Wilcheck v. Doonan Truck & Equipment, Inc.

• Decision Date: 23 July 1976
• Docket Number: No. 47975,47975
• Parties: Keith WILCHECK, Appellant, v. DOONAN TRUCK & EQUIPMENT, INC., et al., Appellees.
• Court: Kansas Supreme Court

Page 938

552 P.2d 938

220 Kan. 230

Keith WILCHECK, Appellant, v. DOONAN TRUCK & EQUIPMENT, INC., et al., Appellees.

No. 47975.

Supreme Court of Kansas.

July 23, 1976.

Syllabus by the Court

1. Regardless of the theory upon which recovery is sought for injury in a products liability case, proof that a defect in the product caused the injury is a prerequisite to recovery.

2. The proximate or legal cause of an injury is that cause which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred, the jury being the natural and probable consequence of the wrongful act.

3. In a products liability case involving a Model 71 Jacobs Engine Brake, used on a diesel truck which overturned as it rounded the second part of an 'S' curve, the record on appeal is examined, and as is more fully set forth in the opinion, it is held: The plaintiff has not sustained the burden of proof to show that failure of the Model 71 Jacobs Engine Brake installed on the truck unit in question proximately caused the accident and resultant injuries.

Robert L. Howard, of Foulston, Siefkin, Powers & Eberhardt, Wichita, argued the cause, and Stephen T. Phelps, Wichita, of the same firm, Daniel C. Bachmann and Jacob Graybill, both of Bachmann, Arnold & Graybill, Wichita, were with him on the briefs for appellant.

Lee Turner, of Turner & Hensley, Chartered, Great Bend, argued the cause, and Raymond L. Dahlberg, Great Bend, of the same firm, was with him on the brief for appellee, Doonan Truck & Equipment, Inc.

William Tinker, of McDonald, Tinker, Skaer, Quinn & Herrington, Wichita, argued the cause, and William Tinker, Jr., Wichita, of the same firm, was with him on the brief for appellee, Doonan Truck & Equipment of Wichita, Inc.

H. W. Fanning, of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, argued the cause, and Harker E. Russell, Wichita, of the same firm, was with him on the brief for appellee, Diesel Equipment Co., Inc.

Donald R. Newkirk, of Fleeson Gooing, Coulson & Kitch, Wichita, argued the cause, and Richard I. Stephenson, Wichita, of the same firm, was with him on the brief for appellee, Jacobs Manufacturing Co.

SCHROEDER, Justice:

This action was initiated as a products liability case involving a Model 71 Jacobs Engine Brake, used on diesel trucks. On March 17, 1969, a tractor-trailer truck in which Keith Wilcheck, (plaintiff-appellant) was a relief driver and passenger overturned as it rounded the second part of an 'S' curve on a Tennessee state highway near Hornbeck, Tennessee. The truck was being driven at the time by Ron Wilcheck, who was Keith's brother. Keith Wilcheck sued four parties: The manufacturer of the Model 71 Jacobs Engine Brake, Jacobs Manufacturing Company (hereafter Jacobs); the distributor of the brake who also repaired the brake, Diesel Equipment Co., Inc., (hereafter Diesel); the seller, Doonan Truck & Equipment, Inc., (hereafter Doonan's of Great Bend); and another truck dealer, Doonan Truck & Equipment of Wichita, Inc., (hereafter Doonan's of Wichita). The case went to a jury on theories of negligence and breach of warranties. It was alleged the Model 71 Jacobs Engine Brake was defective and caused the accident. The jury returned a verdict for Doonan's of Great Bend and Doonan's of Wichita, but was hung as to the other two defendants. The trial court then directed a verdict for the other two defendants, Jacobs and Diesel. Keith Wilcheck has duly perfected an appeal.

The trial of the lawsuit which required three weeks for the presentation of evidence was hotly contested. The record discloses on July 25, 1968, Ron Wilcheck purchased a new 1968 Peterbilt truck equipped with a Detroit Diesel Engine from Doonan's of Great Bend. Kenneth Doonan taught Ron how to drive. Ron took the truck to Tri-State Motor Transit Company in Joplin, Missouri, passed a driving test and began long haul driving under a lease with Tri-State, a commercial hauling enterprise. On Ron's first West Coast trip, his difficulties coming down Donner's pass convinced him he needed an engine compression brake to retard his truck and help eliminate getting his service brakes hot from overuse.

Ron had talked with other truckers and had seen a copy of an 'elephant book' published by Jacobs describing their product. After having operated the truck approximately 30,000 miles, on September 7, 1968, Ron purchased a Model 71 Jacobs Engine Brake (also called a Jake brake) from Doonan's of Great Bend who installed it on his truck and Ron continued his long haul business. At the time of the accident which gave rise to this lawsuit, the truck had been operated for approximately 140,000 to 150,000 miles and the engine brake had been in use for approximately 110,000 or 120,000 actual miles. The written warranty on the engine brake was limited to 100,000 miles, and Ron knew the warranty had expired.

Keith Wilcheck testified that when he first began to work with his brother as an assistant driver, his brother instructed him on the purpose and use of the auxiliary device as follows:

'. . . He told me that it was a retarder such as coming up towards stop signs or something like this, it would slow the truck down. It would not stop the truck because this you had to do with service brakes but it would aid in slowing down. It helped in slowing down for curves, descent, going down a grade or a mountain. It also worked as a retarder where you did not have to keep a constant heavy pressure on the brakes. In other words, it saved the service brakes for other uses. He stated that it was a safety device because it would act as a brake, although not in the same sense as service brakes.'

The product of Jacobs is sold by it to original equipment manufacturers for installation on new units and to distributors who in turn sell units to dealers for installation on trucks not originally equipped with an engine brake. Jacobs does not sell its engine brake directly to consumers or users.

A Jacobs Engine Brake is an electrically controlled, hydraulically operated engine attachment which may be used on diesel engines. It alters the exhaust valve operation on an engine not under power and acts as a brake on the diesel engine by causing the engine to work as an air compressor. This in turn permits the engine compression force to be applied to the power train and retard the vehicle normally powered by the diesel engine. Essentially, it works to hold back the diesel engine operated vehicle in a manner similar to a gasoline engine which holds back a moving automobile when the accelerator is retarded. The technical aspects of the operation of the brake are described by Jacobs as follows:

'. . . Installed over the rocker arm assemblies of the diesel engine, the master piston within the engine brake housing picks motion from one part of the engine and through a hydraulic system within the brake, using entrapped engine lube oil, transfers this movement to a slave piston over the exhaust valves causing them to open at approximately top dead center on the compression stroke. This releases compressed cylinder air to the atmosphere. Under normal engine operating conditions, energy from the rear wheels is transmitted to the engine as compressed air in the cylinders. Without a means of exhaust, the energy is returned to the drive wheels on the compression stroke. The engine brake provides a means of exhaust or dissipation of the energy in the cylinder air, preventing its return to the drive wheels via the piston. Continuous energy input to the engine results in controlled retardation of the vehicle by converting the engine to an air compressor or pump. . . .

'The Jacobs Engine Brake will allow a diesel engine to absorb enough energy to keep a 75,000 pound vehicle under complete control without the use of service brakes at 15 miles per hour on a 10 percent grade. By proper gear selection in relation to road speed, total vehicle control can be assured the operator without any change in driving habits, generally leaving service brakes free for emergencies or a final stop.'

During the time the engine brake was in use for over 100,000 miles in the operation of the truck Ron Wilcheck testified it failed on at least seven different occasions, when it was necessary to have adjustments made, or parts replaced. Keith was aware of these failures. Some of this work was accomplished as ordinary warranty adjustments or parts replacement. While the complaints made to the service agencies at the time did not indicate it, the testimony of Ron and Keith at the trial, if believed, justify the inference that the Jacobs brake developed what came to be known by Jacobs as a 'hang on' problem. The last repair work on the Jacobs brake was done on March 8, 1969. At that time the Jacobs brake worked properly until March 17, 1969, when the truck overturned on an 'S' curve on a Tennessee Highway. As a result of the accident, Keith was blinded and paralyzed from the waist down.

The appellant's evidence presents a complete history of the Jacobs brake and the problems which occurred with it. For a time Jacobs had ordered certain brakes disconnected because of the 'hang on' problem. However, on February 7, 1969, Jacobs felt they had solved their problems and ordered a reactivation of all the Jacobs brakes. At the time of the accident, the Jacobs brake on the Wilcheck truck had an outdated buffer switch and outdated solenoids.

The 'hang on' problem which developed is necessary to an understanding of our decision in this case.

The Model 71 Jacobs Engine Brake was first placed in the hands of distributors for sale to the public in 1963. Other than problems common to such equipment which related to adjustment, service and owner experimentation, the product caused no difficulties and its design and service were entirely acceptable for several years.

In March 1968, however, new problems were reported from the...