Creel v. General Motors Corp.

• Decision Date: 16 March 1970
• Docket Number: No. 45692,45692
• Citation: 233 So.2d 105
• Parties: Ernest M. CREEL, By His Father and Next Friend, Milton Creel v. GENERAL MOTORS CORPORATION and Carey Chevrolet Company, Inc.
• Court: Mississippi Supreme Court

Page 105

233 So.2d 105

Ernest M. CREEL, By His Father and Next Friend, Milton Creel v. GENERAL MOTORS CORPORATION and Carey Chevrolet Company, Inc.

No. 45692.

Supreme Court of Mississippi.

March 16, 1970.

Rehearing Denied April 6, 1970.

Collins & Tew, W. O. Dillard, Laurel, for appellant.

Heidelberg, Sutherland & McKenzie, M. M. Roberts, Hattiesburg, John M. Dunnam, New Augusta, for appellees.

ETHRIDGE, Chief Justice:

This suit was brought by Ernest M. Creel, plaintiff-appellant, by his father and next friend, Milton Creel, to recover for personal injuries which he received in a one-car traffic accident on October 13, 1967. The defendants were General Motors Corporation, manufacturer of the 1965 Chevrolet Impala automobile which plaintiff was driving, and Carey Chevrolet Company, Inc., the dealer who sold the car new to plaintiff's father on March 29, 1965. The declaration was based on two theories: (1) Negligence in manufacturing and testing the vehicle, and in designing the accelerator linkage and steering assemblies; and (2) strict products liability, by putting on the market a car in a defective condition and unreasonably danagerous to the purchaser. At the close of plaintiff's evidence, the Circuit Court of the Second Judicial District of Jones County gave a directed verdict for Carey Chevrolet Company. Plaintiff submitted to the jury instructions only on the theory of strict products liability, by defective design of the accelerator linkage. The jury's verdict was for General Motors. From the judgments for both defendants, Creel has taken this appeal.

The jury's verdict was amply supported by the evidence. Milton Creel purchased new this 1965 Chevrolet on March 29, 1965. The accident occurred on October 13, 1967, almost thirty months and 30,000 miles later. On November 10, 1965, General Motors issued a bulletin to its Chevrolet service personnel which stated:

Under certain freezing conditions, when driving in mud or on slush covered roads, the material thrown up by the wheels may pack around the T V linkage on power-glide equipped 1964-65 Chevelles and 1965 Chevrolets. It may then freeze and prevent further movement of throttle linkage.

* * * to correct this condition, transmission controls splash shield and extension assembly, part No. 3886397 has been released.

In May 1966, Creel brought his car to the agency and the splash shield was attached. After that date, the front doors were repaired, and pistons were replaced.

On the night of October 13, 1967, Ernest Creel, his date, and two other couples left at halftime of a football game to ride in the Creel automobile. They stopped at a drive-in and were in the process of returning to the stadium when the accident occurred at the bottom of a series of small hills. The surface of the street over a drainage culvert had dropped four to six inches for a distance of about eight feet. Ernest Creel said that when he pressed on the accelerator it stuck, and that he tried to release it with his foot but the pedal pulled off, the accelerator remained fixed, and after he applied the brakes, the car continued to increase speed until it struck a tree.

After the accident, the automobile was removed from the scene and inspected the next morning by an experienced mechanic. He found the accelerator linkage to be in idle position and working normally. When the parts were removed from the car, all of them worked freely, and when introduced in evidence, the accelerator parts were usable and serviceable.

The bulletin issued by General Motors with reference to installation of a splash shield was a circumstance to be considered along with the other evidence. The jury was warranted in finding that it did not imply defective design of the accelerator linkage. An engineer testified that General Motors had found that under some 'very unique driving conditions,' at a temperature of 28-30 degrees during sustained, constant-speed driving, slush and mud could accumulate and freeze around the linkage. These contingencies had not occurred in Mississippi and other southern states, but as a precaution, the builletin was issued nationally. On the night in question the temperature was about 50 degrees.

Milton Creel testified that the accelerator had stuck twice before the splash shield was installed on May 16, 1966, and that a similar event had occurred later in June or July, 1966. But from then until the accident, about sixteen months, he had no difficulty with the accelerator.

The circuit court was correct in directing a verdict for Carey Chevrolet Company. The evidence did not disclose any connection between Carey Chevrolet and the alleged defect in the accelerator. The Creels never complained to Carey Chevrolet about the accelerator linkage, and the latter never repaired or worked in the area of the accelerator assembly. For more than sixteen months after installation of the splash shield, Creel did not return the automobile to Carey Chevrolet for any work on the accelerator. Milton Creel said that after the splash shield was installed on May 16, 1966, he had no trouble with the accelerator until the accident. There is no evidence that Carey Chevrolet did not properly inspect the automobile before delivery to Creel, and no evidence that Carey Chevrolet failed to install properly the splash shield.

Plaintiff's declaration was based on two theories, negligence and strict products liability, and the case was tried substantially on both theories. However,...