Williams v. Ford Motor Co.

• Decision Date: 28 April 1970
• Docket Number: No. 33135,33135
• Parties: Rose Burns WILLIAMS, Plaintiff-Respondent, v. FORD MOTOR COMPANY, a Corporation, and McMahon Ford Company, a Corporation, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 611

454 S.W.2d 611

Rose Burns WILLIAMS, Plaintiff-Respondent, v. FORD MOTOR COMPANY, a Corporation, and McMahon Ford Company a Corporation, Defendants-Appellants.

No. 33135.

St. Louis Court of Appeals, Missouri.

April 28, 1970.

Motion for Rehearing or to Transfer to the Supreme Court

Denied May 28, 1970.

Robertson, DeVoto & Wieland, Leo C. DeVoto, Jr., Morton K. Lange, Melville A Ochsner, St. Louis, for defendants-appellants.

Bahn & Saitz, Robert W. Saitz, St. Louis, for plaintiff-respondent.

BRUCE NORMILE, Special Judge.

This is the second appeal of this products liability case. On the first appeal this court reversed a judgment against defendants and the cause was remanded for a new trial on the issue of liability alone leaving the $15,000.00 verdict in abeyance pending determination of the issue of liability. Williams v. Ford Motor Company, Mo.App., 411 S.W.2d 443. The subsequent retrial of the cause resulted in verdict and judgment in favor of both defendants. Thereafter the trial court sustained plaintiff's motion for a new trial as to both defendants on the ground that the court had erred in giving defendants' Instruction Number 6 (a contributory negligence instruction).

Plaintiff-Respondent has also moved in this court to dismiss the appeal of defendant-appellant McMahon Ford Company for violation of Civil Rule 83.06 V.A.M.R. by 'failing to file its appellant's brief with the Clerk of this Court and failing to deliver copies of its appellant's brief to the Respondent.' However, in effect, appellant McMahon filed briefs only five days after appellant Ford Motor Company and twenty days prior to the filing of respondent's motion. The issues presented are the same for both defendants. Under these circumstances the motion will be denied.

The facts are set out in some detail in the first opinion of the case. Briefly these facts are that plaintiff purchased a new Thunderbird automobile with power steering from defendant McMahon Ford Company and received delivery of that automobile at about 4:00 P.M. on a Friday afternoon. At the time of delivery the steering of the car was 'tight' and it had a noise in the steering. The steering got worse on the weekend with 'binding on the turns'. On that Monday plaintiff contacted defendant McMahon regarding the steering and on Tuesday the car was picked up for repair. Defendant McMahon worked on the car and returned it to plaintiff at about 5:00 P.M. that day at her place of employment. Plaintiff drove the car from there ten blocks to her home where it was paralled parked on the street until 9:00 P.M. At that time plaintiff intended to go to the confectionary. She turned the car to the right to clear a parked car ahead of her. She then began to accelerate and when she did, she tried to turn the car back to the left, but the steering locked and it wouldn't turn at all. The car leaped the curb and struck a tree causing severe injury to the plaintiff. The car was then four days old and had been returned to her after the steering repair only a few hours before. It had been driven only ten blocks subsequent to that repair. Certain other facts will be referred to hereafter. At both trials plaintiff submitted the issue to the jury on the theory of breach of implied warranty of fitness.

In the first appeal the defendants challenged the sufficiency of plaintiff's evidence to make a case under this theory and also attacked certain instructions. This court then found the issue of submissibility in favor of the plaintiff and determined that the evidence warranted the jury finding against the defendants under the principle of 'strict liability for breach of warranty of fitness' citing Restatement, Law of Torts 2d, § 402A (1965); Morrow v. Caloric Applicance Corp., Mo. (Banc), 372 S.W.2d 41; and Henningsen v. Bloomfield Motors and Chrysler Corp., 32 N.J. 358, 161 A.2d 69; 75 A.L.R.2d 1 as to defendant Ford and citing Dubinsky v. Lindburg Cadillac Co., Mo.App., 250 S.W.2d 830(2); Mullins v. Sam Scism Motors, Inc., Mo.App., 331 S.W.2d 185(2) and Hays v. Western Auto Supply Co., Mo., 405 S.W.2d 877(4) as to defendant McMahon.

The reversal of plaintiff's judgment on that appeal was on the basis of error in plaintiff's verdict directing instruction. Williams v. Ford Motor Company, supra, l.c. 450(9). (Submission in the case would now be under MAI 25.04)

Defendants' present appeal is based on two points.

Point one again challenges the sufficiency of plaintiff's evidence to make a submissible case against the defendants on plaintiff's theory of implied warranty of fitness.

Point two charges error in the grant of a new trial urging that Instruction Number 6 was properly given.

Sufficiency of the evidence. Defendants urge that the evidence did not show a defect in the steering assembly at the time it left the manufacturer that had any causal connection with the collision; that the evidence showed the casualty resulted from either of two or more causes, for only one of which the defendants were liable in that the plaintiff's evidence showed that she drove off the street, over the curb, and into the tree; that this created a factual inference of plaintiff's negligence under the res ipsa loquitur doctrine; and that plaintiff's explanation of this inference was 'contrary to scientific principles * * * was incredibly impossible and cannot be accepted as substantial'.

It is plaintiff-respondent's position that defendants are now estopped by the doctrine of 'the law of the case' from again raising the question of submissibility since it was determined in the first case. Generally, when the evidence on a second appeal is substantially the same as that on the first appeal, all matters, questions, points, or issues adjudicated on the prior appeal are the law of the case on the subsequent appeal and will not be reconsidered or readjudicated therein. 5B C.J.S. Appeal and Error § 1821, p. 181; Norris v. Bristow, Mo., 236 S.W.2d 316, 319(2); Brown v. Kroger Company, Mo.App., 358 S.W.2d 429; Logsdon v. Duncan, Mo., 316 S.W.2d 488; Langdon v. Koch, Mo.App., 435 S.W.2d 730; Wilson v. Toliver, Mo., 305 S.W.2d 423; Midwestern Machinery Co. v. Parsons, Mo.App., 415 S.W.2d 545.

Rulings as to the sufficiency of the evidence to establish a claim or defense comes within the doctrine of 'the law of the case' when the evidence is the same on both appeals. Midwestern Machinery Co. v. Parsons, supra; Lonnecker v. Borris, Mo., 245 S.W.2d 53; Brown v. Kroger Co., supra. The law of the case does not apply where the pleadings have been amended to introduce new issues or the evidence on retrial is substantially different from the evidence on the vital questions considered at the former hearing. Norris v. Bristow, supra; Crossno v. Terminal R. Ass'n of St. Louis, 333 Mo. 733, 62 S.W.2d 1092, 1094; Smiley v. Kinney, Mo., 262 S.W. 349, 354; Schell v. City of Jefferson, Mo., 235 S.W.2d 351. It is also true that the doctrine of the law of the case does not apply where the first opinion was based on a mistaken fact or resulted in a manifest injustice to the parties. Logsdon v. Duncan, supra, 316 S.W.2d l.c. 491(2); Midwestern Machinery Co. v. Parsons, supra. However defendants make no contention in this regard.

Defendants reply that the doctrine of 'the law of the case' does not apply because the facts involved in this appeal present a wholly different case than presented on the first appeal. Plaintiff suggests, however, that certain statements in defendants' briefs constitute admissions that the evidence at both trials was substantially the same. In their joint brief defendants assert:

'Her evidence showed (a) the Ford Shop Manual showed four ways that its steering mechanism could malfunction, (b) that from the time the car first left McMahon Ford to the time of injury, the steering mechanism did not operate properly, (c) that McMahon and Ford had exclusive possession of the steering mechanism after the collision and, (d) that under normal operation of the car the steering mechanism did fail and the car went out of control--within four days after delivery of the car and within four hours after re-delivery.'

Upon analysis of these same points this court in the previous opinion stated:

'* * * From all this a jury could logically conclude that from the time Ford delivered the car to McMahon until the moment of impact, there was a defect in the steering mechanism; and that the defect caused her to run into the tree.'

Williams v. Ford Motor Company, supra, 411 S.W.2d l.c. 448.

Defendants further noted in their brief that in the second trial plaintiff 'attempted to rely on the same quantity of circumstantial evidence, which this court held in the previous appeal to be sufficient for her purpose.' After setting out other facts in evidence at the second trial relating to the occurrence, defendants also state in their brief that: 'If true, of course, the above evidence would be sufficient under the previous ruling of this court to raise an inference that the steering mechanism was defective at the time of manufacture.'

Defendants' reply brief filed on this appeal does not deny that plaintiff's evidence was substantially the same at the second trial. This and the above statements do consitute admissions by defendants. Fairley v. St. Louis Public Service Co., Mo.App., 389 S.W.2d 378. However, defendants urge that: 'Defendants' evidence was not the same in the extremely important respect that in the previous trial there was no evidence of Ackerman's Principle of Automotive Steering and therefore no mathematical evidence of the physical impossiblity of plaintiff's version of the manner in which this accident happened.' (Emphasis added.) Defendants did have expert testimony at the second trial that the accident could not have occurred in the manner in which plaintiff testified. Defendants urge that this is a material change in the evidence and for this reason the opinion on the prior appeal did not determine...