No. 13601
IN THE SUPREME COURT OF THE STATE OF MONTANA
ST. PAUL MERCURY INSURANCE COMPANY,
Plaintiff and Appellant,
-vs-
JEEP CORPORATION AND AMERICAN MOTORS
SALES CORPORATION,
Defendants and Respondents.
Appeal from: District Court of the Sixth Judicial District,
Honorable VJ. W. Lessley, Judge presiding.
Counsel of Record:
For Appellant:
Berg, Angel, Andriolo & Morgan, Bozeman, Montana
Gregory 0 . Morgan argued, Bozeman, Montana
For Respondents:
Corette, Smith and Dean, Butte, Montana
Dolphy 0 . Pohlman argued, Butte, Montana
Submitted: October 4, 1977
Decided : OEC 12 1$n
Filed:
OEC 12 lxv
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
Plaintiff brought this action in District Court as the
subrogee of Jack Shanstrom to recover monies paid to its insured
for fire damage in the engine compartment of his 1970 Jeep
Wagoneer. At the close of plaintiff's case, defendants were
granted a directed verdict. Plaintiff appeals.
Judge and Mrs. Jack Shanstrom purchased a 1970 Jeep
Wagoneer in the fall, 1970. The Jeep was purchased secondhand
from Gateway Motors in Livingston, Montana, and had been driven
14,000 to 16,000 miles. Defendants are the manufacturer and dis-
tributor of the automobile.
On July 16, 1971, a fire occurred in the Jeep while it
was being driven by Mrs. Shanstrom. At that time the Shanstroms
had owned the Jeep for approximately six months and the vehicle
odometer registered 26,342.4 miles. Mrs. Shanstrom testified
that the fire occurred while the Jeep was being driven on a high-
way west of Livingston. She testified that she became aware of
the fire by observing smoke coming through the dash and by seeing
the paint bubbling on the hood and smoke coming from the engine
compartment. The fire was extinguished by a passerby; no personal
injuries were suffered. No evidence of irregularity in the oper-
ation of the Jeep was noted prior to the fire.
The Jeep was towed directly to Gateway Motors where it
had been purchased. At the trial, Me1 Clendenin, the service
manager at Gateway Motors, testified as plaintiff's expert witness.
Clendenin testified that the fire had destroyed everything under
the hood except the actual engine block. He concluded that the
fire started at or near the carburetor while the engine was in
operation and that gasoline was the fuel for the fire. He further
concluded that a spark outside the engine caused the gasoline to
ignite.
The testimony reflected that the Jeep had been subjected
to normal service procedures during the time the Shanstroms owned
it, but there was no evidence that any major repairs or modifi-
cations had been performed.
Mrs. Shanstrom and Clendenin were the only witnesses
called by plaintiff at trial. Upon resting of plaintiff's case,
defendants made a motion for directed verdict on the basis of
appellant's failure of proof. The motion was granted and this
appeal followed.
The sole issue upon appeal is whether the District Court
erred in granting defendants' motion for directed verdict.
Appellant's case before the District Court was based up-
on three legal theories: (1) Breach of implied warranty of mer-
R.C.M. 1947;
chantability under section 87A-2-314,7(2) strict liability in
tort; and (3) the doctrine of res ipsa loquitur. Plaintiff con-
tends that sufficient evidence is present in the record to allow
the case to go to the jury on any of the three legal theories.
We disagree.
On motion for a directed verdict the evidence must be
viewed from a standpoint most favorable to plaintiff and every
fact must be deemed proved which the evidence tends to prove. No
case should ever be withdrawn from the jury when reasonable men
might draw different conclusions from the evidence. Solich v.
Hale, 150 Mont. 358, 435 P.2d 883 (1967); Teesdale v. Anschutz
Drilling Co., 138 Mont. 427, 357 P.2d 4 (1960); Mellon v. Kelly,
99 Mont. 10, 41 P.2d 49 (1935). In reviewing a directed verdict
the issue is whether there are only questions of law. LaVelle
v. Kenneally, 165 Mont. 418, 529 P.2d (1974). This, however,
does not relieve plaintiff of the burden of producing evidence
in support of each element essential to its recovery. See Nixon
v. Huttinga, 163 Mont. 499, 518 P.2d 263 (1974).
The crux of this case is a determination of whether
plaintiff's evidence proved all the requisite elements of one
or all of its theories of recovery. In Barich v. Ottenstror,
Mont . , 550 P.2d 395, 397, 33 St.Rep. 481 (1976), we
recently quoted Professor Prosser in Law of Torts 4th ed., S 103,
p. 671, and stated:
"'The proof required of a plaintiff seeking to
recover for injuries from an unsafe product is
very largely the same, whether his cause of action
rests upon negligence, warranty, or strict lia-
bility in tort.
"'On any of the three bases of liability, the
plaintiff has the initial burden of establish-
ing three things. The first is that he has been
injured by the product. * * * The second is that
the injury occurred because the product was de-
fective, unreasonably unsafe. * * * The third is
that the defect existed when the product left the
hands of the particular defendant.'"
We have carefully scrutinized the record in this matter
and the conclusion that plaintiff failed to prove his case is
inescapable. Plaintiff has not proven that the defect that caused
the fire existed when the Jeep left the hands of the defendants.
Mr. Clendenin, plaintiff's expert witness, testified on cross-
examination as follows:
"Q. And if something had not been maintained
properly, such as part of the fuel line or this
rubber hosing, maybe there was a damage to it, a
cut in it, that could have caused this fuel source,
and that would have been something not at all in-
volved when this Jeep left the hands of the manu-
facturer back in Detroit or wherever the Jeep was
made, isn't that right? A. If it was physical
damage to a line or hose or something, yes.
"Q. Just normal wear and tear could possibly cause
that? A. That's right."
Mr. Clendenin further testified:
"Q. Okay, In fact, you don't know, and I don't even
know if anyone knows, that the parts that were on
this engine at the time of the fire were the orig-
inal parts to the Jeep, you don't know that, do you?
A. I couldn't tell you that!
"Q. But that wrong that we are talking about, you
can't say was a defect when it left the hands of
either the manufacturer or the seller, that is the
American Motors Sales Corporation, can you? A. No,
I can't."
supra,
In Barich v. Ottenstror,/p. 398, we stated:
"It is a well established rule in products liability
cases that a manufacturer or seller is not liable
for product caused injuries in the absence of proof
that the instrumentality in question was defective
or dangerous at the time the defendant was in posses-
sion or control of it, or when such product left
defendant's possession and control. Richardson v.
Farmers Union Oil Co., 131 Mont. 535, 312 P.2d 134;
American Radiator & Standard Sanitary Corp. v. Fix,
200 F.2d 529; Northern v. General Motors Corp.,
2 Utah 2d 9, 268 P.2d 981. In Restatement of Torts 2d
5 402A, this concept to strict liability situations
appears in Comment g, p. 351:
"'The burden of proof that the product was in a defec-
tive 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.'
"The law does not presume that a product was defec-
tive at the time it was under the control of a manu-
facturer or distributor, from a mere showing that a
product may have been defective at the time of the
accident. Maryland Cas. Co. v. Independent Metal
Products Co., 8 Cir., 203 F.2d 838." See also,
Brandenburger v. Toyota, 162 Mont. 506, 513 P.2d 268.
The judgment of the District Court is affirmed.
Justice
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