Messick v. General Motors Corporation
| Decision Date | 11 July 1972 |
| Docket Number | No. 71-1811.,71-1811. |
| Parties | A. L. MESSICK and wife, Elma Messick, Plaintiffs-Appellees, v. GENERAL MOTORS CORPORATION, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John G. Tucker, Orgain, Bell & Tucker, Beaumont, Tex., for defendant-appellant.
Sidney S. Stover, Seale & Stover, Jasper, Tex., for plaintiffs-appellees.
Before TUTTLE, INGRAHAM and RONEY, Circuit Judges.
Rehearing and Rehearing En Banc Denied July 11, 1972.
The invocation of federal diversity jurisdiction brings us to consider the instant products liability action brought by plaintiffs-appellees against defendant-appellant General Motors Corporation. The undisputed facts on appeal are that Messick had purchased a new 1969 Oldsmobile from appellant's agent on September 5, 1969. The automobile ran off the road in a one car accident on January 11, 1970. Appellees sued General Motors to recover damages for their resulting personal injuries.
In the four months that Messick owned the Oldsmobile before the accident, he had used the car in his business and had run the odometer to a reading of over 15,000 miles. In the same four months period he had taken the automobile in for repair at least eight times in an attempt to correct two defects. From the first the Oldsmobile had an acute front-end vibration problem which was exacerbated by driving at speeds in excess of 50 miles per hour. Messick also had difficulty in keeping the car on the road surface when driving over a bump or encountering roughness. The latter defect manifested itself by the car veering to the right or the left of the direction of travel. It could be driven with safety only with the utmost caution and held to a rough road only by main strength.
In the repeated attempts to ameliorate the defects the dealer's mechanics found the Oldsmobile to have two warped rear wheels and a warped axle. Replacement of these parts reduced the vibration, but did little for the steering problem which the mechanics were unable to explain or repair. Messick then took the automobile to a private mechanic. After examining the vehicle the mechanic informed Messick that in his opinion, if Messick continued to drive the car in its present condition, it was going to kill him. Messick thereupon made a demand upon General Motors to replace the automobile and he had received no reply at the time the car ran off a fog-shrouded road resulting in the injuries sustained.
Plaintiffs filed suit in the federal district court alleging diversity of citizenship. The complaint asserted two separate theories of recovery. Their first count alleged that defendant's negligent design and inspection of the steering and suspension mechanisms were the proximate cause of the accident.1 Their second count was in strict liability in tort, asserting that the damages were produced by a defect in the steering and suspension systems which rendered the Oldsmobile unreasonably dangerous.2 Since the suit was brought in federal court, we are Erie bound to apply the underlying state law, that of the State of Texas.
Texas has long since proved the wisdom of our Erie prognostication in Putnam v. Erie City Manufacturing Co., 338 F.2d 911 (5th Cir., 1964), and adopted the position of the Second Restatement of the Law of Torts § 402A imposing strict liability on the manufacturer of any defective product which causes physical harm to persons. Shamrock Fuel & Oil Sales Co. v. Tunks, 416 S.W.2d 779 (Tex.Sup., 1967); McKissen v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.Sup., 1967). On this appeal it is undisputed that plaintiffs' complaint stated and the evidence later proved a cause of action in strict liability.3 The principal issue on appeal is whether relief should have been denied as a matter of law because of the plaintiffs' contributory negligence in continuing to use the product while knowing of its defective condition and the danger involved.4
Defendant asserts as error the district court's refusal to grant a directed verdict in its favor on the defense of volenti non fit injuria as defined by the Texas Supreme Court in Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (1963). In General Motor's view the volenti defense was established as a matter of law by the plaintiff Messick's testimony that he knew of the facts which constituted the dangerous condition or defect; that he knew the condition or activity to be dangerous and appreciated the nature or extent of the danger. The testimony at issue was as follows:
A volenti defense as defined by the Texas Supreme Court in Halepeska, supra, is sharply distinguished from the defenses of contributory negligence and of an open and obvious defect which imposes no duty.5 Myers v. Day & Zimmerman, 427 F.2d 248 (5th Cir., 1970). The Texas volenti doctrine has four elements: (1) the plaintiff has knowledge of facts constituting a dangerous condition or defect; (2) he knows the condition or activity to be dangerous; (3) he appreciates the nature or extent of the danger; and (4) he voluntarily exposes himself to this danger. The Texas courts require the volenti defense be established on a subjective standard. J. & W. Corp. v. Ball, 414 S.W.2d 143, 146 (Tex.Sup., 1967). Both parties agree that Messick's testimony established his subjective knowledge and appreciation of the first three elements of volenti. General Motors asserts that the fourth element—voluntary exposure—was established by the plaintiff's volitional act of driving the car. Under its theory, Messick is completely barred from recovery under both the negligence and strict liability counts. Messick asserts that the question of voluntariness was one for the jury when he introduced evidence of his dependence on an automobile to procure his livelihood, and when he testified to his economic inability to purchase a second car while continuing to pay off the Oldsmobile which the dealer and manufacturer refused to exchange. Messick asserts that the jury was properly charged on this element on an objective standard.
As to Messick's negligence theory of recovery, General Motor's contentions are a correct statement of Texas law. There is no longer any doubt that in Texas volenti is applicable to actions in negligence, Rabb v. Coleman, 469 S.W.2d 384 (Tex.Sup., 1971). Nor is there an element of duress of economic circumstance available to plaintiff in a negligence action. McKee v. Paterson, 271 S.W.2d 391 (Tex.Sup., 1954). Moreover, the reasonableness of the undertaking is not available to relieve a plaintiff from the application of the doctrine. As the court stated in Halepeska:
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