Auto-Ion Chemicals, Inc. v. Gates Rubber Co., AUTO-ION

• Citation: 33 Mich.App. 574,190 N.W.2d 357
• Decision Date: 19 May 1971
• Docket Number: Docket No. 9847,AUTO-ION,No. 3,3
• Parties: CHEMICALS, INC., a Michigan corporation, Plaintiff- Appellant, v. GATES RUBBER COMPANY, a Colorado corporation, Defendant-Appellee
• Court: Court of Appeal of Michigan (US)

Page 357

190 N.W.2d 357

33 Mich.App. 574

AUTO-ION CHEMICALS, INC., a Michigan corporation, Plaintiff- Appellant, v. GATES RUBBER COMPANY, a Colorado corporation, Defendant-Appellee.

Docket No. 9847.

Court of Appeals of Michigan, Division No. 3.

May 19, 1971.

Released for Publication Oct. 8, 1971.

John F. Rooney, Kalamazoo, for plaintiff-appellant.

Stapleton, Adams, Burgie, Kidston & Crocker, Kalamazoo, for defendant-appellee.

Before HOLBROOK, P.J., and BRONSON and O'HARA, ^* JJ.

BRONSON, Judge.

Plaintiff, Auto-Ion Chemicals, Inc., a Michigan corporation, brought this suit against defendant, Gates Rubber Company, a Colorado corporation, alleging breach of contract. Plaintiff appeals as of right from a jury verdict of no cause of action.

The contract which formed the subject of this litigation required defendant to install a 3/16-inch rubber inner lining on plaintiff's tanker truck to allow transportation of chemical substances. Plaintiff alleged below that electrical equipment on the tanker was damaged by defendant's workmen and that because only a 1/16-inch lining was installed the resulting failure of the rubber and damage to the truck was chargeable against defendant. Defendant denied damaging the electrical equipment and claimed that the liner, when installed, met industry specifications, but that plaintiff's misuse caused the failure.

Part of plaintiff's claim for damages was the cost of welding repair to the tanker trailer. As evidence of the cost of such repair, plaintiff offered an itemized bill which listed a charge for stainless steel welding rods. Defendant produced a witness who demonstrated to the jury the magnetic properties of carbon steel as opposed to comparatively non-magnetic stainless steel. He testified that from his observations and tests with a magnet that the welding done on plaintiff's carbon steel tanker was done using carbon steel rods, and noted the presence of a stainless steel tanker of the same unique configuration on plaintiff's premises. The obvious implication of such testimony was that plaintiff's bill for repairs did not relate to the cost of repair of the damaged vehicle, but to the stainless steel tanker.

Plaintiff claims that the admission of such testimony from a witness not qualified as an expert welder was error. We disagree. The witness was the manager of defendant's branch office in Iowa, and while not a welder himself, indicated he was familiar with the types of welding repair done on tankers prior to installation of rubber lining. The determination of the qualifications of a witness to give opinion testimony is a matter within the discretion of the trial judge. Accetola v. Hood (1967), 7 Mich.App. 83, 151 N.W.2d 210; People v. Hawthorne (1940), 293 Mich. 15, 291 NW. 205. It was not an abuse of judicial discretion to allow the demonstration of the magnetic properties of stainless steel or the testimony of this witness since his knowledge in the field is considerably greater than that of the average juror. United States v. Porter (E.D.Mich.1925), 9 F.2d 153; Colwell v. Alpena Power Co. (1916), 190 Mich. 255, 157 N.W. 21.

Whether the test used by the witness was valid would affect the weight of the testimony, not its admissibility. However, it is difficult to see how plaintiff can dispute the result of the test since plaintiff's principal witness stated earlier in trial that stainless steel rods would not be used to weld carbon steel.

Plaintiff attempted to counter the implication that the bill of repairs related to work done on the stainless steel tanker by offering a certificate of title to that vehicle. The purpose for which this...