Hertz Corp. v. Goza

Decision Date23 December 1974
Docket NumberNo. 47808,47808
Citation306 So.2d 657
CourtMississippi Supreme Court

Heidelberg, Woodliff & Franks, W. Swan Yerger, Jackson, for appellant.

Elmore D. Greaves, Robert B. Hamilton, Jackson, for appellee.

SMITH, Justice:

Austin Goza was plaintiff, and Hertz Corporation and its employee, Lavon Gressett, a mechanic, were defendants, in an action for damages for personal injuries brought in the Circuit Court of Hinds County. The trial of the case resulted in a jury verdict for Goza in the amount of $65,000 against Hertz only. The jury found for Gressett and there has been no appeal by Goza from the judgment entered pursuant to that finding.

From the judgment entered pursuant to the verdict against it, Hertz appeals.

Injuries sustained by Goza resulted from a one vehicle accident which occurred on Interstate 55 and within the municipal limits of the City of Jackson. The vehicle involved was a 1969 Ford tractor, being driven at the time by Goza, and which was hauling a trailer loaded with a large quantity of blackstrap molasses. Goza had picked up the truck from Hertz in Jackson on November 7, 1971, and had driven it to Brandon, where he obtained the trailer. He then drove to Memphis, Tennessee, where he took on the load of molasses. He had arrived back in Jackson from Memphis on November 8, 1971, at the time of the accident. According to Goza, the entire trip, of some 500 miles, had been uneventful, and there had been no indication whatever of any malfunction of the vehicle of any kind. As he drove along the highway, after entering the City of Jackson, he accelerated in an attempt to go around an automobile traveling ahead of him. At this moment, the cast iron flywheel housing, located approximately underneath the cab floor, flew apart or, as it is said, 'exploded,' and pieces of it came up through the floor, causing Goza to lose control and to run off the highway. The vehicle did not overturn, but Goza sustained a broken ankle and injuries to his knee.

The cause of action was grounded in alleged negligence on the part of Hertz, acting through its mechanic, Gressett, who was made a codefendant. The declaration sums up the charge of negligence in the following language:

That the failure of the defendant Lavon Gressett to properly maintain and inspect said vehicle, as set out above, acting at all times indivudaly (sic) and in his capacity as agent and servant of the defendant The Hertz Corporation was the sole proximate cause of the maflunction (sic) in the said Ford Tractor that caused the unit to malfunction and the flywheel housing to explode and the damage done to your Plaintiff as herein complained of.

There was a lengthy trial in the circuit court before a jury, the record of which fills four volumes. This record shows, however, that the evidence adduced never really came to grips with the question at issue. Taking it most favorably to plaintiff's case, at most, it was shown: (1) Gressett told two investigators, sent down by appellee's attorneys, after the accident, that he, Gressett, two days before the accident, had set the RPM's at 3500 or 3600, the manufacturer's recommended maximum having been 3200. The investigators were not together on what they said Gressett had told them, and Gressett himself denied having made any statement to them about the matter at all. But the evidence, which is undisputed and offered by appellee, was to the effect that it would have been necessary to run the truck engine for a long period of time at excessive rate of RPM's to cause any damage, and that this damage would consist of excessive wear on the engine. There was no evidence that it would cause the cast iron housing on the flywheel to explode or have any effect on it. (Moreover, Goza's own testimony was that, prior to the accident, the RPM's had been set at 2100 or 2300); (2) The truck had not been inspected for 4,000 miles. Nothing was shown, however, that there was any connection between this and the explosion of the flywheel housing; and (3) Some fabric was missing from a piece of the clutch, examined after the accident by mechanics sent down by plaintiff's attorneys to investigate, which indicated, one of them said, that the clutch possibly was slipping. It was admitted, however, and is undisputed, that slipping of the clutch would have had no effect on the flywheel housing. In fact, it was shown that if the clutch 'slipped' and did not 'take hold,' the engine would not have turned the drive-shaft or moved the truck. Goza himself said that the truck had operated normally and that there had been no indication of any malfunction, prior to the happening of the event in question.

It is apparent from the record that the witnesses who testified had no idea what had caused the cast iron flywheel housing to 'explode.' Nor is there any proof whatever that there was some defect of which Hertz knew or which might have been discovered by reasonable inspection. There was some testimony in the abstract about 'metal fatigue,' but it was not related to the flywheel housing in any way, nor was it shown that if there had been metal fatigue there would have been an outward, visible sign of it.

The trial record does indicate a general exploration by plaintiff of various matters, apparently founded upon a theory that, since the accident happened, Hertz was liable. There was no evidence, however, that any of the things about which testimony was given were capable of causing the flywheel housing to 'explode,' or that there was any defect discoverable by reasonable inspection that would have given forewarning of the possibility of such an explosion.

Obviously, this is not a case for the application of the doctrine of res ipsa loquitur. Nor is it a case (although appellee's counsel suggests that it ought to be), where the strict liability in tort of a manufacturer of a product is involved.

The absence of proof of the allegations of negligence charged...

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5 cases
  • Clark v. Illinois Cent. R. Co.
    • United States
    • Mississippi Supreme Court
    • 6 Septiembre 2001
    ...Inc. v. Chamberlin, 687 So.2d 1143, 1148 (Miss. 1996). See also Strantz v. Pinion, 652 So.2d 738, 741 (Miss.1995); Hertz Corp. v. Goza, 306 So.2d 657, 661 (Miss.1974). In the present case, Clark's witnesses that would only testify to not hearing the train whistle versus the affirmative test......
  • Stewart v. Relco Locomotives, Inc., Civil Action No. 2:95cv078-D-A (N.D. Miss. 4/__/1996)
    • United States
    • U.S. District Court — Northern District of Mississippi
    • 1 Abril 1996
    ...the bailee. Federal Compress & Warehouse Co. v. Swilley, 171 So. 2d 333, 340 (Miss. 1965) (emphasis added); but see Hertz Corp. v. Goza, 306 So. 2d 657, 659-60 (Miss. 1975) (applying "bailment for mutual benefit" standard to lease of truck). Any distinction is likely only semantical, howeve......
  • Lyle v. Mladinich, N-S
    • United States
    • Mississippi Supreme Court
    • 17 Julio 1991
    ...of fact existed as to whether the alleged breach of duty was the proximate cause of the alleged injuries. The judge cited Hertz Corp. v. Goza, 306 So.2d 657 (Miss.1974), for the premise "that an action could not be maintained on the basis of mere possibilities, surmise, or conjecture." The ......
  • Price v. Admiral Corp., 75--1726
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 18 Febrero 1976
    ...the product was altered subsequent to its leaving the manufacturer's control, and is therefore inapplicable.2 Hertz Corporation v. Goza, Miss., 1975, 306 So.2d 657, and Goodyear Tire and Rubber Company v. Brashier, Miss., 1974, 298 So.2d 685, cited by appellant for the proposition that infe......
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