Hills v. McGillvrey
| Decision Date | 03 June 1965 |
| Citation | 80 Or.Adv.Sh. 712,402 P.2d 722,240 Or. 476 |
| Parties | Lorraine E. HILLS, Administratrix of the Estate of Sheridan Morris Hills, Deceased, Respondent and Cross-Appellant, v. Shirley J. McGILLVREY and Richard J. McGillvrey, husband and wife, Defendants and Cross-Respondents, Orville Burlington, Defendant, Union Carbide Corporation and Raymond Eugene King, Defendants and Cross-Respondents, L. M. Orchard, M. R. Orchard and Donald L. Orchard, dba Orchard Auto Parts Co., and Leslie Carrothers, Appellants. |
| Court | Oregon Supreme Court |
Phil Cass, Jr., Eugene, argued the cause for appellants. With him on the briefs were Riddlesbarger, Pederson, Brownhill & Ingerson, Eugene.
Arlen C. Swearingen, Vernon D. Gleaves, and Bruce Avrit, Eugene, argued the cause for respondent and cross-appellant Lorraine E. Hills, Admx. With Swearingen on the brief were Ramstead & Avrit and Butler, Husk & Gleaves, Eugene.
John Luvaas, Eugene, argued the cause for defendants and cross-respondents McGillvrey. On the brief were Luvaas, Cobb & Richards, Eugene.
Sidney Thwing, Eugene, argued the cause for defendants and cross-respondents Union Carbide Corp. and Raymond Eugene King. On the brief were Thwing, Ferris, Atherly & Butler, Eugene.
No appearance for defendant Orville Burlington.
Richard D. Rohr, of Bodman, Longley, Bogle, Armstrong & Dahling, Detroit, Mich., filed a brief as amicus curiae, on behalf of National Automotive Parts Assn.
Harold T. Halfpenny, James F. Flanagan, Mary M. Shaw, and Halfpenny, Hahn, & Ryan, Chicago, Ill., filed a brief for Automotive Service Industry Assn. as amicus curiae.
Before McALLISTER, C. J., and PERRY, SLOAN, O'CONNELL, GOODWIN, DENECKE and LUSK, JJ.
This is an action for damages for the wrongful death of a motorist who was killed in an automobile collision. There is an appeal and a cross appeal.
The fatal accident involved three motor vehicles. Sheridan Hills was driving in an easterly direction on State Highway 58. He stopped within an intersection to make a left turn onto State Highway 222. Mrs. McGillvrey, also driving east on Highway 58, had been traveling behind the Hills vehicle and had attempted to overtake the Hills vehicle. Mrs. McGillvrey had turned out to pass and then turned back into the eastbound lane. The brakes of the McGillvrey automobile failed, and the McGillvrey vehicle struck the rear of the Hills vehicle, causing the Hills vehicle to cross over into the westbound lane where it was almost instantly struck by a westbound truck driven by the defendant King. At the time of the accident, the defendant King was in the employ of the defendant Union Carbide Corporation.
Mr. Hills was killed in the collision. His administratrix brought this action against the owners and operators of the other vehicles, and against the suppliers of a replacement wheel-bearing as well as against the mechanic who installed it.
There was evidence from which the jury could have found that the cause of the McGillvrey brake failure was the installation of an undersized wheel bearing which was sold by Leslie Carrothers, an employe of a partnership known as Orchard Auto Parts. Orville Burlington was the mechanic who installed the wheel bearing on the day of the accident.
The jury found the defendants Orchard, and their employe, Carrothers, to have been negligent in supplying Burlington a wheel bearing for a 1955-56 Chevrolet automobile after he had asked for a bearing for a 1957 Chevrolet automobile. (Burlington admitted that he was negligent in installing the wrong part, and a verdict was directed against him.) The jury exonerated King, the McGillvreys, and Union Carbide Co. from liability. The defendants Orchard and Carroters, hereinafter referred to as Orchard Auto Parts, appeal from the judgment against them. The plaintiff cross-appeals from the judgment in favor of the defendants McGillvrey, King, and Union Carbide.
There was evidence from which the jury could have found that the conduct of Burlington, combined with the conduct of Orchard Auto Parts, was a substantial factor in the cause of the accident. There was technical and nontechnical evidence about the cause of the brake failure. The evidence revealed that the installation of the wrong-sized bearing upon the rear axle of the McGillvrey automobile caused heat; the heat caused the brake fluid to vaporize; the vaporizing of the fluid caused a total loss of braking capacity; and the failure of the brakes caused the fatal collision.
The wheel bearing Burlington received was superficially similar in appearance, size, and weight to the one he had ordered. The differences, while discernible, would not readily appear to a person who was not specifically comparing the parts. The jury could have found that if Orchard Auto Parts had supplied the proper part the accident would not have happened. The question is whether its conduct makes Orchard Auto Parts liable to the plaintiff.
The trial judge submitted the issues of negligence and causation to the jury in the traditional terms of proximate cause. The jury was told, in effect, that it could find that Orchard Auto Parts was negligent and that its negligence was the proximate cause of the accident if the jury believed that the supplying of the wrong part to a mechanic created a foreseeable risk of harm to others.
The court also instructed the jury that the intervening negligence of Burlington could be treated as the sole proximate cause, relieving Orchard Auto Parts of liability, if the jury believed that the mechanic's admitted negligence in installing the wrong part was 'extraordinarily negligent,' or negligence so far outside the scope of the foreseeable risk created by the negligence of Orchard Auto Parts as to make that negligence, if any, inconsequential, or a 'remote' cause of the harm. In this respect, the trial court followed the analysis of the problem of the intervening conduct of another found in Dewey v. A. F. Klaveness & Co., 233 Or. 515, 542-543, 379 P.2d 560 (1963) (Concurring opinion of Mr. Justice O'Connell).
The sufficiency of the complaint was challenged, timely motions were made to withdraw from the jury's consideration the question of the liability of Orchard Auto Parts, and the instructions were duly excepted to. Error has been assigned to each of the rulings that were adverse to Orchard Auto Parts. The thrust of this appeal is that the negligence, if any, of Orchard Auto Parts was not a substantial factor in causing the harm. In the alternative, Orchard Auto Parts argues that its conduct breached no duty owed this plaintiff.
Orchard Auto Parts relies upon the language of Palsgraf v. Long Island R. R. Co., 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253 (1928), that '[t]he risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension. * * *' 248 N.Y. at 344, 162 N.E. at 100. Orchard Auto Parts argues that it no more could have foreseen the clain of events that produced the death of the plaintiff's intestate than the operators of a commuter train could have foreseen the injuries that befell Mrs. Palsgraf. In other words, even if it be conceded that Orchard Auto Parts made a mistake, and thus, perhaps, was negligent in so doing, it is argued that such negligence was neither a breach of any duty owed the present plaintiff, nor a substantial cause of the harm.
The trial court correctly analyzed the problem and committed no error...
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