488 F.2d 839 (10th Cir. 1973), 73-1392, Julander v. Ford Motor Co.

Docket Nº:73-1392.
Citation:488 F.2d 839
Party Name:Donald Boyd JULANDER et al., Plaintiffs and Appellees, v. FORD MOTOR COMPANY, a corporation, Defendant and Appellant.
Case Date:December 13, 1973
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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488 F.2d 839 (10th Cir. 1973)

Donald Boyd JULANDER et al., Plaintiffs and Appellees,

v.

FORD MOTOR COMPANY, a corporation, Defendant and Appellant.

No. 73-1392.

United States Court of Appeals, Tenth Circuit.

December 13, 1973

         Argued and Submitted Oct. 17, 1973.

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         Richard W. Giauque, Salt Lake City, Utah (Clifford L. Ashton, E. Scott Savage, Jean L. W. Barnard; Van Cott, Bagley, Cornwall & McCarthy, Salt Lake City, Utah, Olsen & Chamberlain, Richfield, Utah, of counsel, on the brief), for plaintiffs and appellees.

         Ray R. Christensen, Salt Lake City, Utah (Christensen, Gardiner, Jensen & Evans, Salt Lake City, Utah, on the brief), for defendant and appellant.

         Before HILL, McWILLIAMS and BARRETT, Circuit Judges.

         McWILLIAMS, Circuit Judge.

         This is a diversity action for damages arising out of a two-car automobile collision which occurred on August 5, 1970, on U. S. Highway 89, just north of the town of Sevier in Sevier County, Utah. Mr. and Mrs. Don Julander and their four minor children were in one vehicle which was being driven by Don Julander in a southerly direction on Highway 89. David Surber, age nineteen, was driving the other vehicle involved in the collision, namely, a 1968 Ford Bronco, in a northerly direction on Highway 89. Just north of Sevier, Utah, the Ford Bronco crossed over the center line of the highway into the path of the Julander vehicle, and a head-on collision occurred which had disastrous results for the Julander family. Mrs. Julander, who was approximately seven months pregnant, died as a result of injuries sustained in the collision. Mr. Julander and his four children were all injured in the accident, with several of the children sustaining severe injuries.

         Don Julander and his four children brought an action for the wrongful death of Mrs. Julander, as well as for their own injuries, against the driver of the other car, David Surber, and the latter's father, who owned the Ford Bronco, and the Ford Motor Company, the manufacturer of the Bronco. Their claim against the Surbers was subsequently settled and the case came on for trial against the Ford Motor Company only.

         The Julanders' claim against Ford Motor Company was based on alleged negligence by Ford in its design, manufacture and assembly of the Bronco and, alternatively, their claim for relief was also based on the doctrine of strict products liability. Trial by jury resulted in

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a verdict awarding the Julanders $200, 000 for the wrongful death of Mrs. Julander, and the additional sum of $215, 995.26 for their own personal injuries. Ford now appeals the judgments thus entered on the jury's verdicts. We reverse, as in our view the trial court committed error in the admission and exclusion of evidence which under the circumstances simply cannot in good conscience be classified as harmless error not affecting substantial rights of Ford. In view of the fact that our disposition of the matter necessitates a second trial, we shall consider matters other than the grounds upon which we reverse, since certain of them, at least, may well arise upon retrial.

         The several grounds urged in this court by Ford as grounds for reversal are summarized as follows: (1) Insufficient evidence of (a) negligence on the part of Ford in its design, manufacture and assembly of the 1968 Ford Bronco or (b) that any negligence in design, if such there be, was a proximate cause of the collision in question; (2) error on the part of the trial court in submitting the case to the jury on an alternative theory of strict products liability; (3) the admission by the trial court over objection of evidence of other accidents involving Broncos, and in particular the admission into evidence of seven civil complaints filed by others against Ford; (4) the exclusion by the trial court of evidence sought to be introduced by Ford relating to its design, manufacture and assembly of the Bronco, and in this connection Ford particularly objects to the exclusion by the trial court of Ford's offer of exhibit B; (5) improper final closing argument by counsel for the Julanders wherein he commented upon the damages issue, when counsel for Ford had made no reference to damages in his closing argument; and (6) excessive damages awarded by the jury for the wrongful death of Mrs. Julander. We shall first make brief comment upon certain of the above matters which we deem to be only peripheral.

         Not knowing what the evidence concerning the damages flowing from the death of Mrs. Julander will be on retrial, and not knowing whether the jury on retrial will even find in favor of the Julanders, or, if the jury so finds, not knowing what their assessment of damages in connection with such wrongful death will be, we see no good purpose in here determining whether the jury's award of $200, 000 for the wrongful death of Mrs. Julander in the first trial of this matter finds support in the record. Accordingly, we decline to review this particular matter.

          As concerns the claim by Ford of improper closing argument on the part of counsel for the Julanders, it is sufficient to note that in our view any error in this regard would under the circumstances be only harmless error not affecting the substantial rights of Ford. At the same time, we recognize the general rule that it is improper for counsel for a plaintiff to inject new matter in his final closing argument which should be limited to a rebuttal to defense counsel's closing argument, and nothing more. For an annotation on this subject, see 93 A.L.R.2d 273 (1964). However, as was said in Thomson v. Boles, 123 F.2d 487 (8th Cir. 1941), cert. denied, 315 U.S. 804, 62 S.Ct. 632, 86 L.Ed. 1204 (1942), appellate courts should exercise great caution in setting aside a judgment because of remarks made by counsel in closing argument during a hotly contested case, and even though the argument be improper, the judgment should not be disturbed unless it clearly appears that the remarks in question unduly aroused the sympathy of the jury and thereby influenced the verdict. In the instant case, the comment of counsel was, under the circumstances, improper, but such comment, in our view, was only harmless error and does not justify reversal.

          Counsel for Ford also contends that the evidence was legally insufficient to carry the case to the jury on either a theory of negligent design or on the basis of strict products liability and

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that accordingly the judgments should be reversed and the cause remanded to the trial court with directions to dismiss. As a corollary of the argument Ford also contends that there was no evidence that any possible negligent design caused or contributed to the collision. With this argument we are not in accord. We shall first discuss the "negligent design" aspect of the case.

         It was the plaintiffs' theory of the case that Ford negligently designed the 1968 Bronco to the end that at certain speeds, depending upon the size and location of its load, the Bronco had a tendency to "oversteer." "Oversteer, " according to several of the plaintiffs' witnesses, means that "very slight changes of the steering wheel produce very sharp changes in the direction of the vehicle." In this general connection, the testimony of David Surber, the driver of the Ford Bronco, should first be commented upon.

         According to David Surber, just prior to the accident he was following a slow moving camper on Highway 89 just north of Sevier, Utah, and he determined to pass the camper. Pulling towards the center of the road, Surber testified that he saw the Julander vehicle, and another vehicle as well, approaching from the opposite direction, and that he fully realized he could not pass the camper at this point on the highway and accordingly pulled back into his lane, directly behind the camper. Believing that he was too close to the camper, Surber testified that he applied his brakes, "firmly, " but not in any sort of an emergency manner, and turned the steering wheel slightly to the right. Then, according to Surber, the Bronco veered sharply to the right, and when he turned the steering wheel back to the left, the rear end of the Bronco "fishtailed" and he veered across the center of the road into the path of the oncoming vehicle driven by Don Julander. Surber testified that just prior to applying his brakes he was going approximately forty-five to fifty miles per hour. At the time David Surber was driving by himself from California to Colorado and was carrying fishing and camping gear for himself and his parents, who were to join him later in Gunnison...

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