Bossons v. Hertz Corp.

• Decision Date: 24 April 1970
• Docket Number: No. 41797,41797
• Citation: 287 Minn. 29,176 N.W.2d 882
• Parties: Robert BOSSONS, Respondent, v. The HERTZ CORPORATION, Defendant and Third-Party Plaintiff, Appellant, v. FORD MOTOR COMPANY, Third-Party Defendant, Respondent.
• Court: Minnesota Supreme Court

Page 882

176 N.W.2d 882

287 Minn. 29

Robert BOSSONS, Respondent, v. The HERTZ CORPORATION, Defendant and Third-Party Plaintiff, Appellant, v. FORD MOTOR COMPANY, Third-Party Defendant, Respondent.

No. 41797.

Supreme Court of Minnesota.

April 24, 1970.

Rehearing Denied May 28, 1970.

Syllabus by the Court

1. the following conditions are necessary for the application of the doctrine of res ipsa loquitur: First, the event must be of a kind which ordinarily does not occur in the absence of negligence; second, it must be caused by an agency or instrumentality within the exclusive control of the defendant; and, third, it must not have been due to any voluntary action or contribution on the part of the plaintiff. The doctrine represents nothing more than a form of circumstantial evidence from which an inference of negligence may be drawn. The jury is permitted, not compelled, to make the inference.

2. The doctrine of res ipsa loquitur is inapplicable if the accident may reasonably be attributable to one or more causes for which defendant is not responsible.

3. Although the instruction on res ipsa loquitur may have been error, in the context of the entire charge the instruction on res ipsa loquitur became a mere statement of an abstract principle of law, even though arguably not pertinent to the case, for which reversal is not justified. It is clear that the judge instructed on all aspects of negligence and provided the jury with a proper explanation of the concept of negligence. Therefore, the instructions on res ipsa loquitur may well be classified as harmless error.

4. We find no merit in defendant's contention that the court erred in refusing to instruct on assumption of risk. That defense was not presented in the pleadings nor was it brought into evidence.

5. The trial court properly refused to consider plaintiff's argument highly improper or likely to influence the result.

6. The jury was justified in setting the monetary equivalent of plaintiff's damages as it did, and the trial court was within its discretion in affirming the jury's award. The verdict finds ample support in the evidence.

Robins, Davis & Lyons and John T. Chapman, Minneapolis, for defendant and third-party appellant.

Meagher, Geer, Markham & Anderson, and M. J. Coyne, O. C. Adamson, II, and Wm. D. Flaskamp, Minneapolis, for respondent Bossons.

Jardine, Logan & O'Brien, St. Paul, for third-party defendant, respondent Ford Motor Co.

Heard before KNUTSON, C.J., and NELSON, MURPHY, OTIS, and THEODORE B. KNUDSON, JJ.

OPINION

NELSON, Justice.

Appeal from an order of the district court denying defendant's motion for judgment notwithstanding the verdict or for a new trial.

This action was brought by Robert Bossons to recover for personal injuries he sustained in an accident which occurred on March 24, 1965. At the time of the accident, plaintiff, a football coach in the employ of the University of Minnesota, was engaged in an athletic recruiting trip. Upon his arrival at Chicago's O'Hare Field, he rented a year-old Ford Thunderbird automobile from defendant, The Hertz Corporation.

Upon locating the automobile, Bossons attempted to start the car while the gear lever was in the 'park' position, but was unsuccessful. He pushed the gear lever further to the left to set it more securely in the 'park' position and it still would not start. Finally, he moved the gear shift to 'neutral' and started the automobile without difficulty.

Plaintiff first drove to the Sheraton Motel. He testified that while at the motel he had difficulty putting the gear lever in the 'park' position and that he had to keep forcing it to the left. He could not recall whether, upon leaving the motel, he had difficulty starting the car. He then drove to LaGrange, Illinois, where he stopped at a Howard Johnson Motel for a cup of coffee. Again, he experienced difficulty starting the car. It would not start while the gear lever was in the 'park' position, only when in neutral.

Although the car would not start when the indicator on the gear lever pointed to 'park,' plaintiff experienced no movement or rolling of the car while attempting to start it. At no time prior to the accident did plaintiff notify Hertz or one of its representatives of the difficulties he was experiencing, even though he realized he was having problems.

Intending to drive to the LaGrange High School, plaintiff stopped at a Standard Oil station on the corner of LaGrange Road and Ogden Avenue to ask directions. At the station plaintiff moved the gear lever to a point where it indicated it was in the 'park' position. He left the engine running and got out of the car without applying the emergency brake. At the time he took his foot off the brake, the automobile remained stationary. However, after he began walking toward the station and was in front of the car, he noticed the car was moving backwards down a gradual incline toward LaGrange Road. Thinking the car would roll into the street, plaintiff began running after the car, intended to stop it. He caught up with the car as it was moving, opened the door, and grabbed the steering wheel, attempting to put the gear lever into 'park.' At that instant, his shoulder hit the gasoline pump, and he was twisted out of the car and thrown to the ground. However, his leg was caught between the door and the gasoline pump, and he felt his leg crack. The automobile finally came to a stop against the gasoline pumps.

After the accident, James Morale, a Hertz representative who operated a service station across the street from the Standard Oil Station, noticed that a Hertz car was involved in the accident and went to the Standard station to investigate. When an ambulance had taken plaintiff to the hospital, Morale and two Standard station attendants, Henry Koop and his son, performed certain tests on the Thunderbird. If heavy pressure was placed on the gear lever so that it was moved to the left beyond the 'park' position, it would not jar loose and the car could not be moved. Koop testified that when the lever indicated 'park,' however, it would come out of the parking gear into 'reverse' if the motor was running. Morale then removed the Thunderbird to his station and performed two additional tests on the automobile. He testified that in each of these tests the car was placed on an incline and it did not move when the gear lever was in the 'park' position.

After this action was commenced, Hertz instituted a third-party action against Ford Motor Company, the manufacturer of the Thunderbird. The district court set the date for trial and made an order, based on Ford's motion, that the third-party action be severed. The case was not tried on the original date, and eventually, pursuant to order of the district court, plaintiff amended his complaint to include Ford in the main action.

On the date set for trial, but prior to the jury selection or the taking of testimony, counsel for Hertz notified the court that an expert witness was prepared to testify on behalf of Hertz with regard to a design defect in the Thunderbird in support of Hertz' third-party action. This testimony was wholly unexpected and objected to by Ford, whose counsel had previously received an unanswered interrogatory concerning the maintenance history of the Thunderbird. The following day the court advised counsel that it intended to allow the expert to testify despite Ford's surprise. Counsel for Hertz then moved to sever the third-party action and said that if Ford continued to be a defendant in the main action, Hertz would not produce expert testimony. At this point, counsel for plaintiff dismissed his action with prejudice against Ford. The court then denied the motion for severance of the third-party action between Hertz and Ford, and the evidence of defective design was not introduced by Hertz.

On the last day of trial, upon Ford's motion the court dismissed with prejudice Hertz' third-party action for contribution or indemnity on the basis of lack of evidence of fault on the part of Ford. The trial court then instructed the jury, including an instruction on res ipsa loquitur. A request by counsel for Hertz for an instruction on assumption of risk was denied. The jury awarded damages to plaintiff in the amount of $31,840.70.

The issues involved on this appeal are: (1) Did the trial court err in instructing the jury on res ipsa loquitur? (2) Was the trial court in error in refusing to instruct on assumption of risk? (3) Was the closing argument by counsel for plaintiff improper and prejudicial? (4) Was the award of damages excessive due to passion and prejudice so as to require a new trial?

1. The following conditions are necessary for the application of the doctrine of res ipsa loquitur: First, the event must be of a kind which ordinarily does not occur in the absence of negligence; second, it must be caused by an agency or instrumentality within the exclusive control of the defendant; and third, it must not have been due to any voluntary action or contribution on the part of the plaintiff. Johnson v. West Fargo Mfg. Co., 255 Minn. 19, 95 N.W.2d 497; Johnson v. Coca Cola Bottling Co., 235 Minn. 471, 51 N.W.2d 573; Prosser, Torts (3 ed.) § 39.

The doctrine represents nothing more than a form of circumstantial evidence from which an inference of negligence may be drawn. Heffter v. Northern States Power Co., 173 Minn. 215, 217 N.W. 102; Johnson v. Coca Cola Bottling Co., Supra; Barnes v. Northwest Airlines, Inc., 233 Minn. 410, 47 N.W.2d 180; Rule 43.06, 233 Minn. 410, 47 N.W.2d 180; Rule 43.06, not compelled, to make the inference.

2. Whether the doctrine of res ipsa loquitur should have been submitted in the instant case is debatable. This court has held that the doctrine is inapplicable if the accident may reasonably be attributable to one or more causes for which defendant is not responsible. Boutang v. Twin City Motor Bus Co., 248 Minn. 240, 80 N.W.2d 30; Lovejoy v....