Bechtel v. Paul Clark, Inc.

• Decision Date: 07 November 1980
• Citation: 412 N.E.2d 143,10 Mass.App.Ct. 685,30 U.C.C.Rep. 487
• Parties: , 30 UCC Rep.Serv. 487 Richard BECHTEL v. PAUL CLARK, INC.
• Court: Appeals Court of Massachusetts

Page 143

412 N.E.2d 143

10 Mass.App.Ct. 685, 30 UCC Rep.Serv. 487

Richard BECHTEL v. PAUL CLARK, INC.

Appeals Court of Massachusetts, Middlesex.

Argued May 19, 1980.

Decided Nov. 7, 1980.

Robert Snider, Boston, for plaintiff.

Lawrence G. Cetrulo, Boston (Thomas D. Burns, Boston, with him), for defendant.

Before ARMSTRONG, GREANEY and PERRETTA, JJ.

PERRETTA, Justice:

The plaintiff, Bechtel, brought this action for damages for personal injuries which he sustained when the car that he had rented from the defendant, Paul Clark, Inc. (Clark), collided with a guardrail and flipped over. He alleged that his injuries were caused by Clark's failure: (1) to properly inspect the car's braking system, (2) to act upon complaints concerning the brakes, and (3) to warn the plaintiff about the detective condition of the brakes. Bechtel also claimed that Clark had breached its warranties of fitness and merchantability. The judge granted Clark's motion for a directed verdict on the warranty count, and the jury returned a verdict for Clark on the remaining counts. We affirm the judgments.

Clark sells and rents Ford automobiles. On the afternoon of October 15, 1971, Bechtel telephoned Clark and spoke with William Catrambone, the general manager. Bechtel reserved a rental car which he planned to drive to New Hampshire later that day. At about 4:00 P.M. he and his wife Virginia went to Clark's, completed the usual rental forms and picked up a new 1972 Maverick. The odometer indicated that the car had been driven about one hundred miles. In order to get "the feel" of the car, Bechtel drove about seven miles before returning home. According to his testimony, Bechtel felt that the car wanted to "move to the left" every time he applied the brakes. He stated that he called Catrambone about 5:00 P.M. that day to report his observations about the brakes but that Catrambone reassured him he need not be concerned. Bechtel also testified that Catrambone told him it was the only rental car still available at Clark's.

Shortly after this alleged conversation Bechtel and his wife set out on Route 3 bound for New Hampshire. Bechtel was driving north at a speed of about 50 miles an hour in the passing lane of the divided highway, when a small sports car darted in front of him. As Bechtel applied the brakes to avoid hitting the sports car, the Maverick moved to the left, hit the guardrail, and flipped over.

Catrambone contradicted Bechtel's testimony, stating that he never received a telephone call from him concerning a complaint about the Maverick's brakes. He also stated that he kept a log which showed that two other cars were available for rental at Clark's that day. Catrambone testified that he had driven the Maverick about 500 feet before turning it over to Bechtel and that he had had no trouble with its brakes. Mrs. Bechtel testified that she had heard her husband's end of the alleged telephone conversation.

The car had been rented only once before to one O'Boyle on October 14, 1971. O'Boyle said that he had driven the car about one hundred miles in stop-and-go city traffic and on the Southeast Expressway. He did not recall having any difficulty with the brakes.

Joseph Harris, a physicist and expert witness presented by the plaintiff, testified that in his opinion the Maverick's deviation from its course on the day of the accident was probably caused by an imbalance between the left and right brakes. According to Harris, if an imbalance existed, a car travelling at fifty miles an hour would move to the left when the brakes were applied, unless it was controlled by an expert driver who expected the imbalance to occur.

The defendant's expert witness, Robert Dale, testified over the plaintiff's objections as to his observations concerning an experiment conducted in anticipation of the present trial. The experiment was run at the Ford Motor Company Dearborn Proving Ground with a reconditioned 1972 Maverick. The purpose of the test, according to Dale, was to observe the effect of stopping the car with and without locked wheels at various speeds and at various brake imbalances. The car was driven by a Ford employee who spent approximately thirty per cent of his work time driving cars. He had been instructed to drive the reconditioned Maverick just as an average prudent driver would. Dale testified that based upon these tests it was his conclusion that even with a complete restriction in the front right wheel to simulate imbalance, hard brake application at fifty miles an hour would result in no deviation of the car from its path, provided that the driver held the car steady by appropriate steering adjustments.

Despite the apparent compatibility of the testimony of these two expert witnesses-that driver control was the crucial factor in determining whether a car with a brake imbalance traveling at fifty miles an hour would deviate from its path when the brakes were applied-Bechtel appeals from the admission in evidence of Dale's testimony. He contends that the test was essentially dissimilar to the circumstances of the accident because the test driver was an expert, was not surprised, and made the necessary steering correction.

1. Evidence of Experiment.

It is well settled in the Commonwealth that "the question whether evidence of experiments shall be admitted must be largely left to the discretion of the trial judge, and that discretion will not be interfered with unless in its exercise he clearly appears to be wrong." Dow v. Bullfinch, 192 Mass. 281, 285, 78 N.E. 416 (1906). Guinan v. Famous Players-Lasky Corp., 267 Mass. 501, 521, 167 N.E. 235 (1929). Commonwealth v. Makarewicz, 333 Mass. 575, 592, 132 N.E.2d 294 (1956). Griffin v. General Motors Corp., --- Mass. ---, ^a 403 N.E.2d 402 (1980). In ruling upon the admissibility of testimony regarding experimental evidence, the court must weigh its probative value against the possibility that it will mislead or prejudice the jury. See Green v. Richmond, 369 Mass. 47, 59-60, 337 N.E.2d 691 (1975); McCormick, Evidence § 202, at 485-486 (2d ed. 1972). Evidence of the behavior of a reconditioned 1972 Maverick equipped to simulate an imbalance defect such as that posited by the plaintiff's expert, when subjected to braking at various speeds, could have assisted the jury in determining how the Maverick driven by Bechtel reacted when he applied the brakes at like speed under similar conditions on October 15, 1971. The evidence was competent, and it was within the judge's discretion to admit it. See McCarthy v. Curry, 240 Mass. 442, 444, 134 N.E. 339 (1922); Commonwealth v. Ellis, 373 Mass. 1, 5, 364 N.E.2d 808 (1977).

The question whether the conditions of the experiment and those of the original accident are sufficiently similar to make the observation of any value to the jury was also within the discretion of the judge. Field v. Gowdy, 199 Mass. 568, 574, 85 N.E. 884 (1908). Commonwealth v. Makarewicz, 333 Mass. at 592-593, 132 N.E.2d 294. GRIFFIN V. GENERAL MOTORS CORP., --- MASS. AT ---, 403 N.E.2D 402.^B Any differences in circumstances which might have made the comparison less useful were adequately developed by the plaintiff. Commonwealth v. Ellis, 373 Mass. at 5, 364 N.E.2d 808. Indeed lack of surprise and any difference in driving skill between Bechtel and the test driver are dissimilarities readily apparent to the jury's understanding and common sense. These dissimilarities affect the weight of the evidence and not its admissibility. See Louisell & Mueller, Federal Evidence § 103 (1977).

Bechtel's assertion that the accident and the test were insufficiently similar because the test driver made steering corrections while he, Bechtel, did not, does not support his contention that the judge abused his discretion. Rather, this dissimilarity was probative as to Bechtel's argument that a steering adjustment was necessary but that he did not have the time to make it. We conclude that the dissimilarities cited by Bechtel were all such that the jury could make proper allowance for any effects which might have resulted from them. See Guinan v. Famous Players-Lasky Corp., 267 Mass. at 522, 167 N.E. 235; Leach & Liacos, Handbook of Massachusetts Evidence 309-310 (4th ed. 1967).

2. Record on Appeal.

On the third day of trial plaintiff's counsel examined Russell Brundage, an appraiser employed by Clark's insurer. Brundage stated that when he examined the Maverick for body damage, he also inspected its brakes. This was the first time he had ever inspected brakes in the course of his work as a professional appraiser. While Brundage was testifying, plaintiff's counsel approached the bench and requested that a two-page interoffice memorandum dated October 20, 1971 (the Brundage memo) be marked for identification; the side-bar conference was recorded. The judge allowed this request but indicated that he would exclude the Brundage memo from evidence. No more was said about the memo and counsel resumed his questioning of the witness.

On the fifth day of trial plaintiff's counsel produced Dr. William McCann as a witness. Dr. McCann had examined the plaintiff when he was admitted to the Lowell General Hospital and had obtained the details of the accident from Mrs. Bechtel. ¹ When plaintiff's counsel attempted to elicit these details from Dr. McCann, defense counsel objected. The objection was sustained and a side-bar conference was held so that plaintiff's counsel could make an offer of proof. This conference was reported. Plaintiff's counsel argued that Dr. McCann's hospital record was admissible to show prior consistent statements because defense counsel, through cross-examination of the plaintiff's witnesses, had injected the notion of recent contrivance into the trial. The judge excluded the evidence.

Joseph Harris, the plaintiff's expert, testified on the fifth day of trial, and his file and its contents were marked for identification. The following day plaintiff's counsel sought...