Harley-Davidson Motor Co., Inc. v. Daniel

• Decision Date: 22 February 1979
• Docket Number: No. 56860,HARLEY-DAVIDSON,56860
• Citation: 149 Ga.App. 120,253 S.E.2d 783
• Parties: MOTOR COMPANY, INC. et al. v. DANIEL.
• Court: Georgia Court of Appeals

Page 783

253 S.E.2d 783

149 Ga.App. 120

HARLEY-DAVIDSON MOTOR COMPANY, INC. et al. v. DANIEL.

No. 56860.

Court of Appeals of Georgia.

Argued Nov. 13, 1968.

Decided Feb. 2, 1979.

Rehearing Denied Feb. 22, 1979.

Long, Weinberg, Ansley & Wheeler, Arnold Wright, Jr., Rosa Beatty Lord, Atlanta, for appellants.

Barnes & Browning, Roy E. Barnes, Marietta, Henning, Chambers & Mabry, Peter K. Kintz, Atlanta, Ben F. Smith, for appellee.

SMITH, Judge.

Harley-Davidson Motor Company, Inc., and Kelsey-Hayes, Inc., appeal from the trial court's judgment on a jury verdict against them. They allege the court erred in overruling their motion in limine, in admitting the evidence which was the subject of the motion in limine, in charging the jury, and in entering judgment upon an inconsistent verdict. Finding no reversible error, we affirm the judgment of the trial court.

Appellee sued Harley-Davidson of Atlanta, Inc., Harley-Davidson Motor Company, Inc., and Kelsey-Hayes, Inc., for injuries he sustained when the brakes failed on a Harley-Davidson motorcycle he was riding. Appellant Harley-Davidson Motor Company was the manufacturer of the motorcycle, and appellant Kelsey-Hayes was the manufacturer of an allegedly defective rear caliper brake piston seal on the motorcycle. Prior to trial appellants filed a motion in limine seeking to prohibit the introduction of evidence concerning a recall campaign which was conducted by Harley-Davidson Motor Company in accordance with the National Traffic and Motor Vehicle Safety Act. The campaign consisted of letters written to owners of certain models warning them of "a defect . . . in the rear brake system of" their motorcycles, which defect was located in the rear brake caliper piston seal. Appellant owned one of the motorcycles upon which the campaign focused, and he received a recall letter subsequent to his injury.

Appellee's action against appellants, the manufacturers, was based upon strict liability in tort, and his action against Harley-Davidson of Atlanta, the dealer, was founded upon breach of warranty. The jury returned a verdict in favor of Harley-Davidson of Atlanta and against the appellants.

1. "A 'motion in limine' is a necessary adjunct to the trial court's inherent power to admit and exclude evidence. The trial court may issue protective orders against prejudicial questions or statements which could be uttered before a jury and thereby prevent a fair and impartial jury trial . . ." Burrus v. Silhavy, 155 Ind.App. 558, 293 N.E.2d 794, 797 (1973). The trial court's denial of the motion in limine was not a ruling on evidence, however, and a proper objection at the time appellee proffered the evidence pertaining to the recall campaign was necessary for appellants to preserve the question of admissibility for our review. Redding v. Ferguson, 501 S.W.2d 717 (Tex.Civ.App., 1973); Simkins v. City of Davenport, 232 N.W.2d 561 (Iowa 1975). ". . . (W)here the motion (in limine) is denied and opposing counsel attempts to ask the questions challenged in the motion or offer the prejudicial evidence covered therein, a proper objection at that time is necessary to preserve the right to complain on appeal that such questions asked or such evidence tendered were so prejudicial the mere asking or tendering would require a reversal. Stated otherwise, where the motion is denied the movant must base his complaint on the trial record." Twyford v. Weber, 220 N.W.2d 919, 924 (Iowa 1974). ". . . (T)here is substantial authority for the proposition that the denial of a motion In limine cannot in and of itself constitute reversible error. State v. Garrett, 183 N.W.2d 652 (Iowa, 1971). The court there stated: 'It may be error (to deny a motion in limine) but cannot be reversible error. The reason is simple. The objectionable material has not yet reached the jury's ears. It may never reach the jury . . . It is only when the (objectionable) material is offered in the jury's presence that the harm or error, if any, has been done. Then of course, the movant, having made the ...