Muncy v. General Motors Corp.

• Decision Date: 16 March 1962
• Docket Number: No. 16045,16045
• Citation: 357 S.W.2d 430
• Parties: Barbara June MUNCY et vir, Appellants, v. GENERAL MOTORS CORP. et al., Appellees.
• Court: Texas Court of Appeals

Page 430

357 S.W.2d 430

Barbara June MUNCY et vir, Appellants, v. GENERAL MOTORS CORP. et al., Appellees.

No. 16045.

Court of Civil Appeals of Texas, Dallas.

March 16, 1962.

Rehearing Denied May 11, 1962.

Jones, Brian & Jones, Marshall, and Wm. Hurwitz, Longview, for appellants.

Gordon Wellborn, Henderson, Burford, Ryburn & Ford, Spencer C. Relyea, III, Strasburger, Price, Kelton, Miller & Martin, and W. Richard Davis, Dallas, for appellees.

DIXON, Chief Justice.

This is an appeal from an order sustaining a plea of privilege.

Appellants Barbara June Muncy and her husband Charles Muncy, residents of Kilgore, Gregg County, Texas, filed suit in Dallas County, Texas for personal injuries sustained by Barbara June Muncy in an automobile mishap in Kilgore, Gregg County, Texas.

The defendants, appellees here, are C. L. Lane and wife, Alice Hudnall Lane, and the latter's mother, Nellie Hudnall, a widow, all three of whom are residents of Overton, Rusk County, Texas, and Davis Smith, individually and doing business as Smith Chevrolet Company, a resident of Henderson, Rusk County, Texas. Also a defendant is General Motors Corporation, a Delaware Corporation, with a permit to do business in the State of Texas, its principal office and place of doing business in Texas being located in Dallas, Dallas County, Texas, where the suit was brought.

C. L. Lane and wife, Alice Hudnall Lane, Nellie Hudnall, and Davis Smith filed pleas of privilege seeking to have the suit transferred to Rusk County, Texas for trial. In reply appellants filed their controverting affidavits seeking to retain venue in Dallas County, under Subdivisions 4, 23, 27 and 29a of Art. 1995, Vernon's Ann.Civ.St. Only Barbara June Muncy and her husband Charles Muncy have appealed from the order sustaining the plea of privilege.

EVIDENCE

On the early afternoon of September 15, 1960 appellee Alice Hudnall Lane was driving a 1960 model Chevrolet four-door automobile which Mrs. Lane and her husband had purchased new on August 27, 1960. Sitting to the right of Mrs. Lane on the front seat was her mother Mrs. Nellie Hudnall. On the back seat was her five year old son.

Mrs. Lane parked the car head-in at an angle against the curb on the Main Street in Kilgore, Texas in front of Duncan's Variety Store. The curb at this point is six to eight inches in height. The sidewalk is sixteen to eighteen feet in width.

After parking the car Mrs. Lane took the ignition key from the ignition switch. She testified that she thought she had turned the switch off, but the evidence is plain that she had not done so. The 1960 model Chevrolet was so designed and constructed that it was possible to take the ignition key from the switch without turning off the motor and without taking the car out of gear. That is evidently what happened on this occasion, for there is uncontradicted testimony that the motor was still running after Mrs. Lane had taken the ignition key from the switch and had alighted from the car, unlocked the rear door, and taken her young son from the rear seat.

Meantime Mrs. Hudnall had found that she could not leave the car from the right side where she had been sitting because another car had been parked so close that the door on the right side would not open wide enough to enable her to make her exit. Therefore she slid across the front seat from right to left in order to leave the car through the front left door.

While Mrs. Hudnall was attempting to leave the car through the left front door, the car motor, which had been running quietly, suddenly and with a loud roar began running 'wide open'. At the same time the car lurched and started in motion, bounced against the curb two or three times, then jumped the curb, ran across the sidewalk against the front wall of Duncan's Variety Store, where it again bounced two or three times before some unknown person either cut off the motor or threw the car out of gear.

Unfortunately, appellant Mrs. Barbara June Muncy was a sidewalk pedestrian in front of Duncan's Variety Store when the runaway car crossed the sidewalk. She was pinned against the front wall of Duncan's Variety Store and sustained serious injuries. One of her legs was almost severed and later had to be amputated. She sustained other injuries.

Did Mrs. Hudnall inadvertently step on the accelerator as she was sliding along the front seat from right to left in order to make her exit through the left front door? The accelerator pedal is credled beside a hump in the middle where the drive shaft goes back under the floor board. In a deposition Mrs. Hudnall testified that she did not know whether she had stepped on the accelerator. She does not drive an Automobile and does not know the brake pedal from the accelerator pedal. She did not remember whether she slid across the front seat feet first or body first. She testified that she did not know whether she was partly out of the car when it suddenly burst into action. However, she also testified that she thought she had one leg in the car at the time, which must have been her right leg. To get out on the left side she had to slide under the steering wheel with her body.

There is some disagreement between counsel as to Mrs. Hudnall's testimony concerning whether she had 'frozen' onto the accelerator, that is, whether she had pushed the accelerator to the floor and kept it there continuously with her foot. In view of this disagreement we believe it well to quote her testimony in regard to the subject:

'Q You know that you were planning or acting in the plan of moving your feet from the passenger's side of that car over to the driver's side?

'A Yes.

'Q And it was then that the automobile lurched and started up, you know that?

'A I know that it did lurch.

'Q And you know that it lurched after you started to move, don't you?

'A Yes.

'Q And you know that you didn't freeze or stick your foot on the accelerator and hold it down, don't you?

'A I don't know the accelerator from the brakes.

'Q. Then you know that you didn't have your foot on anything there holding it down, don't you?

'A I did not.

'Q. Ma'am?

'A I did not.

'Q You do know that. Thank you. Now, was the door open on the driver's side when you were attempting to get over to get out?

'a Yes.'

There is testimony to the effect that after the car burst into action the roar of the engine and the motion of the car and the wheels were continuous and steady.

Davis Smith testified that his company had sold the car to the Lanes and had given it the usual pre-delivery inspection before delivering it to them and had found nothing wrong with it.

Alvin Doyle, Jr., an automotive expert, testified at some length concerning the design and construction of the 1960 model Chevrolet and the linkage system between the accelerator and the carburetor, including the spring whose function it is to bring the accelerator back to position when pressure on it is released. In connection with his testimony several exhibits were introduced including an actual carburetor of the same model as that used in the Lanes' automobile. With the help of these exhibits Doyle described the various parts in the linkage system by which movembent of the accelerator pedal is communicated to the accelerator and the transmission whereby the speed of the vehicle is regulated. He disignated a number of points of friction and resistance in the carburetor and the transmission linkage. He further testified that the car, while parked with the motor running, would not have jumped the curb if the throttle had not in some way been opened with the car in gear.

Doyle's testimony also includes this question and answer:

'Q On the next assumption, Mr. Doyle, let's assume all of the facts I have stated to you and that the passenger instead of freezing on the throttle, was tramping on it; would it or not have remained stuck and in a continuous roar under the mechanical make-up of that model of Chevrolet if the throttle had been tramped on or jiggled?

'A No.'

Steve Selph, an automobile mechanic, towed the car after the accident to the Centter Chevrolet Company at Kilgore, Texas, where it was stored for a time. Selph testified that he checked the car after the accident to see if anything was wrong with it. He checked the transmission to see if it would move or hang in gear, tested the accelerator linkage to see if it was working, inspected the carburetor and the gasoline feed, and operated the foot feed with the motor running. He found nothing wrong.

ADMISSIONS OF GENERAL MOTORS CORPORATION

In response to requests for admissions General Motors Corporation made certain answers which appellants assert are important in regard to the question whether appellants made out a bona fide cause of action against General Motors Corporation. Some of these admissions are:

(1) General Motors Corporation designed, manufactured, assembled and constructed the Chevrolet automobile sold by Smith Chevrolet Company to the Lanes, which automobile was involved in the accident in question.

(2) The said automobile was designed and constructed to permit (a) withdrawal of the ignition key with the ignition switch in an 'on' position without stopping the motor, and (b) withdrawal of the key with the ignition switch in 'on' position and the car in drive gear without stopping the motor.

(3) The said automobile was designed (a) to prevent the key from being removed from the ignition switch when said switch was in 'off' position, and (b) to prevent the key from being removed from the ignition switch when if 'off' position to guard against leaving the ignition switch in 'off' position but not locked.

(4) The said automobile was designed and constructed (a) without an indicator light to come on for the specific purpose of warning when the ignition key is removed from the ignition switch in an 'on' position when (A) such switch is in 'on' position and (B) when such switch is in 'on' position and the motor is running.

(5) The...