Gherna v. Ford Motor Co.

• Decision Date: 25 November 1966
• Parties: O'Neil A. GHERNA, Plaintiff and Appellant, v. FORD MOTOR COMPANY, a corporation, and Harvey M. Harper Company, a corporation, Defendants and Respondents. Civ. 22358.
• Court: California Court of Appeals Court of Appeals

Page 94

55 Cal.Rptr. 94

246 Cal.App.2d 639

O'Neil A. GHERNA, Plaintiff and Appellant, v. FORD MOTOR COMPANY, a corporation, and Harvey M. Harper Company, a corporation, Defendants and Respondents.

Civ. 22358.

Court of Appeal, First District, Division 2, California.

Nov. 25, 1966.

Sanford, Barry, Staiger & Seaver, Warren Staiger, Carolyn Jones, San Francisco, for appellant.

Barfield, Barfield & Dryden, San Francisco, Mitchell & Henderson, Eureka, for respondents, Cyril Viadro, San Francisco, of counsel.

TAYLOR, Justice.

Plaintiff, O'Neil A. Gherna, appeals from a judgment of nonsuit entered at the close of the presentation of his evidence in an action for negligence and breach of warranty in causing a fire of unknown origin in the engine compartment of a 1957 Thunderbird automobile manufactured by defendant, Ford Motor Company (hereafter Ford), and sold to plaintiff by defendant, Harvey M. Harper Company (hereafter Harper). Plaintiff argues that he produced sufficient evidence to go to the jury on several theories of liability.

Viewing the record in the light most advantageous to plaintiff, as we must, the following facts appear: Plaintiff read the advertisements about the 1957 Thunderbird and on July 19, 1957, bought the automobile from Harper, the franchised dealer in Eureka. The purchase price was $4,649.40. After July 19, 1957, the vehicle was never out of his possession except for the servicing by Harper at about 400 miles on July 30, about 1,000 miles on August 22, and about 1,600 miles on September 18, 1957. Whenever gas or oil was put into the car, plaintiff got out to see what was being done. At the time of the purchase, plaintiff received the Ford 1957 vehicle service policy and also the regular new car warranty good for 4,000 miles or 90 days.

Plaintiff used the car chiefly to drive from his home to his place of employment, the Holmes Eureka Lumber Company, and also drove on a few short trips to Crescent City. On September 21, 1957, he drove the car as usual and parked it near the lumber plant about 7:30 a.m. He returned to the car at noon, drove a few miles to Broadway to get gas and have the oil and water checked and then returned, parked in the same spot and walked away toward the lumber plant. When he had walked about 100 feet, he noticed smoke pouring out of the right side of the hood of the automobile. He ran back to the car and asked someone to call the fire department. When the fire department arrived about 10 minutes later, the vehicle was blazing thoroughly, but the fire was put out and the car toward away. After Harper and Ford refused to repair the vehicle, it was transported to San Francisco by plaintiff's insurance company and repaired by a Ford dealer there for $2,223.04, plus transportation bills of $48.67 each way.

Plaintiff kept the vehicle in a carport and never locked it. It was driven by plaintiff only, or in his presence, by his wife who then had a learner's permit. Prior to the fire, there had been no problems with the automatic transmission. An oil leak was repaired on September 18, 1957. Plaintiff did not know whether this leak was from the motor or the transmission oil.

On September 21, plaintiff watched the service station attendant put gas into the car. He did not smell any gasoline prior to the fire. Plaintiff was smoking a cigarette but put it out on the ground on the left-hand side on the car. He saw no smoke at that time. After the fire, he noticed that the heat concentration appeared to be in the right front underside of the hood and that the battery had melted and the right front tire burned. He further testified that he always drove the car carefully and never tried to 'burn rubber' or 'rev up the motor.' Two days after the fire, he was contacted by a representative of Ford who questioned him about the loss.

Lars Jacobson, an industrial engineer for Ford, was qualified as an expert witness and questioned by plaintiff under section 2055 of the Code of Civil Procedure. He inspected plaintiff's vehicle three days after the fire at the request of Ford but never saw or talked to plaintiff. Jacobson's testimony that he had found no evidence of a wire that had burned from the inside through its insulation to the outside was impeached by his prior deposition to the contrary. He therein stated that there was evidence of a short in the power source, particularly a two-inch portion of a wire with its insulation burned off leading from the positive terminal of the battery to the point of contact on the battery carrier. There were no open gas lines but the fuel filter bowl located on the left side of the engine had been melted off. Most of the wiring in the engine compartment had been destroyed and its insulation destroyed by an external source of heat. The top half of the front right tire was also burned. The exterior of the carburetor was partially melted but there was no evidence of an internal carburetor fire. The generator coils had been burned and the power brake vacuum hose had been destroyed. There was no evidence of backfiring as the inside of the carburetor had the normal brown color.

Jacobson also testified that the automatic transmission of the car contained 12 quarts of specially compounded automatic transmission oil. The transmission dipstick is located at the back of the exhaust manifold which is warm or hot whenever the engine is running. The transmission fluid is a highly flammable and volatile substance kept under pressure. Under increased pressure, the highly flammable transmission fluid can easily come out of the dipstick hole and cause a fire or explosion after coming in contact with the hot exhaust manifold. Both the transmission dipstick and exhaust manifold are on the right-hand side of the car so that, if the transmission fluid under pressure hit the manifold and burned, the right front tire would very definitely be involved but since the engine compartment is separated from the passenger compartment by a fire wall and from the two front tires by sheet metal, it was unlikely that a fire could proceed from the tire to the engine.

In the 1957 Thunderbird with its 245 horsepower engine, it was possible to boil the transmission oil in 30 seconds by giving it full throttle with the gas pedal and holding the brake while the transmission is in gear. The transmission oil would boil in even less time if the car had been driven even the short distance from the lumber plant to Broadway, as plaintiff testified. The booklet given to car owners with the car did not mention this danger as the manufacturers regarded it was just common sense not to give the car full throttle and hold the brake pedal while the transmission is in gear. The booklet did, however, contain a warning about gunning the engine or rocking the car stuck in snow or sand. It was also possible that the transmission oil would boil if the car were driven over 35 miles an hour in low gear. From the record of the repair work done on the vehicle after the fire, Jacobson concluded that the transmission had been abused.

The questions here presented are whether or not the evidence was sufficient: 1) to support a finding of negligence against defendants under res ipsa loquitur; 2) to support a finding of liability of either or both defendants under the doctrine of strict liability because of the unsafe or defective design of the automobile; 3) to support a finding of negligence, without the application of res ipsa, because of the failure to instruct or caution plaintiff; and 4) to support a finding of liability based on breach of express or implied warranty.

A nonsuit may be granted only where, disregarding conflicting evidence on behalf of defendants and giving to plaintiff's evidence all the value to which it is legally entitled, therein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff (O'Keefe v. South End Rowing Club, 64 A.C. 791, 794, 51 Cal.Rptr. 534, 414 P.2d 830). Neither the appellate court nor the lower court may weigh the evidence or consider the credibility of the witnesses (Lasry v. Lederman, 147 Cal.App.2d 480, 305 P.2d 663). Plaintiff may rely on that portion of testimony given under Code of Civil Procedure section 2055, which is favorable to him, and disregard the unfavorable portions (Anthony v. Hobbie, 25 Cal.2d 814, 155 P.2d 826). However, the evidence produced by plaintiff must support a logical inference in his favor, sufficient to raise more than a mere conjecture or surmise that a fact is as alleged in order to warrant submission of the question to a jury and a court should not put itself in the incongruous position of destroying logic to hold a case in court (Reynolds v. Natural Gas Equipment, Inc., 184 Cal.App.2d 724, 731, 7 Cal.Rptr. 879). We have concluded that the judgment of nonsuit entered herein must be reversed as, applying the above rules to the facts adduced by plaintiff, there was sufficient evidence to submit the matter of defendants' liability to the jury on several theories.

I. RES IPSA LOQUITUR

In our opinion, there was prima facie proof sufficient to require submission of the applicability of res ipsa loquitur to the jury. The doctrine has three factual conditions: (1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of defendants; and (3) it must not have been due to any voluntary action or contribution on the part of plaintiff (Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687, 162 A.L.R. 1258; Baker v. B. F. Goodrich Co., 115 Cal.App.2d 221, 252 P.2d 24).

It is well settled that the first condition is satisfied if there is a basis of experience, either common to the community or brought out in the evidence, from which it may reasonably be concluded...