A. L. Brown v. General Motors Corporation

355 F.2d 814, 1966 U.S. App. LEXIS 7534

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 13, 1966
• Docket: 9925_1
• Status: Published

Opinions

ALBERT V. BRYAN, Circuit Judge:

Damages for personal injuries resulting from breach of warranty in the manufacture and sale of a crawler tractor, familiarly known as a bulldozer, were adjudged in the District Court against General Motors Corporation. The plaintiff, Alexander L. Brown, had declared against G.M. in two counts, one in warranty and the other in negligence. In answer to specific interrogatories, the jury found no negligence and no contributory negligence but did find a breach of warranty. Because of misconduct of certain jurors and a conflict in an answer to another interrogatory, the Court set aside the verdict in respect to primary and contributory negligence but entered a final judgment on the warranty finding. G.M. appeals.

In our view the evidence was insufficient in law to establish liability either on warranty or in negligence. We reverse, and order entry of judgment for the defendant on its motion for a directed verdict at the conclusion of the evidence.

Brown, a mechanic, was employed by a subsidiary of Blythe Brothers Company, the lessee-purchaser of the machine. The machine was designated as a Euclid C-6 Crawler Tractor, weighing about 40,000 pounds, propelled by a diesel engine with automatic transmission and moving on belt treads. At the time of his injury Brown was employed to service this and other heavy pieces being used by Blythe Brothers Company on a road-building job at Anderson, South Carolina. The machine had been operating normally for the approximately three months preceding the accident.

About eight o’clock on the evening of November 10, 1960 Brown and a fellow employee, Gulley, were preparing the tractor for use the next morning. To grease the universal joints, Brown seated himself on the left track, facing the engine, his legs extending down between the track and the body. While the task could be performed in a safer manner, that is by removing certain floorboard-ing, it was frequently done at the point Brown had selected.

Gulley was in the driver’s seat where he could reach the starter button, but as it was then dark, he could not see whether the tractor was in gear. At Brown’s request, Gulley “bumped”, that is touched momentarily, the starter button to rotate the drive shaft so as merely to turn the grease fitting toward Brown. Instead, the engine was started and the machine, then in gear, moved backwards, crushing Brown between the tread and the heavy fender projecting over it.

Manufactured in Hudson, Ohio, the machine had been sold and delivered by G.M. in Ohio on August 18, 1960 to the manufacturer’s dealer, from whom it was lease-purchased by the plaintiff’s employer, Blythe Brothers.

The centerpiece of the plaintiff’s claim is the starter mechanism on this tractor, which was new and different from that of other and earlier earth-moving Eu-clids. The other units carried an instrument called a micro switch, which broke the starting circuit except when the range selector control lever (the gearshift lever) was in neutral. The purpose of the micro switch was to prevent unintentional starting of the machine while in gear. This was the type of starter system on the C-6 Crawler Tractors made by General Motors until July 1960 when it abandoned the micro switch for a new design which it considered more “rugged.”

On the C-6 tractor which injured Brown, instead of a micro switch,, the range selector control lever was equipped with a semicircular metal flange or shield (mechanical block), installed close to the starter button. Because of the position of the shield, an operator in the driver’s seat could see the button only when the lever was in neutral. However, the button was accessible to an operator, though not without difficulty, if he reached his thumb or finger up behind the shield and into the space — measured as Vs or 14 inch — between the shield and the button, as Gulley must have done.

Operator’s Handbooks were issued by General Motors both for the pre-1960 and the subsequent C-6. The two publications are similar except that the later one includes a reference to the “mechanical block on the range selector lever”. This book was delivered with the present tractor.

Under “Driving Instructions” is a description of each control, including the following:

“1. Transmission Range Selector —Permits the operator to select the proper speed range for the prevailing work conditions. The lever MUST be in neutral in order to start the engine.”

Still under “Driving Instructions” are these directions, which are especially apposite because Brown was hurt in the starting of the engine:

“NORMAL STARTING

■»#**•* *-

“Shift the transmission into neutral. A micro switch or a mechanical block on the selector control lever does not permit the starter switch to operate unless the lever is in neutral.” (Accent added.)

“TRANSMISSION OPERATING HINTS

Do not shift range selector into neutral except when starting engine. Leave in gear at all other times.”

Under a heading of “SAFETY”, a list with illustrative cuts of specific things the operator should “never” do, and what he should “always” do, is this caution:

“Make sure no one is working on unit before starting engine or moving tractor.” (Accent added.)

The premise of Brown’s claim is the change in the starter appliance from micro switch to shield. This modification, he contends, resulted in the following contractual and tortious breaches of responsibility. It violated: (1) express warranties in the handbook because the shield did not prevent the engine from starting while in gear; (2) the warranty of merchantability and fitness implied by law, since the shield was a latent defect and the machine, therefore, not reasonably safe for its purposes; (3) the law of negligence, in that no adequate warning was given of the danger arising from the change from micro switch to shield; and (4) the doctrine of strict tort liability, in that the C-6 contained a defect, and the supplier, G.M., was answerable to the user, Brown, without proof of negligence in the manufacture.¹ This last argument we are not compelled to classify precisely, as correctly relating to warranty or to negligence. Rather, we shall measure the facts of the case against this and the other contentions of the plaintiff as each becomes pertinent.

For our decision we may assume, as Brown avers, that the court of the forum (North Carolina) would apply Ohio law to the warranty phase of the case. See Price v. Goodman, 226 N.C. 223, 37 S.E. (1946). We assume, likewise, that under Ohio law the plaintiff, as one expected to use the unit, has standing to assert a breach of warranty against G. M. as the manufacturer, without proof of contract privity. Inglis v. American Motors Corp., 3 Ohio St.2d 132, 209 N.E.2d 583 (Sup.Ct.1965). We assume, too, that Ohio has embraced the principle of strict tort liability. See Lonzrick v. Republic Steel Corp., 1 Ohio App.2d 374, 205 N.E.2d 92 (1965); Rogers v. Toni Home Permanent Co., 167 Ohio St. 244, 147 N.E.2d 612, 75 A.L.R.2d 103 (1958). As to negligence, concededly, the law of South Carolina, the lex loci delicti, controls.

On plaintiff’s claim of breach of express warranty, we think, the language posed by the plaintiff does not constitute an express warranty. Taken from the Operator’s Handbook, it is pleaded and relied upon as consisting of the following sentences, included in the excerpts just quoted:

“A micro switch or a mechanical block on the range selector lever does not permit the starter switch to operate unless the lever is in neutral.

‘X¹ *X* -Jf X* •X¹ X*

“The lever MUST be in neutral in order to start the engine.”

Entirely overlooked is the obvious character and function of these statements. An express warranty is generally defined as a factual affirmation or promise, the natural tendency of which is to induce the buyer to purchase the goods. See Roscher v. Band Box Cleaners, 90 Ohio App. 71, 103 N.E.2d 404 (1951); Pritchard v. Liggett & Myers Tobacco Co., 350 F.2d 479, 483 (3 Cir.1965). While actual reliance by the buyer is not a requisite of a warranty, the characteristic of inducement to purchase is an indispensable ingredient of an express warranty. The statements here are not representations to induce the buying of the machine. Merely “advisory”, they only instruct the operator on how the machine should be operated. Ivey-Dale-Owen Co. v. Worthington Co., 29 F.2d 280 (5 Cir. 1928). Furthermore, they do not purport to vouch what could or could not be done with its mechanisms. The instructional character is manifested also by the associated directions in the manual. They all pertain to “Normal Starting”. These explanations and directions are the only clauses on which the plaintiff structures his warranty claim. Plainly, he lifts them out of context.

However, if these statements in the handbook are to be treated as warranties, then all of them must be read, and read together, including for example this illustrated caution following the plaintiff’s selections from the book:

“Make sure no one is working on unit before starting engine. * * ”

Of course, a manufacturer may not avoid liability by general safety precautions, but here the warning specifically cautioned against the very conduct which led to the injury. Presently, to repeat, the manual was also most explicit in teaching the proper manner of starting the machine. As yet, a manufacturer is not obligated to define what can or cannot be done with its products, or to warn as to all possible dangers. See Jamieson v. Woodward & Lothrop, 101 U.S.App.D.C. 32, 247 F.2d 23, 30 (1957), cert. den., 355 U.S. 855, 78 S.Ct. 84, 2 L.Ed.2d 63. In sum, under all the other facts, it is difficult to comprehend how liability can be predicated on the statements taken by the plaintiff from the instructional manual.

Although there be no express warranty, there is a warranty implied by law on the part of the manufacturer. It is an assurance that the product is free of latent defect, in merchantable condition and fit for the purpose for which it was made. Carney v. Sears, Roebuck & Co., 309 F.2d 300 (4 Cir. 1962). To recover on such a warranty the plaintiff must show that one or more of these pledges has been broken. Only the presence of a latent defect is charged by the plaintiff.

But actually there was no defect. No contention is made that the shield was badly constructed, contained intrinsic flaws or was of defective design. At best the plaintiff accuses the shield as a latent defect because it failed to give protection equivalent to that of the micro switch. While the law does not imply such a warranty, no want of a comparable protection has been established. This will be evident in the discussion, post, of the same element anent negligence.

Of course, there is a responsibility upon a manufacturer to a user of its machine for negligence. In Restatement of the Law of Torts 2d, § 388,² it is put in this way:

“Chattel Known to be Dangerous for Intended Use. One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier

(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and

(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and

(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.”

The immediate inquiry, then, is whether by using the shield rather than the micro switch G.M. fulfilled its duty not to put on the market without a warning of the hazard, a -tractor embodying a latent danger. To start with, our conclusion is that the machine here involved has not been proved a dangerous instrumentality. While it is spoken of in plaintiff’s brief as “tradition” or “custom”, we are pointed to no proof that a tractor which will start in gear is per se a dangerous instrumentality. Accord: Yaun v. Allis-Chalmers Mfg. Co., 253 Wis. 558, 34 N.W.2d 853 (1948). Hence no special instruction or warning was’ required.

But even if that obligation was here, the evidence affirmatively shows that it was satisfied or that G.M.’s failure to warn did not in any degree contribute to Brown’s injury. That the shield was intended as a protection against the starting of the engine except when the selector lever was in neutral, was patent from the device itself. How the motor was started and the shield performed were obvious. As noted in Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950):

“[T]he manufacturer is under no duty to render a machine or other article ‘more’ safe — as long as the danger to be avoided is obvious and patent to all.”

The shield in itself was a warning. It had no other purpose or function, the regular operator said as a witness for the plaintiff. Of course he knew, he further stated, the machine would start in gear if one reached under the shield and pressed the button. Other witnesses for the plaintiff testified similarly.

As the starter button was completely obscured from the driver when the engine was in gear, a glance told the operator that the button should not be pressed when the shield was over it. As Gulley remarked on the stand, “It’s [the shield is] there for a protective cover, so you can’t start it. * * * ”

It is obvious that both Brown and Gulley were aware that the tractor could be started in gear but that it should not be. They were well acquainted with the tractor and how it operated. Indeed, Brown had been a student of Diesel heavy equipment as well as a practical operator, and Gulley explicitly testified, “ * * * I knew it had the cover on the starter button, to protect the starter”.

In supplying the handbook for the use of the purchaser, the plaintiff’s employer, G.M. fully responded to its duty to provide instructions or to warn, even assuming the equipment was a dangerous instrumentality. The passages already quoted confirm the scrupulous and painstaking concern of the producer to safeguard the operator. They squarely meet the calls of warranty and negligence. If the handbook was not shown to Brown or Gulley by their employer, who apparently deemed it superfluous as a warning, this was no fault of the defendant.

It should be noted that even the micro-switch device did not, according to the testimony, bar the starting of the engine while in gear. The switch could be readily by-passed, simply by putting one thumb on the starter button and the other on the switch, both being immediately in front of the operator.

Again, no principle of warranty or negligence required G.M. to provide the very best means of protection. The plaintiff can claim, at the most, only that the shield is not as efficient as the micro switch, but this is not enough to impose liability on the manufacturer. Failure to adopt the most modern, or even a better safeguard, did not render the manufacturer liable to the injured mechanic. Marker v. Universal Oil Prods. Co., 250 F.2d 603 (10 Cir. 1957); Campo v. Scofield, supra, 301 N.Y. 468, 95 N.E.2d 802 (1950); Tyson v. Long Mfg. Co., 249 N.C. 557, 107 S.E.2d 170, 78 A.L.R.2d 588 (1959). Exercising its judgment G.M. deliberately changed from micro switch to shield. There is no indication in the evidence that the shield was not at least a reasonable preventive of injury.

Finally and most importantly, both the rules of warranty and negligence apply only when the machine is operated in the manner intended for it. See, e. g., Hardman v. Helene Curtis Industries, Inc., 48 Ill.App.2d 42, 198 N.E.2d 681 (1964); Strahlendorf v. Walgreen Co., 16 Wis.2d 421, 114 N.W.2d 823 (1962). If not so employed, then the machine does not come within the implied warranty. Nor in such circumstances may liability be rested in tort, for the manufacturer cannot be held to foresee an unpredictable misuse. As stated in Marker v. Universal Oil Prods. Co., supra, 250 F.2d 603, 606 (10 Cir. 1957):

“While a designer or manufacturer may have a duty to warn of a latent limitation in even a perfectly made article, * * * no such duty extends to the potential danger involved in the totally unanticipated misuse of an item. [Citations omitted.]

When Gulley “bumped” the engine, as Brown directed, he was groping in the dark. He depended exclusively upon his feel for the instruments in order to turn the shaft. He cannot say whether he felt under the shield or just how he reached the starter. Concededly, if the engine was in gear, he could touch the starter only by squeezing his thumb or finger between the shield and the button, contrary to the design of both.

Certainly, the manufacturer did not warrant the safety of the machine against a blind operation of it; nor was it reasonably foreseeable that the machine would be activated by one fumbling in the dark. See Marker v. Universal Oil Prods. Co., supra, 250 F.2d 603, 606 (10 Cir. 1957). While the question of proper use is generally for the jury, there must of course be evidence sufficient to raise the jury question. Surely, the acts of Brown and Gulley, including Brown’s directions to Gulley, prove an utter want of compliance with this condition, thereby precluding submission of the issue to the jury.

Contributory negligence need not be considered for two reasons. First, primary negligence has not been established. Secondly, where as here, a consumer uses a product in a manner not intended by the manufacturer and suffers an injury as a result, he may not recover because such misuse is beyond the scope of the warranty. Pritchard v. Liggett & Myers Tobacco Co., supra, 350 F.2d 479, 485 (3 Cir. 1965).

This recount and discussion of the facts reveal that the plaintiff is not entitled to recover even under the doctrine of strict tort liability. This doctrine is basically one of public economic policy³ — that a consumer’s loss should be put on the manufacturer of the culpable product, to be included as a cost of production. However, to come under even its broad aegis, there must be a showing of a defect in the accused device. None has been demonstrated by the plaintiff.

For these reasons we think there was no issue of liability to go to the jury and a verdict for the defendant should have been directed. The case will be remanded to the District Court for the entry of judgment for the defendant.

Reversed and remanded.

1 . Restatement of the Law of Torts 2d, § 402A et seq.; Keeton, Products Liability —Liability Without Fault and the Requirement of a Defect, Texas Law Review-852, October 1963; Keeton, Recent Decisions and Developments in the Law of Products Liability, Insurance Counsel Journal 620, October 1965.

2 . See also Dillard & Hart, Product Liability: Directions for Use and Duty To Warn, 41 Va. Law Rev. 145 (1955).

3 . Restatement of the Law of Torts 2d, § 402(c), (g); Keeton, Recent Decisions and Developments in the Law of Prod-uets Liability, Insurance Counsel Journal 620, 629, October 1965.