Holloway v. General Motors Corp.

N. J. Kaufman, J.

(dissenting). Having analyzed the evidence presented at trial in the context of what I perceive to be the appropriate precedent, I am constrained to dissent. My principle disagreement with the majority relates to its use of Piercefield v Remington Arms Co, Inc, 375 Mich 85; 133 NW2d 129 (1965), as the appropriate standard for review. The majority quotes portions of Supreme Court opinions in Piercefield and Bronson v J L Hudson Co, 376 Mich 98; 135 NW2d 388 (1965), and characterizes them as "two mutually exclusive rules of law”. I do not believe that Pierceñeld and Bronson conflict. Pierceñeld was the seminal case *217in this jurisdiction in this area. It detailed what a future plaintiff would have to prove to maintain a products liability claim, namely, "a defect attributable to the manufacturer and causal connection between that defect and the injury or damage * * * ”. 375 Mich at 98-99.'Bronson expanded on Pierceñeld by explaining how a plaintiff could prove the claim, by the introduction of direct proof and through the inferences which the jury might draw from that proof.

In applying what they term the "Piercefield test”, the majority has, in effect, ruled that plaintiff was limited to proving her case by direct proof of a manufacturer-caused defect, and could not use circumstantial evidence and inferences from direct proofs to do so. This is not the law in Michigan. As the Supreme Court, reaffirming Schoepper v Hancock Chemical Co, 113 Mich 582; 71 NW 1081 (1897), stated in the more recent and relevant case of Schedlbauer v Chris-Craft Corporation, 381 Mich 217, 230; 160 NW2d 889, 896 (1968):

" 'Negligence, like any other fact, may be inferred from circumstances. * * * And, though the proof of plaintiff depended upon inference to establish the main fact, the question of whether the inference suggested by the plaintiff’s theory is the correct one, or whether it was sufficiently rebutted, was for the jury.’ ” (Citations omitted.)

See also Snider v Thibodeau Ford, Inc, 42 Mich App 708, 713; 202 NW2d 727, 730 (1972), lv den, 388 Mich 812 (1972), Hanson v Teledyne Industries, Inc, 56 Mich App 271; 224 NW2d 59 (1974).1

*218It should be clear from an examination of the developing precedent in this area that direct proof is rnrely possible. Plaintiff and her husband were not there when the car was manufactured. Even when only "scant” evidence has been presented, the Supreme Court has held a directed verdict to be improper, McKinch v Dixon, 391 Mich 282; 215 NW2d 689 (1974). Of course, where a plaintiff’s theory of causation is mere "conjecture”, where it cannot be reasonably inferred from the evidence, a directed verdict is proper. Kaminski v Grand Trunk W R Co, 347 Mich 417; 79 NW2d 899 (1956). In Meli v General Motors Corp, 37 Mich App 514; 195 NW2d 85 (1972), the plaintiff demonstrated only that the accelerator in his car had become stuck to the floor when the accelerator spring became disconnected. This Court upheld a directed verdict for the defendant because plaintiff had shown no defect nor introduced evidence from which the jury could have reasonably inferred that a defect existed and caused the accident.

The theory advanced by plaintiff at trial in the instant case was surely more than conjecture. It was undisputed that the right front ball-joint assembly on plaintiff’s husband’s car was found after the accident to have been badly cracked in three places, allowing the wheel to turn independently of steering-wheel control. The police officers who investigated the accident testified that the tire marks left by the car indicated that the right front tire had separated from the frame causing the car to veer sharply and careen off the road. The tread on the right front tire was shown to have been worn away. Plaintiff’s expert witness testified that the ball-joint assembly had broken and caused the accident. As plaintiff’s attorney stated in his opening argument and stressed continuously during the *219trial, plaintiffs theory was that the ball-joint assembly had snapped because of a defect in its manufacture. This defect, plaintiff contended, was in violation of defendant’s implied warranty of fitness.

Defendant claimed that the ball-joint assembly had not broken before the accident but cracked when the car hit a tree. Defendant did not even claim that the assembly had worn away through normal use.

From these facts, I conclude that a factual dispute existed. It was for the jury to determine if a defect existed and, if it did, whether it caused the injury. Enough credible evidence existed from which the jury could reasonably have inferred the existence of such a defect. This Court has found such a factual dispute in two nearly identical cases.

In Pohlod v General Motors Corp, 40 Mich App 583, 588; 199 NW2d 277, 280 (1972), the Court stated that:

"The record reveals that the plaintiffs’ vehicle veered to the left and flipped over. There was testimony from which it could be inferred that the left front ball joint on the vehicle was defective in design, manufacture, or assembly. Further testimony indicated that failure of this part could have been the cause of the accident. Under these facts and circumstances, a prima facie case was established which required the jury to determine the question of negligence of the defendant. The trial court’s submission of this question to the jury was not clearly erroneous.”

In the recent case of Kujawski v Cohen, 56 Mich App 533; 224 NW2d 908 (1974), plaintiff alleged that a defective wheel bearing caused the right front wheel of decedent’s truck to fly off and the *220truck to tip over. Unlike the instant case, the defendant propounded several causes other than a defect to explain the accident. Unlike the instant case, the allegedly defective part could not be produced since it had disintegrated in the accident. Nonetheless, this Court found that enough evidence had been presented to comprise a prima facie case.2

Having applied what I feel to be a standard more appropriate than that used by the majority, I have examined the evidence and have compared this case to the other consistent holdings of this Court. Having done so, I must vote to reverse and remand this case.

“Where competent, admissible evidence not inherently incredible nor completely discredited on cross-examination creates a reasonable inference of negligence or breach of implied warranty, it is for the trier of the facts to accept or reject it.” (Citation omitted.) Hanson v Teledyne Industries, Inc, 56 Mich App 271, 273-274; 224 NW2d 59, 60 (1974).

In the Schedlbauer case, also, the defendant propounded numerous other theories and the allegedly defective part was never retrieved, although plaintiffs had ample opportunity to do so. The Supreme Court held that a directed verdict for defendant was improper.