Kapp v. Bob Sullivan Chevrolet Co., 5-2384

• Decision Date: 08 January 1962
• Docket Number: No. 5-2384,5-2384
• Parties: C. W. KAPP and Mrs. Nancy B. Kapp, Appellants, v. BOB SULLIVAN CHEVROLET COMPANY and General Motors Corporation, Appellees.
• Court: Arkansas Supreme Court

Page 5

353 S.W.2d 5

234 Ark. 395

C. W. KAPP and Mrs. Nancy B. Kapp, Appellants, v. BOB SULLIVAN CHEVROLET COMPANY and General Motors Corporation, Appellees.

No. 5-2384.

Supreme Court of Arkansas.

Jan. 8, 1962.

Rehearing Denied Feb. 12, 1962.

Roy & Roy, Blytheville, for appellants.

Reid & Burge and Gardner & Steinsiek, Blytheville, Frierson, Walker & Snellgrove, Jonesboro, for appellees.

HARRIS, Chief Justice.

This is an action for damages for personal injuries allegedly resulting from the breaking of the webbing of the passenger's seat belt worn by Mrs. C. W. Kapp at the time of a motor vehicle collision which occurred on highway 66 near Amarillo, Texas, on October 12, 1957. Mrs. Kapp was a passenger in a 1954 Oldsmobile, operated by her husband, C. W. Kapp, and owned by the Blytheville Water Company. The Kapp's vehicle collided with a 1956 Ford driven by Mrs. Robert Morales. The Morales car evidently skidded on a slick highway and crashed into the Oldsmobile. A third automobile, driven by James T. Arnold, which was following behind the Morales car, then hit the latter automobile. Two passengers were thrown from the Morales car and killed, and the Kapps received extensive and painful injuries. Mrs. Kapp's head hit the dashboard, and she suffered severe injuries, mainly about the head and face, including the loss of most of her upper and lower teeth, and related jawbone. Suit was instituted in tort ¹ under negligence theories of product liability, by the Kapps against Sullivan Chevrolet Company of Blytheville, from which company the seat belt in question was purchased. The purchase was made by the Blytheville Water Company, employer of Mr. Kapp, and installed on the Kapp's Oldsmobile by Sullivan in December, 1956. Sullivan filed a third party complaint against General Motors Corporation, from which it acquired the seat belt, as a joint tortfeasor. The complaint against Sullivan alleged the liability of that defendant under the doctrine of res ipsa loquitur, and specific negligence, inter alia, as follows: insufficient webbing strength and inadequate webbing durability; improper installation, inspection, and failure to properly instruct Kapp in the use of the belt. It was further alleged that the quality of the seat belt was misrepresented, and that promotional advertising materials circulated by the company had motivated appellants' decision to purchase these particular belts; that the belts were not as represented. After the court, over the objections of appellants, ² permitted the third party complaint to be instituted against General Motors, the Kapps amended their complaint to charge the third party defendant with certain acts of negligence. After also alleging that the doctrine of res ipsa loquitur applied against this appellee, appellants, inter alia, alleged specific negligence as follows:

(a) The General Motors belt did not possess sufficient webbing strength to properly withstand the impact stress of automobile collisions; ³

(b) The belt and webbing material was not sufficiently durable to withstand ordinary wear, tear, and deterioration for a reasonable period of time. General Motors was further negligent by

(c) failing to design a crashworthy automobile seat belt or to specify or require suitable materials therein;

(d) selecting Davis as its supplier and failing to specify and require proper webbing tests by supplier and to supervise such tests;

(e) failing to itself properly test the product;

(f) selecting Sullivan Chevrolet as its distributor and installer of seat belts in the Blytheville community; Sullivan Chevrolet was not properly qualified nor equipped to discharge that function;

(g) failing to train Sullivan's workmen or to require training of that dealer's workmen to (1) detect flaws or weaknesses in seat belt webbing or (2) to properly install or test the belts when installation was complete, and

(h) failing to warn or inform the public of the limitations in safety or strength of the General Motors Corporation--Davis belts, or to mark or label the belts in that respect.

After the filing of several amendments, and answers thereto denying liability, the taking of discovery depositions, requests for admissions, and numerous motions, the case proceeded to trial on June 20, 1960, and continued until June 24th. At the close of all the evidence, the Sullivan Chevrolet Company and General Motors Corporation separately moved for directed verdicts, and the court granted these motions. From the judgment so entered, appellants bring this appeal.

The record in this case is voluminous; in fact, it is one of the largest transcripts ever filed in this Court. We think it well to state at the outset, that after close study of the allegations and the proof, we agree with the trial court that any verdict rendered for appellants, would necessarily be based on conjecture and speculation, and we have accordingly concluded that the evidence was insufficient to sustain a verdict against either General Motors or Sullivan Chevrolet Company. The basis for this conclusion will be hereafter discussed. In the meantime, we proceed to a discussion of some of the particular points urged by appellants as grounds for reversal.

First, appellants contend that the doctrine of res ipsa loquitur applies, and the case should have been submitted to the jury under that doctrine. Numerous pages in the brief are devoted to this argument, but we cannot agree with appellants, for all the elements necessary to permit application of the doctrine are not present. Among essential requirements are superior knowledge on the part of defendant as to the cause of the accident, the absence or unavailability of direct evidence of negligence, the existence of a sufficient duty on the part of defendant to use due care, and the accident must be caused by an agency or instrumentality within defendant's exclusive control. In 37 Words and Phrases, Res Ipsa Loquitur, page 488, paragraph 5, we find:

'The mere happening of accident does not justify recourse to 'res ipsa loquitur' rule in personal injury suit, but accident must further appear to be without explanation in light of ordinary experience, except on theory of defendant's negligence to render rule applicable.'

In Bouvier's Law Dictionary, Vol. II, p. 2908, appears the following:

'When the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.'

Further:

'The doctrine is that shen a thing which causes injury within fault of the person injured, is shown to be under the exclusive control of defendant and would not cause the damage in ordinary course if the party in control used proper care, it affords reasonable evidence, in the absence of an explanation, that the injury arose from defendant's want of care.'

In the instant case, we agree there was a duty on the part of each defendant to respectively use due care in the manufacture and inspection of the seat belt, and the installation of same in the Kapps' automobile. Likewise, we agree as to the unavailability of direct evidence of negligence on the part of the company. To trace the particular history of the belt in question is impossible. The seat belts sold by General Motors, including this one, were neither numbered nor dated, and of course, proof of specific acts of negligence in the manufacture of the belt cannot be made. But we cannot say that the mere fact the belt broke shows it was defective, for in the first place, the proof reflects that no safety belt can withstand too great a stress upon it, and though this were not so, still an essential element for the application of the doctrine is missing, for this belt was not under the exclusive control of defendants. The proof reflects that the belt had been installed in the Oldsmobile and used for a period of approximately ten months before the collision in which it broke. During this period of time, it was used and controlled by appellants. Like any other article, a seat belt is subject to misuse, i. e., it can be weakened, for instance, among other things, by closing a door on it. Whether this particular belt was weakened by misuse, as far as the doctrine of res ipsa is concerned, is beside the point; the fact remains that the instrumentality allegedly cousing the injury was not under the exclusive control of either appellee for the ten months' period. This precludes the application of the doctrine. Though we do not find it necessary to go so far in determining this case, it is interesting to note that the Supreme Court of Nebraska, by unanimous opinion, in the case of Sleezer v. Lang, 170 Neb. 239, 102 N.W.2d 435, held that 'a safety belt is not such a piece of equipment that the doctrine of res ipsa loquitur applies thereto in case it breaks.'

Appellants contend that they were prejudiced by the action of the court in permitting General Motors to be made a third party defendant by Sullivan. This contention is discussed rather at length, but we do not agree. It is true that General Motors was not a necessary or indispensable party as far as Kapp's action against Sullivan was concerned, but under the allegations of Sullivan's third party complaint, the latter was entitled, under the Uniform Contribution Among Tortfeasors Act (Ark.Stats.Anno., § 34-1001) to join General Motors as a third party defendant. Of course, one of the primary purposes of the Act is to prevent the multiplicity of suits. Appellants' principal allegation of prejudice was that the third party proceedings prevented a consolidation of the separate negligence and warranty actions brought by appellants against Sullivan. However, the record reflects that appellants subsequently withdrew the motion to consolidate. At any rate, it is...