Rager v. Superior Coach Sales and Service of Arizona

• Decision Date: 30 September 1974
• Docket Number: No. 11080--PR,11080--PR
• Citation: 526 P.2d 1056,111 Ariz. 204
• Parties: William J. RAGER, Appellant, v. SUPERIOR COACH SALES AND SERVICE OF ARIZONA, a corporation, and Automotive Sales Company, a corporation, Appellees.
• Court: Arizona Supreme Court

Page 1056

526 P.2d 1056

111 Ariz. 204

William J. RAGER, Appellant, v. SUPERIOR COACH SALES AND SERVICE OF ARIZONA, a corporation, and Automotive Sales Company, a corporation, Appellees.

No. 11080--PR.

Supreme Court of Arizona, In Division.

Sept. 30, 1974.

Carson, Messinger, Elliott, Laughlin & Ragan by Robert W. Holland, Phoenix, for appellant

Udall, Shumway, Blackhurst, Allen, Bentley & Lyons by John H. Lyons, Mesa, for appellee Superior Coach Sales.

Daughton, Feinstein & Wilson by Donald Daughton, Phoenix, for appellee Automotive Sales Co.

CAMERON, Vice Chief Justice

This is an appeal by the plaintiff from the granting of a motion for directed verdict at the close of the plaintiff's case in favor of the defendant Automotive Sales Company, and from the granting of a motion for directed verdict at the close of defendants' case in favor of the defendant Superior Coach Sales and Service of Arizona, Inc. The jury awarded the plaintiff a verdict against the defendant Wilson School District in the amount of $10,000 plus costs. This amount was paid in return for a covenant not to sue or execute. For procedural problems and questions concerning the effect of the covenant see Rager v. Superior Coach Sales and Service, 110 Ariz. 188, 516 P.2d 324 (1973).

Admitting the truth of whatever competent evidence the opposing party has introduced, including reasonable inferences therefrom, E. L. Jones Construction Company v. Noland, 105 Ariz. 446, 466 P.2d 740 (1970), and viewing these facts and reasonable inferences therefrom in a light most favorable to the party against whom the directed verdict was granted, the appellant in this case, Hlavaty v. Song, 107 Ariz. 606, 491 P.2d 460 (1971); Brand v. J. H. Rose Trucking Co., 10 Ariz. 201, 427 P.2d 519 (1967), we must answer the following questions on appeal:

1. Was there a prima facie showing of negligence on the part of Automotive Sales Company?

2. Could Superior Coach Sales and Service of Arizona delegate its responsibility for repairing the brakes to Automotive Sales Company?

The record indicates that Wilson School District No. 7 located in Maricopa County, Phoenix, Arizona, pursuant to bid, obtained delivery in February of 1968 the school bus in question. Superior Coach Sales and Service of Arizona provided the following warranty:

'The Superior Coach Sales & Service, Inc. of 2928 E. Washington St. extends the following Warranty and Service Policy on the Bus Equipment quoted in this bid. Three (3) years or 50,000 miles, whichever appears first. All parts and Labor if needed on a no charge basis to the School. Normal wear and tear and regular maintenance servicing are the Schools responsibility. Warranty Policy does not include wrecks, lack of proper maintenance, abusive use, over loading, or any act of God, floods and etc. The Bus has a 2500, 5000, and 10,000 Service and regular new equipment servicing.'

At the time the bus was delivered, it contained three braking systems. One was an airbrake system otherwise known as a service brake system operated by a brake foot pedal. The second was a parking brake system independent of the service brake system. In addition to these two systems, there was, though not required by the specifications, a spring brake system designed to be automatically activated whenever the air pressure fell below a certain minimum.

In May of 1969 Wilson School District No. 7 brought the bus in question into Superior Coach Sales and Service of Arizona for repair of a defective leaking brake value on the dashboard. Superior Coach Sales referred the bus to Automotive Sales for work on the brake. Mr. Gulley of Superior Coach testified that his verbal instructions to Automotive Sales were to check the brakes and 'do whatever is necessary.' Automotive Sales replaced a worn airline from the frame to the right rear brake chamber, replaced bolts which fasten the rear brake chamber to the vehicle, and checked the system for leaks. The mechanic who repaired the bus for Automotive Sales personally disliked the automatic spring brake systems. Therefore while working on the bus he elected to replace the emergency dash control valve, taking out a pressure line resulting in a spring brake system which could only function when the value on the dashboard of the bus was pulled by the driver. Thus when the air pressure fell below the point at which the brake would not respond to the brake foot pedal, the driver would have 'Q Okay. Do you know, Mr. Giebner, whether this brake value, the 275175 BW Valve is a manual or an automatic valve?

to manually pull the control valve on the dashboard before the spring brake system could be activated. The mechanic testified:

'A It's a manual valve.

'Q Do you know whether the--do you know what kind of a valve was on the bus when it came in?

'A It was a Berg.

'Q A Berg valve, is that right?

'A Yes, that's right.

'Q Was it a manual or an automatic?

'A Automatic.

'Q It was automatic, is that right?

'A That's right.

'Q Does the installation of a manual valve in place of the automatic valve--strike that.

How did you determine to replace an automatic valve with a manual one on this bus?

'A I don't know that.

'Q did anybody tell you to put on a manual valve instead?

'A No, nobody told me.

'Q Nobody told you to?

'A Nobody told me.

'Q You made that as a matter of your own determination or your own election, is that right?

'A That's right.

'Q Why did you make that choice, Mr. Giebner?

'A Well, one thing, when the bus was brought in there, I was told a couple of different time those brakes came on automatically, going down the highway, or street.

'Q Who told you that, do you remember?

'A Ray Vasquez.

'Q Ray Vasquez, an employee of Wilson School District?

'A Yes.

'Q Did he tell you that it come on more than one time before?

'A He said a couple of times.

'Q What if anything was said further in that conversation between yourself and Mr. Vasquez?

'A I cannot remember the conversation.

'Q All right. Did you tell him that you would replace the automatic valve with a manual one?

'A I believe I did, yes.

'Q This conversation took place before you did the work?

'A As far as I know, yes.

'Q Do you remember whether anybody else was present when that conversation took place?

'A No, I do not.

'Q Isn't it true, Mr. Giebner, that in addition to this kind of a conversation you also personally dislike automatic spring brakes on buses?

'A That's right.

'Q And, your reason for it is what?

'A I believe a driver should have control over his spring brakes at all times.

'Q So, that if he doesn't want to apply them automatically--excuse me. If he does want to apply them under law air pressure conditions, that should be up to him, as far as you are concerned, is that right?

'A That's right.

'Q Did you discuss with anybody connected with the school district whether they liked the automatic feature of the bus?

'A I never talked to anyone from the school district.

'Q So, you then individually took the responsibility for changing the performance of this brake system, is that right?

'A That's right.

'Q Did you write down on the repairs ordered that you had changed the bus brake system somewhat?

'A No.'

No one at Automotive Sales Company told the school district or Superior Coach that the brake system had been modified to eliminate its capacity to function automatically upon reduction of air pressure. The bill from Automotive Sales to Superior Coach, which was paid by Automotive Sales under Automotive's warranty agreement with Wilson School District, does not indicate that the automatic spring brake system valve had been replaced. The statement on the bill reads as follows:

'Labor: To check brake air system. Replace emergency relay valve Dash Control. Replace brake hose frame to axle. Repair air leaks. Replace bolts . . . bolt up right rear brake booster.'

Ray Vasquez, mechanic for Wilson School District, testified as follows:

'Q Okay. Then, was the bus taken to the Automotive Truck Sales?

'A Yes, sir.

'Q Who by? Who did it, who took the bus there?

'A I took it, sir.

'Q Did Mr. Gulley tell you when he sent you over there, this Automotive Sales, what he wanted them to do to the bus?

'A I had talked to Mr. Gulley about this continuance in this air leak in the brake line and he told me since it was on a warranty, and all of this, that it would be best for a brake specialist to see it and he would talk to--he knew Automotive Truck Sales, they did some of his work, and he would talk to them on the phone and he instructed me to drive the bus over there and 'When you get over there, they will know what to do with it.' So, on orders from Mr. Gulley of Superior Coach, I drove this bus down to Automotive Truck Sales.

* * *

* * *

'Q Did you discuss anything with the mechanics, or the service manager at Automotive Sales relative to the bus before any work was done at that shop?

'A No, sir.

* * *

* * *

'Q When the bus was ready to be picked up, did you go over and pick it up?

'A Yes, sir.

'Q When you went over there, did you talk about the bus to anybody?

'A Well, they told me that the bus was ready. They told me that they had put a new valve, the main control valve.'

And:

'Q MR. CRACCHIOLO: Mr. Vasquez, when this bus was first delivered to the Wilson School District, did you have any knowledge of how the emergency brake system worked in the event somebody was driving, the driver was driving and the air pressure went down?

'A No, sir.

'Q You had no idea.

You didn't know whether it went our automatically, or you had to pull it?

'A No, sir.

'Q You had no idea then how it worked after it was serviced by Automotive Truck Sales, is that right?

'A No, sir.

'Q Were you ever told by anyone at Automotive Sales that a different 'A No, sir.'

kind of emergency system was put in this bus in May of 1969?

On the morning of 14 January 1970, the school bus was in operation and had operated properly that morning. As it approach the intersection of 24th Street and Washington in the ...