Sharp v. Chrysler Corp.

• Decision Date: 04 September 1968
• Docket Number: No. 142,142
• Parties: Jane W. SHARP, Appellant, v. CHRYSLER CORPORATION et al., Appellees. . Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 131

432 S.W.2d 131

Jane W. SHARP, Appellant, v. CHRYSLER CORPORATION et al., Appellees.

No. 142.

Court of Civil Appeals of Texas Houston (14th Dist.).

Sept. 4, 1968.

Rehearing Denied Oct. 2, 1968.

W. W. Watkins, W. James Kronzer, Brown, Kronzer, Abraham, Watkins & Steely, Houston, for appellant.

Finis E. Cowan, F. Walter Conrad, Jr., Baker, Botts, Shepherd & Coates, Houston, for appellees.

BARRON, Justice.

This is a products liability case involving personal injuries sustained by plaintiff, Jane W. Sharp, when the braking system of the right front wheel on a 1965 model Dodge Dart automobile failed in service when the vehicle had been driven 1,600 miles. Plaintiff filed suit against Palm Center Dodge, Inc.; Chrysler Motors Corporation, Dodge Division; Chrysler Corporation; and Marcus-Jones Buick, Inc., alleging common law negligence of the defendants, and also alleging strict liability in tort. Plaintiff's claim is that the Dodge Dart automobile was in a defective condition when it left the hands of each seller.

At the conclusion of plaintiff's case the trial court directed verdict in favor of Chrysler Corporation and Chrysler Motors Corporation. Palm Center Dodge, Inc. and Marcus-Jones Buick, Inc. were dismissed from the suit without prejudice. The appellant is Jane W. Sharp, and the appellees are Chrysler Corporation and Chrysler Motors Corporation. Appeal by Mrs. Sharp has been duly perfected to this court.

Appellants have assigned four points of error, the substance of which is that the trial court erred in instructing the verdict because the evidence was sufficient for submission of issues to the jury on grounds of common law negligence and strict tort liability, and because the trial court erred in ruling that the witness LaRue was not qualified to express an expert opinion regarding the defective nature and design of the braking mechanism as well as the defective installation of the adjusting unit of the brakes, and the alleged error of the trial court in refusing to permit the witness LaRue to testify as to how the adjusting unit became detached from its normal position which allegedly resulted in brake failure.

The accident occurred on March 25, 1965. The automobile was manufactured at some time before September of 1964, and on September 1, 1964, the vehicle was sold by Chrysler to Pasadena Dodge. The vehicle remained in the possession of Pasadena Dodge until December 7, 1964. There is no evidence concerning the use of the vehicle while it was in possession of Pasadena Dodge, a local dealer. On December 7, 1964, the vehicle was sold to Palm Center Dodge, which retained ownership of the vehicle until December 31, 1964, when it was sold to V. W. Tipton. Four days after the car was sold to Tipton it appeared to be rusty on the inside, the chrome was corroded and dirty, the outside had nicked places on it, and it had not been polished. No use of the car was shown while it was owned by Palm Center Dodge. Tipton drove the car only four days, and during this period of time he collided with an object causing damage to the right front portion of the vehicle. The right front fender was damaged, the grill was mashed, and the mechanism supporting the right wheel was damaged badly enough so that it was necessary to replace the A-frame. The A-frame was not composed of heavy steel and was not a part of the total chassis support structures, but was described as a 'frame and it's nothing but sheet metal.' Various witnesses performing repair work on the car testified that the braking mechanism operated properly after the repairs were made to the car, and that it was not necessary to open the braking unit. Also, the steering mechanism was damaged to some extent. The front bumper, the radiator case support, the lower control arm and the cowl were somewhat damaged. The right front wheel disc, which was shown to be the aluminum hub cap, was slightly bent and was replaced . The front end of the car required re-alignment. Total cost of the repairs was approximately $265.00. Tipton died in early January, 1965, and there is no evidence in the record of the use or abuse of the car while it was in his possession, except the accident above.

Mrs. Tipton then apparently sold the car to Brazos Engineering Company, Mrs. Sharp's employer, the latter part of January, 1965. The vehicle was used by Brazos as a company car. It was represented to Mrs. Sharp as being a new car, without disclosure of the fact that it had been damaged. The custom was to leave the vehicle in front of Brazos Engineering Company where it was susceptible to use of several persons. The vehicle operated acceptably up until February 25, 1965, when it developed mechanical trouble of an undetermined nature. The apparent defect was in the engine, and the mechanical repairs did not relate to the braking system. The car was again in Mrs. Sharp's possession after about four days. Both before and after the four-day period during which the vehicle was being repaired while owned by Brazos Engineering Company, appellant positively testified that the braking system operated perfectly. The evidence shows that until the time of the brake failure immediately before the accident the brakes 'operated perfectly.' There is no evidence to suggest that the interior mechanisms of the brake system was ever exposed. To have invaded such mechanism would have required the removal of a large nut, the removal of a cotter key, and the disturbance of the grease seal. It was shown that such action was never called for or was never necessary from the time appellees surrendered possession of the vehicle to Pasadena Dodge until the time of the accident in which Mrs. Sharp received injury. The claimed defect in the braking system which caused brake failure while Mrs. Sharp was driving the car, was within an encased steel container or mechanism, and it was not open for tampering or repair without removal of the large nut, cotter key and grease seal above.

The witness LaRue testified substantially as follows: the brake system on the vehicle was a self-energizing system. When the brake pedal is depressed, force is transmitted to the hydraulic system causing a piston in the brake cylinder to push the primary or front shoe into contact with the brake drum. The force of the shoe on the brake drum is transmitted through the adjusting mechanism to the secondary or rear shoe, and when the adjustment mechanism is completely out of place, a total brake failure and loss of all brake fluid will result. The adjusting mechanism or unit did become completely dislodged before the accident, thus causing a total failure and loss of fluid, according to the witness. He further testified that the damage to the parts of the brake system involved occurred because the automatic adjuster mechanism became dislodged from its proper place, was wedged in between the bottoms of the two shoes, and was damaged while in this position. The testimony shows that the adjusting unit was approximately 2 3/4 inches in length at the time it was found following the entry into the braking unit, and that this is the minimum length of the adjusting unit. In such a position it is not difficult to remove. Because Chrysler does not use a horizontal retaining spring which would be parallel to the adjusting unit when in place, it takes little effort to remove the adjusting unit on a Chrysler product from its position. LaRue felt that at some point in time before the accident occurred, the automatic adjuster had become dislodged from its normal position and wedged between the two bottom ends of the brake shoes, and had remained there for some period of time, affording partial braking power, and allowing the parts in question to be abraded and damaged. He gave no testimony as to exactly when the automatic adjuster had become dislodged, nor did he testify as to the period of time that the vehicle could have operated with the adjuster in its dislodged position. He testified that some of the marks on the damaged parts were consistent with abuse by a hammer or blunt instrument, though that was only a possibility. He never did testify that the damage he found could not have been caused by tampering or by the January accident. He expressed the opinion that the adjuster had been out of place for a 'substantial' period of time and a substantial distance. He was a partner in an automobile repair business and had been an automobile mechanic repairing brakes for thirty years. He was familiar with all types of braking systems, including those of General Motors and Chrysler.

Exhibits and testimony of LaRue show that there was a hole at the lower portion of each of the brake shoes. The brake shoes were manufactured by Bendix and were used by Chrysler in its total brake design. Similar brake shoes were made by Bendix and sold to other manufacturers and assemblers. These holes were used by General Motors to attach a spring that would be parallel to the adjusting unit and connect the two brake shoes together in such manner. According to LaRue, on appellant's bill of exceptions, this gives greater stability to the area where the adjusting unit is inserted and would make it more difficult for the adjuster to become displaced. The trial court refused to permit LaRue to testify that General Motors did use a horizontally attached spring, or that such a spring would give additional stability, or to state what the holes were for. Moreover, the trial court denied the witness the opportunity to testify as to his explanation of the manner of brake failure, and it refused testimony of the witness regarding what method could be used to insure the fact that the adjusting unit would stay in place--a form of design testimony.

As a general matter cases are not to be submitted for jury consideration when there is no evidentiary foundation on which to predicate intelligent deliberation and reach a reliable...