Suffolk. Contract and tort. Writ in the Superior Court dated February 8, 1972. The action was tried before Leen, J.
Hale, C.j., Goodman, & Grant, JJ.
Negligence, Manufacturer of motor vehicle, Duty to warn. Pleading, Civil, Amendment. Sale, Warranty, Motor vehicle. Words, "Family."
The opinion of the court was delivered by: Goodman
In an action against the manufacturer of a truck and the retailer who sold the truck and a camper unit to recover damages for injuries sustained in an accident resulting when a tire of the truck blew out, the evidence presented a jury question whether the manufacturer had been negligent in failing to provide a warning adequate to alert the user of the truck to potential safety hazards of overloading the truck or underinflating the tires [349-352]; the burden was on the manufacturer to produce evidence to rebut the inference that the plaintiff would have heeded an adequate warning [352-353].
In an action for negligence against the manufacturer of a truck, the Judge properly allowed at the commencement of trial a motion to amend the complaint to include a claim that the defendant had not provided adequate warning of the safety hazards of overloading the truck or underinflating the tires. [353-354]
A plaintiff's motion to amend the pleadings to conform to the evidence was properly allowed, where the defendant did not object to the cross-examination of its expert witness on the unpleaded issue and the evidence which was elicited and where, in view of the information that the defendant had already furnished the plaintiffs, evidence on the unpleaded issue could not have come as a surprise. [354-355]
A buyer's niece, although not a member of the buyer's household, was a "person who is in the family" of the buyer and thus could recover for breach of a retailer's warranty of merchantability provided by G. L. c. 106, § 2-314. [356-357]
A retailer's sale of a truck and camper unit without adequate warning of the danger from a tire blowing out when used "for the ordinary purposes for which such goods are used "was a breach of the implied warranty of merchantability provided by G. L. c. 106, § 2-314. [357-359]
This case arises out of an accident which took place on the Trans Canada Highway *fn1 on April 18, 1970. The plaintiffs, Alexis McLaughlin, her daughter Mary Ann McLaughlin, and her niece Jocelyn Wujcik Wolfe, were travelling in a Ford truck on which a camper was mounted. Also present in the vehicle were Margaret Wujcik, sister of Alexis McLaughlin, and Catherine McDonald. *fn2 While they were travelling at about forty-five miles per hour, there was a blowout in the left rear tire; the truck went out of control and rolled over, and the camper became completely detached from the body of the truck. Wolfe, who was riding in the camper at the time, was seriously injured; the other plaintiffs sustained lesser injuries. The defendants in the case are Ford Motor Company (Ford), manufacturer of the truck, and Harold R. Donahue (doing business as Donahue Mobile Homes), the dealer who assembled the truck and camper unit and sold it to James McLaughlin, the husband of Alexis McLaughlin.
The original declaration, filed April 3, 1972, alleged injuries "by reason of the negligence of the defendant . . . in the manufacture of said motor vehicle and/or the equipment and/or apparatus connected therewith . . . ." *fn3 The declaration also alleged in separate counts a breach of warranty by Donahue.
On June 2, 1975, at the beginning of the trial, the plaintiffs moved to amend their complaint (see Mass.R.Civ.P. 1A , 365 Mass. 731 ) to allege in the counts against Ford injuries "by reason of the negligence of the defendant . . . in the manufacture of said motor vehicle and/or the equipment and/or apparatus connected therewith and/or in its instructions or in its failure to give instructions as to said vehicle related to gross vehicle weight and gross vehicle weight requirements." (The amendment added the italicized portions.) The amendment was allowed over Ford's objection. *fn4
The case was submitted to the jury with interrogatories (Mass. R.Civ.P. 49, 365 Mass. 813 ); motions by the defendants for directed verdicts were denied. The jury found that (a) there was no defect in the left rear wheel, (b) the accident was caused by "a combination of the overloading in excess of the gross vehicle weight and the underinflation of the left rear tire of the vehicle," *fn5 (c) Ford had not taken reasonable measures to make known "the risks and dangers with respect to what could occur as a result of underinflation of tires or the imposition of weight in excess of the gross maximum weight of the vehicle," (d) this failure was the proximate cause of the accident, (e) the plaintiffs were not contributorily negligent, and (f) ...