Hooper v. General Motors Corporation

• Decision Date: 31 July 1953
• Docket Number: No. 7887,7887
• Citation: 123 Utah 515,260 P.2d 549
• Parties: HOOPER, v. GENERAL MOTORS CORP.
• Court: Utah Supreme Court

Page 549

260 P.2d 549

123 Utah 515

HOOPER, v. GENERAL MOTORS CORP.

No. 7887.

Supreme Court of Utah.

July 31, 1953.

McBroom & Hanni, Glenn C. Hanni, Salt Lake City (E. R. Miller, Jr., Ely, Nev., of counsel), for appellant.

Leonard W. Elton, Max K. Mangum and H. Arnold Rich, Salt Lake City, for respondent.

WOLFE, Chief Justice.

On October 15, 1951, plaintiff and later appellant, Bonnye Hooper, was severely injured when a recently purchased 1951 Chevrolet pick-up truck she was driving on Nevada's Newark Valley Highway overturned. She sued defendant and later respondent, General Motors Corporation, assembler of the truck, to recover for injuries to herself and for damages to the truck sustained in the mishap. She charged that defendant negligently assembled, manufactured and inspected the truck which she and her son on July 21, 1951 purchased new from Hyland Motor Company of Ely, Nevada, defendant's authorized dealer. Plaintiff further claimed that the truck was equipped with a defective left rear wheel and that the failure of such wheel caused by separation into its component parts resulted in the accident.

From a verdict and judgment of 'no cause of action,' plaintiff appeals.

Between 6 and 6:30 p. m. of the day of the mishap, plaintiff was driving the Chevrolet truck south along the Newark Valley Highway, a gravel-surfaced country road of White Pine County, Nevada. That road runs north and south and about 14 miles east of Eureka, Nevada, it intersects with U. S. Highway 50 which runs east and west. Plaintiff was alone. She testified that she was traveling in the center of the road at about 30 miles per hour. She further testified that at a point about seven miles north of the junction '* * * the left rear end of the pickup dropped suddenly, down, and it swerved to the left and I tried to right [sic] it to the right and it went end for end, and it seemed to be somewhat going to the right front of the fender when it went over.'

The left rear wheel of the 1951 Chevrolet pick-up truck is composed principally of a 'spider' and a 'rim.' The 'spider' is the center part of the wheel that bolts to the axle drum. The 'rim' is that part of the wheel upon which the tire is mounted. The rim is connected to the spider by 12 rivets in sets of 3. After the accident, the spider and the rim of the left rear wheel were found completely separated. The spider remained bolted to the axle drum. The rim, with the tire still mounted though flat, was lying on the ground.

Worn and shiny spots appeared on the undersurface of four adjacent rivet holes in the rim. David H. Curtis, expert witness for plaintiff, testified that such shininess and smoothness '* * * indicates there has been wear at these points.' Mr. Curtis further testified that such wear '* * * shows that there has been loose rivets in these portions in the holes 1, 2 and 3, and that looseness is caused by wear and the loose rivets would indicate there would be a movement between the spider and the rim and vibration and oscillation between the two component parts.' He further testified that the extent of the wear indicated looseness over a considerable period of time and that '* * * three loose rivets would bring about an ultimate failure to the entire rim.'

Testimony was given by witnesses for the defendant as to the manufacturing and inspection procedures of the Norris Thermador Company, manufacturer of the wheel, and the California plant of the Chevrolet Division of General Motors Corporation, the assembler of the truck.

Mr. Arthur Harris, an employee of and expert witness for defendant, testified that in his opinion, '* * * the wheel was struck an extremely heavy blow by some object on the outer rim which first * * * caused the spider to distort and then shear off the rivets.'

The grounds for plaintiff's appeal are basicly two in number: (1) The court erred in giving the following instruction to the jury which was requested by counsel for the defendant:

'You are instructed that the fact that the rim and spider were found in a separated condition after the accident is no evidence of the fact that they were defective, unsound or unsafe when assembled and sold by defendant, General Motors Corporation, nor is it evidence of the fact that the separating of the rim and spider caused the truck to go out of control and overturn.' (Emphasis added.)

(2) The court erred in admitting certain testimony into evidence, namely: (a) The opinion testimony of Mr. Arthur Harris on an ultimate fact in issue; (b) Certain testimony of Mr. Arthur Harris claimed by plaintiff to be speculative; (c) Certain testimony of Mr. Lowell G. Fouts claimed by plaintiff to be hearsay.

The instruction as given is erroneous and prejudicial.

It is well settled that the assembler of an automobile, who purchases wheels from a manufacturer, is liable to one who purchases a car from a retailer for an injury caused by the collapse of a wheel because of defects which would have been discoverable by reasonable testing or inspection. McPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696.

Thus, to impose liability on an assembler of an automobile certain necessary elements must be made out. Plaintiff is required to show: (1) A defective wheel at the time of automobile assembly; (2) Such defect being discoverable by reasonable inspection; (3) Injury caused by failure of the wheel due to its defective condition.

Contrary to the instruction as given, the undisputed fact of post accident rim-spider separation may be (1) Some evidence of a defective wheel at the time of automobile assembly and, (2) Some evidence of accident causation. Thus the effect of the above quoted instruction was to unduly narrow the evidentiary base from which the jury could infer two of the requisite elements of plaintiff's cause. It may be that the mere separation of the spider from the rim, standing as an isolated fact, would be an insufficient factual basis for an interference that the wheel was defective at the time it was assembled on the truck. However, when viewed in relation to other evidentiary facts--namely, the worn shiny spots on the undersurface of the wheel rim; the expert testimony to the effect that such shininess indicated smoothness and wear over a considerable length of time (the wear indicated loose rivets; loose rivets would have permitted vibration and oscillation between the component parts of the wheel and that three loose rivets could cause the ultimate failure of such a wheel); the age of the truck; the fact that it had gone but 6700 miles; the fact that it had no record of prior damage; the description of the mishap by plaintiff above quoted; then the fact of rim-spider separation may have provided the requisite force to tip the scales in favor of plaintiff. Certainly, reasonable men from the cumulative factual total could infer, and with the consideration of rimspider separation may have inferred, that the wheel was defective at the time of assembly.

It is not enough to say, that though the instruction be incorrect, the fact of rimspider separation was so implicit in all the evidence that no prejudice resulted to plaintiff. The instruction as given withdrew from the jury a fact which was some evidence of two requisite elements of plaintiff's cause. It would be pure conjecture to say that the jury ignored the instruction. If the fact of rim-spider separation is said to be implicit in all of the evidence the instruction as given may have had the effect of causing the jury to ignore all of the evidence relating thereto to the prejudice of plaintiff.

The same reasoning applies in relation to the issue of accident causation. See Hupp Motor Corp. v. Wadsworth, 6 Cir., 113 F.2d 827; General Motors Corporation v. Johnson, 4 Cir., 137 F.2d 320.

Counsel for defendant examined Mr. Arthur Harris, qualified expert witness for defendant, in the following fashion:

'Q. * * * Do you have an opinion, Mr. Harris as to what occurred to cause the separation of the spider and rim as represented by exhibits A and B? A. I have.

'Mr. Hanni: (counsel for plaintiff) We object on the same grounds, your Honor. That is, calling for a conclusion as to the ultimate fact in issue.

'The Court: The objection is overruled.

'Q. Do you have an opinion? A. I have.

'Q. And what is that opinion? A. That the wheel was struck an extremely heavy blow by some object on the outer rim which first caused the rim to distort, pardon me, caused the spider to distort and then shear off the rivets.'

Plaintiff contends that the court erred in admitting into evidence the opinion testimony of Mr. Arthur Harris on '* * * the ultimate fact in issue.' In our opinion the court did not so err. Without determining whether the fact upon which Mr. Harris gave his opinion was properly characterized as 'ultimate' we look to the fact itself. We are of the opinion that within the realm of his knowledge an expert may be express an opinion as to what did cause a particular occurrence or condition and in so testifying his opinion may be cast in the form of 'what did' cause, as well as 'what might' or 'what could' have caused a particular occurrence or condition, depending upon the degree of positiveness the witness desires to give his opinion. The general rule is that '* * * opinions as to the cause of a particular occurrence or accident given by witnesses possessing peculiar skill or knowledge--that is, experts--are admissible where the subject matter is not one of common observation or knowledge, or in other words, where witnesses because of peculiar knowledge are competent to reach an intelligent conclusion and inexperienced persons are likely to prove incapable of forming a correct judgment without skilled assistance.' See 20 Am.Jur. 686, Sec. 817; Jones Commentaries on Evidence 2nd Ed., Vol. 3, Sec. 1313, page 2402; Wigmore on Evidence, 3rd Ed., Vol. VII, Sec. 1976, page 121; Wigmore's Code of the Rules of Evidence in Trials at Law...