FORD Motor Company, Appellant,
v.
Marvin R. MATHIS, Appellee
U.S. Court of Appeals, 5th Circuit
322 F.2d 267 (1963)
Brown, J. We here deal primarily with the liability of an assembler-manufacturer for injuries caused by
identifiable defects in a component part negligently produced by an independent supplier. Writing with an
Erie-Texas pen, it might be that, as of old, the Moving Finger writes, and having write, moves on. But it may be
hat having written, what we write is soon erased. This is not the last word, only the latest. And before the slug
drops in a St. Paul linotype, the first writing Texas court may melt down the lead to so much dross. Such are the
perils of diversity jurisdiction The basic problem is presented by the questions of whether there is sufficient
evidence to support the jury verdict and whether the Judge erred in his instructions to the jury. An additional and
perhaps controlling question is whether the jury's answer to a particular interrogatory precludes Plaintiff's
recovery. A careful review of the record and applicable state law convinces us that the Judge's charge was in
conformity with the law, that the verdict is amply supported in the evidence, and that the Plaintiff is not
precluded from recovery. The judgment is accordingly affirmed.
Plaintiff purchased a new 1961 Ford Sunliner convertible from an authorized Ford dealer in San Benito,
Texas. Thirteen days and some 1795 miles later, while Plaintiff was travelling alone from his home in Sagerton,
Texas to his Air Force duty station in Mississippi, the accident occurred which is the subject matter of this suit.
Plaintiff testified that the accident occurred at about 10:00 p.m. He was driving at a normal rate of speed
considering the time, weather, and road condition. He was not sleepy and had not gone to sleep at the wheel.
Rather, fully awake and alert, he was driving around 55 to 60 m.p.h. on a straight stretch of road and met an
oncoming car. Plaintiff dimmed his lights by use of that foot dimmer switch. As the other car passed, Plaintiff
hit the dimmer switch to return his lights to bright. Instead of returning to bright, the headlights went out
altogether. Immediately, he decreased speed, but felt the car edge off the road and onto an incline. He kept
flicking the dimmer switch with his foot in an attempt to get some light. Eventually, in the near eternity of these
fleeting seconds, the lights returned at a time when the car was about 20 feet from a tree. He applied immediate
pressure to the brakes and braced himself for the resulting impact. The car hit the tree. There it stopped. Not
surprisingly, Plaintiff received substantial injury to his person and damage to the automobile, as well as several
items of personal property which he was transporting in the trunk of the car. Plaintiff instituted this suit against
Ford Motor Company in the District Court seeking damages for these personal injuries and property losses.
From a jury verdict and judgment entered thereon in favor of Plaintiff, Ford has appealed.
At the outset it is important to once again emphasize that in this diversity-Erie-Texas action we are bound
by the applicable Texas law as we divine it today, not what it might be tomorrow. ***
In its multi-count brief containing thirty-five points of error, Ford asserts that the evidence is not sufficient to support the verdict. We disagree, as did the Court below in overruling Ford's motions for instructed verdict, j.n.o.v., and for a new trial. Plaintiff's case was initially predicated upon alternative theories of breach of warranty and negligence. However, at the trial, Plaintiff apparently abandoned the express warranty aspects and relied on his negligence theory, although as always in these cases, language is used suggesting so-called implied warranties or similar concepts. It was under the negligence approach that the case was submitted to the jury. This forms the basis of the jury's verdict under special interrogatories, F.R.Civ.P. 49, the use of which we have so often extolled, n2 and which here excise for critical examination specific findings bearing on liability theories.
In the beginning, two things are significant. First is the fact that the dimmer switch in controversy was
not manufactured by Ford, but by an independent supplier to Ford who is not a party to this suit. The second is
that an identifiable defect in the dimmer switch was established. ***
The Plaintiff carefully negatived misuse or knowledge of any defect. He testified that from the time he
purchased the car until the accident, he had done some night driving and had used his dimmer switch in the
customary manner and that it had functioned normally. However, that at the time of the accident, his lights failed
completely when he attempted to switch them form dim back to bright. Next the defect was affirmatively
proved. It is undisputed that following the accident examination of the switch disclosed a small pin to be
broken. This pin would have an effect upon the switching of the lights from bright to dim and vice versa. The
mechanical-operational consequence of the defect was the subject of competing credible evidence. The
testimony of Ford's experts was that the switch was so designed and manufactured that even with the broken pin,
these was no way the switch could cause all the lights to go out. The Plaintiff's expert testified that he had
examined and tested the switch, and that during the tests he conducted, the lights flickered several times and on
one or two occasions they stayed off for several seconds. This testimony was substantiated by one of Ford's
experts who was present at this testing. Plaintiff's expert further testified that in his opinion, a defect was in the
switch when installed in the car, that the pin had broken when Plaintiff attempted to switch his lights, and that
this breakage could have caused all the lights to fail.
Ford's experts testified to the contrary. They testified at length about the actual manufacture of switches
and the various tests to which each switch or its components was subjected in the supplier's factory. Although
each part of each switch was visually inspected during the manufacturing process, only a few random selected
switches were subjected to the rigorous tests which they described. In one respect they were unequivocal.
Without exception, these experts stated that a defective switch could not come out of the supplier's plant. And it
was their opinion that the pin could only be sheared off by an extreme amount of pressure such as might result
from a head-on collision of a car with a tree, particularly if the driver had his foot on the switch at the moment
of impact.
So far as inspection by Ford is concerned this was largely visual plus assembly line test operations after
installation in the car and during adjustment of headlights. Of course the switch on receipt from the supplier was
assembled and ready for installation, and no effort was made, either as to all or random selections, to open up the
switches for more minute inspection.
Plaintiff had his theory of how the accident happened. He flatly denied that he had gone to sleep and run off
the road. His evidence, factual and expert, showed the dimmer switch was faulty when the car was placed on the
market by Ford, and that this defect ultimately caused the failure of the lights. Ford's evidence was to the
contrary. It is not our function to determine which side has produced the heavier evidence. Once the Court has
determined that the Plaintiff has brought forward sufficient evidence to warrant jury submission, it then becomes
the function of the jury to strike the balance between the parties. ***
Ford contends that the jury finding that Ford's employees could not have discovered the defective dimmer switch by reasonable inspection (see not 5, supra) precludes recovery by Plaintiff on the negligence theory. We disagree. ***
At the outset, it is well to point out that we have not found, nor have we been cited to, any Texas case directly
in point. ***
To hold the assembler liable for the negligence of its component-part manufacturer appears to be a sound
and realistic doctrine. n10 Reminiscent of the law merchant which developed out of the needs and practices of
the business community, this principle surely reflects the outlook of this modern world of big business
advertising in a big way. *** The business of the manufacture, distribution and sale of automobiles is at the core
of our national economy. Dinned into the heads of those who either now are or will someday be potential
customers is the intense propaganda in newspaper, magazine, radio and television advertising to buy the named
brand. Though discerning industrialists or students of our economy should know that in each car as it rolls off
the assembly line there is represented countless man hours of labor by workers scattered throughout hundreds of
plants independently owned and operated, not even these sophisticated 'men of distinction' would suppose that
they were bargaining for a mobile assortment of nuts, bolts and moving parts which if well greased, coaxed and
fueled would act like an automobile. The purchaser of a new automobile is led by the manufacturer-assembler
to think that the car is a quality product. In effect, the purchaser does not distinguish between the assembler and
the manufacturer. Nor does the manufacturer-assembler wish him to do so. Although he may realize that the
assembler actually does not design and manufacture every component part, the purchaser assumes that the
manufacturer-assembler will procure non-defective parts from reputable firms without the ultimate customer
having to ascertain the manufacturer of each part. *** Thus, the assembler bears the liability of his
manufacturer-supplier. And a manufacturer is, of course, liable to those within the foreseeable zone of danger
for harm caused by the failure to exercise reasonable care in the manufacture of a chattel which, when,
defectively made will likely produce substantial bodily harm. *** To this Texas adds its approval by the
statement *** 'manufacturer who places in trade and commerce a manufactured article not inherently, but,
because of its condition, imminently, dangerous to life and limb, is liable to one who sustains injury by reason of
such condition.' ***
Ford here asserts that an automobile is not an inherently dangerous instrumentality and thus the Court
erred in submitting this to the jury. The Court charged in effect that an automobile having a defect 'calculated to
cause an unreasonable risk or injury to those lawfully using such automobile for the purpose for which it was
intended' would be inherently dangerous. Though there is now considerable reason for concluding that to cast it
in the mold of 'inherently dangerous' is a worn out, needless, vestigial theory for overcoming the lack of privity
in a tort case, n11 submission worked in Ford's favor and no complaint may be made by it. so long as applicable,
we regard the statement as correct. In doing so, we reject, as have many courts, n12 the earlier classification
that inherently dangerous articles only include such items as poisons, dynamite, deadly weapons, etc. A brand
new automobile bearing down a highway in the dark of night with a dimmer switch so defective as to plunge the
driver in total, sudden, unpredicted darkness is indeed 'dangerous' both to those in it and those within its range.
On all tests it is 'dangerous' and the risk of injury is an unreasonable one. A manufacturer or assembler who
produces such an article as a result of negligent manufacture and sells it to one clearly within the range of
persons expected to use it owes a legal duty to such person to use reasonable care to prevent injury to him. n13
This duty is not created by contract, but arises from the general duty not to injure another through disregard for
his safety. The standard of reasonable care is commensurate with the risk of danger involved should there be a
defective product. ***
On the basic issue, Texas law holds the manufacturer-assembler liable for the negligence of its supplier of
a component part. The evidence and findings, express and implied, F.R.Civ.P. 49(a) are adequate to sustain the
judgment and the trial was free of any significant error. ***
Affirmed.