Necktas v. GENERAL MOTORS CORP. PONTIAC DIVISION , 357 Mass. 546 ( 1970 )

Reardon, J.

Anna F. Necktas recovered verdicts in this action of contract and tort against General Motors Corporation, Pontiac Division (CM), and Columbia Pontiac Co. Inc. (the dealer) on five counts, one in tort (negligence) by Mrs. Necktas as administratrix against each defendant for the death of her son, Edward F. Necktas, Jr. (counts 5 and 6), one by Mrs. Necktas individually against each defendant for property damage to her automobile for breach of warranty (counts 9 and 10), and one for breach of warranty against the dealer for Necktas’s death (count 11). The bill of exceptions presents the issue whether a directed verdict was properly denied on each count.

On October 15, 1962, the plaintiff purchased a new 1963 Pontiac sports coupe from the dealer. The car was driven to her home by her husband. She never did have the opportunity to drive the vehicle “but rode in it a few times and noticed nothing unusual about its operation.” From the time of the purchase until the date of the accident, October 30, 1962, no repairs were made on the car. On the latter date the plaintiff’s son, who did not smoke cigarettes or drink alcoholic beverages, took the car about 8:15 p.m., and while driving along Route No. 1 in Dedham was killed as the result of a collision between the motor vehicle he was driving and another.

At the time of the accident the plaintiff’s car had been traveling in the south bound lane of Route No. 1 at a point where the road was straight. It crossed the median strip diagonally about thirty feet and went into the north bound lane where another vehicle struck it on the right side. There were no tire or skid marks on the south bound roadway prior to the point where the plaintiff’s car left it. There were tire marks approximately forty-five feet from the point where the plaintiff’s vehicle left the median strip to the point of the accident.

A research mechanic working at the Harvard Medical School Department of Legal Medicine testified for the plaintiff that he inspected the plaintiff’s vehicle at approximately 9:30 p.m. on October 30, 1962. The odometer indicated that the car had been driven approximately 500 miles. Upon further examination he discovered that he could not move the pulley of the power steering unit with a stillson wrench. “This pulley has a V-type rubber belt that runs from the crank-shaft to the power steering unit and the V-type belt drives this pulley around .... [T]his pulley should turn freely.” The V-type rubber belt was burned on both sides and “the only way the belt could be burned on both sides is the fact that the pulley was frozen and the belt was being driven over the frozen pulley creating friction.” Further, the oil reservoir of the power steering unit was empty and an odor of sulphur emanated from it. The mechanic testified that if the oil or fluid level in the reservoir were low, or if there were no oil, a clattering noise would be heard by anyone in the vehicle. He further stated that in the event of a failure of the power steering mechanism “the manual or ordinary steering mechanism of the car would not be interfered with.” This is the only evidence in the record concerning the material effect of the failure of the power steering mechanism. Compare Swillie v. General Motors Corp. 133 So. 2d 813 (Ct. App. La.), cited to us by the plaintiff during argument, where the evidence seems clear that injury was caused in an accident which occurred when there was a brake failure on a truck due to a defective flare in the brake tubing installed by the defendant.

The opinion of a majority of the court on the five counts which were submitted to the jury is as follows:

(a) Mrs. Necktas has not produced sufficient evidence to warrant a finding that either GM or the dealer was negligent. Therefore it was error for the court to deny the motions of the defendants for directed verdicts in their favor on the death counts 5 and 6, respectively, based on alleged negligence.

(b) There being shown no privity of contract between Mrs. Necktas and GM, it was error for the court to deny the motion of GM for a directed verdict in its favor on count 9 based on alleged breach of warranty. Spring Valley Country Club, Inc. v. Malden Supply Co. 349 Mass. 764. Haley v. Allied Chemical Corp. 353 Mass. 325, 331.

(c) The jury could infer from the evidence that the plaintiff’s car had a defective power steering unit when she purchased it from the dealer and that this constituted a breach of warranty. There was no error in denying the defendant’s motion for a directed verdict on count 10 against the dealer.

(d) There can be no recovery from the dealer for the death of Edward Necktas on the basis of any alleged breach of warranty. The right of recovery for death is purely statutory and is based either upon negligence or upon a wilful, wanton or reckless act causing death. G. L. c. 229, § 2. In this Commonwealth “[t]he whole subject is now covered by statutes.” Sherlag v. Kelley, 200 Mass. 232, 234. The death statute provides no right of recovery for a death resulting from a contractual breach of warranty alone. Therefore, it was error for the court to deny the motion of the dealer for a directed verdict in its favor on count 11.

Exceptions sustained on counts 5, 6, 9 and 11.

Exceptions overruled on count 10.