Darryl v. Ford Motor Co., B--1172

Citation440 S.W.2d 630
Decision Date23 April 1969
Docket NumberNo. B--1172,B--1172
PartiesHarold DARRYL et ux., Petitioners, v. FORD MOTOR COMPANY, Respondent.
CourtSupreme Court of Texas

Jack Hazlewood, Amarillo, for petitioners.

Gibson, Ochsner, Harlan, Kinney & Morris, Max R. Sherman, Amarillo, for respondent.

McGEE, Justice.

This is a suit for damages arising out of a rear-end collision filed by Petitioners Harold Darryl and wife, Anita Darryl, against Defendant John D. Voyles, alleging various counts of negligence, and against Respondent Ford Motor Company for negligence in equipping Voyles' truck with defective brakes, and in the alternative, strict liability in tort. The trial court entered judgment upon the verdict in favor of petitioners against Ford but denied recovery against Voyles and also denied recovery by Ford against Voyles for contribution or indemnity. Both Darryl and Ford failed to perfect their appeals as against Voyles. The Court of Civil Appeals at Amarillo affirmed the judgment of the trial court in favor of Voyles and reversed the judgment against Ford and rendered judgment that the petitioners take nothing. 432 S.W.2d 569.

Petitioners in Court have abandoned their negligence theory and rely on strict liability in tort.

Writ of error was granted on petitioners' first point, which complains of the Court of Civil Appeals holding that there was no evidence to support the finding of the jury that the defective condition of the push rod existed at the time when it was sold by Ford Motor Company.

We hold that there was some evidence to support the submission of the following issues and to support the jury's answers thereto: 6a--that the push rod bent under pressure placed on the brake pedal by Voyles in an effort to stop the vehicle; 6b--that the bending of the push rod was a proximate cause of the collision; 6c--that the push rod bent because it was defective at the time it was sold by Ford Motor Company; 6d--that the defective condition of the push rod was a proximate cause of the collision in question; 7--that the bending of the push rod did not occur at the time of the impact of the vehicle in question; 8a--that Voyles' brakes failed suddenly and unexpectedly when he stepped on the brake pedal immediately before the collision; and 8b--that such failure was the sole proximate cause of the collision.

Defendant Voyles testified in substance as follows: He bought the new truck in June, 1965 from an authorized Ford dealer, Sid Stout. The collision occurred on August 27, 1965. At the time of the accident the mileage on the truck was only six or seven hundred miles. Until the harvest began on August 25, 1965 he drove only 80 to 100 miles. Most of the mileage had been placed on the truck during the seventy-two hours preceding the accident. From the date of purchase to the time of the accident he had no repairs made on the truck. The brakes had worked perfectly up until the accident.

In describing the accident, Voyles related that he entered Western Street at 45th Street, where he came to a complete stop. He proceeded north on Western Street for several blocks. He noticed the Darryl car slowing down, apparently to stop or to turn. When he put his foot on the brake it kind of 'fluttered a little bit and then went free-wheeling into the back of the car.' His application of the brakes did not slow him down at all. He said, 'When I went to stop the truck, that is when I bent it.' The truck left no skid marks. He was not sliding. The pavement was wet. He said he thought he would know whether he was sliding or stopping. The brake pedal went to the floorboard. He had no pedal; it offered no resistance at all. After the accident, he demonstrated to the officer that the pedal would go all the way to the floor with no suggestion of back pressure. The rear of the Darryl car was damaged badly. There was No damage to the truck--'not a scratch.'

On the night of the accident the bent push rod was removed from Voyles' truck. The only repair made to his brakes was the replacement of the bent push rod. No brake fluid was added. No other repairs were made to the truck.

The next morning after the repair was made Voyles started hauling again and had no trouble with the brakes. He sold the truck about two months after the accident. No repairs were made to the brakes during the two-months period.

It was stipulated that after the accident the push rod was bent; that the braking system was inoperative at that time by reason of the bent push rod. It is undisputed that the bent push rod was too short to activate the braking mechanism on the truck.

The evidence conclusively shows that the push rod bent either when Voyles applied the brakes in order to avoid the collision or as a result of the collision. Cy Walker, the Quality Control Engineer for Ford, agreed.

In our opinion, petitioners made out a case of strict liability in tort. When it is shown that the braking system was defective (the push rod would bend upon application of pressure in the operation of the braking mechanism), we have a case similar to that of the sealed container, McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787, 792 (Tex.Sup., 1967). 'When it is shown that the product involved comes in a sealed container, it is inferable that the product reached the consumer without substantial change in the condition in which it was sold. See, e.g., Kroger Co. v. Bowman, 411 S.W.2d 339 (Ky., 1967); Shoshone Coca-Cola Bottling Company v. Dolinski, 82 Nev. 439, 420 P.2d 855 (Nev., 1966). It appears that nothing was done with the curling preparation which would change its properties or characteristics after it was delivered to Mrs. McKisson.'

It cannot be seriously contended that a push rod that will bend to such an extent that it will not activate the braking system is not 'unreasonably dangerous.' McKisson v. Sales Affiliates, Inc., supra; Ford Motor Co. v. Mathis, 322 F.2d 267, 3 A.L.R.3d 1002 (5th Civ., 1963); MacPherson v. Buick Motors, 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F 696 (1916).

This Court in the McKisson case extended the strict liability doctrine to products other than foodstuffs. To exclude circumstantial evidence that the product was defective at the time of the sale would frustrate the beneficial purposes of the doctrine. It would be equally difficult, if not impossible, for the plaintiff to rebut by direct evidence all of the conceivable possibilities which would account for the defective condition other than the existence of the defect at the time of the sale. Such direct evidence should not be required, particularly when dealing with a latent defect.

Respondent relies heavily on Roach-Bissonet v. Puskar, 417 S.W.2d 262 (Tex.Sup., 1967). We think the cases are distinguishable on the facts. In that case plaintiff sued for damages on the theory that his power brakes and power steering failed to work properly and were defective, causing the accident. But even if the power brakes and power steering did fail to work properly, the plaintiff would still have been able to steer and brake the car with the remaining conventional brakes and steering. A carburetor defect causing the engine to stall, if proved, would inactivate the power brakes and steering, but the conventional brakes and steering mechanism would still be available. Under this record, the malfunction of Voyles' brakes caused the accident. The bent push rod was too short to activate the braking system--manual or power. There is no other explanation in this record for the cause of the accident. It would be quibbling to make a distinction between malifunction and defect. The defect causes malfunction.

Respondent also relies upon Holley v. Central Auto Parts, 347 S.W.2d 341 (Tex.Civ.App., 1961, writ ref. n.r.e.). That case held that the implied warranty doctrine could not be extended to secondhand or used material.

Petitioners' second point is that the Court of Civil Appeals erred in its alternate holding that the finding of the jury that the push rod was defective at the time it was sold by Ford was so contrary to the great weight and preponderance of the evidence as to be manifestly wrong because that point was not properly before the court, and the Court of Civil Appeals had no jurisdiction to pass on it.

Nowhere in the amended motion for new trial did the respondent, Ford Motor Company, state that the evidence supporting the jury answers to any specific special issue was either insufficient or against the great weight of the credible evidence. See Rules 324 and 374, Tex.Rules of Civil Procedure.

We hold that the Court of Civil Appeals had no jurisdiction to consider the insufficient evidence points nor to determine any question as to the great weight and preponderance of the evidence. See Wisdom v. Smith, 146 Tex. 420, 209 S.W.2d 164 (1948); Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960); Calvert, 'No. Evidence' and 'Insufficient Evidence' Points of Error, 38 Tex.L.R. 362 (1960).

Assignments 8 and 9 in respondent's amended motion for new trial and point No. 1 in its brief in the Court of Civil Appeals raise this question: Under the doctrine of strict liability, is there a duty owed by the manufacturer, Ford Motor Company, to the Darryls, who are not users and not consumers of the product in...

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