Caldwell v. Fox

Decision Date24 June 1975
Docket NumberNo. 6,6
Citation231 N.W.2d 46,394 Mich. 401
PartiesKenneth Richard CALDWELL, Plaintiff, v. Patrick Clifford FOX and Leo Fox, Defendants and Third-Party Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION et al., Third-Party Defendants-Appellees. 394 Mich. 401, 231 N.W.2d 46
CourtMichigan Supreme Court

Collison & Fordney, P.C. by J. Michael Fordney, Saginaw, for defendants and third-party plaintiffs-appellants.

Milliken & Magee by Herbert A. Milliken, Jr., Flint, for third-party defendants-appellees.

Smith & Brooker, P.C., Saginaw, for plaintiff.

Before the Entire Bench except SWAINSON and LINDEMER, JJ.


This lawsuit arose out of a rear-end collision which occurred on March 13, 1969 in Saginaw County. Simply stated, the vehicle driven by the original plaintiff, Kenneth Caldwell, was struck from behind by a vehicle driven by the original defendant Patrick Fox. Fox claimed that the accident was caused by a defective brake system on his vehicle. Original plaintiff filed suit against original defendants on May 2, 1969. Original defendants answered, denying any negligence on their part and alleging that the sole proximate cause of the collision was the sudden and unexpected brake failure on original defendants' automobile.

Original defendants then filed a motion to join General Motors Corporation (the manufacturer) and Wilsie-Kelly Chevrolet & Cadillac Company (the seller) as third-party defendants. That motion was granted and the above named parties proceeded to trial. However, at trial after the close of proofs, the trial judge dismissed the third-party defendants from the lawsuit. The cause was sent to the jury with only original plaintiff and original defendant involved. The jury rendered a verdict for plaintiff and awarded him an $18,000 judgment. Defendants appealed this adverse ruling of the trial judge, along with other issues, to the Court of Appeals which affirmed in an unpublished memorandum opinion dated February 20, 1974. We granted defendant's application for leave to appeal on June 26, 1974, but limited consideration to third-party issues only. 1 We conclude that the trial court improperly granted directed verdicts in favor of third-party defendants and remand for new trial. The Court of Appeals is reversed.


In their third-party complaint, the original defendants stated alternative claims, sounding in negligence and breach of warranty, against both third-party defendants. As such, the third-party complaint was typical of a common 'garden variety' products liability lawsuit filed in this state.

At the close of the proofs, equally typical motions for directed verdicts were filed by both third-party defendants. In deciding these motions the trial judge reviewed the testimony and found 'no proof of a manufacturing defect by the third-party defendant'. The original defendants' proofs were categorized as 'legally insufficient' and the trial judge summarily granted the third-party defendants' motions for directed verdicts.

As their first issue, original defendants argue that the trial judge erred in granting these motions, because the evidence, and all reasonable inferences which might be drawn, when taken in a light most favorable to them, established a prima facie case against the third-party defendants.

At the outset we reiterate a well-established principle of law: The jury, not the trial judge, is the trier of fact. Whenever a fact question exists, upon which reasonable persons may differ, the trial judge may not direct a verdict. Conversely, when no fact question exists, the trial judge is justified in directing a verdict. In deciding whether or not to grant a motion for a directed verdict, the trial judge must accord to the non-moving party the benefit of viewing the testimony and all legitimate inferences that may be drawn therefrom in a light most favorable to the non-moving party. If the evidence, when viewed in this manner, establishes a prima facie case, the motion for a directed verdict must be denied. In Detroit & Milwaukee R. Co. v. Van Steinburg, 17 Mich. 99, 117 (1868), Chief Justice Thomas M. Cooley said:

'In determining this question, we must look at the case as it appears from the plaintiff's own testimony, unqualified by any which was offered on the part of the defendants, and must concede to him any thing which he could fairly claim upon that evidence. He had a right to ask the jury to believe the case as he presented it; and, however improbable some portions of his testimony may appear to us, we can not say that the jury might not have given it full credence. It is for them, and not for the court to compare and weigh the evidence.'

This standard was most recently reaffirmed in Dodd v. Secretary of State, 390 Mich. 606, 612, 213 N.W.2d 109, 112 (1973), where it was said taht the court must 'view the testimony in the light most favorable to the plaintiff and draw the reasonable inferences therefrom which are in his favor'.

Viewed favorably for the original defendant, 2 the record reveals that on February 7, 1969 Leo Fox purchased a new 1969 Chevrolet Chevelle from Wilsie-Kelly Chevrolet & Cadillac Company. The car was purchased for and primarily operated by Patrick Fox. Approximately 5 weeks after the purchase, on March 13, 1969, while Patrick Fox was driving to the Saginaw Steering Gear Plant, the car was involved in a rear-end collision.

Patrick Fox testified that as he approached the intersection of M--46 and Towerline Road he removed his foot from the accelerator pedal and allowed the car to coast as he turned his vehicle into the left-turn lane. He observed a vehicle ahead of him in the left-turn lane which was stopped with its left-turn indicator flashing. He then depressed the brake pedal, but the brakes did not work. He continued to pump the brakes and they may have responded slightly before impact.

After the collision, Patrick Fox got out of his car to survey the damage to his vehicle. Upon examining the engine compartment, Mr. Fox observed brake fluid on the fender wall, a loose connection on the brake line coming from the master cylinder, and brake fluid dripping from the loose connection. Mr. Fox used a small wrench to tighten the loose connection. This action apparently restored the brakes to an operational status.

After the accident was investigated by the State Police, Mr. Fox drove the damaged car to a service station in Caro where an attendant added a small amount of brake fluid to the master cylinder. He then drove the car to the Wilsie-Kelly dealership for repairs. At the dealership, he pointed out the damage and explained the failure of the brakes to a salesman and the service manager.

Harold Kilbourn, service manager for the dealership, testified that he road-tested the car after it was left for repairs and found a partial loss in braking power in the rear wheels. He also observed brake fluid on the inner fender wall.

Both Patrick and Leo Fox were allowed to testify about statements purportedly made by Mr. Kilbourn that the rear brakes were inoperative and that the master cylinder was defective and must be replaced. Also admitted into evidence was a letter written by the dealership general manager which read:


'To Whom It May Concern:

'Upon examination by my service department it was determined that the master cylinder controlling the rear wheels of the 1969 Chevelle delivered to Mr. Leo Fox and Patrick Fox became defective sometime between the delivery date of 2--7--1969, and the date of the accident. This failure by the cylinder controlling the rear wheels would reduce the effective braking by 50%. It was also noted the (sic) the line to one front wheel was inoperative.


(s) S. L. Wilsie

Shurley L. Wilsie, General Manager'

In order to avoid a directed verdict on the third-party complaint, the original defendants had to establish a prima facie case of liability against the third-party defendants. Common to most products liability cases, regardless of the theory of liability, is the nature of certain proofs required to support a finding of liability. In Piercefield v. Remington Arms Co., Inc., 375 Mich. 85, 98--99, 133 N.W.2d 129, 135 (1965), this Court commented on the nature of these proofs.

'As made clear above, a plaintiff relying upon the rule must prove a defect attributable to the manufacturer 3 and causal connection between that defect and the injury or damage of which he complains. When able to do that, then and only then may he recover against the manufacturer of the defective product.'

While the Court in Piercefield, supra, was concerned with a breach of warranty theory, the above elements of liability are equally applicable to a lawsuit sounding in negligence. Thus original defendants had an initial burden to (1) produce evidence of a defect which caused the accident and (2) trace that defect into the hands of the third-party defendants.

On the facts of this case, we believe that a jury could have reasonably inferred the existence of a defective condition in the brake system which was a cause of the accident. The testimony of Patrick Fox was evidence of a malfunction in the brake system. It is within the province of the jury to infer the existence of a defective condition from circumstantial evidence alone; there is no requirement that the actual defect need be proven. Snider v. Bob Thibodeau Ford, Inc., 42 Mich.App. 708, 202 N.W.2d 727 (1972). Additionally, from the admissions attributable to third-party defendant Wilsie-Kelly, the jury could have found the existence of a defective master cylinder and an inoperative brake line which combined to cause some loss in braking power. Certainly these facts were contradicted by other evidence, but it was for the jury to weigh the evidence and resolve these contradictions.

Likewise, from the original defendants' proofs, we believe a jury could have reasonably inferred that a defective condition existed in the brake system of the car...

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