Farmer v. International Harvester Co., 11670

Citation97 Idaho 742,553 P.2d 1306
Decision Date26 August 1976
Docket NumberNo. 11670,11670
PartiesRonald K. FARMER and Catherine Farmer, husband and wife, Plaintiff-Respondents, v. INTERNATIONAL HARVESTER COMPANY, a New Jersey Corporation and Boise International, Inc., an Idaho Corporation, Defendants-Appellants.
CourtUnited States State Supreme Court of Idaho

John W. Barrett and Paul S. Street of Moffatt, Thomas, Barrett & Blanton, Boise, for defendants-appellants.

Phillip M. Barber of Elam, Burke, Jeppesen, Evans & Boyd, Boise, for plaintiffs-respondents.

SHEPARD, Justice.

This is an appeal from a judgment entered on a jury verdict for plaintiffs in an action for personal injury and property damage resulting from a single vehicle accident. The cause is in the nature of a products liability action brought on alternative theories of negligence, strict liability and warranty against the manufacturer and the supplier of the vehicle. Appeal is also taken from orders denying defendants' motion for judgment N. O. V. and for a new trial. We affirm.

The respondent, Ronald K. Farmer, was injured in the course of driving a truck-tractor manufactured by defendant-appellant International Harvester Co. and sold to him by defendant-appellant Boise International, Inc. Suit was instituted by the Farmers seeking damages for the property damage to the truck-tractor, for personal injuries and for the wife's loss of consortium.

Farmer purchased the vehicle new and at the time of the accident two years later it had been driven approximately 116,000 miles. On March 16, 1971, while Farmer was driving the truck out of Seattle, Washington, he heard a 'popping' noise similar to the sound of metal fracturing and felt a 'crunching' sensation in the truck's steering gear. He immediately stopped and inspected the truck and found nothing wrong with it. Farmer continued driving and had reached a point approximately 200 miles from Seattle near Goldendale, Washington, when as he was entering a gradual right-hand curve and driving between 45 and 50 miles an hour, he again heard a 'popping' noise and found his steering frozen. He applied the brakes but slid off the highway and down a steep embankment, striking his head on the interior of the truck cab and sustaining an injury. That injury produced brain damage with 'residual left spastic hemiparesis.'

Following the accident, it was found that the gear box mechanism controlling the steering of the truck was damaged and the Farmers alleged that those components of the steering system were defective, had failed before the accident and caused the accident to happen. The Farmers also alleged that the driver's air suspension seat was defective, catapulted him about the cab interior and contributed to the injuries.

At trial before the jury there was extensive demonstrative and expert evidence introduced by each party in support of its contentions. A special verdict was returned by the jury in favor of plaintiffs-respondents on their complaint and judgment was entered thereon.

Appellants assign as error the admission of certain evidence over objection. One element of plaintiffs' case in proof of damage was medical expense. Plaintiff offered two sets of medical bills, the first covering the expenses from the date of the accident, March 16, 1971 to October 1972. The second set of medical bills covered expenses from October 1972 to the date of trial 1974. That second set of bills was for expenses incurred by respondent after a fall he sustained in October 1972 which required back and Achilles tendon surgery. Defendants-appellants objected to the admission of that second set of medical bills on the basis that they were irrelevant to the action, required explanation by a physician as to their relationship to the truck accident and were hearsay on the issue as to whether they were incurred as the result of the 1971 injury. On appeal, however, appellants argue that the medical bills should not have been admitted because there was no proper foundation on the reasonableness and necessity of the medical bills. Such objection was not raised at trial and cannot now be raised for the first time on appeal. McLean v. City of Spirit Lake, 91 Idaho 779, 784, 430 P.2d 670, 675 (1967); Crosby v. Putnam, 89 Idaho 45, 48, 402 P.2d 389, 391 (1965). Ordinarily, testimony by the patient or by the physician or the health care provider on the amounts charged or paid for medical services is sufficient evidence of the reasonable value of the services in the absence of some showing to the contrary. Spurr v. LaSalle Construction Co., 385 F.2d 322, 329 (7th Cir. 1967); Malinson v. Black, 83 Cal.App.2d 375, 188 P.2d 788 (1948); Cf. Brooks v. Duncan, 96 Idaho 579, 532 P.2d 921 (1975).

Appellants also argue that there is no foundation for the admission of the medical bills because no showing is made that the services rendered after the fall in October 1972 were necessary because of or as a proximate result of the 1971 truck accident. The record reveals direct testimony that the injuries and resulting medical expenses incurred after the accident of October 1972 were proximately caused by the injuries received in 1971. Thus we find no error.

Appellant next argues that the trial court erred in permitting Farmer to testify on impairment of his earning capacity without the necessity of written business records. The mere existence of written records does not render otherwise adequate, definite, specific and competent testimony ipso facto speculative or uncertain. McLean v. City of Spirit Lake, supra; Driesbach v. Lynch, 74 Idaho 225, 259 P.2d 1039 (1953); Kelso v. Edward Rutledge Timber Co., 46 Idaho 497, 269 P. 94 (1928). Appellants' reliance on the best evidence rule is misplaced. Plaintiffs-respondents were not attempting to prove the contents of any writing and the fact of recordation is incidental or collateral in circumstances such as in the case at bar.

Appellant also asserts error of the trial court in its instructions to the jury on the theory of express warranty. That theory was not set forth in the amended complaint and there was no evidence from which it could be concluded that the seller had created an express warranty. The jury specifically found that the appellants were not liable on an express warranty. Therefore despite the arguably erroneous instruction, the record does not demonstrate that appellants were prejudiced thereby.

Appellants next assert the trial court erred in instructing the jury to decide whether the disclaimer of implied and express warranties contained in the conditional sales contract was conspicuous. In such circumstances the decision of whether a term or clause is 'conspicuous' is for the court. I.C. § 28-1-201(10); Marion Power Shovel Co. v. Huntsman, 246 Ark. 152, 437 S.W.2d 784 (1969); George C. Christopher & Son, Inc. v. Kansas Paint & Color Co., Inc., 215 Kan. 185, 523 P.2d 709, as modified 215 Kan. 510, 525 P.2d 626 (1974). However, the conditional sales contract in question is before this Court and we determine that the disclaimer of implied and express warranties was not conspicuous. See Childers & Venters, Inc. v. Sowards, 460 S.W.2d 343 (Ky.1970); George C. Christopher & Son, Inc. v. Kansas Paint & Color Co., Inc., supra. In view of our determination and holding on the question no prejudice resulted by the submission of that question to the jury.

Appellants next assert error in the instruction to the jury on the theory of implied warranty of fitness for a particular purpose. We agree that in the case at bar such instruction was erroneous. One of the elements necessary of proof to sustain an implied warranty of fitness for a particular purpose is the reliance by the plaintiff as buyer upon the skill or judgment of the seller to select suitable goods. Garner v. S & S Livestock Dealers, Inc., 248 So.2d 783 (Miss.1971); Robinson v. Williamsen Idaho Equip. Co., 94 Idaho 819, 498 P.2d 1292 (1972). There is no evidence in the record to sustain proof of that particular element. Indeed here the buyer has skill and long experience in the trucking business and the fact that he traded in an older model on this purchase leads reasonably to the conclusion that the buyer did not rely upon the seller to select the truck. Nevertheless, again no prejudice is shown to have resulted from said error since plaintiffs-respondents were entitled to recover on the theories of strict liability and negligence which were also submitted to the jury. Messmer v. Ker, 96 Idaho 75, 524 P.2d 536 (1974); Shields v. Morton Chemical Co., 95 Idaho 674, 518 P.2d 857 (1974); Werth v. Tromberg, 90 Idaho 204, 409 P.2d 421 (1965); Evans v. Davidson, 58 Idaho 600, 77 P.2d 661 (1938).

Appellants further allege errors which may be classified in general as asserted insufficiency of the evidence to justify denial of the motions for involuntary dismissal, directed verdict, judgment N. O. V. and motions for new trial (directed at allegations founded on the theories of strict liability and negligence). In reviewing the evidence, the standards by which the Court is guided are clear and well settled. On motions for involuntary dismissal, directed verdict and judgment N. O. V., the moving party admits the truth of the adverse evidence and every inference that may be legitimately drawn therefrom. Barlow v. International Harvester Co., 95 Idaho 881, 522 P.2d 1102 (1974); Mann v. Safeway Stores, Inc., 95 Idaho 732, 518 P.2d 1194 (1974); Henderson v. Cominco American, Inc., 95 Idaho 690, 518 P.2d 873 (1973). Said authorities are also in agreement that none of those motions should be granted if there is substantial, competent evidence to justify submitting the case to the jury or to support the verdict once it has been returned. Also, it is clear that the granting or denial of a motion for a new trial is committed to the discretion of the trial court and its decision in granting or denying the motion for a new trial will not be disturbed on appeal in the absence of a manifest abuse of...

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    ...(2) the product was defective; and, (3) the defect existed when it left the control of the manufacturer. Farmer v. Int'l Harvester Co. , 97 Idaho 742, 746-47, 553 P.2d 1306, 1310-11 (1976). However, because direct evidence in product liability cases is rare, Griffin asserted that she could ......
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