting defendant's motion for a directed verdict.

Appellant's next contention relates to the trial court's refusal to submit to the jury certain instructions. This court has stated repeatedly the standard for appellate review: the charge must be viewed as a whole; if it generally correctly instructs the jury on the law, no harmful error is committed. E. g., Andry v. Farrell Lines, Inc., 5 Cir., 1973, 478 F.2d 758, 759; Bolden v. Kansas City Southern Railway Co., 5 Cir., 1972, 468 F.2d 580, 581; Troutman v. Southern Railway Co., 5 Cir., 441 F.2d 586, 590, Cert. denied, 404 U.S. 871, 92 S.Ct. 81, 30 L.Ed.2d 115 (1971). An examination of the entire charge shows that the trial judge properly instructed the jury on the applicable law, and thus no reversible error was committed.

Appellant complains that the court erred in failing to charge the jury on the issue of strict liability. Under Mississippi law, before a party is entitled to recover under this theory three factors must be established (1) that the plaintiff was injured by the product; (2) that the injury resulted from a defect in the product which rendered it unreasonably dangerous; and (3) that the defect existed at the time it left the hands of the manufacturer.

Early-Gary, Inc. v. Walters, 294 So.2d 181, 186 (Miss.1974); See also State Stove Manufacturing Co. v. Hodges, 189 So.2d 113, 118-23 (Miss.1966). Appellant fails in the first instance to fit the requirements of Walters, since he did not produce any evidence at trial of physical harm to himself or his other property resulting from any alleged defects in Chrysler's product. Furthermore, there was no proof of any facts indicating that Chrysler's product was unreasonably dangerous. It was, therefore, proper for the court to omit this instruction.

MacKenzie next protests the court's refusal to submit to the jury the issue of breach of the implied warranty of fitness for a particular purpose. 6 Again, appellant failed to produce facts sufficient to establish the elements necessary to entitle him to recovery under this theory. To present a cause of action for breach of this warranty, a party must show that:

(1) the seller at the time of the contracting had reason to know the particular purpose for which the goods were required; (2) the reliance by the plaintiff as buyer upon the skill or judgment of the seller to select suitable goods; and (3) the goods were unfit for the particular purpose.

Garner v. S&S Livestock Dealers, Inc., 248 So.2d 783, 785 (Miss.1971). In this case, although MacKenzie discussed with the dealer his intended use of the car, there is no evidence indicating he relied on any agent or representative of Chrysler to select the particular car he ultimately purchased. Therefore, the issue of implied warranty of fitness for a particular purpose was properly not...

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