State Auto Mut. Ins. Co. v. Chrysler Corp.

Decision Date19 December 1973
Docket NumberNo. 72-918,72-918
Citation304 N.E.2d 891,65 O.O.2d 374,36 Ohio St.2d 151
Parties, 65 O.O.2d 374 STATE AUTO MUTUAL INS. CO., Appellant, et al., v. CHRYSLER CORP. et al., Appellees.
CourtOhio Supreme Court

Syllabus by the Court

1. In a case in which a party delays in the production of objects for inspection and fails to fully answer written interrogatories, the trial court does not abuse its discretion where it assesses the costs but refuses to enter a default judgment against such recalcitrant party, when the party moving for judgment does not exercise his remedies under Civ.R. 37. (Civ.R. 37, construed.)

2. In products liability cases involving defects in automobiles, the plaintiff's burden of proof consists of alleging and proving, by a preponderance of the evidence, that: (1) There was, in fact, a defect in the product manufactured and sold by the defendant; (2) such defect existed at the time the product left the hands of the defendant; and (3) the defect was the direct and proximate cause of the plaintiff's injuries or loss. (Lonzrick v. Republic Steel Corp., 6 Ohio St.2d 227, 218 N.E.2d 185, approved and followed.)

3. One who contracts to repair an automobile is not liable for an alleged failure to discover a latent defect, unless the evidence shows that he undertook to discover cover such defect and negligently failed to do so. (Paragraph seven of the syllabus in Landon v. Lee Motors, 161 Ohio St. 82, 118 N.E.2d 147, approved and followed.)

4. Where an automobile mechanic, who specializes in the inspection, maintenance and repair of auto brake systems, and has seen reptured brake hoses on 30 similar occasions, trestifies that, in his opinion, the brake hose in question was ruptured in an 'outward' manner and that such reputure was occasioned by a defect in the brake hose, and he is the only witness to examine the hose in question, such expert testimony is admissible, and it is prejudicial error for the trial court to exclude it.

Plaintiff-appellant, State Auto Mutual Insurance Company, hereinafter referred to as appellant, is the subrogated collision insurrer of Plaintiff Gary C. Hess. On June 6, 1969, Hess purchaser from defendant Anstaett Dodge, Inc., a new 1969 Dodge one-half ton pickup truck, manufactured by defendant Chrysler Corporation. An accident occurred on August 20, 1969, due to an alleged brake failure, whereby the value of the vehicle was reduced by $2,354.67, $2,254.67 of which was paid by the appellant. At the time of the accident the vehicle had been driven in excess of 7,000 miles.

The evidence presented at the trial in the Municipal Court established that the right-front brake drum and linings of the truck were repaired by Anstaett Dodge on August 4, 1969, but that the repairs did not involve work on the right-front brake hose. Additional testimony established that the right-front brake hose had not been inspected during the course of repairs on August 4, 1969, but that the master Cylinder fluid reservoir was inspected, and, at that time, it was full of fluid.

R. L. Crooks, an automobile mechanic experienced in the inspection, maintenance and repair of automobiles, testified that he had inspected the truck after the accident, at plaintiff's request, and found that the master cylinder fluid reservoir was empty; that the right-front brake hose had a hole in it at the end nearest the frame of the automobile; and that, in such a condition, the braking system would not work.

The trial court's findings, of fact, based upon all the evidence, included a finding that there was a proper inference from the evidence that the accident was caused by the leakage of brake fluid from a hole in the right-front brake hose, and that this hose was original equipment on the vehicle.

At the conclusion of plaintiff's case, the trial court granted motions by each defendant for a directed verdict and entered judgment accordingly, determining that there was no evidence that the brake hose was defective, or that the hold was caused by either defendant, or that a defect (if the hole could be considered a defect) existed at the time the vehicle left the manufacturer or dealer, or that the hose or any part of the vehicle was defective in manufacture or design.

In so entering judgment, the trial court excluded certain testimony of the witness Crooks relative to a description of the hose after the accident and his opinion testimony as to the condition of the brake hose.

Upon appeal to the Court of Appeals, appellant assigned as error: The granting of defendants' motions for a directed verdict upon the basis that the evidence raised a permissible inference that the manufacturer's and dealer's warranties incident to the manufacture, sale and repair of the vehicle had been breached; the exclusion of the opinion testimony of the witness Crooks, and of the investigating police officer, Daviid R. Noel; and the failure of the trial court to impose a meaningful sanction on the defendant Chrysler for its failure to properly and timely answer an interrogatory under Civ.R. 37.

The Court of Appeals affirmed the judgment of the Municipal Court. The cause is now before this court, pursuant to the allowance of a motion to certify the record, upon the same issues assigned as error in the Court of Appeals.

Droder Co., L. P. A., and Albert T. Brown, Jr., Cincinnati, for appellant.

Bloom & Greene Co., L. P. A., J. William Duning, Rendigs, Fry, Kiely & Dennis and W. Roger Fry, Cincinnati, for appellees.

CORRIGAN, Justice.

Appellant propounds four porpositions of law. The first three propositions deal with the degree of proof necessary to bring products liability actions within the purview of the jury for a determination as to the extent of the manufacturer's and dealer's liability under their warranty obligations and the proof necessary to establish liability for negligent repair. Appellant's fourth proposition relates to the trial court's discretion in imposing sanctions under Civ.R. 37. Since this latter issue is procedural and ancillary to the primary issue involved in this action, it will be disposed of first.

Appellant maintains that the trial court abused its discretion in not entering a default judgment against the appellees as a Civ.R. 37 sanction, since, appellant alleges, its interrogatories were evasively answered and its request for production under Civ.R. 34 was ignored for a considerable length of time.

Civ.R. 37 permits a party to move for an order compelling an answer, or an order compelling inspection in accordance with a request, and requires the court to award expenses to the moving party if the motion is granted. Civ.R. 37 also designates other sanctions and orders which the trial court may, in its discretion, make if a party fails to comply with a Civ.R. 37 order.

In this case, it appears from the record that appellant failed to move for such an order under Civ.R. 37. Further, it is apparent that appellant, in its motion for the production of objects for inspection, under Civ.R. 34, failed to designate any time perior for response and inspection.

The trial court, confronted with those circumstances, and the later production during trial of a brake hose of doubtful identify, exercised its discretion and assessed costs against appellee Chrysler Corporation for its failure to fully answer the interrogatories and for the delayed presentation of dubious evidence. Also, the trial court offered appellant a continuance for the purpose of instecting the brake hose in question, which offer appellant declined.

Those facts indicate an attempt by the trial court to insure fairness to all parties in the conduct of the trial. Appellant failed to avail itself of the remedies provided by the Ohio Rules of Civil Procedure and the trial court. There is no showing that the trial court abused its discretion in limiting its sanction to an assessment of costs against the appellee. Appellant's fourth proposition of law is, therefore, overruled.

In its first proposition of law, appellant contends that the failure of the braking system on a 77-day-old truck, due to the rupture of a right-front brake hose, raises a jury question as to whether the truck was defective when manufactured and/or sold.

The present case was brought upon the theory of strict liability. Appellant maintains in its brief:

'The time has come, in the slow and orderly development of the law of products liability in the state of Ohio, for this court to clearly enunciate the 'practical equivalent of the doctrine of res ipsa loquitur' to be applied in products cases.'

[2,3] In cases involving strict liability, the theory of plaintiff's case, proof of negligence is not required, and the doctrine of res ipsa loquitur is applicable only insofar as it allows a jury to infer negligence once a plaintiff has met his burden of proof. Prosser, Law of Torts (4 Ed.), 673, Section 103. That burden of proof, as stated by this court in Lonzrick v. Republic Steel Corp. (1966), 6 Ohio St.2d 227, 218 N.E.2d 185, consists of plaintiff's alleging and proving by a preponderance of the evidence, that: (1) There was, in fact, a defect in the product manufactured and sold by the defendant; (2) such defect existed at the time the product left the hands of the defendant; and (3) the defect was the direct and proximate cause of the plaintiff's injuries or loss.

The evidence admitted at trial establishes that the brake failure was caused by a leakage of brake fluid from a hole in the right-front brake line, which was original equipment on the vehicle and had not been tampered with. There was also evidence indicating that the hole had not been caused by the accident itself, but there was no evidence to indicate that the hole in the hose was not caused by some prior external force.

Professor Prosser, at page 672, points out that a defective condition may be proved by circumstantial evidence, where such evidence makes out a preponderance of probability that the accident was...

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