Garrett v. Nobles

Decision Date24 June 1981
Docket NumberNo. 12840,12840
Citation102 Idaho 369,630 P.2d 656
CourtIdaho Supreme Court
PartiesAlva GARRETT, individually and as Guardian ad Litem for Jack Garrett and Marilyn Garrett, minor children; Eleanor Martin and John Garrett, all children and heirs at law of Edith Garrett, deceased, and John Garrett, individually, Plaintiffs, v. Laurin William NOBLES and L. H. Nobles, individually, and Laurin William Nobles and L. H. Nobles dba P & L Transportation Co.; Boise International, Inc., a Delaware Corporation; International Harvester Company, a Delaware Corporation; Cummins Intermountain Idaho, Inc., an Idaho Corporation; and Cummins Engineering Co., Inc., a corporation, Defendants. Laurin William NOBLES and L. H. Nobles, individually, and L. H. Nobles dba P& L Transportation Co., Cross-Claimants, Appellants and Cross-Respondents, and Patsy Nobles, Plaintiff in Intervention, Appellant and Cross-Respondent, v. BOISE INTERNATIONAL INC., a Delaware Corporation, Cross-Defendant and Defendant in Intervention, Respondent and Cross-Appellant, and International Harvester Company, a Delaware Corporation; Cummins Intermountain Idaho, Inc., an Idaho Corporation; and Cummins Engineering Company, Inc., a corporation, Cross-Defendants and Defendants in Intervention, Respondents. BOISE INTERNATIONAL, INC., a Delaware Corporation, Cross-Claimant, v. CUMMINS INTERMOUNTAIN IDAHO, INC., an Idaho Corporation; and Laurin William Nobles and L. H. Nobles, individually and dba P & L Transportation Co., Cross-Defendants. INTERNATIONAL HARVESTER COMPANY, a Delaware Corporation, Third-Party Plaintiff, v. Laurin William NOBLES and L. H. Nobles, individually and dba P & L Transportation Co., Third-Party Defendants.

David L. Whitney, of Alexanderson, Davis & Rainey, Caldwell; and William F. Schroeder, of Schroeder & Hutchens, Vale, Or., for appellants Laurin William Nobles and L. H. Nobles, individually, and Laurin William Nobles and L. H. Nobles, dba P & L Transportation.

Dean E. Miller, of Gigray, Miller, Downen & Weston, Caldwell, for appellant, Patsy Nobles.

Richard Alan Riley, of Eberle, Berlin, Kading, Turnbow & Gillespie, Boise, for respondent and cross-appellant, Boise International, Inc.

Richard C. Fields and Donald J. Farley, of Moffatt, Thomas, Barrett & Blanton, Boise, for respondent, International Harvester Co.

Brian Kenneth Julian, of Quane, Smith, Howard & Hull, Boise, for respondent, Cummins Intermountain Idaho.

SHEPARD, Justice.

This is an appeal from a judgment entered following a jury verdict in favor of certain product liability defendants. The action arose from an automobile-truck collision which resulted in the death of one of the automobile passengers and in injuries to the automobile driver and other passengers.

The action below originated as one for wrongful death and personal injuries against the truck owner, L. H. Nobles, and the truck driver, Bill Nobles. The Nobles filed a third party complaint against the seller and manufacturers of the truck on alternate theories of negligence, breach of warranty and strict liability. The action on behalf of the Garretts was settled by the Nobles prior to trial and the cause proceeded as an action by the Nobles against the third party product defendants for contribution to the Garrett settlement, for damages for repair and loss of use of the truck and also for personal injuries to Patsy Nobles, a passenger in the truck. As aforesaid, the jury returned a verdict in favor of the third party product defendants and judgment was entered thereon. We affirm.

In early December, 1974, L. H. Nobles purchased a new 1975 diesel truck from Boise International. It was agreed that a Jacobs engine brake (jake brake) would be installed in the truck prior to delivery. Cummins Intermountain installed that brake using parts furnished by Boise International.

On December 13th, Bill Nobles, the son of L. H. Nobles and an employee of the Nobles' business, took delivery of the truck. Later that day, at approximately 6:30 p. m., Bill Nobles with his wife Patsy as a passenger drove the truck down Highway 30 toward its intersection with Highway 44, at which point a stop sign required Nobles to stop before entering the intersection. Nobles testified that as he approached the intersection he lifted his foot from the power pedal and applied the brakes, but that the engine power continued. He further testified that he kicked at the pedal but that the power persisted, the brakes locked and the truck began to skid. The truck continued into the intersection where it collided with the Garrett vehicle.

At the scene following the accident, Bill Nobles variously stated that he had "hit a slick spot or something" and later that the "damn throttle stuck." It was dark and cold at the time of the accident, but the pavement was dry. No traffic citations were issued.

At trial, the Nobles offered extensive expert testimony that a warranty seal on the fuel pump had impeded the activating lever of the jake brake which had resulted in the fuel pump lever being held in an open position, and that the absence of direct linkage from the accelerator pedal to the fuel pump had prevented the driver from kicking loose the impediment. The product defendants, on the other hand, offered evidence that the activating lever of the jake brake was not impeded and that therefore the throttle had not in fact stuck, but instead that the accident was caused by factors unrelated to the allegedly defective truck.

Following trial, the court submitted a 25 question special verdict form to the jury of which only question No. 1 was answered.

"Do you find from a preponderance of the evidence that the throttle in the Nobles truck stuck prior to the impact with the Garrett vehicle?

"Answer: Yes 3. No 9."

The language following question No. 1 instructed the jury as follows:

"If your answer to this question is 'yes', proceed to answer Question No. 2. If your answer to this question is 'no', simply sign the verdict form and inform the bailiff that you have concluded your deliberations."

The trial court entered judgment for the product defendants, the Nobles moved for a new trial, the motion was denied and the Nobles appealed. Boise International cross-appealed arguing that the court erred in rejecting its claim against L. H. Nobles on the theory of negligent entrustment, on excluding evidence of Bill Nobles' driving record and in failing to award attorney fees.

We deem the principal issue on appeal to be the Nobles' assertion that the court's refusal to give Nobles' requested specific defect instruction, 1 together with the language of special verdict question No. 1, required the Nobles to prove a specific defect contrary to the established law which only requires proof of a general malfunction. We disagree with Nobles' assertion.

"(W)hether a cause of action is based on warranty, negligence or strict products liability, plaintiff has the burden of alleging and proving that 1) he was injured by the product; 2) the injury was the result of a defective or unsafe product; and 3) the defect existed when the product left the control of the manufacturer." Farmer v. International Harvester Company, 97 Idaho 742, 746-47, 553 P.2d 1306, 1310-11 (1976); Henderson v. Cominco American, Inc., 95 Idaho 690, 696, 518 P.2d 873, 879 (1973).

In Farmer, supra, this Court, in a products liability case involving an alleged malfunctioning truck, discussed the meaning of the concept of "defect" and clarified the plaintiff's burden of establishing the existence of a defective product.

In Farmer, supra, we held that a plaintiff need not prove a specific defect in order to carry his burden of proof. Id., 97 Idaho at 747, 553 P.2d at 1311. Accord, Stewart v. Ford Motor Company, 553 F.2d 130 (D.C.Cir.1977); Chestnut v. Ford Motor Company, 445 F.2d 967 (4th Cir. 1971); Kridler v. Ford Motor Company, 422 F.2d 1182 (3rd Cir. 1970); Clarke v. General Motors Corporation, 430 F.Supp. 1124 (E.D.Pa.1977); Dennis v. Ford Motor Company, 332 F.Supp. 901 (W.D.Pa.1971); Moraca v. Ford Motor Company, 132 N.J.Super. 117, 332 A.2d 607 (1974); Tigert v. Admiral Corporation, 612 P.2d 1381 (Okl.Ct.App.1980); Bombardi v. Pochel's Appliance and TV Company, 9 Wash.App. 797, 515 P.2d 540 (1973). Instead we said that a prima facie case of product liability may be proved by direct or circumstantial evidence of a malfunction of the product and the absence of evidence of abnormal use and reasonable secondary causes which would eliminate the defendant's liability. Farmer, supra, 97 Idaho at 747, 553 P.2d at 1311. Accord, Stewart, supra; Clarke v. General Motors, supra; Clarke v. Brockway Motor Trucks, 372 F.Supp. 1342 (E.D.Pa.1974); Greco v. Bucciconi Engineering Company, 283 F.Supp. 978 (W.D.Pa.1967), aff'd 407 F.2d 87 (3rd Cir. 1969); Brandenburger v. Toyota Motor Sales, U.S.A., Inc., 162 Mont. 506, 513 P.2d 268 (1973).

We further noted that "(p)roof of malfunction is circumstantial evidence of a defect in a product since a product will not ordinarily malfunction within the reasonable contemplation of a consumer in the absence of a defect." Farmer, supra, 97 Idaho at 748, 553 P.2d at 1312. Accord, Sabloff v. Yamaha Motor Co., Ltd., 113 N.J.Super. 279, 273 A.2d 606 (1971), aff'd 59 N.J. 365, 283 A.2d 321 (N.J.1971); Darryl v. Ford Motor Company, 440 S.W.2d 630 (Tex.1969). Testimony of the user or operator of the product as to the circumstances of the event complained of is sufficient to establish the alleged malfunction. Farmer, supra, 97 Idaho at 748, 553 P.2d at 1312. Accord, Stewart, supra; Clarke v. Brockway Motor Trucks, supra; Dennis, supra; Greco, supra.

In the instant case, it is the Nobles' contention that requiring them to prove that the accident resulted from a "stuck throttle" placed upon them the burden of proving a specific defect as opposed to a general malfunction. We disagree.

Our review of the pleadings and the proceedings at trial indicate that the cause was tried...

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