McDevitt v. Standard Oil Company of Texas

• Citation: 391 F.2d 364
• Decision Date: 28 February 1968
• Docket Number: No. 24594.,24594.
• Parties: James F. McDEVITT and Wife, Veva L. McDevitt et al., Appellants, v. STANDARD OIL COMPANY OF TEXAS et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

391 F.2d 364 (1968)

James F. McDEVITT and Wife, Veva L. McDevitt et al., Appellants, v. STANDARD OIL COMPANY OF TEXAS et al., Appellees.

No. 24594.

United States Court of Appeals Fifth Circuit.

February 28, 1968.

Warren Burnett, Robert D. Pue, Odessa, Tex., for appellants.

William Duncan, J. Malcolm Harris, Eugene T. Edwards, El Paso, Tex., Hardie, Grambling, Sims & Galatzan, El Paso, Tex., for appellee Standard Oil Co. of Texas.

Kemp, Smith, White, Duncan & Hammond, El Paso, Tex., for appellee United States Rubber Co.

Before TUTTLE, GEWIN and GODBOLD, Circuit Judges.

GEWIN, Circuit Judge:

This is an appeal from a final judgment entered on a jury verdict returned in the United States District Court for the Western District of Texas in favor of the defendant below, Standard Oil Company of Texas. Standard Oil impleaded United States Rubber Company as manufacturer and Preston Lee Howard as the retailer of the automobile tires involved in this litigation.¹ The plaintiffs, James F. McDevitt and wife, individually and as next friends of their minor children (appellants), sought recovery on a strict liability theory in tort for injuries to persons and property caused when their automobile tires failed and the car left the road. Jurisdiction is based on diversity of citizenship. The jury returned a general verdict for the appellee Standard Oil Company of Texas. Judgment was entered on the verdict and the McDevitts have prosecuted this appeal.

The sole question which we must decide is whether the district court erred in instructing the jury on certain defensive matters in which language of contributory negligence was used. We have concluded that there was no prejudicial error and affirm.

The facts in this case are not in controversy. On October 17, 1959, James McDevitt purchased a set of five Atlas Weather Guard Tubeless tires² from Preston Howard at the Freeway Chevron Station in El Paso, Texas. James McDevitt first asked Howard for size 900 × 14 tires, but was told that 800 × 14 was the largest size tire that should go on his 1957 Ford Station Wagon. The service station operator showed him the specifications listed in the tire catalog, but McDevitt insisted on size 850 × 14, being under the mistaken impression that he had a large enough rim on his station wagon to permit the use of a size 850 × 14 tire. Both James McDevitt and his wife regularly carried 35 pounds pressure in their tires, choosing not to rely on the pressure of 24 to 26 pounds as recommended in published manuals. McDevitt had also driven the tires at pressures as low as 15 pounds. The tires were often driven over unpaved roads and even off the road as the McDevitts frequently used the station wagon for camping trips.

During the early afternoon of July 21, 1960, Mrs. McDevitt was driving the station wagon on the highway near the town of Comstock, Texas, accompanied by her six minor children. She was proceeding at approximately 60 m. p. h. when the left rear tire blew out. She managed to keep the vehicle in the proper lane and when she had slowed to about 35 m. p. h. in order to pull onto the shoulder of the road, the left front tire came off the rim. The station wagon overturned, demolishing the vehicle and injuring Mrs. McDevitt and the six children.

Mrs. McDevitt testified at the trial that the station wagon had been driven an average of 800 miles per month. The tires had been on the station wagon about nine months at the time of the accident, yet she testified the tires had only 3,800 miles on them.

Both sides called expert witnesses. Appellant's expert stated that the standard size of tire for appellants' vehicle was 800 × 14. He testified that the rim on appellant's vehicle was a "J" rim, and that in his opinion such a rim was capable of accommodating an 850 × 14 tire. His opinion was that rubber wore off the side of the bead,³ causing the accident. He concluded that the wearing off of the rubber was due to the fact that too little rubber was placed on the tire at the bead during manufacture.

Appellee's expert witness said the 850 × 14 tires were designed and manufactured for a "K" rim, but appellants' vehicle was equipped with "J" rims. He stated that the tire size for appellants' rim should have been 750 or 800, not 850. Excess inflation of the tires and the characteristics of a station wagon would cause a wearing problem, as would the high-tread, deep traction type of tire, excessive speed, and being driven over rough terrain. The opinion of the appellees' expert was that the misfit caused chafing at the bead, resulting in the failure of the tires.

The trial judge gave numerous instructions to the jury. Pertinent to this appeal he charged that:

"Negligence, as that term is used in this charge, is the failure to use or exercise ordinary care. That is, the want of such care as an ordinarily prudent person would have exercised under the same or similar circumstances or failure to do that which an ordinarily prudent person would have done under the same or similar circumstances."

After giving the above charge defining negligence, the trial judge then proceeded to give instructions on the defense interposed⁴ to which the appellants strenuously object. In this connection he instructed the jury as follows:

"Now as to the defenses of the defendant in this case, you are instructed that if you find from a preponderance of the evidence that James F. McDevitt exercised his own judgment in the selection of the tires in question, and acted contrary to the advice of the seller with respect to the size or type of tire to be used on the vehicle in question, and if you further find that such conduct constituted negligence, and if you further find such negligence, if any, was the proximate cause of the injuries herein complained of, then, in such event, you are instructed to return your verdict in favor of the defendant, Standard Oil Company of Texas.

"You are further instructed that if you find from a preponderance of the evidence that plaintiff James F. McDevitt, purchased a size or type of tire for his 1957 Ford station wagon which he knew was contrary to the specifications contained in the Atlas catalog of specifications, and if you further find that such acts on his part, if you find he so acted, constituted negligence, and if you further find that such negligence, if you have so found, was the proximate cause of the accident and injuries herein complained of, then, in such event you are instructed to return your verdict in favor of the defendant, Standard Oil Company of Texas.

"You are further instructed that if you find from a preponderance of the evidence that plaintiffs James F. McDevitt, and wife, Veva L. McDevitt, or either of them, operated the tires in question at an excessive rate of speed, or operated the tires off the road in rough country, or operated the tires with insufficient air pressure, or operated improper sized tires on the vehicle, or by a combination of such acts misused the tires in question, and that such conduct, if they so did, was negligence as that term is defined herein, and that such negligence, if any, was a proximate cause of the accident in question, then in such event, you are instructed to return your verdict in favor of the defendant, Standard Oil Company of Texas."

Later in his instructions, the trial judge also instructed the jury on misuse as a defense without mentioning negligence, using the following language:

"Defendants have alleged that the tires were not defective, but that the blowout of the tires proximately resulted from placing 850 × 14 tires on the Jrims on a 1957 Ford station wagon and driving same at high and low inflation, and driving at excess speeds and a combination of these things. The burden of the proof that the tires were misused is upon defendants. If you find from a preponderance of the evidence that the accident was proximately caused by any misuse of the tires then you will find for the defendants."

The jury returned the following verdict:

"We, the Jury, find for the Defendant, Standard Oil Texas sic of Texas."

The doctrine of strict liability was adopted as the law of Texas⁵ and applied to foodstuffs intended for human consumption at an early date in the well known and important case of Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479 (1942). This court, in Putman v. Erie City Manufacturing Co., 338 F.2d 911 (5 Cir. 1964) correctly predicted that the Texas Supreme Court would extend the doctrine to encompass any defective product which causes physical harm to persons, as it has recently done. McKisson v. Sales Affiliates, Inc., Tex., 416 S.W.2d 787 (1967), Helene Curtis Industries, Inc. and Cosmair, Inc. v. Pruitt, 385 F.2d 841 (5 Cir. — Oct. 20, 1967). The existence of the rule of strict liability in Texas is now clear. The problem which faces us in this case, however, is the narrower issue of the applicability of the defense of contributory negligence in such an action.

Appellants contend that the charges which allowed the jury to find that contributory negligence was a defense to a strict liability action were erroneous in view of the fact that the Supreme Court of Texas rejected such an idea in the recent cases of Shamrock Fuel & Oil Sales Co., Inc. v. Tunks, Tex., 416 S.W.2d 779 (1967), and McKisson v. Sales Affiliates, Inc., Tex., 416 S.W.2d 787 (1967). A careful examination of these cases is necessary in order to determine exactly what the Texas Supreme Court did and did not hold on this point.

We will first consider the Tunks case. The facts here were that Omy Ray Munsinger, singer, a minor, and his younger brother, while at play one afternoon in their backyard, placed a smoldering stick which they had just removed from an incinerator into the rear of a toy truck. Omy Ray then directed his brother to pour kerosene, which had been adulterated with gasoline, onto the smoldering stick. The resulting explosion caused injury to Omy Ray...