Schedlbauer v. Chris-Craft Corp.

• Decision Date: 25 September 1968
• Docket Number: A,No. 1,CHRIS-CRAFT,1
• Citation: 160 N.W.2d 889,381 Mich. 217
• Parties: Wilma SCHEDLBAUER, Plaintiff and Appellant, v.CORPORATION, a Michigan corporation, Defendant and Appellee. Stephen SCHEDLBAUER, State Cyclone Mutual Ins. Co., a Michigan corporation and American States Insurance Company, an Indiana corporation, Plaintiffs and Appellants, v.CORPORATION, a Michigan corporation, Defendant and Appellee. pril Term.
• Court: Michigan Supreme Court

Page 889

160 N.W.2d 889

381 Mich. 217

Wilma SCHEDLBAUER, Plaintiff and Appellant, v. CHRIS-CRAFT CORPORATION, a Michigan corporation, Defendant

and Appellee.

Stephen SCHEDLBAUER, State Cyclone Mutual Ins. Co., a

Michigan corporation and American States Insurance

Company, an Indiana corporation, Plaintiffs and Appellants, v. CHRIS-CRAFT CORPORATION, a Michigan corporation, Defendant

and Appellee.

No. 1, April Term.

Supreme Court of Michigan.

Sept. 25, 1968.

Ralph H. Adams, Detroit, for plaintiffs and appellants.

Allen, Allen & Shell, Royal Oak, for appellee.

Before the Entire Bench.

PER CURIAM.

In Kaminski v. Grand Trunk W.R. Co., 347 Mich. 417, 79 N.W.2d 899, all participating Justices agreed to adopt Alabama's test-method of determining what is causally conjectural and what is not when the defendant in negligence moves for an instructed verdict upon allegation that no actionable cause has been shown. ¹ To introduce the Alabama rule we said (Kaminski at 421, 79 N.W.2d at 901):

'It is thus right to say that the trial judge's immediate duty, motion for direction having been made with address to the rule of conjectural choice between equally plausible inferences, is to determine on favorable view of the inference plaintiff relies upon whether it stands equiponderant at best with such as is, or are, urged by the defendant. If the answer is affirmative, then and only then will the judge be justified in proceeding as moved.'

In this case plaintiffs obtained a verdict against the defendant in the total sum of $16,750, representing damages for personal injuries, consequential injuries and insured property losses. Upon motion of defendant for entry of judgment notwithstanding verdict, the trial judge concluded that the cause of the explosion complained of was conjectural only and that plaintiffs had failed to make out a submissible case of actionable causation. Judgment for defendant entered thereupon. February 14, 1967 Division 2 affirmed. 6 Mich.App. 1, 148 N.W.2d 254. May 4, 1967 plaintiffs' application for leave to appeal was granted. 379 Mich. 761.

Contrary to rulings below we hold that plaintiffs have made out a submissible case of actionable negligence. Our disagreement with the circuit court and with Division 2 lies generally in failure of both Courts to accord plaintiffs that full measure of favorable view to which they were entitled upon submission of defendant's said motion, and particularly in their omission of consideration of such proofs as tended to support plaintiffs' claim that the defendant manufacturer was under duty to warn, by some reasonably appropriate means, the buyers and lawful users of correspondingly powered Chris-Craft cruisers that the diaphragm of the fuel pump should be checked regularly and repaired or replaced As a safety measure. With abundant citation that duty was stressed when the annotator prepared that part of the brief headed 'Liability of manufacturer or seller for injury caused by firearms, explosives, and flammables,' 80 A.L.R.2d 488 and subheaded '(b) Warning.' (499, 500):

'That the manufacturer's duty of care may include a duty to warn of product-connected dangers is obvious. The duty to warn may exist even where the danger associated with the product is so slight that few have ever been injured by it.' ²

The general detail of the evidentiary facts appears in the opinion of Division 2. To them we add the following:

The cruiser purchased by plaintiffs Schedlbauer is described in the record as a 27 foot Chris-Craft Constellation pleasure boat. The power plant defendant installed in the Constellation class was Chevrolet's standard V-8 automobile engine with AC (AC Spark Plug Co.) manufactured fuel pump attached. Some modifications of the engine were made to adjust to marine operation, none changing or affecting the fuel and carburetion system however. The installation was made by bolting the power unit to longitudinal stringers attached to the bottom of the cruiser, in the bilge area. The gasoline supply tank was installed aft the engine, and the fuel pump served as in most motor cars to draw gasoline from the supply tank and force it up to the carburetor of the engine. The pump was bolted to the lower portion of the engine. It was activated by an arm working off the engine's camshaft. When the engine is running the arm causes a fibrous neoprenecoated diaphragm to pulsate vertically inside the pump, drawing gasoline into the chamber below the diaphragm and discharging it from that chamber through a tube leading to the carburetor.

It was conceded that if the diaphragm should become pitted and porous through wear, or should actually fracture in small part from repeated flexion in the course of a long continued functioning of the pump, gasoline would be forced out of the pump, into the confined space occupied by the engine, through 2 holes in the pump which AC provided for venting of the pump.

It appears at once that the fuel pump which defendant provided for this Constellation class presents no particular hazard when utilized in an automobile. In that case, if there should be any discharge of gasoline through the 2 vents, it would fall harmlessly to the pavement below and evaporate until the driver or owner comes to realize, on account of rough functioning or outright failure of the motor, that he should head for a garage.

But in the case of corresponding discharge of gasoline into the confined area of a cruiser's below- deck motor compartment, the gasoline and fumes thereof immediately become what one of the witnesses called 'a bomb'; in other words, an imminently explosive hazard in the midst of potent peril of detonation. The pump then may be likened to the thought of proper place rather than misplace which Mr. Justice Sutherland wrote into Village of Euclid, Ohio v. Ambler Realty Corp., 272 U.S. 365, 388, 47 S.Ct. 114, 118, 71 L.Ed. 303, 'nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.'

This brings to the fore plaintiffs' pleaded and briefed contention that defendant should have provided some form of fair warning that the fuel pump thus installed might, if not checked regularly for dependable integrity of the diaphragm, create a grave hazard of marine explosion. Defendant makes no answer to this charge, or to the clearly preponderant proof that no pertinent forewarning or cautionary notice to buyers and users of Chris-Craft Constellations was given or issued at any time. That proof made an issue for the jury both of negligence and causation provided there is evidence in the record from which reasonable men might draw fair inference that a malfunction of the fuel pump--as theorized by plaintiffs' expert, Mr. Barr--did cause the explosion of which plaintiffs complain. And since all agree that gasoline provided the explosive force, the controlling question tested by the quoted Alabama rule is whether the jury lawfully could infer that it entered the area of the motor compartment through the fuel pump vents. If so, the issue of negligent causation was properly submitted to the jury; otherwise not.

Refer to that part of the opinion below which sums up Mr. Barr's testimony (6 Mich.App. at 3, 4, 148 N.W.2d 254). The experiences and tests to which Mr. Barr referred culminated in specific opinions and expert conclusions which, based as they were upon the previously testified functioning of the motor of the Schedlbauer cruiser After as well as before the time of the explosion, ³ fairly indicate 'a logical sequence of cause and effect' within the adopted Alabama rule. These opinions and conclusions appear connectedly in the record:

'Q. To make it more specific, when the test on this fuel pump that you testified to as being the same as the ones on the 1960 Constellation, when you saw the gasoline coming from the two small holes, how long would the engine run at that time or was it not running?

'A. Yes, it was.

'Q. All right, now. After making that observation, did you seek to find out what was causing the gas to come from the two small holes?

'A. Yes, I did.

'Q. And what was the result of your investigation? What did you find?

'A. Diaphragm in the top of the pump, the one that pumps the gas to the engine, was pitted. They have a leaded gas that they all use for marine use and automobile use. It's standard gas they use in every power vehicle tht they use and they put lead into it to cut down the knock. This lead has a tendency to pit the neoprene diaphragm here and puts little holes in it.

'Q. Have you noticed that on many occasions or a few occasions, the pitting of diaphragm?

'A. I only had a few of them apart. Usually I replace the whole pump.

'Q. You put in the whole pump?

'A. Yes.

'Q. When you say 'pitting' what do you mean by 'pitting' or 'holes'? What do you mean by that?

'A. It's just like acid works. It eats little holes in it.

'Q. I see. How large would those holes be?

'A. Roughly, the size of a pin head.

'Q. Now, when that particular pump is in its proper place in the 1960 Constellation and on those occasions that you took the occasion to investigate and found the pitting of the diaphragm where was the gas going when that came out of the two small holes?

'A. Into the bilge

'Q. Into the bilge?

'A. Yes. It's the only place it can go. * * * (Direct examination, continued)

'Q. All right, now, from the facts that I have given you can you give us an opinion as to what caused the explosion?

(Objection, discussion and ruling of the court)

'Q. Do you have such an opinion, sir?

'A. Yes, I have.

'Q. Would you give it to us firstly?

'A. If the fuel tank broke a line it would automatically shut that engine off due to the circumstances I testified to before.

'Q. Due to the facts that you have given us, is that right?

'A. That's right. It would shut off automatically by itself, the engine would stop running when the engine ran out of fuel because no engine could run without...