Smith v. Firestone Tire & Rubber Co.

• Decision Date: 20 February 1985
• Docket Number: No. 84-1005,84-1005
• Citation: 755 F.2d 129
• Parties: 17 Fed. R. Evid. Serv. 752 Byron L. SMITH and Opal Smith, Plaintiffs-Appellants, v. The FIRESTONE TIRE & RUBBER COMPANY and The Budd Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 129

755 F.2d 129

17 Fed. R. Evid. Serv. 752

Byron L. SMITH and Opal Smith, Plaintiffs-Appellants, v. The FIRESTONE TIRE & RUBBER COMPANY and The Budd Company Defendants-Appellees.

No. 84-1005.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 12, 1984.

Decided Feb. 20, 1985.

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.

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

A. 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' 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 admission was, at most, harmless error.

We have reviewed the record and determine that Malone's out-of-court statement was cumulative of matters shown by other admissible testimony. Crossley had already testified that he thought the cause of the accident was "poor workmanship" on the part of Malone Tire Service. During cross-examination, appellants' witness Robert Pratt, the shop foreman at the Central Garage, testified to the deteriorated condition of the wheel, that it should not have been used, and that he was unhappy with Malone's work. Appellant Byron Smith testified that the rim parts involved in the accident had scaly rust on them and that he had complained to his supervisor about the job Malone was doing. Ronald Delong, a Malone employee, testified that young Malone was "acting like he didn't care" and that after the accident he never saw him again at Malone Tire Service.

Thus the belief that Malone Tire Service was at fault for mounting an unserviceable rim that caused the accident rather than a design defect was inferable by the jury from the other admissible evidence presented at trial. Improper admission of evidence which is cumulative of matters shown by admissible evidence is harmless error. Shell v. Missouri Pacific Railroad Co., 684 F.2d 537, 542 (8th Cir.1982); Brown v. Cedar Rapids and Iowa City Railway Co., 650 F.2d 159, 163 (8th Cir.1981); and Koppinger v. Cullen-Schiltz & Associates, 513 F.2d 901, 907 (8th Cir.1975). Under the circumstances of this case, the admission of the hearsay statement does not constitute the sort of prejudicial error affecting substantial rights that warrants reversal. FED.R.CIV.P. 61; See FED.R.EVID. 103(a). No prejudice has been demonstrated by the admission of the challenged statement which attested to matters not unknown to the jury. Shell, supra, 684 F.2d at 542, and Koppinger, supra, 513 F.2d at 907.

B. Admission of OSHA Standards

Next appellants contend that the trial court erred when it admitted into evidence, over appellants' objections, two Occupational Safety and Health Administration (OSHA) standards relating to the servicing of multi-piece and single piece rim wheels. As part of its defense Firestone offered into evidence OSHA Regulation "Servicing Multi-Piece Rim Wheels," 29 C.F.R. Sec. 1910.177 (1980) (exhibit 10) and a proposed amendment to the OSHA Regulation "Servicing of Multi-Piece and Single Piece Rim Wheels" (exhibit 22). Both exhibits related to the servicing of rim wheels and directed employers to establish training programs for all tire servicing employees. Appellants argue that the two exhibits were irrelevant because neither were in effect at the time of the accident and neither governed the conduct of Smith or his employer. Appellants also maintain that exhibit 22 which pertained to single piece rim wheels was particularly irrelevant in this case involving a multi-piece rim.

Appellees submit that the OSHA standards were relevant because they were offered to rebut appellants' contentions that appellees had failed to warn, to rebut appellants' punitive damage allegations, and to rebut appellants' argument that single piece rim wheels were a safe design alternative to the multi-piece rim.

A review of the record and of the exhibits themselves supports appellees' position that the standards were relevant to refute appellants' contentions regarding appellees' pre-accident failure to warn of the product's hazards. Exhibit 10 states " * * * petitions for the promulgation of a standard relating to the servicing of multi-piece rim wheels were submitted to OSHA in 1976 by * * * Firestone Tire and Rubber Company." Also relevant to appellees' duty to warn was the issue of whether a warning label should have been affixed to the product itself. Exhibit 10 reflects OSHA's judgment that "[i]n light of the technical and practical problems" no warning labels would be required in the 1980 standard. Another of appellants' theories was that the single piece rim wheel was a safe alternative to the product in question. We have little trouble in seeing the relevancy of exhibit 22 which was a proposed amendment to the OSHA standard which added requirements for the safe servicing of the single piece rim wheels. OSHA determined that the likelihood of accidents and injuries when servicing single piece rim wheels was comparable to that which existed for the servicing of multi-piece rim wheels before the OSHA servicing standard, and that fact was pertinent to the issue of a safe design alternative. Questions of relevancy are committed to the broad discretion of the trial court, United States v. Taylor, 562 F.2d 572, 575 (8th Cir.), cert. denied, 434 U.S. 988, 98 S.Ct. 620, 54 L.Ed.2d 484 (1977), and under the particular facts of this case we see no reason to overturn the trial court's assessment of relevancy with respect to the OSHA standards.

Appellants also argue that even if the standards were relevant, the trial court erred in admitting them because their prejudice substantially outweighed their probative value. Appellants submit that the admission of the standards diverted the jury's attention to a false issue of who had the duty to warn and...