Kohler v. Ford Motor Co., 37796

• Decision Date: 12 November 1971
• Docket Number: No. 37796,37796
• Citation: 187 Neb. 428,191 N.W.2d 601
• Parties: Janet J. KOHLER, Appellee, Cross-Appellant, v. FORD MOTOR COMPANY, a Corporation, Appellant, Cross-Appellee.
• Court: Nebraska Supreme Court

Page 601

191 N.W.2d 601

187 Neb. 428

Janet J. KOHLER, Appellee, Cross-Appellant, v. FORD MOTOR COMPANY, a Corporation, Appellant, Cross-Appellee.

No. 37796.

Supreme Court of Nebraska.

Nov. 12, 1971.

Syllabus by the Court

1. An appearance is 'general' if the party appearing invokes power of the court on any question other than jurisdiction.

2. A cause of action pleaded by amendment ordinarily relates back to the original pleading for limitation purposes, provided that claimant seeks recovery on the same general set of facts.

3. A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a person rightfully using the article.

4. In determining the sufficiency of the evidence to sustain a verdict, a party is entitled to a resolution of all the conflicts of the evidence in his favor, and all of the reasonable inferences that can be reasonably deduced from the proof.

5. The entertainment of a belated motion to strike testimony, no proper objection having been previously made, is discretionary with the trial court.

Cassem, Tierney, Adams & Henatsch, T. J. Stouffer, Omaha, Crites & Shaffer, Chadron, for appellant.

Bump & Bump, Laurice M. Margheim, Chadron, Belli, Ashe, Ellison, Choulos & Lieff, San Francisco, Cal., for appellee.

Heard before WHITE, C.J., SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON and CLINTON, JJ.

CLINTON, Justice.

This is an action by Janet J. Kohler against the Ford Motor Company to recover damage for personal injuries. The plaintiff was very seriously and permanently injured on August 7, 1960, when a 1960 Ford Falcon automobile in which she was a passenger left the highway and overturned. The automobile had been manufactured by the defendant and purchased new by Fred and Mabel Poppe on May 16, 1960, from Eustis Merchantile Company. Warranties which accompanied the sale limited the defendant's liability to replacement of defective parts. At the time of the accident, the automobile was being driven by Lois F. Poppe, a daughter of the owners. Lois was killed in the accident.

The plaintiff's theory of the case is that the sector gear in the steering apparatus of the automobile was defective; and that sometime prior to the accident a tooth of the sector gear broke into two fragments which later caused the steering gear to 'lock up' and as a result the automobile left the highway and overturned. Shortly after the accident, agents of the defendant dismantled the steering apparatus of the Falcon. When the housing containing the sector gear was opened it was discovered that one tooth of the sector gear was broken. When the grease was 'dumped' out of the housing the two fragments of the broken tooth came out with the grease.

The trial court submitted the case to the jury upon the theory of strict liability in tort which placed upon the plaintiff the burden of proving, insofar as is pertinent on this appeal, only (a) the steering sector gear was defective when it left the manufacturer's hands and (b) that this defect was the proximate cause of the accident and the plaintiff's injuries. The jury awarded plaintiff damages of $325,000.

The defendant appeals and the following issues are before this court for decision: (1) Did the trial court err in overruling a special appearance by the defendant? (2) Was the cause barred by the statute of limitations because an amended petition, filed after the statute had run, presented for the first time the 'strict liability' theory? (3) Should the doctrine of strict liability in tort be adopted and held applicable under the facts of this case? (4) If it is to be adopted, was the evidence sufficient to submit to the jury the issues designated (a) and (b) in the preceding paragraph hereof? (5) Did the trial court err in permitting the plaintiff to introduce the testimony of a certain expert witness on rebuttal? We will treat each issue in the above order. We find for the plaintiff on all issues.

In the original petition filed July 9, 1962, the plaintiff, Mabel Poppe as administratrix of the estate of Lois F. Poppe, and Fred Poppe and Mabel Poppe were all joined as plaintiffs and sought damages for their respective claims. The defendant filed a special demurrer which was sustained on the ground of misjoinder of causes of action and of parties plaintiff. The trial court, on motion of the plaintiffs, permitted each to file separate petitions and directed that they be separately docketed. The defendant was directed to answer within 30 days of the filing. No new process was served after the causes were separately docketed. Thereafter the defendant filed a special appearance which was overruled. Later demurrers and answers were filed, each preserving the special appearance. Later, on December 3, 1969, an amended petition was filed. Thereafter on December 16, 1969, the defendant, without preserving its special appearance, filed a motion to dismiss the action because of failure of the plaintiff to comply with a certain pretrial order. This motion to dismiss constituted a general appearance by the defendant and renders moot the issue raised by the special appearance. Abel v. Southwest Cas. Ins. Co., 182 Neb. 605, 156 N.W.2d 166. This is not to be taken as deciding that the trial court did not have authority to permit separate docketing of the petitions of the plaintiffs while still retaining jurisdiction under the original process. We simply do not need, under the circumstances here, to reach that question. We note, however, that under code procedure the sustaining of a demurrer, even on misjoinder of parties plaintiff, does not bring the action to an end. S. 25--854, R.R.S.1943; 27 C.J.S. Dismissal and Nonsuit § 63 d, p. 418; 67 C.J.S. Parties § 132 a, p. 1135. Section 25--809, R.R.S.1943, does not appear to be intended as a limitation on the powers of the court.

Plaintiff, in her amended petition filed December 3, 1969, claimed a right of recovery under theories of (1) res ipsa loquitur; (2) breach of express warranty; (3) breach of implied warranty; and (4) strict liability. Each of these is pleaded as a separate 'cause of action.' Earlier petitions had also been so composed presenting various theories of recovery, each being denominated as a separate cause of action. The defendant contends that the claim of a cause of action based upon strict liability is a new cause of action pleaded by amendment based on a different standard of care and is the equivalent of a new suit so the statute of limitations continues to run until the filing of the amendment, which in this case was more than 5 years after the plaintiff became 21 years of age. The defendant pleaded the statute of limitations in its 'answer' to the plaintiff's amended petition. The defendant relies upon Miller v. Werner (Mo.), 431 S.W.2d 116, wherein the Supreme Court of Missouri held in a suit for malpractice that where the original complaint was founded on negligence of the surgeon in the performance of the surgery, an amendment which sought recovery on the theory of the defendant's failure to obtain the plaintiff's informed consent did not relate back to the filing of the original petition and the statute of limitations therefore barred the action. We do not think that case is applicable here.

The mechanical form in which the plaintiff divided her petition is immaterial on the issue of whether it states one or more than one cause of action. Sedlak v. Duda, 144 Neb. 567, 13 N.W.2d 892, 154 A.L.R. 490. In this case if the plaintiff has not stated a new cause of action in the amendment it does relate back and the cause is not barred by the statute of limitations. We hold the amendment did not state a new cause of action. The plaintiff had but one. The theory of recovery is not itself a cause of action. A right not to be injured may rest upon more than one ground, but without injury there is no cause of action at all. The general facts upon which the right to recover was based are the same. Abbott v. Abbott, 185 Neb. 177, 174 N.W.2d 335; Clark on Code Pleading (2d Ed.), pp. 134, 137, 715; City of Alliance v. Cover-Jones Motor Co., 154 Neb. 900, 50 N.W.2d 349.

There was no direct eyewitness testimony as to what caused the Falcon automobile to leave the highway. The plaintiff testified that the automobile 'started to vibrate' and that it 'swerved to the left-hand side of the road.' The plaintiff looked at Lois and saw that she had both hands on the wheel, was looking straight ahead, and had a shocked expression on her face. Neither Lois nor the plaintiff said anything to each other at that time.

The Poppe automobile had passed another automobile on the curve west of the scene of the accident. The other automobile was being operated by Geraldine K. Licht and was traveling about 45 miles per hour in an easterly direction. The Poppe automobile was going about 50 miles per hour as it passed the Licht automobile. There was no other traffic nearby.

As the Poppe automobile returned to its own lane, after passing the Licht automobile, Mrs. Licht noticed that 'the rear end wobbled like an empty pickup.' Mrs. Licht did not notice anything further of an unusual nature until her husband, Walter H. Licht, who was sitting beside her, said: "Watch out for the car ahead!" and "Slow down." Mrs. Licht testified that she noticed the Poppe automobile wobbled toward the left of the highway, back to the right, and then into the left ditch. The speed of the Poppe automobile was then about 50 or 55 miles per hour.

Mr. Licht testified that after the Poppe automobile had passed them he noticed that 'the back end had a tendency to ride a little to the left-hand side.' Then, as they were proceeding down the highway, he noticed the Poppe automobile 'wobbled slightly,' 'hit the (right-hand) side of the road a little bit,' and then 'veered across the road to the left-hand side, and went over into...