Joseph H. Hart, Jr. v. Mazda Motors of America, Inc., American & Foreign Insurance Co., Intervenor

Fifth Circuit

Joseph H. Hart, Jr. v. Mazda Motors of America, Inc., American & Foreign Insurance Co., Intervenor

521 F.2d 193, 1975 U.S. App. LEXIS 12349

CourtCourt of Appeals for the Fifth Circuit

DecidedOctober 16, 1975

Docket75-2416

StatusPublished

This text of 521 F.2d 193 (Joseph H. Hart, Jr. v. Mazda Motors of America, Inc., American & Foreign Insurance Co., Intervenor) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Joseph H. Hart, Jr. v. Mazda Motors of America, Inc., American & Foreign Insurance Co., Intervenor, 521 F.2d 193, 1975 U.S. App. LEXIS 12349 (5th Cir. 1975).

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Opinion

PER CURIAM:

Hart, an automobile mechanic, was injured when the transmission that he was removing from a Mazda vehicle fell on him. Hooser, a district service manager for defendant Mazda distributor, had requested the removal and was present while Hart was working. Hart sued defendant on three theories: (1) distribution of an unreasonably dangerous product, (2) common law negligence and (3) discovered peril. The jury rejected Hart’s first two theories. The district court refused to submit to the jury requested special findings on the issue of discovered peril. Plaintiff appeals contending that this refusal was error. We affirm.

Under Texas law, in order to sustain a finding of discovered peril, a plaintiff must show, inter alia, that the defendant actually discovered the peril. Gentry v. Southern Pacific Company, Tex.1970, 457 S.W.2d 889, 892; Safeway Stores, Inc. v. White, 1961, 162 Tex. 473, 348 S.W.2d 162, 164.

The record convinces us that a finding of actual discovery could not properly have been made by the jury in this case. Rule 49(a), F.R.Civ.P. There *194 fore, the district court was correct in refusing Hart’s request. Maryland Casualty Co. v. Broadway, 5 Cir. 1940, 110 F.2d 357, 360. See Boeing Company v. Shipman, 5 Cir. 1969, 411 F.2d 365, 374.

Affirmed.

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PER CURIAM:

Hart, an automobile mechanic, was injured when the transmission that he was removing from a Mazda vehicle fell on him. Hooser, a district service manager for defendant Mazda distributor, had requested the removal and was present while Hart was working. Hart sued defendant on three theories: (1) distribution of an unreasonably dangerous product, (2) common law negligence and (3) discovered peril. The jury rejected Hart’s first two theories. The district court refused to submit to the jury requested special findings on the issue of discovered peril. Plaintiff appeals contending that this refusal was error. We affirm.

Under Texas law, in order to sustain a finding of discovered peril, a plaintiff must show, inter alia, that the defendant actually discovered the peril. Gentry v. Southern Pacific Company, Tex.1970, 457 S.W.2d 889, 892; Safeway Stores, Inc. v. White, 1961, 162 Tex. 473, 348 S.W.2d 162, 164.

The record convinces us that a finding of actual discovery could not properly have been made by the jury in this case. Rule 49(a), F.R.Civ.P. There *194 fore, the district court was correct in refusing Hart’s request. Maryland Casualty Co. v. Broadway, 5 Cir. 1940, 110 F.2d 357, 360. See Boeing Company v. Shipman, 5 Cir. 1969, 411 F.2d 365, 374.

Affirmed.

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521 F.2d 193, 1975 U.S. App. LEXIS 12349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joseph-h-hart-jr-v-mazda-motors-of-america-inc-american-foreign-ca5-1975.

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