Reader v. General Motors Corp., 1
| Decision Date | 01 October 1970 |
| Docket Number | No. 1,CA-CIV,1 |
| Parties | 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, Inc., an Arizona corporation, Appellant and Appellee, Hertz Corporation, a Delaware corporation, dba Hertz Rent Z Car, Appellant. 1083. |
| Court | Arizona Court of Appeals |
Snell & Wilmer, by Roger W. Perry and Arthur P. Greenfield, Phoenix, for General Motors Corporation.
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.
On 14 July 1965, in the course of his employment, Lawrence R. Reader was driving a heavily ladened 1965 Chevrolet truck of the 60 series down a steep grade. His minor son, Robert, was with him. The truck was approximately six months old. Before starting downgrade, Reader tested the service brakes and they were functioning satisfactorily. He shifted to a lower gear to have the advantage of engine compression to impede the downgrade pgogress of the truck. Compression alone would not adequately control the vehicle's speed. After he commenced his downgrade course and upon the third application of the brakes the hydraulic brake line ruptured. The truck then had no service brakes. The hand or parking brake was not adequate, nor was it intended as a substitute for service brakes. Reader attempted to slow the vehicle by further downshifting without success. Upon obtaining a speed of approximately 70 miles per hour, he gathered his son to him and jumped. Both were seriously injured. The truck went over an embankment and was extensively damaged. The record is devoid of any indication of negligence on Reader's part.
The truck had been manufactured by General Motors Corporation. It left General Motors with a conventional one seat cab and no body. Through Madison Chevrolet, a local Chevrolet dealer, the truck was sold to the Hertz Corporation. Hertz leased the truck to United Produce Company, Inc., Reader's employer. To meet United's specifications Hertz contracted with the Fruehauf Trailer Company to move the rear wheels 30 inches to the rear. A 20-foot van body with ice bunkers and a blower was installed. The truck frame was not modified other than to drill the holes necessary to affix the rear wheels in the new position. The details of the installation of the van body are not set forth in the record. The record is silent as to any work by Fruehauf in the area which is involved in this litigation.
At some time during the brief life of this vehicles, the speedometer cable was fastened to the frame of the truck by a clip. This was done in such manner as to create contact between the speedometer cable and the hydraulic brake tube. The tube thus became worn and ruptured at the place of contact. This was the cause of the accident.
Suit was filed by the Readers against General Motors, Madison Chevrolet, Rudolph Chevrolet, and Hertz. Hertz sought recovery over against Madison and General Motors. Madison sought recovery over against General Motors. Rudolph had performed some warranty repairs. Rudolph prevailed on a directed verdict at the close of the plaintiffs' case and there was no appeal from that portion of the litigation.
The trial court directed a verdict in favor of General Motors. The trial court markedly On this appeal the amounts of the verdicts are not in issue is there an issue as to the plaintiffs' legal right to seek damages against someone. In other words Robert's status as a passenger riding with his father and the father's status as an employee-driver for United are not issues as to their respective capacities to sue.
limited the issues as to Madison. The jury verdicts in favor of Lawrence R. Reader and in favor of Robert were against Hertz only.
The basic issues which are presented to us are:
1. The propriety of the directed verdict in favor of General Motors;
2. The extent of the obligation of the dealer-seller in connection with the performance of manufacturer's warranty repairs; and
3. The nature of the Hertz liability as the lessor of the vehicle.
A 'clip' is a metal object used to hold a wire or a cable onto or in close proximity to the frame or to a bracket attacked to the frame of the truck. We are here concerned with 'E clips,' with clips exemplified by 'Exhibit 62' and with a clamp exemplified by 'Exhibit 71.' We will discuss these in more detail later in this opinion.
The truck in question was equipped with a manually operated five-speed transmission. The transmission was located under the floor boards of the cab. The truck had two rear axles, only the forward of the two having a differential. The forward axle was a two-speed axle. The change of the differential gear ratio was activated by a control on the gearshift lever. The higher speed is called 'over' and the lower speed for heavy upgrades or for more effective compression retardation of speed on downgrades is called 'under.' Reader commenced his descent in third under.
The truck was equipped with a hydraulic braking system for the service brakes. There was a hydrovac integrated with the braking system which boosted the power applied to the brake shoes when pressure was applied to the brake pedal. The tubing which carries the hydraulic fluid was affixed to the inside of the left portion of the frame. The speedometer cable was in two sections and we are concerned only with the lower or rear section. The cable was activated by the transmission. It was attached to the upper left of the transmission. There was an L-shaped bracket on the left frame. The horizontal portion was affixed to the frame. The bracket extended toward the center of the vehicle and the vertical portion was downward. There was a one-quarter inch hole in the vertical portion. The sole function of the bracket was to route the speedometer cable. The design called for the use of the E clip, one portion of which was inserted through the hole and the cable was then forced into another portion of the clip so that the spring action of the clip and the friction engendered by the clip held the cable in place. The dual function of the clip was to route the cable in a good position for its operation and to effectively prevent any contact between the speedometer cable and the brake line. E clips were a factory item not available to dealers. In the event the E clip was missing or in the event the cable became disengaged therefrom, the cable would hang in an are and would not be in contact with the brake line. The Exhibit 71 clamp, earlier mentioned, was one of perhaps several clamps which could be used to perform the E clip function. The clamp formed a loop through which the cable could be passed and the clamp would then be bolted to the bracket utilizing the hole in the bracket. The E clip should have been inserted into this same hole.
After the accident it was discovered that sometime, someone had used an Exhibit 62 clip to hold the speedometer cable against the truck frame in such a manner as to create the cable and brake line contact. The clip was placed on the frame in close proximity to the L-shaped bracket and to the rear thereof. It was through this contact that the flexible cable rubbed against the securely fastened brake line, wearing After the truck left General Motors and before its delivery to Hertz it was processed through Madison's 'get ready' department.
the brake line so thin that the heavy pressure on the brake system on the downgrade course of the truck caused the brake line to rupture at this weakened point. An Exhibit 62 clip is somewhat U shaped and is forced over the horizontal portion of the frame, being held in place by friction. There was testimony that the Exhibit 62 clip was not a Chevrolet part. There was testimony, much of which was stricken by the trial court, that Exhibit 62 or similar clips were found on the frames of other Chevrolet or GMC trucks (also manufactured by General Motors) holding electrical wires in place. There was testimony that some GMC and some Chevrolet parts are interchangeable.
After Hertz received the vehicle, subsequent to the Fruehauf modification and subsequent to the installation of the van, it was used exclusively by United. By contract Hertz had the full responsibility for keeping the vehicle 'in good repair, mechanical condition, and running order' as well as all lubrication. By contract the vehicle was garaged by Hertz and Hertz undertook the 'complete inspection and necessary repairs' thereof.
A mock-up of a portion of the frame, the speedometer cable route, the L-shaped bracket and the location of a segment of the brake line was built by General Motors and was received in evidence. An excellent color photograph of the frame area in question was taken shortly after the accident and was received in evidence. From these exhibits it appears to this Court that the L-shaped bracket is rather prominent. The bracket appears to be located at approximately the forward edge of the floor boards. There was extensive evidence presented by witnesses who pointed to various areas of the mock-up. This was undoubtedly easy for the jury, the trial court, and for counsel to see and to comprehend.
The record is difficult to read without the benefit of the courtroom physical demonstrations. This Court readily appreciates the difficulty counsel experienced in establishing a solid trial record in their efforts to cause that record to completely reflect the full effect of this particular portion of the evidence.
The record reflects that the parties engaged in extensive...
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