Hupp Motor Car Corporation v. Wadsworth

• Decision Date: 05 June 1940
• Docket Number: No. 8263.,8263.
• Citation: 113 F.2d 827
• Parties: HUPP MOTOR CAR CORPORATION v. WADSWORTH et al.
• Court: U.S. Court of Appeals — Sixth Circuit

113 F.2d 827 (1940)

HUPP MOTOR CAR CORPORATION v. WADSWORTH et al.

No. 8263.

Circuit Court of Appeals, Sixth Circuit.

June 5, 1940.

Fred L. Vandeveer, of Detroit, Mich. (Vandeveer, Vandeveer & Haggerty, of Detroit, Mich., on the brief), for appellant.

Carl Runge, of Detroit, Mich. (Robert S. Marx, Carl Runge, and Roy G. Holmes, all of Detroit, Mich., on the brief), for appellees.

Before HICKS, ALLEN, and HAMILTON, Circuit Judges.

ALLEN, Circuit Judge.

Appeal from a judgment in favor of appellees, based on a jury verdict.

Appellees, residents of California, instituted this action as sole heirs of Thomas E. Wadsworth, who was killed in an automobile accident in California on July 17, 1936. The accident was alleged to have resulted from the negligence of appellant in assembling and inspecting the automobile, manufactured by it, and involved in the accident. Wadsworth had purchased the car, which was new, about six weeks prior to the accident. Upon the day in question he, with members of his family, was driving at a speed of about 35 miles per hour, along a dry, smooth, level, cement road. The car suddenly veered to the left, almost to the white line marking the center of the road, then swerved to the right almost off the cement, back again slightly to the left and then to the right, running off the cement and crossing the oil and gravel shoulder about 10 feet wide. It then hit a heavy concrete culvert which crossed the ditch and extended about 8 inches above the level of the surface of the road. The car continued for about 45 feet and stopped in a field, turning over on one side. Wadsworth died on the same day from injuries received. Immediately after the accident it was found that the pitman arm of the steering gear, which should be held upon the ball stud of the steering drag link by a castellated nut secured by a cotter pin, was disconnected and that the nut and cotter pin were missing. One of the tires at that time was deflated, but no witness stated which tire it was. It is appellees' theory that the steering gear became disconnected and inoperative through appellant's negligent failure to insert the cotter pin, thus allowing the retaining nut gradually to work off and permit the steering gear to become disassembled. Appellant's theory is that the accident was caused by a puncture of the tire on the left front wheel. Appellant's motions for directed verdict and for judgment notwithstanding the verdict were denied.

Appellant's first contention is that the court erred in refusing to receive opinion evidence as to how an automobile which had a punctured or deflated tire on the left front wheel would act on the road. The court correctly refused to admit such evidence. There was no proof that any tire at any time was punctured, nor that there was a blowout, nor that any tire had been deflated before the accident. The proof that a tire was deflated when the car was found in the field does not show that it was deflated prior to the accident. The only evidence that the left front tire was the one deflated is presented in the testimony of a witness who did not see the car at the scene, but arrived at his conclusion by observation of a photograph of the wrecked car made in a garage eleven days after the accident. The front end of the car was then supported by a jack, and both front wheels were raised off the floor. The witness testified that the left front tire was deflated when the picture was taken. A highway patrol officer testified that he could "see distinctly" but one tire mark on the shoulder of the road when he examined the scene of the accident. From this evidence appellant seeks to establish proof sufficient to go to the jury that the allegedly deflated tire made the allegedly single track, and therefore that the deflation occurred prior to the accident. As to the admission of evidence, the law of Michigan controls. American Issue Pub. Co. v. Sloan, 6 Cir., 248 F. 251, 253; Nashua Savings Bank v. Anglo-American Land, Mortgage & Agency Co., 189 U.S. 221, 228, 23 S.Ct. 517, 47 L.Ed. 782. The testimony proffered does not exclude the existence of other tire marks, nor does it constitute substantial evidence of the existence of a deflated tire prior to the accident. It is axiomatic that a hypothetical question calling for expert opinion must be based upon the facts in evidence. This also is the law of Michigan. Appellant did not properly lay the ground for the hypothetical questions which the court refused to permit it to ask the expert. The expert could not testify as to his opinion that a deflated tire on the left front wheel caused the accident unless the evidence indicated by a substantial degree of proof that the tire was deflated before the accident occurred. Since the questions proffered embodied facts not shown in the evidence, this line of questioning was properly excluded. Mayo v. Wright, 63 Mich. 32, 29 N.W. 832; Stowell v. Standard Oil Co., 139 Mich. 18, 102 N.W. 227.

Appellant's second contention relates to statements of fact made by the court in the presence of the jury, as to what facts had or had not been proved. This contention also is without merit. If the statements were erroneous, they...