Ford v. Flaherty
| Decision Date | 29 December 1972 |
| Parties | Adelaide A. FORD v. Kyle L. FLAHERTY and Yankee Dodge, Inc., et al., Third-Party Defendants. |
| Court | Appeals Court of Massachusetts |
David W. Kelley, Boston, for Kyle L. Flaherty.
Thomas D. Burns, Boston, for Yankee Dodge, Inc.
Robert W. Cornell, Boston (John B. Johnson, Boston, with him), for Chrysler Corp.
Before HALE, C.J., and KEVILLE and GRANT, JJ.
On the clear, dry day of August 18, 1964, Kyle L. Flaherty was operating his motor vehicle at a reasonable rate of speed in a westerly direction along Columbia Road in the Dorchester district of Boston, intending to make a left hand turn into an access ramp leading to the Southeast Expressway. He depressed the brake pedal in order to slow the vehicle preparatory to making the intended turn. The vehicle swerved violently to the left, some ten or fifteen degrees further to the left than Flaherty had intended, and, while temporarily out of his control despite his use of power steering, crossed Columbia Road, climed over a curb, struck a pedestrian, and came to rest against a concrete pole.
The pedestrian commenced an action against Flaherty to recover for her personal injuries. 1 Flaherty, whom we shall hereinafter refer to as the plaintiff, impleaded Yankee Dodge, Inc. (Yankee), the dealer from which the vehicle had been purchased, and Chrysler Corporation (Chrysler), which had manufactured the vehicle. Neither Yankee nor Chrysler sought to proceed against the other. (G.L. c. 231 § 4B, as inserted by St.1964, c. 696.) Each count of the plaintiff's declaration was limited to a claim for indemnity against possible liability to the pedestrian. 2 By agreement of all parties the jury was instructed that any verdict which it might return for the plaintiff against either Yankee or Chrysler should be in the same amount as any verdict which it might return for the pedestrian against the plaintiff. The jury returned a verdict for the pedestrian, and we must now determine the propriety of the actions of the trial judge in directing or entering verdicts for Yankee and Chrysler on the various counts of the plaintiff's declaration which were addressed to them.
1. Count 4 of the declaration alleged that Yankee negligently failed properly to inspect the purchased vehicle prior to delivery to the plaintiff or inspected it in a negligent manner and was negligent in failing to warn the plaintiff of a dangerous and defective condition in the vehicle which should have been known to Yankee. 3 A verdict for the plaintiff on this count was taken under leave reserved, and the court, subject to the plaintiff's exception, subsequently set the verdict aside and ordered the entry of a verdict for Yankee. There follows a summary of the evidence most favorable to the plaintiff on this count. Petrangelo v. Pollard, 356 Mass. 696, 697, 255 N.E.2d 342.
The vehicle in question had been manufactured by Chrysler and was received by Yankee with a complete written checklist furnished by Chrysler which listed the various things to be done by Yankee prior to the vehicle's delivery to a customer. According to that list, pre-delivery servicing was to include taking the front wheels off the vehicle and inspecting the insides of those wheels, including the hydraulic brake cylinders. There was expert testimony from one Ellis, service manager of Yankee at all material times, that it was important that the whole hydraulic brake system be tight so that the brake fluid in the component parts of the system, including the individual brake cylinders, be kept inside the system and not allowed to escape. No inspection of the brake cylinders of the particular vehicle was made by Yankee prior to delivery to the plaintiff, who purchased the vehicle on July 8, 1964.
About ten days or two weeks after the purchase of the vehicle the plaintiff's wife noticed that the vehicle pulled to the left when she started to slow down at an intersection. The plaintiff returned the vehicle to Yankee around August 1, 1964, and told Ellis that his wife was having trouble with the brakes and that when she had stepped on them to stop at an intersection she had experienced some pulling to the left. Just what, if anything, was done by Yankee to the vehicle on the occasion of this complaint does not appear. When the plaintiff got the vehicle back Ellis said that it had been road tested and was 'all right.'
Ellis testified, however, that when customers came in with complaints similar to the foregoing he had found on taking a wheel apart that brake fluid had escaped from the brake cylinder or its components and had gotten onto the lining of a brake shoe, in which event the shoe should be replaced and the leaking brake cylinder or its components rebuilt or replaced. The 'normal recommended procedure . . . if it was a brake pull . . . would (be to) look for contamination on the linings.' (See Carney v. Bereault, 348 Mass. 502, at 510, 204 N.E.2d 448.) This testimony was corroborated in its essentials by one Wentworth, also called by the plaintiff as an expert, who added that on the occasion of similar complaints he had been able to determine the specific cause of the leak in the brake cylinder.
No one except the plaintiff or his wife drove the vehicle between the time of its purchase and the time of the accident in question, forty-one days later. It had not been involved in another accident or struck anything. No servicing had been performed or repairs made at any place other than Yankee. The vehicle had been driven less than two thousand miles. There was testimony by both experts from which the jury could have inferred that the vehicle had been caused to veer to the left and strike the pedestrian by reason of the excessive braking action of the brake system in the left front wheel and that such action had been caused by an accumulation of contamination on the brake shoes in that wheel consisting of brake fluid which had leaked from a brake cylinder which was defective prior to the accident, had found its way onto the shoes and had been baked onto them by the heat of friction over a period of time. 4
There is more here, we think, than what appeared under the negligence count against the dealer in the case of Necktas v. General Motors Corp., 357 Mass. 546, 549, 259 N.E.2d 234. We are of opinion that the instant case is controlled in principle and result by that of KENNEDY V. U-HAUL CO., INC.,...
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