755 F.2d 129 (8th Cir. 1985), 84-1005, Smith v. Firestone Tire & Rubber Co.

Docket Nº:84-1005.
Citation:755 F.2d 129
Party Name:Byron L. SMITH and Opal Smith, Plaintiffs-Appellants, v. The FIRESTONE TIRE & RUBBER COMPANY and The Budd Company, Defendants-Appellees.
Case Date:February 20, 1985
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 129

755 F.2d 129 (8th Cir. 1985)

Byron L. SMITH and Opal Smith, Plaintiffs-Appellants,




No. 84-1005.

United States Court of Appeals, Eighth Circuit

February 20, 1985

Submitted Sept. 12, 1984.

Page 130

John C. Niemeyer and Michael L. Noland of Foliart, Mills & Niemeyer, Linda G. Alexander of Linda G. Alexander, P.C., Oklahoma City, Okl., for defendant-appellee The Firestone Tire & Rubber Co.

Thomas J. Wheatley, Thomas P. Schult, Lathrop, Koontz, Righter, Clagett & Norquist, Kansas City, Mo., Frank S. Perkin, Jr., The Budd Co., Troy, Mich., for defendant-appellee The Budd Co.

Danny L. Curtis, Randy W. James, Risjord & Curtis, P.C., Joseph W. Amick, Ponick, Amick & Allen, Kansas City, Mo., for plaintiffs-appellants.

Page 131

Before HEANEY and ROSS, Circuit Judges, and HENLEY, Senior Circuit judge.

ROSS, Circuit Judge.

Byron and Opal Smith appeal from an adverse jury verdict in this exploding tire rim case. For reversal, appellants argue that the district court erred in making certain evidentiary rulings and in failing to give a duty to recall instruction. For the reasons discussed below, we affirm the judgment of the district court. 1

I. Facts

This action arises from an accident which occurred on October 31, 1977. Appellant Byron Smith was employed by the City of Independence, Missouri, and was working as a mechanic at the city's Central Garage. On the day of the accident Smith placed a tire mounted on a multi-piece truck rim known as the RH5? on a city truck. The tire had been mounted on the rim by Malone Tire Service with whom the city had a contract for tire repair and maintenance services. While Smith was checking the air pressure on the tire he had placed on the truck, the multi-piece rim separated causing severe injuries to his face, head and leg.

Smith and his wife brought this diversity action for personal injury and loss of services against appellees, The Firestone Tire & Rubber Company and The Budd Company, the manufacturers of the RH5? multi-piece truck rim. Appellants claimed the rim was negligently and defectively designed and sold by appellees. Appellees denied any defect in design and alleged that the rim in question was rusted, corroded and worn to the extent that it should not have been assembled or placed in service. The case was tried to a jury which rendered a verdict in favor of the appellees. Appellants sought a new trial on various grounds but the trial court denied the motion for a new trial. Appellants then filed this timely appeal.

II. Evidentiary Rulings

  1. Admission of Out-of-Court Statement

    During the direct examination of Clifford Crossley, the manager of the city garage where appellant worked, an out-of-court statement attributed to Barney Malone, the owner of Malone Tire Service, was admitted over appellants' hearsay objection. Initially Crossley was asked what Malone told him on the day of the accident and his answer was interrupted by counsel's objection. The trial court ruled that if Malone made some admission against his own interest it was admissible because it had probative value and was an exception to the hearsay rule. Then in response to a question asking what Malone did "in reference to that accident happening, if anything[,]" Crossley testified "[h]e came down and looked at the wheel and things and said he was sorry it happened, and he had fired the guy that did it."

    On appeal, appellants contend that the admission of Malone's statement was reversible error warranting a new trial. Appellants argue that the statement was improperly admitted as a statement against interest under Rule 804(b)(3), 2 because there was no showing that Malone was unavailable. Further appellants maintain the statement had a prejudicial impact on the jury because it re-enforced the appellees'

    Page 132

    defense that the cause of the accident was due to Malone Tire Service.

    Appellees assert that appellants have not preserved the objection on unavailability grounds, having only objected at trial on general hearsay grounds. Appellees contend that the admission of the statement has not been shown to have been prejudicial to the appellants because it was cumulative of other evidence in the trial establishing facts tending to inculpate Malone. Lastly appellees argue that the statement was not hearsay because it was not offered to prove the truth of the matter asserted or, in the alternative, that it was an excited utterance or state of mind exception to the hearsay rule.

    Assuming for purposes of this opinion only that Crossley's testimony of Malone's out-of-court statement was hearsay, 3 and not properly admissible under Rule 804(b)(3) because there was no showing that Malone was unavailable, we find that the...

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