Kupkowski v. Avis Ford, Inc.

• Decision Date: 04 March 1974
• Docket Number: No. 1,Docket No. 15364,1
• Citation: Kupkowski v. Avis Ford, Inc., 215 N.W.2d 767, 51 Mich.App. 668 (Mich. App. 1974)
• Parties: Floyd E. KUPKOWSKI and Josephine Kupkowski, Plaintiffs-Appellees, v. AVIS FORD, INC., a Michigan corporation, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 767

215 N.W.2d 767

51 Mich.App. 668

Floyd E. KUPKOWSKI and Josephine Kupkowski, Plaintiffs-Appellees, v.AVIS FORD, INC., a Michigan corporation, Defendant-Appellant.

Docket No. 15364.

Court of Appeals of Michigan, Division No. 1.

March 4, 1974.

Released for Publication March 25, 1974.

Rehearing Denied April 24, 1974.

Herbert J. Rusing and Alterio J. Alteri, Dice, Sweeney & Sullivan, Detroit, for defendant-appellant.

Alan W. Kaback, Lauderhill, Fla., Clarence H. Ledwon, Ledwon & Gardner, Southfield, for plaintiffs-appellees.

Before V. J. BRENNAN, P.J., and T. M. BURNS and VanVALKENBURG,* JJ.

V. J. BRENNAN, Presiding Judge.

This is a products liability case.Defendant appeals from a jury verdict for plaintiff on counts of implied warranty and negligence.¹

Defendant contends it was error for the trial court to deny its motions for directed verdict and judgment notwithstanding the verdict.In reviewing these motions we must view all the evidence and testimony adduced at trial in the light most favorable to the plaintiff, the party against whom these motions were made.If, when so viewed, there is any evidence which was competent and sufficient to support the jury's determination, this determination should not be disturbed.Wamser v. N. J. Westra & Sons, Inc., 9 Mich.App. 89, 155 N.W.2d 871(1967);Taft v. J. L. Hudson Co., 37 Mich.App. 692, 195 N.W.2d 296(1972).

Five weeks after plaintiff purchased a used car from defendant, he ran a red light and collided with another automobile.Plaintiff testified that he was unable to stop because his brake pedal would not depress.This testimony is the sole evidence of brake failure.Defendant offered testimony of various witnesses, including plaintiff, that there had been no prior trouble with the automobile's brakes.Indeed, the investigating police officer testified that an inspection of plaintiff's automobile immediately after the accident revealed that the brakes worked properly and that it had left skid marks at the scene.

We conclude that the evidence was insufficient to support the jury verdict.Therefore, it was error to deny defendant's motions for directed verdict and judgment notwithstanding the verdict.

Reversed and remanded for the entry of a directed verdict.

T. M. BURNS, Judge (dissenting).

I cannot subscribe to the result reached by the majority.In Meli v. General Motors Corp., 37 Mich.App. 514, 195 N.W.2d 85(1972), an accelerator spring on an automobile became disconnected and caused an accident.Although we affirmed the entry of a directed verdict for the defendant(the manufacturer) on the grounds that there was no evidence at all by which a jury could conclude that the spring became disconnected because of a defect in the spring mechanism, we noted that where an enclosed part such as a braking device failed, it could be reasonably concluded that the defect was...