City of Franklin v. Badger Ford Truck Sales, Inc.

Decision Date05 June 1973
Docket NumberNo. 198,198
Citation58 Wis.2d 641,207 N.W.2d 866
PartiesCITY OF FRANKLIN et al., Plaintiffs-Respondents, v. BADGER FORD TRUCK SALES, INC., et al., Defendants-Respondents, Ford Motor Car Co., Defendant-Appellant.
CourtWisconsin Supreme Court

Merten, Connell & Sisolak, Milwaukee, for appellant.

Gibbs, Roper & Fifield, Milwaukee, for plaintiffs-respondents.

Kivett & Kasdorf, Milwaukee, James P. Reardon, Milwaukee, of counsel, for respondent Badger Ford.

Walter Eugene Brown, Milwaukee, for respondent Gunite Div. of Kelsey Hayes Co.

ROBERT W. HANSEN, Justice.

The municipality (Franklin) sued the sales company (Badger), the chassis maker (Ford), and the wheel maker (Gunite), alleging each liable under products liability 1 for the sale to the city of a fire truck chassis with a defective wheel. The fire truck was damaged when it tipped over while negotiating a turn in responding to a fire call.

CAUSE OF ACCIDENT. Did the wheel fail because the truck tipped over? Or did the truck tip over because the wheel failed? The affirmative answers of the jury as to defective construction of the wheel and causal connection between defect and accident 2 answer that inquiry. There is expert and lay testimony in the record to support the jury finding that the cause of the accident was the defective construction of the wheel. The dictionary definition of 'defective,' as here used is: '. . . wanting in something essential: falling below an accepted standard in regularity and soundness of form or structure . . .' 3 Such want of something necessary for completeness is here not a matter of supplying a wheel that did not conform to the city's specifications in any obvious or apparent way. Gunite manufactured and Ford attached to the chassis and Badger furnished a wheel that was designed and built by Gunite to meet the specifications as to weight load. The jury's verdict compels the conclusion that the actual wheel furnished was defectively constructed, meaning that it had a defect or imperfection so that, while the wheel appeared to meet the specifications, it in fact did not do so.

BASIS OF LIABILITY. The case against all three defendants went to the jury on the basis of strict liability. Ford and Gunite contend that they were manufacturers of component parts and, as such, were not subject to the rule of strict liability. Some states hold component manufacturers and suppliers subject to strict liability; 4 some do not. 5 Where there is no change in the component part itself, but it is merely incorporated into something larger, and where the cause of harm or injury is found, as here, to be a defect in the component part, we hold that, as to the ultimate user or consumer, the strict liability standard applies to the maker and supplier of the defective component part. Where the component part is subject to further proceeding or substantial change, or where the causing of injury is not directly attributable to defective construction of the component part, the result might be different. We agree with the comment: '. . . The question is essentially one of whether the responsibility for discovery and prevention of the dangerous defect is shifted to the intermediate party who is to make the changes. . . .' 6 In the case before us, we do not see responsibility for the defective construction of the wheel shifting from the maker of the wheel or from the assembler of wheel and chassis so as to make only the seller, who was in no position to detect the hidden defect, strictly liable. 7

FORM OF VERDICT. The special verdict here inquired as to whether the wheel in question was constructed defectively and, if so, whether such defective construction was a cause of the accident. 8 It also inquired as to whether the city was negligent with respect to maintenance of the wheel or operation of the vehicle and, if so, whether such negligence was a cause of the accident. 9 If all of these four questions were answered in the affirmative, the verdict required the jury, taking 100 percent as a total, to determine what percentage of negligence was to be attributed (1) to the defective condition of the wheel, and (2) to the city. 10

With the jury finding that the city was negligent in maintenance of the wheel but such negligence was not causally connected with the accident, the city's negligence drops out of the case. Even if the jury had found the city's negligence causal, no problem would have been presented in the application of the verdict to the case. The comparative negligence question would have answered what percentage of negligence was to be attributed to the city and what percentage to the defendants. The problem comes, in a multiple defendant case, that no similar allocation of comparative negligence was included in the verdict as to each of the defendants. From the standpoint of the plaintiff, it is enough that, under strict liability and without regard to the exercise of all possible care, the seller, assembler and maker are held liable to it for the defective construction of the wheel. 11 However, as between multiple defendants, as to their right to contribution from any one of the others, it is not enough. On the finding that the defective wheel caused the accident, the trial court found all three defendants liable to the plaintiff. Left unanswered and unanswerable was, as between these multiple defendants, what percentage of the judgment was to be allocated to each in determining the right to contribution between them.

The special verdict used in this case follows closely the verdict suggested in Wis. J I--Civil, sec. 3290, Strict Liability: Suggested Special Verdict. It would have been complete if only one defendant had been involved. However, as the comment to sec. 3290 indicates, problems can arise in strict liability cases where multiple defendants are involved. 12 In the case before us, with strict liability imposed upon seller, chassis assembler and wheel maker, only a separate inquiry, as to each defendant in the chain of distribution, establishes the basis for an application of the comparative negligence principle to the liability of the defendants, each to the other, for contribution. And it is not only between plaintiff and defendant, but also between multiple defendants on the issue of contribution, that the comparative negligence concept applies in products liability cases. 13 As in actions based on negligence, the applicability of comparative negligence requires in products liability cases, as was done here, a comparison of the negligence of the plaintiff and defendant. Where multiple defendants are involved in a products liability case, it is also necessary to inquire, as was not done here, into the comparative negligence of the individual defendants.

We hold that the two questions in the verdict, i.e., (1) as to defective construction of the wheel, and (2) as to causal connection of defect with accident, were not sufficient in a products liability case with multiple defendants involved on the issue of contribution between them. The failure to submit a question as to the comparative negligence of the individual defendants, on the issue of contribution between them, renders the verdict incomplete. 14 The incompleteness of the verdict leaves no way in which, on the issue of contribution, the negligence of the seller, the chassis maker and the wheel maker can be compared. While under Howes, 15 each of the three defendants is guilty of negligence as a matter of law towards the plaintiff, the applicability of contribution, 16 not indemnity, 17 between these multiple defendants, required a jury finding as to the percentage of negligence attributable to each individual defendant. 18 For completeness of verdict, it was required here that the jury, if it answered Questions 1 and 2 (as it did) affirmatively, also be required to answer: 'Taking 100 percent as a total, what percentage of negligence do you attribute to (a) defendant, Badger Ford Truck Sales, Inc., (b) defendant, Ford Motor Car Company, (c) defendant, Gunite Division of Kelsey Hayes Company.' All are negligent as a matter of law as to the plaintiff, but only such jury apportionment of comparative negligence can provide the basis for contribution between them.

EXCLUSION OF TESTIMONY.

RULINGS ON EVIDENCE. Defendant wheel maker, Gunite, seeks review of three trial court rulings on evidence. The first relates to Gunite trial counsel asking whether Gunite was 'still making wheels with that particular mix.' Objection on the ground of immateriality was sustained. No offer of proof was made by Gunite counsel. Gunite counsel also sought to ask how many tons of material have been carried over United States highways 'on wheels just like this.' Objection on the ground of immateriality was sustained. No offer of proof was made. An offer of proof is necessary to preserve an alleged trial court error in excluding evidence. 19

During the trial Gunite counsel sought to introduce testimony as to whether or not any of the other 79 to 99 wheels made by Gunite out of the same 'heat' or batch of metals had failed. The obvious and stated purpose was to show that such wheels, presumably having the same carbon content and general composition as the wheel here involved, had not turned out to be 'defective wheels because of the absence of carbon.' The trial court upheld the city's objection, stating, while the testimony was relevant, it would raise too many side issues as to where such other wheels were sold and how they were used. Evidence that like products were free from, or were subject to, defective or injurious condition is generally admissible. 20 But considerable discretion is 'necessarily vested' in trial judges on the question of whether introduction of such evidence would involve undue distraction, undue consumption of time or undue introduction of entirely collateral issues. 21 On the facts here, we find no abuse of discretion by the trial court.

CONCLUSION.

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