Gibbs v. General Motors Corp.

• Decision Date: 29 August 1969
• Docket Number: No. 4312,4312
• Citation: 445 S.W.2d 589
• Parties: Opal Dent GIBBS et al., Appellants, v. GENERAL MOTORS CORPORATION, Appellee. . Eastland
• Court: Texas Court of Appeals

Page 589

445 S.W.2d 589

Opal Dent GIBBS et al., Appellants, v. GENERAL MOTORS CORPORATION, Appellee.

No. 4312.

Court of Civil Appeals of Texas.

Eastland.

Aug. 29, 1969.

Rehearing Denied Sept. 26, 1969.

Mullinax, Wells, Mauzy, Levy & Richards, John E. Collins, Fanning & Harper, Peter S. Chamberlain, Dallas, for appellants.

Strasburger, Price, Kelton, Martin & Unis, Royal H. Brin, Jr., Dallas, for appellee.

COLLINGS, Justice.

This is a products liability case for damages which arose out of a two car collision. John W. Alexander originally brought suit against Opal Dent Gibbs and husband, James E. Gibbs, and General Motors Corporation. In addition to allegations of negligence against Opal Gibbs there were allegations in the alternative of an implied warranty of fitness and merchantability, negligence and res ipsa loquitur against General Motors Corporation as the manufacturer of the Chevrolet pickup truck driven by Mrs. Gibbs. It was alleged that the left front ball-joint unit on the pickup had disintegrated or come apart, causing the left front wheel to collapse, resulting in the accident and damages here involved. Thereafter both Alexander and the Gibbs filed a third party action against General Motors. General Motors filed an original answer and its first and second amended motions for summary judgment against Alexander and the Gibbs based upon the pleadings, depositions and affidavits on file. Its motion for summary judgment was granted and plaintiffs bring this appeal.

Both the Gibbs and Alexander appellants urge points contending that the court erred (1) in holding there was no evidence that the ball-joint unit in question was defective, and (2) in granting summary judgment in favor of General Motors.

Appellants' contention on this appeal is based upon the theory of strict tort liability. For strict tort liability to apply it is necessary for a plaintiff to show that the defect complained of existed at the time the product left the factory. In the recent case of Pittsburg Coca-Cola Bottling Works v. Ponder, 443 S.W.2d 546, (Tex.Sup.Ct., June 4, 1969), Chief Justice Calvert speaking for the Court states that 'the prime requirement for imposing liability on a seller under the rule of strict liability is * * * defective condition in the product when it left the hands of the particular seller.' It is further stated, in effect, that the number of persons who had access to the product after the time it left the hands of the defendant is a material factor for consideration. The opinion also notes with approval the article by Dean Keeton on 'Products Liability--Liability without Fault', which may be found in 41 Texas Law Review at Page 858, and states in part as follows:

'--courts that impose strict liability eliminating negligence as a requirement for recovery must adopt some rules or principles as a substitute for negligence as a delimiting principle. The method employed today is the requirement that there must have been a defect in the product as it left the hands of the manufacturer. This requirement remains the principle obstacle to a recovery.'

In the Restatement of the Law of Torts (2nd Ed), Sec. 402A, Comment (g) the following statement is made concerning strict liability:

'The seller is not liable when he delivers the product in a safe condition, and subsequent mishandling or other causes make it harmful by the time it is consumed. The burden of proof that the product was in a defective condition at the time that it left the hands of the particular seller is upon the injured plaintiff; and unless evidence can be produced which will support the conclusion that it was then defective, the burden is not sustained.'

See also Proctor & Gamble Manufacturing Company v. Langley, 422 S.W.2d 773 (Tex.Civ.App.1967, writ dis.)

Appellants correctly assert that the primary and controlling issue involved in this case is whether the summary judgment proof raises a fact issue concerning defectiveness of the upper left ball-joint unit on the Gibbs pickup at the time of the accident and at the time the truck left the General Motors factory. In determining this question circumstantial evidence is properly considered. McKisson v . Sales Affiliates, Inc., 416 S.W.2d 787, (Tex.Sup.Ct.1967). Also a plaintiff's case may be established or a fact issue presented by a negation of other probable causes of an accident. Appellants contend that the record presents material fact issues which called for jury determination and that General Motors Corporation has not discharged its burden of showing that there were no material facts for determination. In our opinion the record including circumstantial evidence shows that appellee has discharged its burden and that no fact issue is presented.

The record shows that the accident in question is alleged to have occurred on February 12, 1965. Appellant Opal Gibbs was operating a 1961 Chevrolet pickup truck, driving south on Elam Road at a speed of 20 to 25 miles per hour. The pleadings and proof are undisputed that the pickup had been purchased by Mr. and Mrs. Gibbs in October of 1963 as a used truck from Libbys' Coach Sales in Dallas, and that after the accident the pickup showed to have been driven some 35,000 miles. The truck had previously belonged to Mr. and Mrs. J. W. Revel who had purchased it as a new vehicle from Beard's Chevrolet Company in Augusta, Arkansas. The Revels state in their affidavit which was introduced by appellants that the pickup was not during the time of their ownership involved in any accidents, and that they never had any trouble with or were required to make any repairs to the left front ball suspension unit during that time. They further stated that they subsequently sold or traded the pickup to Libbys' Coach Sales of Dallas, Texas, and that the pickup was then in good working and driving condition.

The dates of the acquisition of the pickup by Beard Chevrolet Company, their sale to the Revels, and of the sale by the Revels to Libbys' Coach Sales are not shown. There is no showing of what happened or did not happen to the truck while it was in the possession of Beard's, nor any showing concerning from whom Beard'd obtained it.

The motion of appellee General Motors Corporation for summary judgment was supported by the pleadings of the parties, the depositions of the Gibbs and the affidavits on file. Appellee filed in support of its motion the affidavit of Marvin Miller, an investigator who examined the ball-joint unit of the Gibbs' pickup after the accident. He stated that he did not observe any defects in the motor vehicle or in its ball-joint unit attributable to the manufacturer; that the design of the system was common throughout the automotive industry and that there were no misaligned or faulty parts; that the failure of the unit was a result of general wear and improper lubrication, and not the result of a defect in...