Ford Motor Co. v. Fish

• Decision Date: 30 May 1960
• Docket Number: No. 5-2141,5-2141
• Citation: 232 Ark. 270,335 S.W.2d 713
• Parties: FORD MOTOR COMPANY, Appellant, v. Charlie FISH, Appellee.
• Court: Arkansas Supreme Court

Page 713

335 S.W.2d 713

232 Ark. 270

FORD MOTOR COMPANY, Appellant, v. Charlie FISH, Appellee.

No. 5-2141.

Supreme Court of Arkansas.

May 30, 1960.

Wright, Harrison, Lindsey & Upton, Little Rock, for appellant.

Talbot Field, Jr., Hope, O. Wendell Hall, Jr., Benton, Mehaffy, Smith & Williams, Robert V. Light, Little Rock, for appellee.

HARRIS, Chief Justice.

This is an appeal from a judgment for $12,000 entered by the Saline Circuit Court in favor of appellee against appellant. The jury found Ford Motor Company guilty of negligence in the manufacture of a certain Ford truck, subsequently purchased and driven by appellee, and that such negligence was the cause of injuries sustained by Fish.

About April 12, 1956, Fish, employed by the State Game and Fish Commission as a game refuge commissioner in Lafayette County, purchased the Ford pickup truck from the Ford dealer in Stamps, L. D. Galloway, Jr. Five days later, while traveling highway 67 out of Little Rock, going toward Benton, the truck left the right side of the highway, turned over twice, and Fish was injured. This occurred shortly after 2 p. m., and the testimony establishes that the truck had been driven a total of approximately 550 miles at the time of the occurrence.

On January 9, 1958, Fish instituted suit in the Saline Circuit Court against the Ford Motor Company and Milton Green, ¹ d/b/a Stamps Auto Company, alleging the purchase of the Ford pickup truck from Stamps Auto Company. Appellee averred that he drove the truck for five days in a careful manner, and had allowed no one else to drive the vehicle; that it had been driven 550 miles; that he had not in any way tampered with, altered, or disturbed, the braking assembly or mechanism, nor allowed any other person to do so; that such mechanical parts and assemblies were sealed, and locked by the Ford Motor Company in the process of manufacture, by means of screws, bolts, rivets, and pins, and 'were at the time of the injury to plaintiff hereinafter described in the same condition position and alignment as they were when this vehicle left defendant Ford Motor Company's factory except for whatever changes, if any, in condition, position and alignment as may have been caused by approximately 550 miles of careful operation of the vehicle.' Paragraph four alleged 'that on April 17, 1956, plaintiff was driving this vehicle at a speed of approximately 45 miles per hour on U. S. Highway 67-70 in Saline County, Arkansas, at which point said highway is a smooth, level, unobstructed concrete public roadway, when the right front wheel of the truck suddenly 'grabbed' twice in rapid succession and immediately thereafter that wheel 'locked' causing the vehicle to overturn, and causing the injuries and damages to plaintiff hereinafter described.' The complaint further charged, insofar as Ford Motor Company was concerned, that the company negligently failed to exercise the degree of care owed by a manufacturer of a vehicle to the vendee and public 'in the manufacture, testing, inspection, design and engineering of its product' and as a result of this failure, placed this vehicle in the channels of trade for sale with mechanical defects which caused, or contributed to cause, the injuries and damages to plaintiff. Further allegations were that the defective parts 'were closed up, sealed and locked by defendant Ford Motor Company by means of screws, bolts, rivets and pins and thus continued to be in the exclusive control of this defendant until the time of the injuries to the plaintiff, and therefore their nature is within the exclusive knowledge of this defendant. All of the foregoing defects would have been discoverable by this defendant in the exercise of reasonable inspection and testing.' The complaint sought damages in the amount of $64,844.10. After the filing of various motions and interrogatories, both the Ford Motor Company and L. D. Galloway filed separate answers, denying liability and asserting that if appellee sustained any injuries or damages, such injuries or damages were proximately caused or contributed to by negligence or carelessness on the part of appellee. The case was heard on October 15, 1959, at which time the jury found the defendant, L. D. Galloway, d/b/a Stamps Auto Company, guilty of no negligence, found Charlie Fish guilty of no negligence, but found the Ford Motor Company guilty of the entire and total negligence, or 100%. Verdict was returned in the amount of $12,000. ²

For reversal, appellant urges three points, as follows:

'I.

'The evidence was insufficient to sustain a verdict against appellant, and the trial court should have directed a verdict in appellant's favor.

'II.

'The Court erred in admitting, over the objection of appellant, certain incompetent testimony offered on behalf of appellee.

'III.

'The Court erred in giving, over the general and specific objections of appellant, plaintiff's instructions numbered 1, 4, 5, and 6.'

We proceed to a discussion of these contentions, though not under separate headings.

The evidence reflected that appellee had been in possession of the truck five days, and had driven it 551 miles. Fish testified that no one else had driven the truck, and that he had not inspected or tampered with the mechanical parts in any way. Appellee is a game refuge keeper in Lafayette County, and on April 17th, he drove the vehicle to Little Rock for the purpose of having a two-way radio installed, leaving Bradley (a distance of 163 miles from Little Rock) about 1 or 1:30 a. m., and arriving in Little Rock between 6 and 6:30 a. m. Installation of the radio was completed around 12:30, and appellee started back to Bradley, taking highway 67 out of Little Rock. He passed a heavily loaded truck, while traveling at a speed of 40 or 45 miles per hour, and after getting back on his own side of the highway, noticed that his right front wheel was pulling to the right. 'It grabbed two or three little short grabs, and then it grabbed and held, and pulled me to the right.' The car left the highway and turned over twice; the right door came open, and appellee, in sliding down, had both legs pinned to the ground by the running board. The radio was on, and Fish called the Game and Fish office, and asked that help be sent. According to the witness, no traffic was approaching at the time the mishap occurred. In the meantime, William Rider, a state policeman, arrived, and with the help of bystanders, removed Fish from the wreckage. ³ Appellee testified that, while being carried away, he observed two or three short, black marks, three or four feet in length, some thirty or forty feet back of where the truck left the highway. Appellee's contention is that these marks were left by the right front wheel, and show that the wheel did lock. Both Aubrey Fowler, Chief Enforcement Officer for the Game & Fish Commission, and Rider testified that they observed the skid mark, though they testified that it was a single (rather than two or three short marks), black, straight, mark, that ran straight for a few feet, and then veered, at first gradually, and then sharply, to the right. Fowler stated that he drove the truck back to the Game & Fish Commission Building in Little Rock, a distance of approximately 15 miles, at a speed of 12 to 15 miles per hour. He observed nothing wrong with the operation of the vehicle, though he testified that he did not apply the brakes at all before stopping at the Game & Fish Building.

In endeavoring to establish liability on the part of the Ford Motor Company, appellee relied, to some extent, on the doctrine of res ipsa loquitur. This Latin phrase is generally interpreted to mean 'the thing itself speaks' or 'the transaction speaks for itself', and is a concise way of stating that circumstances attending an accident are of themselves of such character as to justify an inference of negligence on the part of one having control over such circumstances. Interesting discussions of this doctrine are found in various legal volumes, and it is evident that all jurisdictions are not in accord in determining what fact situations properly come under the doctrine. However, in those states which recognize the doctrine, certain conditions are necessary before res ipsa loquitur may be applied. As stated in 65 C.J.S. Negligence § 220(4), page 999:

'There are several conditions, aside from those directly pertaining to the nature and happening of the accident or injury as such, which are generally recognized as essential to make the doctrine of res ipsa loquitur applicable in a given case and to lay the foundation for the presumption or inference arising therefrom. These conditions or essential elements include superior knowledge on the part of defendant as to the cause of the accident, * * * the absence or unavailability of direct evidence of negligence, * * * the existence of a sufficient duty on the part of defendant to use due care, * * * and proof of the accident or injury and defendant's relation thereto.

'In order that the doctrine of res ipsa loquitur may apply, plaintiff must first present sufficient proof of the existence of the elements necessary to bring the doctrine into operation; the inference arising from the rule does not supply the foundation facts from which the rule arises, and the application of the doctrine to a particular state of facts cannot be based on speculation alone.'

In § 220(6):

'Although, * * * the doctrine of res ipsa loquitur provides a substitute for direct proof of negligence, the rule is nevertheless one of necessity to be invoked only when, under the circumstances involved, direct evidence is absent and not readily available.'

In 37 Words and Phrases, Res Ipsa Loquitur, page 484:

'For application of doctrine of 'res ipsa loquitur' accident must be of a kind which ordinarily does not occur in the absence of some one's negligence, it must be caused by an agency or instrumentality within defendant's exclusive control, and...