Reader v. General Motors Corp.

• Decision Date: 22 April 1971
• Docket Number: No. 10284--PR,10284--PR
• Citation: 107 Ariz. 149,54 A.L.R.3d 1068,483 P.2d 1388
• Parties: , 54 A.L.R.3d 1068 Lawrence R. READER and Sally Reader, his wife; Robert Reader, a minor, by his Guardian ad Litem, Lawrence R. Reader, Appellants and Appellees, v. GENERAL MOTORS CORPORATION, a Delaware corporation, Appellee, Madison Chevrolet, an Arizona corporation, Appellant and Appellee, Hertz Corporation, a Delaware corporation dba Hertz Rent A Car, Appellant.
• Court: Arizona Supreme Court

Page 1388

483 P.2d 1388

107 Ariz. 149, 54 A.L.R.3d 1068

Lawrence R. READER and Sally Reader, his wife; Robert Reader, a minor, by his Guardian ad Litem, Lawrence R. Reader, Appellants and Appellees, v. GENERAL MOTORS CORPORATION, a Delaware corporation, Appellee, Madison Chevrolet, an Arizona corporation, Appellant and Appellee, Hertz Corporation, a Delaware corporation dba Hertz Rent A Car, Appellant.

No. 10284--PR.

Supreme Court of Arizona, In Banc.

April 22, 1971.

Rehearing Denied May 25, 1971.

Killian & Legg, by John G. Hough, Mesa, for the Readers.

Snell & Wilmer, by Roger W. Perry and Arthur P. Greenfield, Phoenix, for General Motors Corp.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, by John H. Killingsworth and Jay M. Martinez, Phoenix, for Madison Chevrolet.

Fennemore, Craig, von Ammon & Udall, by Calvin H. Udall, Phoenix, for Hertz Corp.

HAYS, Vice Chief Justice.

This cause is before us on a petition for review of a decision of the Court of Appeals, Division One, which affirmed in part and reversed in part a judgment entered by the Superior Court of Maricopa County. Reader v. General Motors Corporation, 13 Ariz.App. 207, 475 P.2d 497 (1970). The opinion of the Court of Appeals is vacated.

On July 14. 1965, Lawrence R. Reader was driving a 1965 Chevrolet truck, 60 series, while in the process of delivering a load of watermelons for his employer, United Produce Company. His minor son, Robert, was with him. As Reader proceeded down Slate Creek Hill, a long, steep grade on State Highway 87, south of Payson, Arizona, the brakes completely failed. Reader applied the emergency brake and attempted to downshift the transmission but the vehicle continued to gain speed. After the truck had attained a speed of approximately 70 miles per hour, Reader grabbed his son and jumped. Both were severely injured. The truck went over an embankment and was extensively damaged.

The vehicle was manufactured by the Chevrolet Division of the General Motors Corporation. It left the assembly line with no van or bed and was delivered to Madison Chevrolet. Madison sold the truck to the Hertz Corporation and Hertz leased it to United. To meet the specific requirements of United, Hertz arranged to have the Fruehauf Trailer Company install a 20 foot van equipped with an ice bunker. Both Madison and Rudolph Chevrolet performed warranty repairs on the vehicle and, at the time of the accident, it was approximately six months old.

The Readers, plaintiffs hereinafter, brought this action against General Motors, Madison Chevrolet, Rudolph Chevrolet and Hertz. The complaint charged and the action was tried on theories of negligence, strict liability in tort and breach of warranty. Hertz cross-claimed for indemnity against Madison, Rudolph and General Motors. Madison cross-claimed for indemnity against General Motors.

General Motors employed Fred H. Cady to investigate the cause of this accident. Cady, a specialist in accident analysis, examined the vehicle after it had been towed to the premises of Madison. His examination disclosed the absence of a certain clip (hereinafter referred to as Exhibit 61) which was designed to clamp the lower portion of the speedometer cable to a metal bracket located only a few inches from the frame. Instead, Cady discovered that someone had installed a different clip (identical to the one admitted into evidence and hereinafter referred to as Exhibit 62) which was holding the speedometer cable against the frame itself. This caused the speedometer cable to rub against the hydraulic brake tubing. The continuous rubbing action betwen the cable and the tubing wore the latter thin to the point where the weakened area could no longer withstand the normal hydraulic pressure when the brakes were applied. The tubing finally burst and the brake fluid escaped. This caused an immediate and complete loss of braking power. It was Cady's opinion, and it is undisputed by the parties, that the ultimate cause of the accident was brought about by the person who improperly clipped the speedometer cable to the frame of the truck. If the cable had been clipped to the metal bracket, it would not have come into contact with the brake tubing.

Cady testified that he took the clip, a section of the brake tubing and the speedometer cable to his place of business in California and subjected them to certain microscopic tests. Following this examination, he delivered these parts to General Motors; however, he stated that he did not know their present whereabouts. Although he was familiar with the process, Cady did not conduct a microphotographic study of the metal bracket to determine whether a clip had ever been installed thereon. Cady was unable to determine who installed the Exhibit 62 clip to the frame of the truck.

Robert J. Smith, an engineer with the Chevrolet Motor Division, testified that he was familiar with the design criteria for the 1965 Chevrolet truck, Series 60. He stated that a clip like Exhibit 62 is not used anywhere in the manufacture of 1965 Chevrolet trucks; that he had never seen an Exhibit 62 clip before this accident and that one man on the assembly line installs the metal brackets, routes the speedometer cable and fastens the cable to the bracket by means of an Exhibit 61 clip. He further testified that General Motors did not supply its dealers with Exhibit 61 clips. He explained that although the Chevrolet Division uses 'thousands' of clips of various configurations, the dealers do not have to stock all of them because one clip can replace 'maybe 20, 30 or 50 clips that we use for the original manufacture.' Smith stated that Chevrolet dealers could determine the proper clip to use by referring to the Chevrolet Illustrated Truck Parts manual; however, when asked to do so, he was unable to locate in such manual an illustration of the metal bracket, the routing of the speedometer cable or a recommended clip to use in place of an Exhibit 61 clip.

Although Smith indicated that it would be dangerous to permit any contact between the speedometer cable and brake tubing, he also testified that every Chevrolet truck manufactured in 1965, including the smallest pick-up truck, was designed in such a way that both the speedometer cable and brake tubing were placed in close proximity to each other along the left side of the truck frame. He said that it was necessary for the brake tubing to be located along the left side of the frame because the master cylinder was placed on that side. The metal bracket was designed to prevent any contact between the speedometer cable and brake tubing. This bracket was located about three inches from the brake tubing.

The record indicates that Donald Hartman was the only mechanic employed by Madison who performed warranty repairs on the subject vehicle. He testified from the warranty work orders which were placed in evidence. The work orders indicate that this truck was the subject of a number of complaints. One complaint was to the effect that the brakes would not stop the truck. To cure this ill, Hartman repaired the hydrovac to provide the proper vacuum assistance. He also replaced the upper portion of the speedometer cable which had broken but he stated that this section of the cable was completely segregated from the lower section, the part critical to this lawsuit. He also repaired the transmission on two separate occasions and this involved the disengagement of the upper portion of the speedometer cable. Hartman testified that none of the warranty repairs he performed on this vehicle involved the lower part of the speedometer cable and he was certain that he did not disturb this area in any manner. He stated that he did not install the Exhibit 62 clip and that he had no knowledge of the person or entity responsible for its installation.

Hartman also inspected the damaged vehicle after it had been returned to Madison. Thereafter, he examined some of the new 1965 Chevrolet trucks, Series 60, on Madison's new truck lot. He discovered that although an Exhibit 61 clip was installed on some, such clip was missing from the others. In one of the latter instances, the metal bracket was also missing and the speedometer cable was lying against the brake tubing. Hartman did not know if these vehicles had been through Madison's 'get-ready' department at the time he examined them. He further testified that he had seen many trucks delivered by the Chevrolet factory with broken, omitted or defective parts.

Like Smith, Hartman was unable to determine from the truck manuals furnished by the Chevrolet Division what clip to use in the event the Exhibit 61 clip was missing. He stated that the manuals neither recommended a substitute clip nor the proper routing of the speedometer cable. He testified that if an Exhibit 61 clip was missing and the speedometer cable was hanging loose, he would have to rely on his own common sense to determine how the cable should be clipped to the truck. Hartman admitted that he had seen clips like Exhibit 62 on frames of Chevrolet trucks prior to this accident.

Fruehauf's service manager, Melvin Daid, testified that Fruehauf did not stock Exhibit 62 clips and that Fruehauf's records did not indicate that such a clip was purchased in connection with the work Fruehauf performed on the vehicle. David also testified that the work Fruehauf performed did not require anyone to go near the area where the Exhibit 62 clip was found after the accident. He observed the work as it was performed and did not notice anyone near the critical area. Opal Moore, a Fruehauf mechanic who actually worked on this vehicle, testified that all such work was 'ten feet away from the speedometer cable.'

Hertz' city manager, Martin Sand, testified that Hertz purchased the truck from Madison; that Madison performed all of the pre-delivery service; that Hertz paid Madison for this service; that Hartz' preventive maintenance program did not involve the inspection...