Glynn Plymouth, Inc. v. Davis, s. 44619 and 44620

• Decision Date: 02 September 1969
• Docket Number: Nos. 44619 and 44620,No. 2,s. 44619 and 44620,2
• Citation: 120 Ga.App. 475,170 S.E.2d 848
• Parties: GLYNN PLYMOUTH, INC. v. Jean DAVIS. CHRYSLER MOTORS CORPORATION v. Jean DAVIS
• Court: Georgia Court of Appeals

Page 848

170 S.E.2d 848

120 Ga.App. 475

GLYNN PLYMOUTH, INC. v. Jean DAVIS.

CHRYSLER MOTORS CORPORATION v. Jean DAVIS.

Nos. 44619 and 44620.

Court of Appeals of Georgia, Division No. 2.

Sept. 2, 1969.

Rehearing Denied Sept. 23 and Oct. 16, 1969.

Certiorari Granted Nov. 12, 1969.

Syllabus by the Court

1. (a) 'The declarations of a decedent to whomsoever made are admissible in evidence if there are no other witnesses to the alleged occurrence, it being for the jury, under appropriate instructions, to determine their weight and credibility.' Moore v. Atlanta Transit System, Inc., 105 Ga.App. 70(2), 123 S.E.2d 693. The basis for this rule is the necessity of allowing into evidence the declarations of a decedent where they are the only method of proof available as to a particular matter in issue. Where declarations of a decedent which fall within this exception to the hearsay rule are admitted without objection, the testimony has probative value and may be considered by the jury.

(b) The evidence in this case, with all reasonable deductions and inferences therefrom, did not demand a verdict for the defendants.

2. (a) Under the Motor Vehicle Inspection Law and the evidence in this case, the automobile vendor could be held liable for failure to inspect the automobile, discover and repair a manufacturing defect.

(b) Recovery is not barred under the fellow servant doctrine where the injured person is not the servant of the defendant.

James M. Davis had served as manager-president of Glynn Plymouth, Inc., until February 15, 1966, at which time he severed this connection to go into another business. On February 19, 1966, he purchased from Glynn Plymouth a 1966 Plymouth Belvedere station wagon which he had previously used as a demonstrator and which his wife had also driven. On March 3, 1966, Mr. Davis was returning to Brunswick from Savannah traveling east on U.S. Highway No. 84 towards a railroad crossing at approximately 60 m.p.h. when the red blinker light at the crossing began to flash indicating the approach of a train. Mr. Davis applied the brakes to the automobile whereupon it veered off slightly to the right where the right front wheel came onto the shoulder, and the automobile then came back onto the highway, veered sharply to the left, and came to rest in a ditch against the railroad embankment on the left side of the highway approximately four or five feet from the tracks. There were no witnesses to the collision other than Mr. Davis, who was hospitalized for injuries to his ankle and subsequently released. On April 21, however, he died from a blood clot which broke loose from the injured area and lodged in his lung.

Mrs. Davis, plaintiff here, brought suit on April 27, 1967, for his wrongful death, alleging that Chrysler Motors Corporation had sold through Glynn Plymouth an automobile which was defective by virtue of improperly tightened suspension bolts and brake drums which were 'out of round.' It was contended that these defects caused Mr. Davis to lose control of the automobile; and liability was sought to be imposed upon Chrysler for negligence in selling the car with its manufacturing defects through Glynn Plymouth, and upon Glynn Plymouth for its negligence in failing to inspect, discover, and repair the defects.

Upon trial both defendants made motions for directed verdict at the close of all the evidence, which were denied. The jurors were then unable to reach a verdict, and a mistrial was declared. Defendants now appeal from the orders overruling their respective motions for judgment notwithstanding mistrial, the statutory certificate having been obtained from the trial judge. Code Ann. § 6-701(a) 2.

Bouhan, Williams & Levy, Walter C. Hartridge, II, Savannah, Bennet, Gilbert, Gilbert & Whittle, Wallace E. Harrell, Brunswick, for appellants.

Alaimo & Taylor, James A. Bishop, Anthony A. Alaimo, Brunswick, Neely, Freeman & Hawkins, Joe C. Freeman, Atlanta, for appellee.

EBERHARDT, Judge.

The primary question as to whether the evidence with all reasonable deductions and inferences therefrom demanded a verdict for the defendants is common to both of them in certain respects and will be considered first, along with the question of the probative value of certain critical testimony. We will then deal with the question of whether Glynn Plymouth, the dealer, could be held liable under the evidence for failure to inspect, discover, and repair the alleged manufacturing defects.

1. As to Both Defendants. The critical issues here are whether there was sufficient evidence to show that there were defects in the automobile as contended and, if so, whether they constituted the causative factor of the occurrence giving rise to this lawsuit.

With regard to the claimed defects there is no direct, positive testimony either that the suspension system was improperly attached or that the brake drums were out of round. In the latter part of the summer or early fall of 1966, Mrs. Davis turned the car over to her counsel. He returned it to her during the early fall and she sold it in Jacksonville, Florida, prior to bringing this suit.

Relative to the suspension system, plaintiff introduced a form recall letter dated May 18, 1966, which the manufacturer sent out to all people who had purchased from its dealers a 1966 Plymouth Belvedere stating that a small percentage of these cars had been found to have nuts on a part of the system that were not properly tightened, and asked that the car be returned to the dealer for inspection and, if needed, correction. The letter was addressed to Mr. Davis, indicating that he had purchased a vehicle with a stated serial number. Mailed after his death, the letter was delivered to Mrs. Davis. There was testimony from plaintiff's expert that if the suspension system on a car were loose it might result in a loss of control by the driver.

Defendants contend that this letter was improperly admitted over their objection that this kind of evidence is impermissible under the 'repair doctrine' as exemplified in Georgia Southern & Florida Ry. Co. v. Cartledge, 116 Ga. 164, 42 S.E. 405 and Atlantic Coast Line R. Co., v. Sellars, 89 Ga.App. 293, 296(2), 79 S.E.2d 35, and because the admission of this type of evidence would tend to discourage manufacturers from making every effort to safeguard the public from injury which might result from some inadvertent error later discovered.

Assuming but not deciding, that this objection was not a valid one and that the letter was properly admitted, there is nevertheless no proof of any defect in the suspension system of the Davis car upon which a verdict could stand. All evidence as to that is wholly circumstantial in nature. It cannot be assumed that this vehicle was one of the 'small percentage' of the number produced and sold that went out with the defect; there must be proof of it. Nor did the expert's testimony that if such a condition did exist it could result in a loss of control by the driver suffice to show its existence when plaintiff was claiming the existence of another defect which the expert also testified could have a like result, and when the investigative patrol officers testified to a state of facts indicating the likelihood of another cause of the car going into the ditch bank, viz., that the car was being driven at a relatively high speed when Mr. Davis saw the train at the crossing and he applied the brakes as in emergency, laying down straight skidmarks for some 273 feet and at a point near the crossing when the car had not been brought to a stop, turned into the ditch and ditch bank as a better choice than heading on into the passing train. See Georgia Ry. & Electric Co. v. Harris, 1 Ga.App. 714(1), 57 S.E. 1076.

Moreover, there was positive, unimpeached testimony from the mechanic who made repairs to the front end damage after the accident that he found the suspension system to be in good order. He removed the upper control arm, a part of the suspension system, which was bent in the accident, and replaced it, finding it properly attached by two bolts, and that the nuts were tight. He road-tested the car and found no evidence of any malfunction. This contention was thus disproven. Frazier v. Georgia R. & Banking Co., 108 Ga. 807, 33 S.E. 996; Lankford v. Holton, 187 Ga. 94, 102, 200 S.E. 243; Myers v. Phillips, 197 Ga. 536(4), 29 S.E.2d 700; Emory University v. Bliss, 35 Ga.App. 752, 134 S.E. 637; Slaton v. Atlanta Gas-Light Co., 62 Ga.App. 42(1), 7 S.E.2d 769.

Concluding that this charge of negligence was not estabnlished and that a verdict on the basis of it could not stand, we now turn to the evidence adduced relative to the defect alleged to have been in the brakes and the role it played in this occurrence.

Plaintiff offered the testimony of William Walker and Leo Hopkins as experts. Walker, who had been the general manager for a Chrysler-Dodge dealer for approximately four years, testified that by training and experience he was familiar with the 1966 Plymouth Belvederes and other Chrysler products, including the Dodge which was quite similar to the Plymouth. He stated that he was familiar with the braking system of the 1966 Plymouth Belvederes; that Chrysler had made an effort to increase the size of the brake drums on its products in order to improve the braking systems; that in 1966 the Dodge Coronets and the Plymouth Belvederes gave a lot of trouble with their braking systems; and that Chrysler had paid his dealership hundreds of dollars to correct many of these brake drums that were out of round. Walker described for the jury what an out-of-round brake drum looked like and the surging sensation it causes, and he then testified that this condition would cause a tremendous pounding sensation in a hard stop, resulting in loss of control of the automobile. Walker was posed a hypothetical question based upon the situation where a man is driving a 1966 Plymouth Belvedere at a speed of 60 m.p.h. and applies...