Kupkowski v. Avis Ford, Inc.

• Decision Date: 25 November 1975
• Docket Number: No. 14,14
• Citation: 235 N.W.2d 324,395 Mich. 155
• Parties: Floyd E. KUPKOWSKI and Josephine Kupkowski, Plaintiffs-Appellants, v. AVIS FORD, INC., a Michigan Corporation, Defendant-Appellee. 395 Mich. 155, 235 N.W.2d 324
• Court: Michigan Supreme Court

Page 324

235 N.W.2d 324

Floyd E. KUPKOWSKI and Josephine Kupkowski Plaintiffs-Appellants, v. AVIS FORD, INC., a Michigan Corporation Defendant-Appellee.

No. 14.

395 Mich. 155, 235 N.W.2d 324

Supreme Court of Michigan.

Nov. 25, 1975.

Alan W. Kaback, Coral Springs, Fla., for plaintiffs-appellants; Ledwon & Gardner, Southfield, of counsel.

Dice, Sweeney & Sullivan, P.C., by Paul F. Ray, Detroit, for defendant-appellee.

FITZGERALD, Justice.

An intersectional collision between two vehicles allegedly caused by a braking system failure of plaintiff Floyd Kupkowski's automobile precipitated this action against the seller of the vehicle, defendant Avis Ford, Inc. A jury verdict of $88,000 for plaintiff and his wife ¹ was awarded, then later reversed by the Court of Appeals, ² which granted a directed verdict for defendant on the basis that insufficient evidence was presented at trial to support such a verdict. We affirm the Court of Appeals.

Plaintiff purchased a 1965 automobile from defendant on December 31, 1968. Testimony by plaintiff revealed that defendant's salesman represented the car as a 'one-owner' vehicle in 'A-one' condition previously owned by a retired, widowed school teacher, and driven only 23,000 miles. These representations, which the salesman denied ever making, were contradicted by plaintiff's proofs which indicated that the vehicle had more than one prior owner, had been driven approximately 58,000 miles, and was most recently owned by a woman who was neither a school teacher nor a widow.

Plaintiff further testified that he drove the car approximately 60 miles each day six days a week to and from his place of employment for a period of five weeks. The car performed satisfactorily in all respects.

On the evening of February 5, 1969, plaintiff was traveling in an easterly direction, approaching the intersection of Evergreen and Schoolcraft. He saw the green light change to amber at a distance of approximately 60 feet from the intersection. Anticipating the red light, plaintiff applied pressure to the brake pedal but it failed to depress and plaintiff continued without slowing down towards the intersection. Realizing he could not stop, plaintiff sounded his horn but was unsuccessful in avoiding a collision with another vehicle traveling in a northerly direction. The police officer who investigated the accident testified that plaintiff 'had brake pedal' and when pressure was applied the pedal would not depress to the floor. He also testified that plaintiff's car 'laid down very light skid marks which would indicate that the brakes were working'.

Seeking recovery for injuries sustained, plaintiff sought damages from defendant alleging breach of express and implied warranties, negligence, and fraudulent misrepresentation. His wife sought damages for loss of consortium and fraudulent misrepresentation. The jury returned a verdict of $63,000 for plaintiff for damages and personal injury, $25,000 for his wife, and $800 to both for fraudulent misrepresentation. ³ The Court of Appeals reversed and ordered a directed verdict for defendant on the basis that there was insufficient evidence to support such a verdict for plaintiff. We granted leave to appeal.

Plaintiff first contends that the Court of Appeals did not consider All the circumstantial evidence relating to whether or not a brake defect existed. Setting forth the proofs submitted in Snider v. Bob Thibodeau Ford, Inc., 42 Mich.App. 708, 202 N.W.2d 727 (1972); Garmo v. General Motors Corp., 45 Mich.App. 703, 207 N.W.2d 146 (1973); and Clarke v. Brockway Motor Trucks, 372 F.Supp. 1342 (E.D.Pa., 1974), and those in the instant case, plaintiff believes that the reasonable inferences that could be drawn from the circumstantial evidence presented support the jury's finding for plaintiff. Defendant distinguishes each of the above cases and concludes that no reasonable inferences could be drawn from the circumstantial evidence presented to establish that a defect existed at the time plaintiff purchased the automobile from the defendant.

In the recent case of Caldwell v. Fox, 394 Mich. 401, 231 N.W.2d 46 (1975) also involving a brake failure, we reaffirmed an earlier decision by this Court which held that in order to establish a Prima facie case of negligence or breach of warranty in products liability cases, plaintiffs who seek to avoid a directed verdict 'must prove a defect attributable to the manufacturer (or seller) ⁴ and causal connection between that defect and the injury or damage of which he complains'. ⁵

In Caldwell, we found reversible error where the trial court directed a verdict in favor of third-party defendants, manufacturer and seller, because, in our opinion, sufficient evidence had been presented for a jury to reasonably infer the existence of a defect in the brake system of the vehicle which caused the accident. The vehicle involved was new and previously undriven when purchased five weeks prior to the accident. The driver ⁶ testified that the brake pedal depressed to the floor. He further testified that, upon examining the vehicle immediately following the collision, he observed brake fluid on the fender wall, a loose connection in the brake line coming from the master cylinder, and brake fluid dripping from the loose connection. The service manager of the dealership which sold the car detected a partial loss of braking power in the rear wheels and observed brake fluid on the inner fender wall. He further indicated that a brake line to one front wheel was inoperative. A letter written by the general manager, subsequently introduced into evidence, indicated that, in his view, the master cylinder became defective sometime between the delivery date of February 7, 1969 and the date of the accident.

In the instant case, we are urged to consider circumstantial evidence which, it is claimed, corroborates plaintiff's testimony and permits a reasonable inference of an existing brake defect in the vehicle at the time of plaintiff's purchase. We do so now, viewing the circumstantial evidence in the light most favorable to plaintiff.

Plaintiff's vehicle was sold originally by Jim Werning, Inc., to one Maxine Barth on August 23, 1965. She owned the car for three years and three months, drove it in excess of 58,000 miles, then transferred title to Merollis Chevrolet Sales, Inc. Four days later Merollis transferred title to Tag Motor Sales which, two weeks later, transferred title to defendant Avis Ford. This evidence of prior ownership and mileage is unrelated to whether or not a brake defect was present in the vehicle at the time of plaintiff's purchase and whether it proximately caused plaintiff's injury. From such evidence one could not reasonably infer the existence of a defect and its causal connection with plaintiff's injury.

No testimony was introduced to prove that during the time Maxine Barth owned the vehicle the braking system was repaired or replaced. The absence of such testimony is said to circumstantially support plaintiff's testimony that the brakes failed at the time of the accident. In order to reach this conclusion, the jury must initially infer that no prior brake maintenance or repair had been performed. From this, the jury was required to draw the additional inference that the lack of proper maintenance and repair failed to disclose a defect that existed in the vehicle's braking system at the time of plaintiff's purchase. We view the latter inference as impermissible conjecture which seeks to advance a theory of product liability by placing inference upon inference. Standard Drug Store v. A. E. Wood & Co., 227 Mich. 333, 198 N.W. 960 (1924); Kaminski v. Grand Trunk W.R. Co., 347 Mich. 417, 79 N.W.2d 899 (1956). The burden is upon the plaintiff to prove, not the defendant to disprove, the eixstence of a defective brake system and its causal connection with the injury or damage suffered. Piercefield v. Remington Arms Co., Inc., supra.

Defendant failed to maintain any records indicating mechanical tests or inspection of plaintiff's vehicle and its braking system during the 39 days that the vehicle was in defendant's possession. This circumstantial evidence is no more relevant than the absence of testimony that the original owner ever repaired or replaced the braking system. Such evidence fails to establish the existence of a braking system defect at the time of plaintiff's purchase.

Plaintiff purchased the automobile based upon the salesman's representation that the car had only one owner, was in 'A--one' condition, and was previously owned by a retired school teacher and driven only 23,000 miles. Plaintiff has not argued to this Court that the representations made to him concerning the automobile constitute a breach of express or implied warranty. The above represents a portion of the circumstantial evidence which, together with the additional evidence presented, was submitted to prove the existence of a defective brake system in plaintiff's automobile at the time of purchase. Any misrepresentation as to prior ownership or mileage permits no reasonable inference of a defective brake system at the time of purchase or its causal connection with the injury suffered.

Plaintiff owned the vehicle for 36 days prior to the date of the accident. No testimony was offered to contradict plaintiff's statement that he drove the car a minimum of 1,800 miles to and from his place of employment during this five-week period. No incidents of brake failure were experienced by plaintiff during this time. This trouble-free period of operation militates against a reasonable inference that a defect was present in the brake system at the time of purchase.

The investigating officer...