Williams v. Ford Motor Co., 34578

• Decision Date: 20 March 1973
• Docket Number: No. 34578,34578
• Citation: 494 S.W.2d 678
• Parties: Rose Burns WILLIAMS, Plaintiff-Respondnet, v. FORD MOTOR COMPANY, a corporation, et al., Defendants, McMahon Ford Company, a corporation, Defendant-Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 678

494 S.W.2d 678

Rose Burns WILLIAMS, Plaintiff-Respondnet, v. FORD MOTOR COMPANY, a corporation, et al., Defendants McMahon Ford Company, a corporation, Defendant-Appellant.

No. 34578.

Missouri Court of Appeals, St. Louis District, Division One.

March 20, 1973.

Motion for Rehearing or Transfer Denied May 11, 1973.

Kramer, Chused, Kramer, Shostak & Kohn, Burton H. Shostak, James E. Crowe, St. Louis, for defendant-appellant.

John P. Montrey, Barry Short, Clayton, for plaintiff-respondent.

WEIER, Judge.

This case comes befoe us on its third appeal. Plaintiff brought suit for personal injuries against the manufacturer and dealer of a 1961 Ford Thunderbird which collided with a tree as a result of a faulty steering mechanism. At the first trial, plaintiff recovered a verdict and judgment against both defendants with damages fixed by the jury at $15,000.00. On appeal, Williams v. Ford Motor Co., 411 S.W.2d 443 (Mo.App.1966), this court reversed because the verdict directing instruction omitted the requirement that the defect existed at the time the car left the control of the manufacturer. The case was remanded for a new trial as to liability only. The second trial resulted in a verdict against the plaintiff and in favor of both defendants. On the second appeal, Williams v. Ford Motor Co., 454 S.W.2d 611 (Mo.App.1970), we affirmed the action of the trial court in granting a new trial because of the submission of the issue of contributory negligence by defendants' instructions. In the third trial of the case, two verdict directing instructions were given, one as to liability of defendant Ford Motor Company and the other as to liability of McMahon Ford Company. This complied with our opinion in Williams I and M.A.I. 25.04, which directs the plaintiff to submit separate instructions as to each when he sues both manufacturer and retailer. In the third trial, the jury returned a verdict in favor of plaintiff and against McMahon Ford Company but released defendant Ford Motor Company from any liability. Defendant McMahon now contends on appeal that it was reversible error for the court to give two verdict directing instructions for plaintiff because under the theory of strict liability in tort, only one instruction should be given to the jury as to both defendants.

We will not review all of the facts. They are adequately set forth in the two prior decisions of this court. It is sufficient to note that the Ford Motor company, the manufacturer, produced evidence that the automobile steering mechanism was in a safe condition when it was manufactured and that, upon tests made, it was found to be operating in normal fashion. When the car was delivered to McMahon Ford Company, it received a regular checkout which included a check of the power steering fluid level and a test run of the car. Three days after it was delivered to plaintiff, however, the car was returned to McMahon with a complaint about hard steering. The steering mechanism was found to be noisy and the power steering fluid level low. A slight leak was detected in a hose fitting and also around a casting. The fittings were tightened. A washer was replaced. A test drive then indicated the power steering to be satisfactory. A salesman at one time during this period of complaint and repair found the steering to be so bad that he could not get it off the sales lot. He returned the car to the service attendant who again filled the power steering unit with fluid. Even when the automobile was returned to plaintiff just before the collision, the salesman found that it did not respond on sharp corners or on sharp turns.

Two instructions were given. Both were modeled after M.A.I. 25.04. The instruction submitted as to the liability of Ford Motor Company hypothesized: '* * * when plaintiff used the 1961 Thunderbird it was in substantially the same condition as when manufactured by defendant Ford Motor Company, * * *.' The instruction hypothesized as to the liability of McMahon Ford Company: '* * * when plaintiff used the 1961 Thunderbird it was in substantially the same condition as when sold by defendant McMahon Ford Company, * * *.' Thus in each instance the instruction required the jury to affirmatively pass upon one of the elements of the rule of strict liability stated in Restatement, Second, Torts § 402A(1)(b). This requires in order to establish liability against the seller a product must reach the user without any substantial change in the condition in which it is sold. The rule stated in § 402A is, of course, the law in Missouri. Keener v. Dayton Elec. Mfg. Co., 445 S.W.2d 362, 364 (Mo.1969). In the comments that follow this section in the Restatement of the Law of Torts, we note in subsection (f), the rule is interpreted to apply to any person engaged in the business of selling products and further that this class is intended to indclude any manufacturer, wholesaler, retail dealer or distributor of the product. Section (g) states: 'The seller is not liable when he delivers the product in a safe condition, and subsequent mishandling or other causes make it harmful by the time it is consumed. The burden of proof that the product was in a defective condition at the time that it left the hands of the particular seller is upon the injured plaintiff; and unless evidence can be produced which will support the conclusion that it was then defective, the burden is not sustained.' As Dean William L. Prosser, one of the foremost authorities in this area of the law, has stated: 'When on the evidence it appears equally probable that the defect has developed in the hands of the dealer, the plaintiff has not made out a case of strict liability, or even negligence, against any prior party.' Strict Liability to the Consumer, 18 Hastings L.J. 9, 55 (1966). From the foregoing one can only conclude that, depending upon the evidence, the issue of liability may be cast against either a manufacturer or a dealer, or both. This is a factual issue, the determination of which is left to the jury to decide. Being an essential fact issue, it is a matter that must be incorporated in the hypothesis of other facts that are submitted to the jury in the verdict directing instruction as to each defendant. The jury is, of course, at liberty to believe or disbelieveany of the oral evidence which is submitted to it; and while it might...