Ford Motor Co. v. Kuhbacher, 4257

• Decision Date: 19 February 1974
• Docket Number: No. 4257,4257
• Citation: 518 P.2d 1255
• Parties: FORD MOTOR CO., Appellant (Defendant below), Loren Simpson and Stockmen's Motor Co. (Defendants below), v. John H. KUHBACHER, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 1255

518 P.2d 1255

FORD MOTOR CO., Appellant (Defendant below) Loren Simpson and Stockmen's Motor Co. (Defendants below), v. John H. KUHBACHER, Appellee (Plaintiff below).

No. 4257.

Supreme Court of Wyoming.

Feb. 19, 1974.

Reduced Judgment Accepted March 12, 1974.

Guy, Williams & White and Ward A. White, Cheyenne, for appellant.

Melvin M. Fillerup of Fillerup & Rohrbach, Cody, and John J. Cavan of Sandall, Moses & Cavan, Billings, Mont., for appellee.

Before PARKER, C. J., and McEWAN, GUTHRIE, McINTYRE and McCLINTOCK, JJ.

Mr. Chief Justice PARKER delivered the opinion of the court.

This is an appeal from a judgment in favor of plaintiff, John H. Kuhbacher, a minor who was injured while a passenger in an automobile manufactured by the appellee-defendant, hereinafter referred to as defendant. The suit was originally commenced against the Ford Motor Company, the Stockmen's Motor Company, which sold the automobile; and Loren Simpson, the driver of the car on the early morning of July 5, 1967, when the accident occurred. Prior to the trial the plaintiff entered into a covenant not to sue Simpson and Stockmen's in consideration of $10,000 paid to plaintiff-by reason of which when the jury rendered a verdict for $75,000 the court entered a judgment for that amount less the $10,000.

Motor of the circumstances which led up to the accident are not seriously in dispute. En route home from a country dance, plaintiff, his two elder brothers, and Richard Emineth, were riding with Simpson in the 1967 Mercury Cougar he had purchased some ten days previously. Simpson was driving very fast, the testimony varying from estimates of over 100 miles per hour to 60 miles per hour; and at a point where there was a ninety-degree turn in the road, he went off the shoulder over an approach road from a field, into the borrow pit for two or three lengths of the car, and back on the road without stopping. He then traveled four or five miles at similar speeds to the point where the accident occurred, during which time he negotiated four or five more right-angle turns; when attempting to make one of these, the car began to slide to the left while continuing forward, went off the left side of the graveled roadway, turned over on its left side, and slid some distance in the borrow pit before coming to rest on its left side. Plaintiff, who was sitting in the middle of the back seat with two of the other passengers, was thrown against the left side of the vehicle; his left arm went out of the opened window and became trapped beneath the car as it slid and came to rest. With the aid of others he was able to get out of the overturned car and was taken to a hospital. He received treatment for the injuries over a considerable period, and at the time of the trial had some permanent disability.

Aside from the amount of the damages, the main issues in the case were whether the defendant manufactured and sold an automobile which had a defective rear axle that was unreasonably dangerous to the user and whether such defective condition, if one existed, proximately caused the automobile accident and resulting injury to plaintiff. ¹ A crucial determination was the condition of the axle prior to the accident. The point at which the rear wheel was found bore upon this circumstance since if the axle did not break until the car had slid off the road the second time it would tend to show the breaking to be the result rather than the cause of the accident.

Defendant contends that the verdict and judgment should be reversed on six grounds, three related to the testimony of experts, a fourth to insufficient establishment of proximate cause for breach of warranty, a fifth to the erroneous admission of a surprise witness, and a sixth to the excessiveness of the damages.

It is argued that two expert witnesses called by plaintiff based their testimony on assumptions of the ultimate fact and responded to hypothetical questions which included facts which were assumed but were not in evidence. Specifically, it is complained that Professor Challender was requested to assume that the left rear wheel with the brake drum and a portion of the axle attached were found in the borrow pit approximately twenty-five to thirty feet to the rear of the place where the vehicle left the roadway and that starting back at some distance, approximately fifty to seventy-five feet before the vehicle left the road, drag or gouge marks were caused by the vehicle, and was asked on the basis of these assumptions if he had an opinion as to whether or not the axle was fractured prior to the time that the automobile left the road and went into the borrow pit-whereas the record did not contain evidence that the wheel was found twenty-five to thirty feet prior to the place where the vehicle left the roadway or that there were fifty to seventy-five feet of drag marks on the roadway. ² Similarly, defendant urges that Professor Crawford answered a hypothetical question regarding the matter on the assumption that the wheel with the tire and brake drum was found 'some twenty-five to thirty, perhaps thirty-five (feet) approximately * * *, to the rear of the point on the shoulder where the car left the road,' and was asked if he had an opinion as to whether or not the axle on the vehicle fractured and the wheel separated while the vehicle was still on the roadway-whereas there was no evidence in the record to sustain the assumed fact that the wheel was found twenty-five to thirty feet to the rear of the point where the car left the road.

Plaintiff responds that there was ample evidence in the testimony of Reynolds (allegedly a surprise witness, which point will be discussed later), a neighbor who the morning after the accident had gone to the scene, and further, that there was various other evidence of a circumstantial nature that would establish the factual basis. ³ This aspect of the case is troublesome. There can be no question about the rule that the factual basis of hypothetical questions must be accurately stated. Culver v. Sekulich, 80 Wyo. 437 344 P.2d 146, 151. Here except for the circumstantial evidence there was seemingly a disparity between the facts as established by the testimony and those stated in the assumption presented to the expert witnesses. Reynolds did testify that the wheel and the tire were found twenty-five feet 'behind' where the vehicle went off the road. Although at one point in cross-examination he said that the wheel was found approximately twenty to twenty-five feet behind the car, in redirect after this was brought to his attention he said the wheel and tire were 'back anyhow that far (twenty to twenty-five feet) from where it (the car) went off the road.' In such a situation the rule that the witness's testimony is no stronger than that developed by cross-examination ⁴ is not shown to be applicable, and we hold that it is not.

In Culver v. Sekulich, supra, 344 P.2d at 151, we indicated it is sufficient if there are stated such facts as the proof fairly tends to establish and fairly presents the party's claim or theory. Here, although some confusion exists, there is evidence consonant with the facts stated in the questions; and the trial court did not abuse its discretion in overruling the objections.

Defendant's argument that the testimony of these same experts was founded on speculation, conjecture, and possibility, as well as matters outside the record and therefore inadmissible, really deals with the facet just discussed, but may merit some additional scrutiny.

Counsel points to the questions and answers of Professor Challender:

'Q. In arriving at your opinion that the fracture occurred prior to running off the road one factor you specifically mentioned as contributing to that was the location of the wheel, was it not? A. This is part of it.

'Q. And where are you assuming the wheel was as a basis of that opinion? A. From testimony that has been repeated to me I'm led to believe that the wheel was located behind the area that the skid marks or gouge marks were located on the road and further behind the point at which the vehicle came to rest.

'Q. You are including in your opinion the assumption that the wheel was located either prior to the point that any marks were found on the road, is that correct? A. This is what I understand, yes.

'Q. And that's one of the important elements of your opinion, is that right? A. That is part of it.'

Similarly defendant notes the testimony of both Professor Crawford and Professor Mosher, which reflected that these witnesses based their opinion on the wheel's being found twenty-five to thirty feet to the rear of where the car went off the roadway, whereas the testimony fails to so show. As we indicated previously, there is evidence which would support the facts stated in the questions to these witnesses.

Peripheral to this aspect is defendant's complaint that the court did not strike Professor Challender's testimony when he admitted that he may have considered the whole chain of evidence and could not overrule that he had borne in mind some things that he had read such as depositions. We are doubtful that such forth-rightness of the witness as to the possible considerations on which his answer was based constituted a violation of the well-established rule on which defendant relies, that a hypothetical question is improper if it calls for an expert's opinion on the basis of reports not admissible in evidence. McCormick, Evidence, § 15, p. 34 (2 ed.).

It is charged as error that a hypothetical question posed to Professor Mosher included as one of the assumed facts the opinions of earlier experts rather than the facts for which there was substantial testimony. We think that counsel misconceives the application of the rule. While expert testimony may not be based upon the opinion of others, 2 Jones, Evidence, § 14:22 (3 ed., Gard), it may have as a foundation facts which have been established by an opinion. ...