Braden v. Hendricks

• Citation: 695 P.2d 1343,1985 OK 14
• Decision Date: 19 February 1985
• Docket Number: No. 53962,53962
• Court: Supreme Court of Oklahoma
• Parties: Vivian Aline BRADEN, Appellant, v. Don HENDRICKS, d/b/a D & L Ford Company and Ford Motor Company, Appellees.

Page 1343

695 P.2d 1343

1985 OK 14

Vivian Aline BRADEN, Appellant, v. Don HENDRICKS, d/b/a D & L Ford Company and Ford Motor Company, Appellees.

No. 53962.

Supreme Court of Oklahoma.

Feb. 19, 1985.

Dale J. Briggs, Briggs, Patterson, Eaton & Berg, Tulsa, for appellant.

William C. Anderson, William H. Hinkle, Doerner, Stuart, Saunders, Daniel & Anderson; William S. Hall, Feldman, Hall, Frandon & Woodard, Tulsa, for appellees.

OPALA, Justice.

Four questions are presented on certiorari: (1) Was there prejudicial error in the trial court's granting defendant-manufacturer's motion in limine? (2) Did the trial court reversibly err in disallowing, on cross-examination, an inquiry into the salary of the manufacturer's witness-employee whose opinion testimony was sought to be impeached for bias? (3) Did the trial court's Instruction No. 4 constitute reversible error? and (4) Was the Court of Appeals' reversal of the trial court's judgment on the defendant-dealer's [dealer] demurrer to the evidence legally correct? We answer all four questions in the negative.

The plaintiff, Vivian Braden [motorist], was involved in a one-car accident. She claimed that the steering wheel of her 1974 Ford LTD station wagon locked as she drove to work, causing her to run off the road and resulting in an injury to her person as well as damage to the automobile. The motorist brought a products liability action against the manufacturer of the car, Ford Motor Co. [Ford], and the dealer, Don Hendricks, d/b/a D & L Ford Co., from whom she purchased it. The trial court rendered judgment for the dealer on his demurrer to the evidence, and the jury returned a verdict for Ford. The Court of Appeals held that (a) the trial court improperly limited cross-examination when it disallowed the motorist to inquire into the salary of Ford's witness-employee and into an alleged indemnity agreement between Ford and the dealer; (b) the instruction that advised the jury to consider the age and prior use of the car in determining whether a defect existed in the station wagon when it was bought gave improper emphasis to Ford's evidence and (c) there was error in rendering judgment on the dealer's demurrer to the evidence.

I ATTEMPTED IMPEACHMENT FOR BIAS OF THE MANUFACTURER'S WITNESS-EMPLOYEE

The motorist contends that she was improperly precluded from inquiring into the salary of Ford's witness-employee. She asserts that the amount of the salary the witness was receiving for his services was proper cross-examination to affect his credibility.

The motorist sought to impeach the testimony of Ford's witness for the purpose of showing bias in favor of Ford or interest in the outcome of the litigation. The Oklahoma Evidence Code [Code] ¹ does not expressly address impeachment for bias or interest. ² Only a few aspects of the witness' impeachment rules are governed by that statute. ³ Because the omission leaves the common law unaltered by the Code, we must look to the former for guidance in determining whether the trial court erred in limiting the scope of attempted cross-examination into the bias or interest of the manufacturer's witness. ⁴

At common law a witness' credibility may be affected by showing bias The trial court restricted the attempted cross-examination by disallowing inquiry into the amount of the witness' salary. An offer of proof discloses that his annual compensation was $100,000. Although the exact amount of the employee's salary was kept from the jury by the trial judge's ruling, there was other evidence affecting the witness' credibility: the witness (a) was a parts and service zone manager for Ford, (b) had worked for Ford for almost twenty-one years, (c) believed that Ford was a good employer, (d) had never offered testimony that Ford made a defective product and (e) conceded on cross-examination that he would like to help Ford win the instant lawsuit.

                corruption and interest. 5  The law recognizes that a relationship between a party and a witness might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party.  The term "bias" signifies a witness' interest in the outcome of the case, including friendly or hostile association with one of the parties which could induce him to distort or falsify his testimony. 6  Bias can be exposed by showing the witness' relationship to the case, his financial interest in the outcome, or his association with one of the parties.  For instance, potential prejudice may be demonstrated by showing that the witness is employed by a party or has an economic stake in the outcome of the litigation. 7  The impeaching party is not confined to matters elicited on direct examination.  Its inquiry to test a witness' credibility may extend to matters beyond the scope of direct examination. 8
                

While the salary paid a witness by a party may be shown to affect the witness' credibility, we believe that the trial court did not, in this case, commit a reversible error by limiting the inquiry. This is so because the motorist had been afforded ample opportunity to establish bias by reason of the other facts and circumstances elicited without any court interference. We conclude that, on the record before us, no prejudice appears to have resulted from the trial judge's objectionable restriction of the motorist's attempted inquiry. In short, the limitation improperly placed upon cross-examination was clearly harmless. ⁹

II THE IN LIMINE RULING

The motorist asserts that the trial court erred in granting Ford's motion in limine. By this motion the motorist was precluded from cross-examining any of Ford's witnesses about an alleged indemnity agreement between Ford and the dealer. Ford contends that the motorist has failed to preserve this error on appeal because her counsel did not, at trial, make an offer of proof as to the testimony sought to be elicited about the alleged agreement.

A motion in limine is generally a pretrial device used to preclude prejudicial statements and questions which have no proper bearing on the issues in the case and which, if heard by the jury, would interfere with a fair and impartial trial. ¹⁰ Used in its broadest sense, "in limine" means any motion, whether used before or during trial, by which exclusion is sought of anticipated prejudicial evidence. ¹¹ If the evidence is excluded by an in limine ruling, the party seeking to introduce it must at trial--out of the hearing of the jury--make an offer to show for the record the essence of testimony sought to be elicited. In this manner the trial court is afforded an opportunity to make its in-trial ruling upon the issue in contention. ¹²

The motorist apparently discovered the existence of the alleged indemnity agreement after the trial had begun. This discovery no doubt precipitated an in camera discussion--not stenographically reported, or if reported, not made a part of the appellate record--during which the motion in limine was made to the court. The trial court addressed Ford's motion when the motorist rested her case. She opposed the motion on the ground that she could inquire on cross-examination as to "matters that affect credibility". The motion was granted. After this ruling, the motorist made no offer of testimony she expected to elicit on cross-examination. No explanation was tendered as to how the existence of the agreement, or any of its terms, would affect the credibility of Ford's witnesses. It was incumbent upon the motorist to make an offer of proof in order to preserve the error for our review. ¹³

Assuming that the issue were properly preserved, the exclusion of testimony about the indemnity agreement was nonetheless, on this record, free from reversible error. ¹⁴ While Oklahoma's jurisprudence does not have a statutorily unrestricted right of contribution among joint tortfeasors, ¹⁵ it does recognize a right of indemnity when one--who was only constructively liable to the injured party and was in no manner responsible for the harm--is compelled to pay damages because of the tortious act by another. ¹⁶ The indemnity agreement was merely Ford's recognition of its noncontractual obligation, created by law, to indemnify its dealer upon a claim for loss stemming from Ford's liability for harm caused by its defective product. ¹⁷

In a strict liability action it is immaterial to the plaintiff's case that the defect in the product was not caused by the distributor. The liability of the manufacturer and distributor is co-extensive, even though the distributor was not responsible for the presence of the defect. Because a contract of indemnity which merely formalizes the manufacturer's implied obligation to the distributor would not have tendered an issue of any consequence, its exclusion clearly was harmless. ¹⁸

III THE MOTORIST'S CLAIM TO ERROR IN INSTRUCTION NO. 4

The motorist contends that Instruction No. 4 was prejudicial because it placed too much emphasis on Ford's evidence in support of its theory of defense. Instruction No. 4 charges:

"You are entitled to consider that the automobile in question was in use from August 21, 1974, to January 25, 1976, with over 19,500 miles thereon as to whether there was a defect in said automobile at the time the defendants sold it to plaintiff."

The Court of Appeals agreed with the motorist. It held that the quoted instruction constituted reversible error.

We cannot accede to the argument that the objectionable charge gave undue prominence to, and tended to overfocus upon, but a single aspect of the evidence in the case. Nor does it appear that it tended to eclipse the motorist's own claim. Rather, as we view the instruction, its vice, if any it have, does not lie in the text, but entirely in the sequential order in which it stood placed among the trial court's jury charges. The court instructed that in determining whether there was a defect in the car when it was sold to the motorist, the jury could consider the age of the car and the number...