Garrett v. Nobles

630 P.2d 656, 102 Idaho 369, 1981 Ida. LEXIS 356

• Court: Idaho Supreme Court
• Decided: June 24, 1981
• Docket: 12840
• Status: Published

Opinions

SHEPARD, Justice.

This is an appeal from a judgment entered following a jury verdict in favor of certain product liability defendants. The action arose from an automobile-truck collision which resulted in the death of one of the automobile passengers and in injuries to the automobile driver and other passengers.

The action below originated as one for wrongful death and personal injuries against the truck owner, L. H. Nobles, and the truck driver, Bill Nobles. The Nobles filed a third party complaint against the seller and manufacturers of the truck on alternate theories of negligence, breach of warranty and strict liability. The action on behalf of the Garretts was settled by the Nobles prior to trial and the cause proceeded as an action by the Nobles against the third party product defendants for contribution to the Garrett settlement, for damages for repair and loss of use of the truck and also for personal injuries to Patsy Nobles, a passenger in the truck. As aforesaid, the jury returned a verdict in favor of the third party product defendants and judgment was entered thereon. We affirm.

In early December, 1974, L. H. Nobles purchased a new 1975 diesel truck from Boise International. It was agreed that a Jacobs engine brake (jake brake) would be installed in the truck prior to delivery. Cummins Intermountain installed that brake using parts furnished by Boise International.

On December 13th, Bill Nobles, the son of L. H. Nobles and an employee of the Nobles’ business, took delivery of the truck. Later that day, at approximately 6:30 p. m., Bill Nobles with his wife Patsy as a passenger drove the truck down Highway 30 toward its intersection with Highway 44, at which point a stop sign required Nobles to stop before entering the intersection. Nobles testified that as he approached the intersection he lifted his foot from the power pedal and applied the brakes, but that the engine power continued. He further testified that he kicked at the pedal but that the power persisted, the brakes locked and the truck began to skid. The truck continued into the intersection where it collided with the Garrett vehicle.

At the scene following the accident, Bill Nobles variously stated that he had “hit a slick spot or something” and later that the “damn throttle stuck.” It was dark and cold at the time of the accident, but the pavement was dry. No traffic citations were issued.

At trial, the Nobles offered extensive expert testimony that a warranty seal on the fuel pump had impeded the activating lever of the jake brake which had resulted in the fuel pump lever being held in an open position, and that the absence of direct linkage from the accelerator pedal to the fuel pump had prevented the driver from kicking loose the impediment. The product defendants, on the other hand, offered evidence that the activating lever of the jake brake was not impeded and that therefore the throttle had not in fact stuck, but instead that the accident was caused by factors unrelated to the allegedly defective truck.

Following trial, the court submitted a 25 question special verdict form to the jury of which only question No. 1 was answered.

“Do you find from a preponderance of the evidence that the throttle in the Nobles truck stuck prior to the impact with the Garrett vehicle?

“Answer: Yes — 3. No — 9.”

The language following question No. 1 instructed the jury as follows:

“If your answer to this question is ‘yes’, proceed to answer Question No. 2. If your answer to this question is ‘no’, simply sign the verdict form and inform the bailiff that you have concluded your deliberations.”

The trial court entered judgment for the product defendants, the Nobles moved for a new trial, the motion was denied and the Nobles appealed. Boise International cross-appealed arguing that the court erred in rejecting its claim against L. H. Nobles on the theory of negligent entrustment, on excluding evidence of Bill Nobles’ driving record and in failing to award attorney fees.

We deem the principal issue on appeal to be the Nobles’ assertion that the court’s refusal to give Nobles’ requested specific defect instruction,¹ together with the language of special verdict question No. 1, required the Nobles to prove a specific defect contrary to the established law which only requires proof of a general malfunction. We disagree with Nobles’ assertion.

“[W]hether a cause of action is based on warranty, negligence or strict products liability, plaintiff has the burden of alleging and proving that 1) he was injured by the product; 2) the injury was the result of a defective or unsafe product; and 3) the defect existed when the product left the control of the manufacturer.” Farmer v. International Harvester Company, 97 Idaho 742, 746-47, 553 P.2d 1306, 1310-11 (1976); Henderson v. Cominco American, Inc., 95 Idaho 690, 696, 518 P.2d 873, 879 (1973).

In Farmer, supra, this Court, in a products liability case involving an alleged malfunctioning truck, discussed the meaning of the concept of “defect” and clarified the plaintiff’s burden of establishing the existence of a defective product.

In Farmer, supra, we held that a plaintiff need not prove a specific defect in order to carry his burden of proof. Id., 97 Idaho at 747, 553 P.2d at 1311. Accord, Stewart v. Ford Motor Company, 553 F.2d 130 (D.C.Cir.1977); Chestnut v. Ford Motor Company, 445 F.2d 967 (4th Cir. 1971); Kridler v. Ford Motor Company, 422 F.2d 1182 (3rd Cir. 1970); Clarke v. General Motors Corporation, 430 F.Supp. 1124 (E.D.Pa.1977); Dennis v. Ford Motor Company, 332 F.Supp. 901 (W.D.Pa.1971); Moraca v. Ford Motor Company, 132 N.J.Super. 117, 332 A.2d 607 (1974); Tigert v. Admiral Corporation, 612 P.2d 1381 (Okl.Ct.App.1980); Bombardi v. Pochel’s Appliance and TV Company, 9 Wash.App. 797, 515 P.2d 540 (1973). Instead we said that a prima facie case of product liability may be proved by direct or circumstantial evidence of a malfunction of the product and the absence of evidence of abnormal use and reasonable secondary causes which would eliminate the defendant’s liability. Farmer, supra, 97 Idaho at 747, 553 P.2d at 1311. Accord, Stewart, supra; Clarke v. General Motors, supra; Clarke v. Brockway Motor Trucks, 372 F.Supp. 1342 (E.D.Pa.1974); Greco v. Bucciconi Engineering Company, 283 F.Supp. 978 (W.D.Pa.1967), aff’d 407 F.2d 87 (3rd Cir. 1969); Brandenburger v. Toyota Motor Sales, U.S.A., Inc., 162 Mont. 506, 513 P.2d 268 (1973).

We further noted that “[pjroof of malfunction is circumstantial evidence of a defect in a product since a product will not ordinarily malfunction within the reasonable contemplation of a consumer in the absence of a defect.” Farmer, supra, 97 Idaho at 748, 553 P.2d at 1312. Accord, Sabloff v. Yamaha Motor Co., Ltd., 113 N.J.Super. 279, 273 A.2d 606 (1971), aff’d 59 N.J. 365, 283 A.2d 321 (N.J.1971); Darryl v. Ford Motor Company, 440 S.W.2d 630 (Tex.1969). Testimony of the user or operator of the product as to the circumstances of the event complained of is sufficient to establish the alleged malfunction. Farmer, supra, 97 Idaho at 748, 553 P.2d at 1312. Accord, Stewart, supra; Clarke v. Brockway Motor Trucks, supra; Dennis, supra; Greco, supra.

In the instant case, it is the Nobles’ contention that requiring them to prove that the accident resulted from a “stuck throttle” placed upon them the burden of proving a specific defect as opposed to a general malfunction. We disagree.

Our review of the pleadings and the proceedings at trial indicate that the cause was tried by the Nobles on the basis that the general malfunction was a stuck throttle and the specific defect was the warranty seal impeding closure of the fuel pump throttle and the absence of direct linkage between the fuel pump and the accelerator pedal.

The Nobles’ third party complaint alleged that the truck was defective in the following particulars:

“(a) The ‘Warranty seal’ affixed to the fuel pump and throttle housing interrupted the movement of the micro-switch activating lever of the Jacobs Engine Brake resulting in the inability of the fuel pump throttle to close when the accelerator pedal was released;

“(b) The accelerator pedal was not attached to the linkage activating the fuel pump, and said defects individually or in combination could and on December 13, 1974, did prevent a termination of engine power when the accelerator pedal was released by the driver of The Truck.”

During trial, in response to a motion to dismiss, the Nobles’ counsel made the following oral argument to the trial court:

“MR. SCHROEDER: Your Honor, before I point to the specific evidence involved, I would like to make two observations that I think are significant to a ruling I think the court may make. The first thing is that — and now referring to ourself as the Plaintiffs — it is not necessary under Idaho law or any law adopting 402-A, the doctrine of strict products liability, for the Plaintiff to show a specific defect. It is only necessary to show that a happening occurred that could be attributable to a defect; and we submit—

“THE COURT: What defects are you talking about?

“MR. SCHROEDER: A defect, we don’t have to prove a specific defect. A stuck throttle, why the throttle stuck is not something we have to prove. Now, this is the law of Idaho and it’s very clear in the law of Idaho in just so many words, a specific defect is not required in the proof for a Plaintiff to get by a motion for a nonsuit.

“Now, Nobles testimony without— “THE COURT: Without any proven defect in the Cummins engine?

“MR. SCHROEDER: In the truck as it is; and International Harvester is in the chain of manufacturers of the truck and that’s—

“THE COURT: What is the defect in the truck you are talking about? You have got to prove a defect in the truck.

“MR. SCHROEDER: Yes, a defect in the truck, but we don’t have to prove what the specific defect is; and International Harvester is in the chain of possession. Nobles, his testimony alone, testifying that a stuck — that the throttle stuck is sufficient to trigger the application of 402-A. Now, I just want to make that general observation first, and that’s clear in the law of Idaho.” Record, vol. 3, at 932-33. (Emphasis added.)

Our conclusion that a stuck throttle constituted a general malfunction and not a specific defect is consistent with this and other jurisdictions’ implicit characterization of specific defects and general malfunctions. See Farmer, supra, wherein a specific defect in components of a gear box caused the general malfunction, i. e., the loss of steering control; Moraco, supra, wherein specific defects in the bearings and the sector shaft resulted in loss of power steering fluid causing the general malfunction, i.e., the loss of steering control; Chestnut, supra, wherein specific defects in the solenoid coil and terminals caused the general malfunction, i. e., the headlight lids of a car with a headlight closure system closed while driving at night. See also Kridler, supra; Stewart, supra; Dennis, supra.

In those cases loss of steering control, brake failure and malfunctioning headlight lids were implicitly categorized as general malfunctions and the technical mechanical explanations why those malfunctions occurred were categorized as the specific defects which the plaintiffs were not required to prove. In Chestnut, supra, the opinion explicitly noted that the plaintiff “was not required to prove a specific defect, i. e., precisely why there was a malfunction of the headlights.” Id. at 970. Although the Nobles contend that here the general malfunction was the unrestrainable engine and the specific defect was the stuck throttle, our review of the record indicates that in the context of the trial, an unrestrainable engine was treated as the semantic equivalent of a stuck throttle.

The Nobles also assert that even if a stuck throttle is not a specific defect, failure to instruct the jury that a specific defect need not be proven was nevertheless reversible error. Again we disagree.

The instructions of the court accurately instructed the jury on the law relative to negligence, warranty and strict liability. Those instructions, when read together, informed the jury that in order to recover on any of those theories, the Nobles were required to establish, among other things, that the product was defective. The jury was instructed that the defectiveness of the product could be proved by either direct or circumstantial evidence and as aforesaid the instructions did not require the Nobles to prove the specifically alleged defects, but only a general malfunction. When viewed as a whole, the trial court’s instructions correctly stated the issues and the relevant law. See, e. g., Annau v. Schutte, 96 Idaho 704, 535 P.2d 1095 (1975); Davis v. Bushnell, 93 Idaho 528, 465 P.2d 652 (1970). Where, as here, the substance of a party’s proposed instructions are adequately covered elsewhere, the trial court does not err in refusing the proposed instruction. Mann v. Gonzales, 100 Idaho 769, 605 P.2d 947 (1980); Owen v. Burcham, 100 Idaho 441, 599 P.2d 1012 (1979); Nora v. Safeco Insurance Co., 99 Idaho 60, 577 P.2d 347 (1978).

Nobles also argues that question No. 1 of the special verdict form was erroneous in that it required the jury to find an evidentiary as opposed to an ultimate fact. They assert that whether the throttle stuck was an evidentiary fact, whether the truck was defective was the ultimate fact and that questions to the jury should relate only to ultimate facts. Although Nobles objected to the special verdict form on a number of grounds, they did not, prior to the submission to the jury, object on the basis that question No. 1 constituted an evidentiary finding. An appellate court should not consider an alleged defect in the questions put to a jury in the absence of an objection. 9 Wright and Miller, Federal Practice and Procedure § 2508, p. 508 (1971). See Martin v. United Fruit Co., 272 F.2d 347 (2d Cir. 1959); Butterfield v. Pepsi-Cola Bottling Co. of Wichita, 210 Kan. 123, 499 P.2d 539 (1972); Pedersen v. Pete Wilson Realty, Inc., 256 Or. 622, 475 P.2d 413 (1970). Assuming arguendo that the Nobles’ objections were broad enough to cover the evidentiary-ultimate fact distinction, we find no error in the language of question No. 1. I.R.C.P. 49(a), which is identical to the federal rule, gives the trial court broad discretion in determining the nature, scope and form of questions put to the jury. See 9 Wright and Miller, supra, § 2506, p. 498.

“ ‘Some courts have said that only ultimate fact questions should be submitted to the jury for determination by special verdict, and that evidentiary issues should not be submitted. Obviously it is undesirable to submit numerous evidentiary issues which merely restate, elaborate, or confirm the jury’s decision of the controlling issues, but it must be recognized that the distinction between ultimate issues and evidentiary issues is one of degree only, and that little is gained by seeking to make fine discriminations between one kind of issue and the other.’ ” Bott v. Wendler, 203 Kan. 212, 453 P.2d 100, 107 (1969), quoting from 2B Barron & Holtzoff, Federal Practice (Rules Ed.) § 1055, p. 341; see 9 Wright and Miller, supra, § 2506, pp. 500-03.

In the instant case the critical issue was whether the throttle stuck prior to impact. Although that determination might technically be an evidentiary fact, we believe the issue was fairly put before the jury. We find no abuse of discretion by the trial court in so placing the issue before the jury.

The Nobles next contend that the special verdict form erroneously disclosed to the jury the effect of its findings because the language following question No. 1 instructed the jury that if they answered that question negatively they need not answer any of the remaining questions. This contention is answered in Seppi v. Betty, 99 Idaho 186, 579 P.2d 683 (1978); Holland v. Peterson, 95 Idaho 728, 518 P.2d 1190 (1974); Cassia Creek Reservoir Co. v. Harper, 91 Idaho 488, 426 P.2d 209 (1967). In addition, that language merely instructed the jury on how to proceed logically through the verdict form. We hold that such was not error and certainly not prejudicial error. The Nobles failed to prove the existence of the claimed malfunction and even if the jury had proceeded through the remainder of the verdict form, the result could not have changed.

We have considered the Nobles’ remaining assignments of error relating to certain other refused instructions and verdict form objections. In view of the conclusions of this Court on the principal questions presented, discussion of those remaining assignments of error is not warranted, as they reflect no errors of a prejudicial nature.

As to the questions raised on cross-appeal, our affirmance renders discussion of those issues unnecessary, except as to cross-appellant’s contention that it was entitled to attorney fees below. We find no abuse of discretion in the trial court’s denial of attorney fees.

The judgment of the trial court is affirmed. Costs to respondents.

BAKES, C. J., and McFADDEN and DONALDSON, JJ., concur.

1 . “To prove a defective condition it is not necessary to prove a specific defect. Nor is it necessary to prove a defective condition by direct evidence; it may also be proved by circumstantial evidence from which you, weighing all of the evidence, do infer that in the normal course of human experience an injury would not occur at this point in the product’s life span had there not been a defect ,in the product at the time of its sale to the user.” Record, vol. 7, at 300; vol. 8, at 529.