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decided: September 21, 1971.


Appeals from judgments of Court of Common Pleas, Civil Division, of Allegheny County, Oct. T., 1966, No. 319, in case of Marie P. Woods, administratrix of estate of Clarence Woods, also known as Clarence D. Woods v. Pleasant Hills Motor Company and Ford Motor Company; Same v. Charles Bluestone Company, Inc.


Randall J. McConnell, Jr. and George M. Weis, with them Herbert Bennett Conner, and Dickie, McCamey & Chilcote, and Weis & Weis, for appellants.

Murray S. Love, with him Sikov and Love, for appellees.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Montgomery, J.

Author: Montgomery

[ 219 Pa. Super. Page 383]

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.

[ 219 Pa. Super. Page 384]

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 non-suit 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, 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

[ 219 Pa. Super. Page 385]

    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. Superior Ct. 384, 257 A.2d 676 (1969), this Court held that evidence of a ...

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