Comstock v. General Motors Corp.

Decision Date25 November 1959
Docket NumberA,No. 10,10
Parties, 78 A.L.R.2d 449 Robert COMSTOCK and Zurich Insurance Company, a foreign corporation, Plaintiffs and Appellants, v. GENERAL MOTORS CORPORATION, a foreign corporation, Leon Friend and Clifford Wentworth, Defendants and Appellees. pril Term.
CourtMichigan Supreme Court

Dann, Rosenbaum & Bloom, and Lacey, Jones & Doelle, Detroit, for plaintiffs and appellants.

Ward, Plunkett & Cooney, by W. P. Cooney, Detroit, for defendant-appellee General Motors Corp.

Before the Entire Bench.

EDWARDS, Justice.

This is another appeal wherein a plaintiff seeks reversal because he has been denied the opportunity for jury trial and verdict on a claim of negligent injury. In this instance the trial judge thought there was evidence of negligence on the part of the defendant concerned. He directed a verdict, however, because he considered that the effect of any negligence on the defendant's part had been terminated by an intervening act of another party.

This action was filed by an injured garage employee against the owner, the driver, and the maker of the Buick automobile which struck him. Plaintiff had previously recovered workmen's compensation as a result of his employment and the insurance carrier, Zurich Insurance Company, is subrogated to the extent of the compensation previously paid.

On motion, the suit was dismissed as to the driver of the automobile because he was an employee of the same garage which employed plaintiff. C.L.S.1956, § 413.15 (Stat.Ann.1950 Rev.1957 Cum.Supp. § 17.189).

The suit was tried in the Wayne county circuit court and a jury verdict of no cause for action was entered as to the owner of the automobile. No appeal is before us as to these 2 defendants.

Before the submission of the case to the jury, defendant General Motors Corporation, manufacturer of the automobile, moved for a directed verdict. The trial judge granted the motion, holding that an intervening act of negligence (that of the driver) had as a matter of law severed any causal relationship between plaintiff's injury and any possible negligence on the part of defendant General Motors Corporation.

Plaintiff appeals from this decision. In considering an appeal from grant or denial of defendant's motion for a directed verdict, we view the evidence received below in the light favorable to the plaintiff in which the jury would have had a right to view it. Ware v. Nelson, 351 Mich. 390, 88 N.W.2d 524; Cabana v. City of Hart, 327 Mich. 287, 42 N.W.2d 97, 19 A.L.R.2d 333.

Plaintiff and appellant Robert Comstock was employed by Ed Lawless Buick Company as a mechanic. While at work on January 18, 1954, he received serious injuries to his right leg. The leg ultimately had to be amputated.

The automobile which struck him was a 1953 Buick Roadmaster equipped with power brakes, owned by Leon Friend. It had been purchased in the spring of 1953 and had been driven 6,000 miles. It was being driven at the time of the accident by Clifford Wentworth, the assistant service manager of Lawless Buick. The accident happened when Wentworth forgot that the power brakes on the Buick in question were not working.

Leon Friend testified that he had first discovered that the brakes on his automobile were not operating on January 17, 1954. The next morning (a Monday) he called Lawless Buick which had sold him the car and talked to Clifford Wentworth who told him that he should bring the car in--that they knew what was wrong.

Leon Friend drove the automobile to the garage, with his wife preceding him in another car. He used the emergency brake and employed the car ahead as a bumper.

On arriving at the garage he brought the car to a stop inside the garage service door. He talked to Wentworth about the brakes and about some other work he wanted done. Wentworth wrote up a service order. Friend asked whether he should leave the car where it was and Wentworth said to do so.

A few minutes later while Friend was still in the building, Wentworth got into the Buick in question and sought to drive it out of the way into a service stall. He testified that it was a busy morning and that he completely forgot that Friend's Buick had no brakes until he applied them as the car was moving in the direction of another employee, Robert Comstock, who was putting a name plate on the rear of another automobile. The brake pedal went down to the floor board without affecting the progress of the automobile. Although, Wentworth testified, he attempted to apply the emergency brake, the Buick struck Comstock, crushing his right leg against the bumper of the car on which he was working.

Testimony which plaintiff points to as establishing negligence on the part of defendant General Motors includes the following:

Wentworth testified that in the fall of 1952, immediately following introduction of the 1953 Buick automobile, difficulties were experienced with the power brake system on the '53 Buicks resulting in sudden brake failures. In many of those cases it was discovered that failure of an 'O' ring sealer in the hydraulic brake master cylinder allowed the brake fluid to escape from the master cylinder. When this happened, the brake foot pedal could be pressed clear to the floor boards without any brake application resulting.

In this regard, Wentworth testified:

'Q. Now, did you find any complaints or anything wrong with the power brake units in the 1953 Buick automobiles? A. Yes sir.

'Q. When did you first discover anything wrong? A. Shortly after the cars began using power brake systems.

'Q. And can you tell us about when these 1953 Buicks with power brakes came out? A. It would be in the fall. I don't know the exact date.

'The Court: Fall of 1952? A. Yes, I believe so.

'Q. And about how soon after that did you begin to find trouble? A. A matter of weeks, I believe. * * * Loss of fluid and failure of the brakes. * * * The 'O' ring sealer would fail and fluid would be sucked into the engine and burned with the gasoline.

'Q. * * * Do I understand correctly in a power brake unit you have a master cylinder with fluid in it? A. Yes sir.

'Q. You have a sort of plunger, is that right? A. That is right.

'Q. You press the brakes, the plunger goes down and puts the fluid under pressure? A. That is correct.

* * *

* * *

'Q. This fluid is distributed by pipes to the 4 wheels of the car, is that correct? A. Yes.

'Q. And that pressure is distributed to each of the 4 wheels where it operates on each one of the brakes? A. Yes, sir.

'Q. The 'O' ring sealer would be what? A. A sealer between the vacum cylinder and master cylinder.'

There was corroboration of this testimony from Buick sources.

On November 2, 1953, Buick's service department sent out a bulletin entitled, 'Empty Power Brake Reservoirs 1953 power brake equipped Buicks.' The bulletin went to all Buick agencies. It stated in part:

'This trouble has been diagnosed as a poor fit between the base of the hydraulic cylinder casting and the vacuum can. Apparently on some jobs when the 4 bolt holes are formed in the can, there is some distortion of the metal around the holes and then the hydraulic cylinder casting does not pull up flush to the can when the 4 attaching bolts are tightened. This then does not permit equal pressure to the 'O' ring seal between the 2 surfaces and allows vacuum to pull oil from the reservoir pipe past the treads of the retainer holding the seal and primary cup--then into the can up the vacuum pipe and into the engine.'

Formidable as this problem sounds, Elmer Krause, Buick's general service manager, testified that it accounted for only 'a very few isolated cases.' The principal cause of 1953 Buick brake failure was identified by Buick's brake engineer, Charles D. Holton, as failure of the 'O' ring sealer in the master brake cylinder. Due to time and cold temperatures and brake fluid exposure, the sealers became 'harder' and 'changed dimensionally slightly.' As a result, the unit was redesigned.

The matter was judged serious enough by General Motors to require the issuance of 2 separate kits for replacement of the defective parts. One kit employed the 1953 master cylinder, and one employed the 1954 master cylinder. These were furnished all Buick agencies for replacement of the defective units without cost to the owners. The general service manager of the Buick division testified that Buick made 7,988 of these kits available to its dealers in the 4th quarter of 1953. He also testified that 44,126 such kits were produced in the 1st quarter of 1954.

The agencies were instructed to make repairs on the power brake system at General Motors' expense whenever 1953 Buicks came into the shops. These repairs were made without notice to the owners and even if there were no complaints about the brakes. No warning to owners of 1953 Buicks equipped with these power brakes was given either by General Motors, or by the agency which sold this Buick as far as this record reveals.

Wentworth, the Lawless Buick agency service representative, testified on this point:

'A. Because I was not allowed a campaign to call these people or mail anything to them.

'The Court: They asked you to call them.

'A. They said to get these cars whenever you could get your hands on them. When a customer didn't come around I couldn't look up the thing. I thought it was Buick's responsibility. Most of the time on things like that owners were sent registered letters. I was not allowed to do that.

'The Court: Who said you couldn't send letters?

'A. The service department at Buick. It was a hush thing. They didn't want the public to know the brakes were bad and they were very alarmed.'

Mr. Krause, the general service manager of Buick, testified somewhat differently:

'Q. Mr. Krause, did the Buick Motor Division ever contact the owners of these cars? A. No, sir.

'Q. Didn't advertise what the conditions were? A. No, sir.

'Q. Were any parts ever sent to a dealer as...

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