Brown v. General Motors Corp.

• Decision Date: 04 November 1965
• Docket Number: No. 37269,37269
• Parties: Claudia BROWN, a widow, Harold A. Morrison and Lucille Morrison, his wife, Appellants, v. GENERAL MOTORS CORPORATION, a corporation, Respondent.
• Court: Washington Supreme Court

Page 278

67 Wn.2d 278

407 P.2d 461

Claudia BROWN, a widow, Harold A. Morrison and Lucille

Morrison, his wife, Appellants, v. GENERAL MOTORS CORPORATION, a corporation, Respondent.

No. 37269.

Supreme Court of Washington, Department 2.

Nov. 4, 1965.

Rehearing Denied Dec. 27, 1965.

George N. Apostol, Seattle, for appellants.

Ogden, Ogden, Roberts & Murphy, Frank H. Roberts, Jr., Seattle, for respondent.

HAMILTON, Judge.

Plaintiff, Mrs. Claudia Brown, purchased at retail a new Cadillac automobile in July, 1959. She drove it approximately 33,000 miles. On May 10, 1961, Mrs. Brown, with coplaintiff, Mrs. Harold A. Morrison, as a guest passenger, was driving the vehicle from Seattle to eastern Oregon and Idaho. While traveling at about 50 to 55 miles an hour on a straight unobstructed highway near Prosser, Washington, the wheels appeared to lock and the automobile veered from the highway into a ditch. Mrs. Brown and Mrs. Morrison were injured and the car was demolished. Believing that the accident was caused by a defect in the braking system of the Cadillac, plaintiffs initiated this suit for damages against the manufacturer, General Motors Corporation, alleging negligence and breach of warranty. The defendant denied liability and the action proceeded to trial.

The trial court ordered separate trials upon the issues of liability and damages. At the conclusion of plaintiffs' evidence on the issue of liability, the trial court dismissed plaintiffs' negligence claim and, upon conclusion of all the evidence, submitted the issue of liability to the jury upon the theory of breach of express and/or implied warranty. The jury returned a verdict in favor of defendant. Plaintiffs' post trial motions were denied and judgment of dismissal was entered. From such judgment comes this appeal.

Plaintiffs have made some 22 assignments of error. They fall into three categories: (1) Assignments directed to pre-trial procedures; (2) assignments directed to matters arising during trial; and (3) assignments directed to post trial orders.

In category (1) plaintiffs first assign error to a pretrial order directing their expert witness to answer defense questions on discovery deposition, which called for the witness' conclusion. This order, plaintiffs contend, violates that portion of Rule of Pleading Practice and Procedure 26(b), RCW vol. O, which reads:

The court shall not order the production or inspection of any writing that reflects an attorney's mental impressions, conclusions or legal theories, or except as provided in Rule 35, the conclusions of an expert.

However interesting the issue presented by this assignment might be, we do not here reach it for the reason that plaintiffs' counsel, at the time of taking the deposition, directed the witness to refrain from answering questions calling for his conclusions. The witness obeyed counsel's instructions and none of the witness' conclusions were directly revealed to defense counsel during the deposition. Neither the witness nor plaintiffs' counsel were cited for contempt and defense counsel did not otherwise seek to enforce the pretrial order. Accordingly, so far as this appeal be concerned, the matter is now academic.

Plaintiffs next assigned error to the trial court's action in ordering separate presentation of the issues of liability and damages.

The trial court's order in this regard was prompted by a motion presented by defendant's counsel. In an affidavit in support of the motion, defendant's counsel averred that the issue of liability primarily involved a factual determination of whether the Cadillac was defective at the time of manufacture, that liability was highly questionable under the facts of the case, and that the issue of liability could be tried and resolved in a relatively short time. He further asserted that the issue of damages would possibly involve the testimony of some 17 medical witnesses, the production and introduction of a number of separate hospital records, and would otherwise unduly extend the time and expense of the trial, all to the prejudice of all parties if defendant was not liable.

Plaintiffs' counsel strenuously opposed the motion. By affidavit he challenged the averments of opposing counsel and asserted that the issues of liability and damages were so intermingled as to make it burdensome upon plaintiffs if they were required to present them separately. He further contended that separation of the issues would amount to piecemeal litigation, would prejudice plaintiffs' cause, and would deny them their constitutional right to trial by jury.

The trial court considered the respective affidavits, heard oral arguments, and granted defendant's motion. At the time of making the order separating the issues for hearing, the trial court advised counsel that evidence pertaining to damages would be presented to the same jury should its verdict on liability be favorable to plaintiffs. The trial court, furthermore, specifically reserved the right to reconsider the matter during the course of the hearing on the liability issue.

The trial court's action was predicated upon Rule of Pleading, Practice and Procedure 42(a), RCW vol. O, which provides:

Separate Trials. The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues.

This rule, as its language indicates, vests the trial courts with discretionary power to order a separate submission of issues in the trial of any claim for relief. It is not, however, a rule that calls for or properly lends itself to a liberal or indiscriminate application. It should be carefully and cautiously applied and be utilized only in a case and at a juncture where informed judgment impels the court to conclude that application of the rule will manifestly promote convenience and/or actually avoid prejudice. Piecemeal litigation is not to be encouraged. 4 Orland, Wash. Prac. 276; 2B Barron & Holtzoff, Federal Practice & Procedure § 943, at 187; 5 Moore, Federal Practice 42.03 (2d ed. Supp.1964); 88 C.J.S. Trial, §§ 8, 9. Particularly is this so in the field of personal injury litigation, where the issues of liability and damages are generally interwoven and the evidence bearing upon the respective issues is commingled and overlapping. 85 A.L.R.2d 9; 46 Iowa L.Rev. 815 (1960--61); 46 Minn.L.Rev. 1059 (1961--62); 48 Va.L.Rev. 99 (1962). In fact, one state appellate court has refused to apply the rule to such litigation. Iley v. Hughes, 158 Tex. 362, 311 S.W.2d 648, 85 A.L.R.2d 1 (1958). Others have severely limited, if not practically eliminated, its utilization in this type of case. Peasley v. Lapeer Circuit Judge, 373 Mich. 222, 128 N.W.2d 515 (1964); Bowen v. Manuel, 144 So.2d 341 (Fla.Dist.Ct.App.1962). Separation of issues, however, in an appropriate case, does not violate constitutional rights to trial by jury, particularly if both issues are submitted to the same jury. Hosie v. Chicago & No. W. Ry. Co., 282 F.2d 639 (7th Cir. 1960), cert den. 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693 (1961); Peasley v. Quinn, supra.

In the instant case, we have carefully reviewed the affidavits presented to the trial court, its ruling, and the evidence adduced at the trial. We are satisfied that, in this case, the issues of liability and damages were singularly separable and distinct, that the possibility of a substantial saving in trial time, expense, and convenience to the court and to the respective parties was clearly discernible, and that prejudice to plaintiffs, beyond the chance of a compromise verdict, was not and has not been shown. Accordingly, we hold that the trial court did not abuse its discretion in separating the issues in the manner it did.

The remaining assignments of error in the category of pretrial procedures relate to the trial court's action in quashing a subpoena, striking certain requests for admissions of fact, and denying a motion to strike defendant's answer. We find no reversible error arising out of these assignments. Further discussion of these assignments would add noting of significance to the decisional law of this state.

In the second category of assignments of error--assignments relating to matters arising during trial--plaintiffs' principal arguments are directed to the trial court's action in withdrawing their claim of negligence from the jury's consideration.

Plaintiffs first contend this action constituted prejudicial and reversible error, even though the trial court submitted their theories of breach of express and/or implied warranties to the jury. We disagree.

The core of plaintiffs' claim for relief, upon any theory of liability, was their allegations that the accident was caused by a factory born defect of defects in the braking mechanism of the Cadillac. The defect of defects asserted by plaintiffs consisted of either a maladjusted push rod in the power section of the brake, an imperfect die cast plate in the power brake assist unit, or a foreign object in the power vacuum unit. It was around these allegations and the issue of proximate cause about which the evidence primarily revolved, and it was upon a jury finding of the existence of a claimed defect and its causal relationship to the accident upon which any finding of liability had to basically rest. These vital questions were submitted to the jury under the theory of breach of warranty. Submitting them also under the theory of negligence would have added nothing to their determination.

The theories of negligence and breach of warranty, so far as a manufacturer's liability for having furnished an inherently dangerous product to the public be concerned, both sound in tort. Dipangrazio v. Salamonsen 64 Wash.2d 720, 393 P.2d 936 (1964); Brewer v. Oriard Powder Co., 66 Wash.Dec.2d 177, 401 P.2d 844 (1965). They are...