Joseph v. Bohn Ford, Inc.

• Court: Louisiana Supreme Court
• Writing for the Court: WATSON; DENNIS; LEMMON; DENNIS
• Citation: Joseph v. Bohn Ford, Inc., 483 So.2d 934 (La. 1986)
• Decision Date: 24 February 1986
• Docket Number: No. 85-C-1677,85-C-1677
• Parties: Prod.Liab.Rep. (CCH) P 10,915 Alton R. JOSEPH and Credell Buckner Dominquez, Individually as as Administratrix of the Estate of Her Minor Children, Tonel Dominquez and Rahsaanica Joseph v. BOHN FORD, INC. and Ford Motor Company.

Page 934

483 So.2d 934

Prod.Liab.Rep. (CCH) P 10,915

Alton R. JOSEPH and Credell Buckner Dominquez, Individually as as Administratrix of the Estate of Her Minor Children, Tonel Dominquez and Rahsaanica Joseph v. BOHN FORD, INC. and Ford Motor Company.

No. 85-C-1677.

Supreme Court of Louisiana.

Feb. 24, 1986.

Concurring Opinion March 5, 1986.

Rehearing Denied March 20, 1986.

Lawrence D. Wiedemann, W. Lloyd Bowers, Wiedemann & Fransen, New Orleans, for plaintiffs-applicants.

Dermot S. McGlinchey, McGlinchey, Stafford, Mintz, Cellini & Lang, New Orleans, Edward E. Rundell, Gold, Simon, Weems, Bruser, Sharp, Sues & Rundell, Alexandria, E. Ross Buckley, Jr., Robert H. Cooper, Blue, Williams & Buckley, Metairie, for respondents.

WATSON, Justice.

In this product liability-redhibition suit, plaintiffs received personal injuries resulting from the collision of a 1980 Ford van with an overpass support pillar. A jury determined that the van had a defect at the time Ford Motor Company sold it to Bohn Ford, Inc., and that Bohn Ford, Inc., was negligent.

Plaintiff, Alton R. Joseph, was awarded damages of $1.7 million and attorney's fees of $187,000 in the redhibition suit. There were three other plaintiffs: Credell Buckner Dominquez received $50,000; Tonel Dominguez $13,000; and Rahsaanica Joseph $4,000. Bohn Ford, Inc., paid its share of the judgment, and Ford Motor Company appealed. The Court of Appeal reversed as to Ford, concluding that any defect in the brakes of the van was not traceable to the manufacturer. Joseph v. Bohn Ford, Inc., 472 So.2d 185 (La.App. 4 Cir.,1985). A writ was granted to review the judgment of the Court of Appeal. 477 So.2d 695 (La.,1985).

MOTION TO DISMISS

Defendant, Ford Motor Company, filed a third party claim against Kelsey-Hayes Company, manufacturer of the van's proportioning valve. After a hearing on January 17th, Kelsey-Hayes received a directed verdict from the trial judge on January 18, 1984. The jury verdict was rendered on January 19th and the judgment holding Bohn and Ford liable to plaintiffs was signed on January 24, 1984.

Kelsey-Hayes contends that there was no appeal from the judgment in its favor and it is entitled to be dismissed from the proceedings. Ford opposes the dismissal, contending that there was a timely appeal of the whole case including the directed verdict in favor of Kelsey-Hayes, and, alternatively, that the Kelsey-Hayes' judgment is not final for lack of notice of its signing.

Ford Motor Company appealed from the judgment of January 24, 1984, and was granted an appeal from that judgment, which noted that Kelsey-Hayes had been previously dismissed as a defendant on motion for directed verdict. ¹ The January 18, 1984, judgment in favor of Kelsey-Hayes was a final judgment. LSA-C.C.P. art. 1841. ²

Ford had filed a request for notice of all judgments entered in the case on March 3, 1982. However, granting that this request was sufficient, ³ notice of the signing of a final judgment is required only when the judgment is not signed at the conclusion of a trial. LSA-C.C.P. art. 1913. ⁴ The article is intended to cover situations where the judgment is not signed "until some time later." ⁵ The judgment granting the motion for a directed verdict in favor of Kelsey-Hayes was signed the day after conclusion of the hearing with all counsel present in court. The January 24th judgment also gave notice of the prior judgment. Specific written notice was superfluous.

Ford Motor Company appealed only from the judgment of January 24th, which was not a final judgment affecting Kelsey-Hayes.

For the foregoing reasons, Kelsey-Hayes is not a party to the appeal and its motion to dismiss the appeal is granted. ⁶

ISSUE

Did plaintiffs prove that there was a vice or defect in the van when it left the manufacturer which was a cause in fact of the accident and injuries?

FACTS

Plaintiff, Alton Raymond Joseph, purchased the 1980 model van on December 12, 1979, to transport small children. It was a demonstrator with 3,321 miles on the odometer, but a new van was unavailable. The purchase price was $19,348.96. The van had the Ford warranty of a new vehicle and Joseph purchased an extended warranty service contract extending to October 17, 1982, and 50,000 miles.

Six weeks after purchasing the van, Joseph took it to Bohn Ford because of a squeaking noise in the rear. When the tire hubs were taken off, both back brake shoes fell to the ground in a cloud of ashes. The back pads were much worse than those on the front but all four were changed. This repair was on February 1, 1980, at 7,176 miles. Approximately ten days later, there was the same humming/squeaking sound in the rear of the van. Joseph returned the van to Bohn on February 12, 1980; the rear brake pads were burned through. ⁷ When the brakes made a grinding sound a few days later, Joseph told Robert Bohn that he wanted his money back or another van. The Ford locator could not find another van and Joseph was told to leave the premises by a policeman. ⁸

Two friends of Joseph's witnessed the altercation at Bohn. At first, Bohn refused to fix the van. Policemen stood around while Joseph was arguing, one of them with his hand on his gun. When the back wheels were taken off, everything again fell to the floor in a cloud of dirt: the brake shoes, the screws, and the dust. About 1:00 o'clock that afternoon, February 15, 1980, Joseph was told that the van had been repaired. The receipt showed 8,424 miles on the odometer. Bohn's repair order stated: "Rear brakes are defective." ⁹

On March 4, 1980, Joseph heard the same sound and called Robert Bohn from the A & G Cafeteria at the intersection of Gentilly Boulevard and Elysian Fields. After Joseph and his family left the cafeteria, they drove to the red light controlling the intersection of Elysian Fields and Miro. When the light changed from green to yellow, two or three vehicles in front of Joseph stooped. When he applied his brakes, the van swerved; the brakes locked; and the van jumped the neutral ground to hit one of the support pillars of Interstate 10. Rahsaanica, the baby, was on Credell's lap and Tonel was sitting directly behind Credell. Joseph leaned toward the door when he saw the collision coming. Since the window was open, he was thrown partly out of the van before the collision. The windshield was broken over him and the other occupants. Joseph, his "common law" wife, Credell, and the two children were taken to Charity Hospital.

Fred Liebkemann testified as an expert in the field of mechanical engineering that he inspected the van at the Joseph residence on April 1, 1980, and drove it slowly to Duckworth Tire Service on Metairie Road where he had the wheels removed so that he could examine the braking system. He had already detected a significant problem with the brakes enroute to Duckworth's. When Liebkemann examined the brakes, the front brake pads were normal, but the rear pads were worn off. The primary and secondary shoes in the rear were reversed. This reversal of the brake shoes would not have had any effect on the accident; at most, it would have hastened the wearing of the pads. The vehicle had 9,787 miles of use. Generally, brake linings should last no less than 25,000 miles. Having examined the Bohn Ford repair estimates which showed brake repairs at 7,176 miles and 8,424 miles, this expert concluded that there was a defective condition in the brake system. New brake pads were put on the rear wheels so that the van could be safely moved.

In Liebkemann's opinion, the defect in the rear brakes caused the accident by creating unequal braking on the two sides of the car which put the car into a spin prior to the wheels locking. Discoloration in the rivet heads of the van's brake shoes showed that they had been heated red hot causing erratic brake function and the sensation of the brakes being locked; the condition could cause almost any type of deviant result.

Liebkemann said one underlying cause prompted the first, second, and third sets of brake shoes to wear out and the wear on the last set caused the accident. Thus, the failure of the brakes on the date of the accident was caused by the same problem that existed when Bohn first repaired the brakes on February 1, 1980. The condition was not one that a person would necessarily notice while driving the car and was highly abnormal. One possible cause of the problem was a defect in the proportioning valve which caused the rear brakes to stay partially on at all times the car was being driven. Liebkemann had no knowledge of any design defect in the proportioning valve but it could have malfunctioned from contaminants in the system because of inadequate cleaning after manufacture.

Bulletins from Ford Motor Company to its dealers warned that the 1980 Fords had a new parking brake system. If the parking brake was adjusted in what had previously been the normal fashion, the rear brakes would stay partially on all the time resulting in abnormal wear of the rear brakes. After the wheels were put back on at Duckworth, there was no parking brake drag, indicating to Liebkemann that this was not the van's problem. Also, he testified that a driver who rode the brake with his left foot would cause equal wear on the front and the rear shoes, rather than this type of wear. Driver abuse did not cause the excessive wear on the rear brake shoes.

Eugene L. Rogers testified as an expert in design and composition of brake linings that passenger car brake linings had been put on the van's rear brake shoes, not truck pads. According to Rogers, Ford's passenger car rear brake segments should last 20,000 miles.

Billy McDougall, service manager at Bohn Ford, testified that he was a line mechanic at the time in question and observed a repair on the rear brakes of the van. The linings were completely destroyed, burned up, fell off the shoes in dust, and the metal drum was cut. The rear brake shoes were replaced. McDougall...