Ford Motor Co. v. McCamish

• Decision Date: 09 December 1977
• Citation: 559 S.W.2d 507
• Parties: FORD MOTOR COMPANY, Appellant, v. David Lee McCAMISH and Hesco Parts Corporation, Appellees. David Lee McCAMISH, Cross-Appellant, v. FORD MOTOR COMPANY, Cross-Appellee.
• Court: Kentucky Court of Appeals

Page 507

559 S.W.2d 507

FORD MOTOR COMPANY, Appellant, v. David Lee McCAMISH and Hesco Parts Corporation, Appellees.

David Lee McCAMISH, Cross-Appellant, v. FORD MOTOR COMPANY, Cross-Appellee.

Court of Appeals of Kentucky.

Dec. 9, 1977.

Clarence McCarroll, Bartlett, McCarroll & Nunley, Owensboro, for appellant Ford Motor Co.

Frederick C. Dolt, Louisville, for appellee David Lee McCamish.

R. Scott Plain, Owensboro, for appellee Hesco Parts Corp.

Before GANT, PARK and VANCE, JJ.

PARK, Judge.

The plaintiff-appellee, David Lee McCamish, sustained severe personal injuries on October 4, 1968, when the brakes failed on an F-600 Ford Truck which he was operating for his employer, Howard Allgood. The truck had been manufactured by the defendant-appellant, Ford Motor Company, and the brake system had been Blancett Motor Company filed an appeal (No. 75-592), and McCamish filed a cross-appeal against Blancett and Ford (No. 75-622). Subsequently, McCamish's claim against Blancett was settled, and the appeal of Blancett and cross-appeal of McCamish against Blancett were dismissed. Consequently, the only issues remaining before this court are those raised by the appeal of Ford Motor Company (No. 75-593) and the cross-appeal by McCamish against Ford Motor Company.

repaired shortly before the accident by an authorized Ford dealer Blancett Motor Company. Upon a trial of McCamish's action for personal injuries, the jury returned a verdict for McCamish against Ford Motor Company and Blancett Motor Company in the total sum of $129,415.00. The jury apportioned the verdict between Ford and Blancett on the basis of 30% against Ford ($38,824.50) and 70% against Blancett ($90,590.50).

ISSUES

The Ford Motor Company asserts that the trial court erred in failing to sustain its motion for a directed verdict and its motion for a judgment notwithstanding the verdict. McCamish replies that two jury issues were created by the evidence: (1) whether the brakes of the truck were unreasonably dangerous at the time it was sold by Ford Motor Company, and (2) whether Ford Motor Company failed to give proper instructions to Blancett Motor Company for the repair of brakes on that model truck. McCamish also claims that Ford Motor Company is responsible for any defects in a re-built brake shoe sold by the defendant-appellee, Hesco Parts Corporation. The jury returned a verdict for Hesco. Consequently, there can be no merit to this assertion by McCamish even if there were some theory under which Ford Motor Company could be held responsible for the negligence or fault of Hesco Parts Corporation.

McCamish's action was commenced in the Breckinridge Circuit Court. When the case was first tried in that court, the jury returned a verdict in favor of McCamish solely against Ford Motor Company in the sum of $66,203.00. The trial court sustained motions for a new trial, and the case was transferred to the Meade Circuit Court for the second trial. On his cross-appeal, McCamish claims that the original verdict should be reinstated in the event that the judgment entered following the second trial is reversed. He also questions the

jury's apportionment of the verdict. WAS THE TRUCK IN AN

UNREASONABLY DANGEROUS CONDITION AT THE TIME IT

WAS SOLD BY FORD MOTOR COMPANY?

The accident in which McCamish was injured occurred when the brakes failed as he was descending a long hill with a full load of hot asphalt. When the brakes failed, McCamish was forced to take the truck off the road in order to avoid other traffic. McCamish asserts that Ford Motor Company is subject to strict liability on the basis of section 402A of the Restatement (Second) of Torts, which was adopted by the court in Dealers Transport Co. v. Battery Distributing Co., Ky., 402 S.W.2d 441, 446-47 (1966). Under section 402A, Ford Motor Company would be liable if the brakes on the truck were unreasonably dangerous at the time of the sale of the truck. If the brakes were unreasonably dangerous, it is immaterial whether they were dangerous because of defective design or because of an error in the process of manufacture or assembly. Ulrich v. Kasco Abrasives Co., Ky., 532 S.W.2d 197, 200 (1976).

The brakes on the truck were admittedly defective and unreasonably dangerous at the time of the accident. Therefore, the crucial question is whether McCamish's proof established a reasonable probability that the dangerous condition of the brakes existed at the time of sale and delivery of the truck. Briner v. General Motors Corp., Ky., 461 S.W.2d 99, 103 (1970); Restatement (Second) of Torts § 402A, Comment g.

The F-600 truck in question was a 1963 model which Allgood had purchased as a new vehicle. The record fails to reflect The truck was equipped with a hydraulic brake system. With such a system, pressure on the brake pedal activates the master brake cylinder which transmits hydraulic pressure to each of the individual wheel cylinders. The two pistons within each wheel cylinder are connected to the brake shoes by means of push rods. When hydraulic pressure is transmitted to each individual wheel cylinder, the wheel cylinder pistons push the brake shoes out against the inside of the brake drum.

how many miles the truck had been driven at the time of the accident in 1968. However, the truck was being driven approximately 220 miles each day during the period preceding the accident.

Each wheel cylinder is attached by two bolts to a backing plate which in turn is bolted to the axle housing. Each backing plate carries two wheel cylinders, an upper and a lower. The two wheel cylinders are connected by the push rods to two brake shoes which face to the front and rear respectively.

On Friday, September 27, 1968, McCamish reported to his employer, Allgood, that the truck had a broken lug nut. That evening, Allgood was replacing the lug bolt on the truck when he noticed that the brake linings were worn out. On Saturday morning, September 28, Allgood took the truck to Blancett Motor Company for a full "brake job." The brakes were relined by installing new brake shoes. One wheel cylinder was replaced, and five wheel cylinders were rebuilt by using new parts from wheel cylinder kits. The truck was returned to Allgood late Saturday.

When Allgood was greasing the truck and changing the oil the next day, he discovered that brake fluid was leaking onto the right rear brake drum. On Monday, September 30, Allgood returned the truck to Blancett. Employees of Blancett discovered that fluid was leaking from the lower wheel cylinder attached to the right rear backing plate. Because this wheel cylinder had been replaced or rebuilt on Saturday, it was removed from the backing plate for closer examination. No defect being found in the cylinder itself, a new wheel cylinder kit was installed, and the rebuilt wheel cylinder was rebolted to the backing plate. The truck was returned to Allgood that day, and on Tuesday, October 1, McCamish again began driving the truck.

McCamish operated the truck without incident until Friday, October 4, 1968. As he was descending a long steep hill, another truck stopped for on-coming traffic before making a left turn. McCamish applied the brakes which held for a few moments. Then there was a sudden loss of brake pressure, the brake pedal dropping to the floorboard. Following the accident, it was discovered that the pistons had come out of the lower wheel cylinder on the right rear backing plate thereby permitting brake fluid to escape from the braking system. A sudden loss of brake fluid would cause an immediate loss of all braking capacity. It was also noted that two bolts holding the wheel cylinder to the backing plate were bent, the wheel cylinder itself was misaligned, and the backing plate was bent at the point of the bolt holes utilized for attaching the wheel cylinder.

In support of his contention that there was evidence that the brake system was unreasonably dangerous at the time it was sold and delivered by Ford Motor Company, McCamish cites the testimony of the service manager for Blancett Motor Company and the testimony of a service manager of a local Chevrolet dealership. Both men testified that the wheel cylinder was "blown" as a result of extreme pressure being applied in an emergency braking system. In their opinion, this indicated that the brakes had been improperly designed. According to the testimony of other expert witnesses, the failure of the wheel cylinder was attributed to the negligence of Blancett employees in bolting the wheel cylinder to the backing plate. They assumed that the nuts holding the wheel cylinder to the backing plate were not tightened sufficiently. Because the nuts were not tight, abnormal stress was placed on the bolts and the backing plates everytime the brakes were applied. As a consequence, both the bolts and backing We conclude that McCamish failed to sustain his burden of proving that the truck was unreasonably dangerous at the time it was sold and delivered by Ford Motor Company. This is not a case in which the brake drum had never been pulled, thereby negating the possibility that the braking mechanism had not been disturbed by anyone after the vehicle left the hands of the automobile manufacturer and prior to the accident. See Hawkeye-Security Ins. Co. v. Ford Motor Company, Iowa, 174 N.W.2d 672 (1970), second appeal 199 N.W.2d 373 (1972), and Sharp v. Chrysler Corporation, Tex.Civ.App., 432 S.W.2d 131 (1968). In this case, the offending wheel cylinder had been removed from the backing plate. The original condition of the cylinder had been extensively modified by the installation of one or more wheel cylinder kits by Blancett...