White Motor Corporation v. Stewart

• Decision Date: 11 December 1972
• Docket Number: No. 72-1040.,72-1040.
• Citation: 465 F.2d 1085
• Parties: WHITE MOTOR CORPORATION, an Ohio corporation, and Freight-Liner Corporation, a Nevada corporation, Appellants, v. Finis STEWART, and Lee Way Motor Freight, Inc., a Delaware corporation, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

465 F.2d 1085 (1972)

WHITE MOTOR CORPORATION, an Ohio corporation, and Freight-Liner Corporation, a Nevada corporation, Appellants, v. Finis STEWART, and Lee Way Motor Freight, Inc., a Delaware corporation, Appellees.

No. 72-1040.

United States Court of Appeals, Tenth Circuit.

August 11, 1972.

Rehearing Denied September 5, 1972.

Certiorari Denied December 11, 1972.

Clyde J. Watts, Oklahoma City, Okl., for appellants; G. Kent Fleming, of Watts, Looney, Nichols & Johnson, Oklahoma City, Okl., of counsel.

Ben T. Lampkin, Jr., and John W. Norman of Lampkin, Wolfe, Burger, Abel, McCaffrey & Norman, Oklahoma City, Okl., for appellee Finis Stewart.

Lawrence E. Hoecker, of Pierce, Couch, Hendrickson, Gust & Short, Oklahoma City, Okl., for appellee (intervenor) Lee Way Motor Freight, Inc.

Before BREITENSTEIN, HILL and DOYLE, Circuit Judges.

Certiorari Denied December 11, 1972. See 93 S.Ct. 561.

WILLIAM E. DOYLE, Circuit Judge.

This diversity action is a products liability case in which Oklahoma law of implied warranty of fitness for intended use was applied. Plaintiff-appellee Stewart, a long-haul truck driver for Lee Way Motor Freight, the intervenor-appellee, received serious injuries when his truck went out of control, left the highway and turned over. The incident occurred on a clear night in good weather while Stewart was driving a tractor-trailer combination which had been manufactured by defendant-appellant Freightliner Corporation and sold by it through White Motor Corporation to appellee's employer Lee Way.

Stewart testified that he experienced a sudden vibration and inability to control or steer the truck. He struggled with the steering wheel in a vain effort to prevent the truck from going hard to his right. He let up on the accelerator in an attempt to keep the vehicle on the roadway until it would roll to a stop from its 60 mile per hour speed, but after traveling 2000 feet it finally veered to the right and off the shoulder, reversed directions and overturned, landing on its left side.

Stewart was pinned in the wreckage for over an hour, his right leg being caught in the clutch pedal and his left leg lying out the door. He was hospitalized for 237 days with a compound fracture of the left leg and internal injuries consisting of a hole in the lower colon. He had very limited use of his leg; he presently wears a brace, walks with a cane, and cannot drive a truck. At the time of the trial there was a possibility that the leg might have to be amputated.

The evidence disclosed that there had been a failure in the right equalizer bracket-radius rod assembly of the tractor's rear suspension system.¹ More particularly, the bolts holding the equalizer bracket to the frame were sheared off. An important factual issue was whether the bolts were overloaded or defective when possession was transferred from appellants to Lee Way or whether they had been overtorqued or had failed due to other improper maintenance on the part of Lee Way. Defendants also argued that Stewart had gone to sleep at the wheel and that the bolts were broken by the impact of the crash. Defendants' motion for directed verdict was denied.²

The jury returned a verdict for plaintiff in the amount of $350,000.00. Of this amount the intervenor Lee Way was allowed $21,951.22 by way of subrogation for workmen's compensation payments made to Stewart. Defendants moved for judgment n. o. v. and for a new trial, both of which were denied.

There is a dispute in the evidence as to whether a manufacturer's defect produced this series of events. It was shown without dispute that after the truck came to rest, the so-called equalizer bracket-radius rod part of the tractor's rear suspension system was severed. The bolts which served to hold the equalizer bracket to the frame had sheared. Unfortunately the bolts were not preserved, but testimony was to the effect that three of the bolts were rusted suggesting that they may have failed prior to the incident while the fourth was shiny indicating that it had sheared off at the time.

The mentioned radius rod is a transverse member which connects to the axle and wheel assembly and serves to support the axle so as to prevent, in part at least, its swinging on a horizontal plane, the effect of which would be turning and loss of control.³ Defendants offered testimony of tests which showed that the wheels did not swing even when the radius rod was dislodged.

The important factual issue at trial thus was whether the bolts were defective or overloaded at the time of sale and delivery of the truck to Lee Way or whether on the other hand the maintenance on the part of Lee Way had been faulty—whether, for example, Lee Way had overtorqued the bolts at regular 100,000 mile inspections. Defendants also have maintained that the bolts were broken by the impact of the crash. In addition to the radius rod there is a rear axle spring which gives limited and secondary support to the wheel assembly and also holds the wheels in a straight course. When the rod was separated on the right side this spring became dislodged and control of the rear wheels was lost. The tractor was just over a year old and had been driven 237,448 miles. The testimony showed that this is not regarded as high mileage. Trucks of this kind have an average life of a million miles over a period of five years. Supporting bolts such as those holding the radius rod bracket here are expected to last for the entire life of the truck.

The main contention on this appeal is, as has been noted, that of insufficiency of evidence to establish existence of a defect present in the equalizer bracket-radius rod assembly at the time of delivery. Defendants complain particularly about the disappearance of and failure to produce the bolts which failed.

Further challenges by defendants are first, the alleged excessiveness of the verdict; secondly, the failure of the trial court to submit the issue of contributory negligence of Lee Way to the jury; third, the alleged error of the court in not submitting the photograph of the equalizer bracket to the jury.

The evidence in support of proximate cause does not pose a problem. No strain on the deductive process is required to conclude that the failure of the bolts caused the truck to leave the highway, turn around and finally overturn. This is not only supported by the circumstances; the expert witness Halley gave a positive opinion that this occurred.

The evidence offered to establish the existence of a defect attributable to the defendants is less conclusive. The experts on both sides testified as to this but neither took a doctrinaire stand. Plaintiff's expert, Professor Halley, testified that inadequate shear strength or an overload on bolts which were too small or too few (a defect in design or manufacture) was the number one possibility. In addition, he conceded that there were other possibilities such as lack of maintenance and excessive torquing. The case was thus presented to the jury on circumstantial evidence, and the evidence must be determined sufficient or insufficient based on the strength of the inferences that defendants were responsible for the bolts failing.

In accordance with Oklahoma law,⁴ the trial court charged the jury that the essential elements of an action based on manufacturer's or seller's breach of implied warranty of fitness required proof (preponderance of evidence) by the plaintiff that the claimed defect or defects constituting a breach of implied warranty of fitness existed at the time that the vehicle left the hands of the manufacturer or seller and must also prove that the claimed defect was the proximate cause of the accident and resulting injury or loss.⁵

I.

The Oklahoma law applicable to products liability cases proceeds on the doctrine of implied warranty of fitness for intended use. To recover, it must be established that there existed at the time of transfer from the manufacturer a defect which proximately caused the injury. Marathon Battery Company v. Kilpatrick, 418 P.2d 900, 902 (Okl.1966). The Oklahoma Supreme Court said that a products case can be proven by either direct or circumstantial evidence:

* * * The primary issue involved was whether the battery exploded, and this matter explicitly was submitted to and determined by the jury. We have held consistently that in civil cases the facts are provable by direct or circumstantial evidence, or by both. And it is not required that the proof rise to that degree of certainty which will support only one conclusion to the exclusion of all others. * * *

418 P.2d at 917.

The court also said:

We are persuaded as to the correctness of both the reasoning and the rule, and hold the manufacturer\'s liability was established when it was shown that plaintiff was injured while using the battery for the purpose intended by reason of a defect as to which he was not aware, and could not have ascertained by examination. 418 P.2d at 915.

In Marathon Battery the proof of plaintiff was practically limited to the inferences arising from the happening. The battery manufactured by defendant exploded while plaintiff was holding it in his hand. The opposing argument that the specific reason for the failure had to be established was rejected. The circumstantial evidence was held to be sufficient to create a reasonable inference that some defect existed in the battery. Defendant's theory that the explosion resulted from some external agency or force was rejected by the jury.

In Ford Motor Co. v. Schweitzer, No. 43096 (Okl. June 15, 1971), a case which resembles ours, there was a failure of the tie rod assembly in the steering mechanism. A witness at the scene noticed that it was rusty except for one shiny spot on the end. There was little other proof. There, however, the car was only 12 days old, making the connection to the manufacturer somewhat more clear. This court's decision in Speed Fastners, Inc. v. Newsom, 382 F.2d 395 (10th Cir. 1967...