Woods v. Pleasant Hills Motor Co.

• Decision Date: 21 September 1971
• Docket Number: No. 204,204
• Citation: 281 A.2d 649,219 Pa.Super. 381
• Parties: Marie P. WOODS, Admrx., et al. v. PLEASANT HILLS MOTOR CO., Appellant in 207, et al. (two cases). Appeal of FORD MOTOR CO. in
• Court: Pennsylvania Superior Court

Page 649

281 A.2d 649

219 Pa.Super. 381

Marie P. WOODS, Admrx., et al. v. PLEASANT HILLS MOTOR CO., Appellant in 207, et al. (two cases) Appeal of FORD MOTOR CO. in No. 204.

Superior Court of Pennsylvania.

Sept. 21, 1971.

Application for Allocatur Granted Feb. 2, 1972.

R. McConnell, Jr., Herbert B. Conner, Dickie, McCamey & Chilcote, Pittsburgh, for Ford Motor Co.

George M. Weis, Weis & Weis, Pittsburgh, for Pleasant Hills Motor Co.

Murray S. Love, Pittsburgh, for Pleasant Hills Motor Co.

Clem R. Kyle, Pittsburgh, for Marie P. Woods.

Before WRIGHT, P.J., and WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING and CERCONE, JJ.

MONTGOMERY, Judge:

Clarence D. Woods, deceased, was killed at about 12:15 p.m. on July 14, 1965, as the 1965 Ford truck he was driving downgrade loaded with various metal products weighing six to seven tons failed to negotiate a curve to the left at the bottom of a hill known as Dellslow Hill on West Virginia State Route No. 75, near Dellslow, West Virginia. The truck left the paved portion of the highway, collided with a pole on the left side, then crossed the road and ran into the hillside on the right and overturned.

At the time of the accident the decedent was employed by Charles Bluestone Company, Inc., a dealer in scrap metal, and was operating the truck in the regular course of his employment. The employer had purchased the truck, consisting only of chassis and cab, on February 15, 1965, from Pleasant Hills Motor Company. It had been manufactured by the Ford Motor Company and it had been delivered to the Pleasant Hills Motor Company on February 12, 1965. After purchasing it Bluestone had the floor or bed and sides built thereon, which took about six to eight weeks, after which the truck was put in service and continued to be used regularly until the day of the accident.

A suit in trespass was filed by Marie P. Woods as administratrix of the estate of Clarence D. Woods, her deceased husband, against Pleasant Hills Motor Company and Ford Motor Company for damages under the Wrongful Death Act of April 15, 1851, P.L. 669, 12 P.S. §§ 1601--1604, and the Survival Act of April 18, 1949, P.L. 512, art. VI, § 601, 20 P.S. § 320.601. Subsequently, the two original defendants filed a complaint against decedent's employer, Charles Bluestone Company, Inc.

The case was tried before Hon. Silvestri Silvestri, Judge, and a jury. The jury returned a verdict against both Pleasant Hills Motor Company and Ford Motor Company in the amount of $52,515, in the Wrongful Death action and $37,485 in the Survival action. A compulsory nonsuit had previously been granted as to Charles Bluestone Company, Inc., the additional defendant, from which action no appeal has been taken.

Following the return of the verdicts, motions for a new trial and for judgment n.o.v. were filed by both original defendants and refused. Prior to the time the court charged the jury, Pleasant Hills Motor Company had filed a motion, that the jury be instructed to the effect that, in the event of a verdict against Pleasant Hills Motor Company, there must be a verdict over in favor of Pleasant Hills Motor Company and against Ford Motor Company, which was also refused. From the entry of judgments in accordance with the verdicts, these appeals by Ford Motor Company and Pleasant Hills Motor Company followed.

This action was brought on alternative theories, i.e., common law negligence and strict liability under Section 402A Restatement 2d, Torts, § 402A, both based on an alleged defect in the braking mechanism of the truck, causing its brakes to malfunction with the accident as a result. Both theories are based on the failure of the Ford Motor Company to properly manufacture or assemble the braking mechanism and on the failure of Pleasant Hills Motor Company to inspect or properly inspect the fitting on the brake mechanism that was alleged to have been defective and that both defendants sold the truck in that condition. The alleged defect concerns an air line or hose by means of which the braking mechanism was put into operation. It was the plaintiff's contention that the air supply line between the reservoir (reserve) tank and the foot value (brake pedal) had become disconnected due to insufficient tightening of a nut, which condition existed at the time the truck was sold to Bluestone.

Although appellee predicated her case on both the theory of negligence and the theory of strict liability under Restatement 2d, Torts, § 402A, the sole basis of the claim is the alleged fault in not tightening the nut on the air hose. The negligence alleged relates solely to that facet of the case, i.e., Ford manufactured and sold the truck in that condition and Pleasant Hills Motor Company sold it in that condition without proper inspection to detect the alleged defect. It is unlike Forry v. Gulf Oil Corporation, 428 Pa. 334, 237 A.2d 593 (1968), wherein not only fault in manufacturing a tire was alleged but also negligence in mounting it on the rim.

The rule of strict liability set forth in Restatement 2d, Torts, § 402A, was adopted for this Commonwealth in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), and has been followed thereafter. It provides: '(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.'

The burden of proof that the product was in a defective condition at the time it left the hands of the particular seller is upon the injured plaintiff; and unless evidence can be produced which supports the conclusion that it was then defective, the burden is not sustained. Comment G to § 402A, Restatement 2d, Torts.

In MacDougall v. Ford Motor Company, 214 Pa.Super. 384, 257 A.2d 676 (1969), this Court held that evidence of a mechanical malfunction of the steering apparatus of a new automobile driven only 147 miles before the accident, in the absence of abusive use, could be the basis for inferring that a defective condition of the automobile was the proximate cause of the accident, and was sufficient to sustain the plaintiff's burden of proof. In the present case the plaintiff has elected not to prove any malfunction but, on the contrary to establish the defect as the proximate cause of the accident. The appellants question the sufficiency of the proof offered by the plaintiff to establish these facts, i.e., defect and causation.

Appellants jointly contend that the lower court erred in (1) admitting certain photographs which were offered to show the condition of the truck immediately after the accident, (2) in admitting opinion evidence as to the cause of the accident, (3) in failing to explain properly testimony given by Police Officer Richardson, and (4), in not granting a new trial for the reason the verdict was against the evidence or the weight of the evidence.

In addition to the foregoing contentions, Pleasant Hills Motor Company contends that the lower court erred further, (1) in instructing the jury that it could be held jointly and concurrently liable with appellant Ford Motor Company and (2), in not instructing it that in the event of a verdict against Pleasant Hills Motor Company there must be a verdict over in its favor against Ford Motor Company.

In the absence of any testimony to show the condition of the air lines as they existed before the accident, plaintiff endeavored to establish that fact by offering various photographs taken subsequent to the accident ¹ and the testimony of experts based in part on those photographs.

Appellants first assign as error the admission of the photographs marked Plaintiff's Exhibits 3, 4, 5, 6, 7, and 8. In order to understand the circumstances under which these photographs were taken, it is necessary to review the history of the truck following the accident. Mr. Richards testified that with his towing equipment he affixed cables to the truck and righted it, thereby raising it from its side to its wheels; he then disconnected the battery cables and possibly the drive shaft, towed it to an open field in the vicinity, where it remained for four days until he towed it to Mr. Bluestone's lot in McKeesport, Pennsylvania. The truck remained in an open lot in its demolished condition until about August 20, 1965, when it was sold to Mr. Ours. Mr. Ours removed a rear axle, which freed the wheels from the transmission, permitting it to be towed freely on its wheels, and towed the truck over fifty miles to his lot in New Brighton, Pennsylvania. Mr. Ours proceeded then to dismantle it. He removed the body, then the cab, including most of the air lines. That was done in part with an acetylene torch to sever it from the chassis. He sold the rear axles and three tires and removed parts of the engine (damaged valve covers and fan blade), as well as the broken steering column. He later rebuilt the truck into a 'wrecker' and sold it at a later date.

Although the exact dates on which the photographs were taken were not definitely established, it appears that they were all taken several months after the accident. Mr. Ours identified Exhibit 3 as showing the scene in his yard several months after he had removed the cab; and it seems undisputed that Exhibits 5 and 6 were taken on February 22 or 23, 1966. However, the testimony of Mr. Ours and Mr. Fenchel (both plaintiff's witnesses) is at variance as to whether the cab had been removed from the chassis at that time.

The law is well established on this subject. 'Whenever the condition of a particular place or thing at a certain time is in question, evidence of its condition at a prior or subsequent time is admissible if accompanied by proof that it has not changed in the...