Brownell v. White Motor Corp.

• Decision Date: 05 November 1971
• Citation: 260 Or. 251,51 A.L.R.3d 1,490 P.2d 184
• Parties: , 51 A.L.R.3d 1 Rex BROWNELL et al., Respondents, v. WHITE MOTOR CORPORATION, an Ohio corporation, and Freightliner Corporation, a Delaware corporation, Appellants.
• Court: Oregon Supreme Court

Page 184

490 P.2d 184

260 Or. 251, 51 A.L.R.3d 1

Rex BROWNELL et al., Respondents, v. WHITE MOTOR CORPORATION, an Ohio corporation, and Freightliner Corporation, a Delaware corporation,

Appellants.

Supreme Court of Oregon.

Argued and Submitted June 1, 1971.

Decided Nov. 5, 1971.

Ridgway K. Foley, Jr., Portland, argued the cause for appellants. With him on the briefs were Souther, Spaulding, Kinsey, Williamson & Schwabe and Gordon Moore, Portland.

Lloyd B. Ericsson, Portland, argued the cause for respondents. With him on the brief were Dusenbery, Martin, Bischoff & Templeton, Portland.

Before O'CONNELL, C.J., and McALLISTER, DENECKE, HOLMAN, HOWELL and BRYSON, JJ.

DENECKE, Justice.

The plaintiff Brownell, the owner of a truck, and the plaintiff Brander, as a representative of Lloyd's London, insurers of the truck, brought this products liability action for damage to the truck incurred when it went off the road. The defendant Freightliner manufactured the truck; the defendant White Motor sold the truck to a dealer who, in turn, sold it to Brownell. The cause went to the jury upon the theory of strict liability. The defendants appeal a judgment entered upon the jury's verdict for the plaintiffs.

The defendants contend that the trial court erred in not finding for them as a matter of law because there was insufficient evidence of any defect in the truck, as manufactured and sold, which caused any damage. Plaintiffs admit that there was no direct evidence of any defect, but contend that from the circumstances surrounding the occurrence the jury could infer that the truck was defectively manufactured and the defect caused the damage.

The owner had purchased the new truck three weeks before the damage. It had gone 8,200 miles. Only three persons had driven the truck prior to this incident and they testified that the truck handled correctly and no damage had been done to it. The accident occurred in late December, soon after sundown, on the open highway north of Klamath Falls. There was a conflict in the evidence whether there was ice on the highway at or near the scene of the occurrence. There was snow on the side of the road.

The investigating officer testified that the driver told him a tire blew out and the vehicle swerved to the left. The driver said he may have told this to the officer; he did tell him there was a loud bang. Subsequently, upon deposition the driver stated there was a loud bang seemingly on the left rear of the truck and the axle dropped to the hub and jerked the truck into a rock wall. At trial the driver testified he heard a loud bang in the front end of the truck and the truck dropped down to the roadway.

After the damage, the truck and its parts were brought back to Freightliner. Upon request, these were made available to representatives of Lloyd's. Whether these representatives were experts in determining whether a truck is defective is in issue. Neither these representatives nor any experts were called as witnesses by plaintiffs.

Subsequently, defendants had the truck and its parts examined by a mechanical engineer specializing in metallurgy. He testified he found no defect and the evidence indicated that the tire blew and the wheel came off the axle, both as a result of striking the rock wall.

The plaintiffs rely upon Vanek v. Kirby, 253 Or. 494, 450 P.2d 778, 454 P.2d 647 (1969), to support their position that no direct evidence of any specific defect is essential. The particular problem in that case was the sufficiency of the complaint. The plaintiff used the terminology of 'implied warranty.' We decided the case, however, upon the issue of what proof plaintiff must present and our decision is applicable to an action couched in the terminology of strict liability. Wights v. Staff Jennings, 241 Or. 301, 405 P.2d 624 (1965).

The essence of Vanek v. Kirby, supra (253 Or. at 502, 450 P.2d at 782), is:

'* * * For the purpose of testing the sufficiency of the complaint, we may assume that plaintiff would be able to produce evidence from which the jury could infer that as the vehicle was driven down the highway the driver found it impossible to control it because of some defect in its mechanism. At this point, if the jury accepts plaintiff's version of what happened, plaintiff has carried the proof far enough to permit the jury to infer that the vehicle was uncontrollable because of Somer unidentified defect in the mechanism of the vehicle. If plaintiff carries his burden of proving that the defect was attributable to defendant's conduct rather than to some other cause, he need not identify the specific defect which caused the vehicle to become uncontrollable. * * *.'

The defendants urge that we disavow this broad language. ¹ They point out that we have held that the usual cause of a vehicle leaving the road is driver negligence. Kaufman v. Fisher, 230 Or. 626, 371 P.2d 948 (1962). For this reason they urge that the fact that the vehicle left the road creates a weak inference, if any, that a defect caused it to leave the road. They argue that the reasoning of Vanek shifts the burden of proof to the defendants who must prove no defect, rather than the plaintiffs having the traditional burden of proving a defect. Further, they argue the defendants' burden is proving a negative, no defect, which is more difficult.

The weakness in the first part of defendants' argument is that the plaintiffs' evidence has negated driver negligence as a cause of the vehicle leaving the road. The inference may thereby be created that a defect caused the incident. Normally, the credibility of the plaintiffs' evidence that the driver was not negligent is an issue to be left to the jury. If the jury does not believe the plaintiffs' evidence that the driver was not responsible for the vehicle leaving the road, the jury will not draw an inference that a defect was responsible. If the jury believes plaintiffs' evidence, the defendants, as is true in any case when the jury initially believes the plaintiffs' evidence, must come forward and convince the jury that the plaintiffs' evidence is incorrect, or the inferences to be drawn from plaintiffs' evidence do not lead to the conclusion that a defect in the vehicle was the cause of the damage.

Vanek v. Kirby, supra (253 Or. at 502--503, 450 P.2d 778), inferentially acknowledged that this situation, that is, the defendants being faced with bringing forward evidence to prove the negative, might place the defendants at a disadvantage; however, the court was of the opinion that under the circumstances alleged the jury should be allowed to infer that the vehicle was defective. There are policy considerations in this area both for and against a decision in favor of either plaintiffs or defendants, the decisions are conflicting and the writers in disagreement. See cases cited in Annotation, 78 A.L.R.2d 460, §§ 9, 17, 20 (1961); 1 Frumer and Friedman, Products Liability, § 12.03(9) (1960).

New Jersey is a jurisdiction evidencing this conflict within its own decisions. In Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 369, 161 A.2d 69, 75, 75 A.L.R.2d 1 (1960), plaintiff was driving her new car, purchased 10 days before, when 'Suddenly she heard a loud noise 'from the bottom, by the hood.' It 'felt as if something cracked.' The steering wheel spun in her hands; the car veered sharply to the right and crashed into a highway sign and a brick...