Farr v. Wheeler Mfg. Corp.
| Decision Date | 22 June 1970 |
| Docket Number | Docket No. 5309,No. 1,1 |
| Citation | 24 Mich.App. 379,180 N.W.2d 311 |
| Parties | Florence FARR, individually and as Administratrix of the Estate of James C. Farr, Deceased, Plaintiffs-Appellants, v. WHEELER MANUFACTURING CORPORATION, an Ohio corporation, and Ellis and Ford Manufacturing Company, a Michigan corporation, Defendants-Appellees |
| Court | Court of Appeal of Michigan — District of US |
Robert B. Tathan, Detroit, Norman L. Zemke, Detroit (of counsel), for appellant.
Ivin E. Kerr, Vandeveer, Doelle, Garzia, Tonkin & Kerr, Detroit, for appellee.
Before LEVIN, P.J., and J. H. GILLIS and BRONSON, JJ.
On October 20, 1961, James Farr, the decedent, was injured in an industrial accident. Farr, an employee of Rudoni Excavating Company, was working on a drain project and was called upon to cut a 12 inch sewer pipe. His employer borrowed a hydraulic pipe cutter from the City of Lincoln Park. This machine was manufactured by defendant Wheeler Manufacturing Corporation and distributed by defendant Ellis and Ford Manufacturing Company.
To operate this machine, a chain is wrapped around the pipe to be cut, a valve is closed, and the machine is pumped. When enough pressure is obtained, the pipe will break, making a 'pinging' noise.
On the day in question, Farr and a co-worker were in the process of cutting a 12 inch pipe. When the machine had been pumped 10 times, Farr heard a 'ping' and thought the pipe had been cut. However, when the pipe did not fall apart, Farr bent over to see if the pipe had broken. At that instant, the chain broke and struck him in the head, causing his death.
Florence Farr, the decedent's wife, individually and as administratrix of James Farr's estate, brought suit in Wayne County Circuit Court against defendants alleging negligence and breach of express and implied warranties. The count alleging breach of express warranty was dropped at trial.
Plaintiff's theory of the case was that the machine was unsafe because the pins in the chain were not large enough to withstand the pressure that would be exerted by normal use. In furtherance of this theory, Dr. Despres, a mechanical engineer and associate professor at the University of Michigan, testified that the chain was not made of a material sufficiently strong to withstand the stress produced by the machine.
At the conclusion of Dr. Despres' testimony defendant first moved that Despres' testimony be stricken because he was not qualified as an expert witness and, second, moved for a directed verdict.
The trial court below granted both defense motions. The key and only issue in this appeal is whether the lower court erred in ruling that plaintiff's expert witness was not qualified to express an opinion. Dr. Thomas A. Despres was plaintiff's expert. He holds a bachelor's degree in industrial engineering, a master's degree in mechanical engineering, and a Ph.D. in mechanical engineering. He was employed at the University of Michigan as an associate professor of mechanical engineering, and had been employed in a teaching capacity at the University of Michigan since 1959. He testified that he was a mechanical engineer; that mechanical engineering is the study of applied physics, practically applying the study of physics to engineering problems; that a mechanical engineer is a design engineer; and that mechanical engineering encompasses machine design and mechanical properties of metals. The record further discloses his testimony that the study of mechanical properties of metals is a study of the behavior of metal under the actions of environment, forces, and practical use. A mechanical engineer, Dr. Despres testified, begins with his metallurgical knowledge and from this determines what and how metals act under load, the magnitude of their strength, and what stresses will do to reduce metal strength.
Dr. Despres testified in great detail concerning the treatises upon which he had worked, the courses he taught, and his theoretical and practical background, including his assisting in the preparation and writing of a book dealing with stress, strength, and design.
Dr. Despres stated that within the field of mechanical engineering he had a specialty of mechanical properties and design, as well as metallurgical and failure analysis, which are subdivisions of mechanical properties and design. He stated that design is the main aim of mechanical engineering, and its ultimate purpose; that, in fact, the aim of most all engineering is to culminate in a design or an evaluation of a design for utilization by people; that he himself had designed certain machinery, both for his students and for industry. Further, he stated that particularly he taught machine design to graduating seniors and that, on the graduate level, he taught application of advanced metallurgical principles to design, with stress and strength considerations.
Both parties agree, citing Accetola v. Hood (1967), 7 Mich.App. 83, 151 N.W.2d 210, that the determination of the qualification of an expert witness is within the discretion of the trial judge, that appellate courts only interfere to correct an abuse of that discretion.
Plaintiffs urge, however, that the trial court did abuse its discretion in the instant case. Neither defendants nor the trial judge dispute Dr. Despres' eminent qualifications in the field of mechanical engineering. The trial judge nevertheless refused to qualify him as an expert because he knew nothing about the pipe cutter except what he concluded as a result of his mathematical computations. He never saw the device prior to two months before the trial, never built one, nor worked on one. He did not see the fractured part which had mysteriously disappeared.
The thrust of Dr. Despres' testimony was that the strength of the pins in the chain was not adequate to withstand the pressures exerted in the operation of the machine.*
Plaintiffs urge that the trial court abused its discretion by disallowing the testimony of Dr. Despres. Dr. Despres was acknowledged to be eminently qualified in the general field of mechanical engineering by the trial judge. The objection of the trial court was that he did not know the actual standard of care of design in the hydraulic pipe cutting industry in 1960, although he could testify concerning the design requirements of mechanical engineering in general, and concerning both the theoretical and practical requirements of industry in the application of generally accepted mechanical engineering principles. Dr. Despres stated that these universal principles ought to have been applied in the hydraulic pipe cutting industry, as well as in all industries.
The testimony of defendant Wheeler's president is significant, in that it showed that there is hardly such a thing as a 'hydraulic pipe cutter manufacturing industry.' Wheeler Manufacturing Corporation is the only company actually producing such a product and it merely assembles parts made by others on contract. Wheeler Manufacturing Corporation itself manufactures nothing. Further, there are two other manufacturers of pipe cutters, but neither of these work on the hydraulic principle.
Under these circumstances we are persuaded that Dr. Despres should have been allowed to testify even though he had no practical experience in the 'hydraulic pipe cutter manufacturing industry'. See Sitta v. American Steel and Wire Division of United States Steel Corporation (CA 6, 1968), 254 F.2d 12, 16. See, also Trowbridge v. Abrasive Company of Philadelphia (CA 3, 1951), 190 F.2d 825, 829; Hogue v. Permanent Mold Die Company (E.D.Mich.1959), 177 F.Supp. 229, 232.
Defendant vigorously contends that Dr. Despres' testimony was inadmissible because the jury was not given any standard of care in the industry in order that it might measure defendant's actions. As authority for that position, Barton v. Myers (1965), 1 Mich.App. 460, 136 N.W.2d 776, is cited, in which the Court stated:
'The case is governed by Cheli v. Cudahy Bros. Co. (1934), 267 Mich. 690, at page 695, 255 N.W. 414 (at page), 415, wherein it is said:
But this Court has retreated from that standard as is seen in Witt v. Chrysler Corporation (1969), 15 Mich.App. 576, 167 N.W.2d 100, when we stated:
'In support of its contention that the law does not hold it to a higher degree of care than the average in the industry, defendant relies on Cheli v. Cudahy Brothers Company (1934), 267 Mich. 690, 255 N.W. 414; Barton v. Myers (1965), 1 Mich.App. 460, 136 N.W.2d 776; Doutre v. Niec (1965), 2 Mich.App. 88 138 N.W.2d 501, and Livesley, supra (Livesley v. Continental Motors Corp. ...
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