Central & Southern Truck Lines, Inc. v. Westfall GMC Truck, Inc., 22790

• Decision Date: 03 November 1958
• Docket Number: No. 22790,22790
• Citation: 317 S.W.2d 841
• Court: Missouri Court of Appeals
• Parties: CENTRAL & SOUTHERN TRUCK LINES, Inc., a Corporation, Respondent, v. WESTFALL GMC TRUCK, INC., a Corporation, Appellant.

Page 841

317 S.W.2d 841

CENTRAL & SOUTHERN TRUCK LINES, Inc., a Corporation, Respondent, v. WESTFALL GMC TRUCK, INC., a Corporation, Appellant.

No. 22790.

Kansas City Court of Appeals, Missouri.

Nov. 3, 1958.

Benjamin W. Morse, Kansas City, William B. Waters, Liberty, for appellant.

Karl F. Schmidt, Morrison, Hecker, Buck, Cozad & Rogers, John R. Gibson, Kansas City, for respondent.

HUNTER, Judge.

This is an appeal by defendant-appellant, Westfall GMC Truck, Inc., from a judgment entered in accordance with the jury verdict in favor of plaintiff-respondent, Central & Southern Truck Lines, Inc., in the sum of $4,300 for damages to a trailer owned by plaintiff.

Plaintiff corporation is the owner and operator of a truck line. In connection therewith it owns and operates both tractor and trailer units. On some occasions, the entire unit, consisting of both a tractor and a trailer is operated over the highways by plaintiff. In other instances, the tractor unit is leased from someone else and only the trailer unit is provided by plaintiff.

On the occasion before us, only the trailer unit was owned by plaintiff. The tractor unit belonged to Harry Lasater. According to the evidence, in early February one of Lasater's diesel tractor units was in a wreck. It was taken by Lasater to defendant to be repaired. Several weeks after its delivery by Lasater to defendant, the engine in another of Lasater's trucks became disabled. This was prior to the time the repair job was completed on Lasater's first mentioned tractor, and Lasater instructed defendant to exchange the engine in the tractor already with defendant for repair with the engine which needed repair. In accordance with this instruction defendant did switch the engines, repaired the first mentioned tractor, and delivered possession of it to Lasater about noon on April 2, 1955.

This tractor unit was then driven by Lasater from defendant's garage located at 2534 McGee Trafficway in Kansas City approximately three miles over a route that included some rough streets and occasioned numerous turns including one as sharp as 125 degrees, to the H & H filling station where it was placed on the grease rack. There, according to Lasater, the transmission, oil level and crank case were checked, and possibly other similar work done. The tractor unit was then taken to plaintiff's loading dock at 17th and Wyoming Streets in Kansas City where it was hitched to the trailer owned by plaintiff, and it was loaded with a cargo of meat. The unit was not left unattended except for a brief time while its driver was eating lunch.

Later that afternoon Lasater and his driver, Randall Keyser, left plaintiff's loading dock with the tractor and trailer. They proceeded out of Kansas City to the Frogge filling station located on Highway 40 where the tractor unit received a load of fuel. At no time had Lasater detected any defects in the steering mechanism, nor had he examined its tie-rod.

Lasater left the vehicle at that point, and Keyser proceeded to drive easterly on Highway 40 for his destination, Gulfport, Mississippi. At a point on Highway 40 just a short distance west of Sweet Springs, Missouri, the tractor-trailer unit suddenly left the highway, went into a ditch, knocked down a tree and a pole, jackknifed and ended up in a field with the trailer lying on its side, extensively damaged.

It was plaintiff's pleaded contention that defendant negligently repaired the tractor unit in either failing to connect or by defectively connecting the tie-rod end to the steering apparatus on the tractor, and that as a result the driver lost control of the unit at the place where it left the highway and was damaged. With reference to this contention, Lasater testified on behalf of plaintiff that while his tractor was with defendant in its garage for the motor exchange and repair work he saw it there with the disconnected right end of the tie-rod on the floor of the garage, and saw that the tie-rod had been removed from its normal position on the vehicle.

The driver, Keyser, also testified on behalf of plaintiff. He stated that when a motor of the type in question is changed it is customary to drop the tie-rods in making the exchange. He also stated that immediately after the accident he noticed that the tie-rod was hanging straight back from the front end and parallel to the frame of the tractor, and that the right end of the tie-rod had come off. In describing how the accident occurred Keyser stated that he was about to pass a car, changed his mind, applied his brakes, and immediately was unable to control the unit or steer the tractor-trailer. It proceeded out of control into the ditch, hit a tree and pole, and jack-knifed in the field. Plaintiff's exhibit No. 10 was received in evidence as the purported tie-rod end. It bore shiny marks on its bottom which both Keyser and Lasater explained as having been caused by its dragging on the concrete pavement. Two witnesses, Mr. and Mrs. Eugene Hurd, testified for plaintiff that they had been following the tractor-trailer down the highway in their car for several miles and noticed sparks coming from the pavement on the left side near the front. They saw the brake lights go on and the truck leave the highway and jack-knife. Mr. Hurd testified he saw the right tie-rod down after the accident.

F. J. Mitte, a safety engineer employed by plaintiff explained to the jury the purpose of the tie-rod assembly and how it controls the operation of the vehicle. He testified that in his opinion the accident was caused by the tie-rod end coming loose.

Sufficient evidence has been set out to permit consideration of defendant's principal contention; namely, that the evidence failed to show any privity of contract between plaintiff and defendant or any duty owed to plaintiff by defendant, and that the trial court thus erred in refusing to sustain a motion for a directed verdict for defendant at the close of all the evidence.

Thus, we have presented for the first time in this State the question of whether or not the doctrine announced by Justice Cardozo in the historical case of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, is to be extended to include not merely those who manufacture automobiles but also those who contract to repair them. In the MacPherson case the manufacturer of the automobile was held liable to a third person, the owner of the car who had purchased it from an independent dealer and who admittedly was not in privity of contract with the manufacturer, for his injury resulting from the collapse of a negligently constructed wheel of the automobile. Recovery was premised in tort on a duty found to be owed by the manufacturer to third parties to use due care not to injure them by a negligently constructed car that would be likely to injure others when put to its intended use. As Justice Cardozo stated it, 111 N.E. loc. cit. 1053: 'If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully.'

The MacPherson decision became the generally accepted rule in this country, including Missouri. See, Willey v. Fyrogas Co., 363 Mo. 406, 251 S.W.2d 635; Parker v. Ford Motor Co., Mo.Sup., 296 S.W.2d 35; Young v. Waters-Pierce Oil Co., 185 Mo. 634, 84 S.W. 929; McLeod v. Linde Air Products Co., 318 Mo. 397, 1 S.W.2d 122; Casey v. Wrought Iron Bridge Co., 114 Mo.App. 47, 89 S.W. 330.

Thereafter, in jurisdictions other than Missouri, the question was presented as to whether or not the doctrine of liability in tort as announced in the MacPherson decision should be considered as covering injuries to third parties resulting from the negligence of the repairer of an automobile. Almost without exception those decisions extended the MacPherson case doctrine of tort liability to the automobile repairer. We proceed to set out some of those decisions.

In Moody v. Martin Motor Company, 76 Ga.App. 456, 46 S.E.2d 197, 200, the court had before it the question of the sufficiency of a petition alleging the defendant, who operated a garage and repair shop, had contracted with plaintiff-employer to repair the particular automobile in question and had negligently repaired the steering gear and brakes so as to leave the steering gear disconnected and the brakes inoperative with the result that plaintiff, driver of the truck, was injured when it swerved off the highway down an embankment. The court held that the petition did state a cause of action in tort and quoted with approval from Restatement of the Law of Torts, Secs. 403 and 404 as follows: "One who as an independent contractor makes, rebuilds, or repairs a chattel for another and turns it over to the other knowing that his work has made it dangerous for the use for which it is truned over is subject to liability as stated in Secs. 388 and 390." Section 404: "One who as an independent contractor negligently makes, rebuilds or repairs a chattel for another is subject to the same liability as that imposed on negligent manufacturers of chattels under the rules stated in Secs. 395-398." The court continued loc. cit. 200 of 46 S.E.2d: 'As is seen from the foregoing the same liability which applies to a manufacturer applies to an independent contractor who repairs an article or machine.'

In Zierer v. Daniels, 40 N.J.Super. 130, 122 A.2d 377, an action was brought against an automobile owner and one who was alleged to negligently have repaired its brakes for property damage and personal injuries sustained by plaintiff when defendant-owner drove the automobile into plaintiff's standing automobile....