Gibbs v. General Motors Corp., 4312

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

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.

Page 590

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

Page 591

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...