Jenkins v. General Motors Corporation, 29084.

• Decision Date: 24 September 1971
• Docket Number: No. 29084.,29084.
• Citation: 446 F.2d 377
• Parties: Ione JENKINS, Plaintiff-Appellee, v. GENERAL MOTORS CORPORATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

446 F.2d 377 (1971)

Ione JENKINS, Plaintiff-Appellee, v. GENERAL MOTORS CORPORATION, Defendant-Appellant.

No. 29084.

United States Court of Appeals, Fifth Circuit.

June 30, 1971.

Rehearing and Rehearing Denied September 24, 1971.

Charles H. Kirbo, R. Byron Attridge, Joseph R. Gladden, Jr., Atlanta, Ga., Ross L. Malone, General Counsel, General Motors Corp., Detroit, Mich., King & Spalding, Atlanta, Ga., of counsel, for appellant.

Thomas M. Odom, Millen, Ga., Florence Hewlett Dendy, Charles E. McCranie, Claude R. Ross, Baxter H. Finch, Atlanta, Ga., George W. Fryhofer, Waynesboro, Ga., Frank M. Eldridge, Atlanta, Ga., Ross & Finch, Atlanta, Ga., Odom & Dendy, Millen, Ga., of counsel, for appellee.

Before JOHN R. BROWN, Chief Judge, and TUTTLE and INGRAHAM, Circuit Judges.

Rehearing and Rehearing En Banc Denied September 24, 1971.

INGRAHAM, Circuit Judge:

Ione Jenkins was severely injured when the Corvair automobile in which she was a passenger suddenly veered off the road and landed in a ditch on April 15, 1962. She predicated her action against General Motors Corporation on the grounds of negligent failure to properly tighten and inspect a nut on a bolt in the left rear suspension system. A jury returned a verdict for plaintiff and awarded damages in the sum of $425,000 and judgment was entered thereon. On this appeal appellant raises (1) the insufficiency of evidence to submit to the jury, (2) the alleged error of the district court in excluding certain evidence regarding one of appellee's expert witnesses, and (3) the alleged error in denying appellant's motion to exclude certain testimony of Ione Jenkins.

The evidence in the case indicates that appellee and her date, Billy Mixon, each sixteen years of age, left a drivein theater near Swainsboro, Georgia on the night of April 15, 1962, and headed toward Swainsboro on a straight and level gravel-top asphalt road. Mixon was driving the two months' old 1962 Corvair which registered about 2200 miles on its odometer. Having traveled approximately 1800 feet, the car suddenly veered and pulled to the left, became "uncontrollable", slammed into a concrete culvert off the left shoulder of the road and turned over into a ditch. As a result appellee Jenkins was permanently paralyzed in a major portion of her body.

Testimony of appellee's witnesses, including the trooper who investigated the accident scene, established that there was no evidence of excessive speed, of use of alcoholic beverages, or of improper driving. Appellee Jenkins and Billy Mixon, the only eyewitnesses to the occurrence, testified that they were driving along when the automobile suddenly veered to the left and became uncontrollable. Mixon tried to counteract this by turning the wheel fully to the right. In response to Miss Jenkins' inquiry, Mixon cried out "I have lost my steering." Mixon testified that he tried to apply his brakes, but that when he hit them, the pedal went to the floor board and he got no braking action.

Appellee's theory of the cause of the accident was that a nut on a bolt in the left rear suspension system was inadequately torqued during assembly at the appellant's factory and that under normal operation conditions this nut worked loose and dropped off, allowing the bolt to drop out. The absence of this bolt and the concomitant additional stresses and strains on the remaining adjacent bolt caused this second bolt to "wallow out" the hole in which it was placed during normal operation of the car. Consequently, at the time of the accident, this second bolt pulled through leaving the components unsecured and causing the left rear suspension assembly to sweep back, canting the wheel outward and to the rear. Appellee contends that this not only created the sudden pull to the left, but also resulted in a loss of a portion of the brake assembly and the subsequent brake failure.

I.

The principal question in this case is presented by appellant's contention that the district court erred in denying its motions for a directed verdict and for judgment notwithstanding the verdict. Appellant vigorously asserts that the damage to the rear suspension system was the result, not the cause, of the accident, and that the theory developed by appellee is so speculative that the jury should not have been permitted to draw the series of inferences required to establish the ultimate fact of appellant's negligence.

Generally, a directed verdict is granted in two types of situations, neither of which is present in the case at bar. "First, where there is a complete absence of pleading or proof on an issue or issues material to the cause of action or defense. * * * Second, where there are no controverted issues of fact upon which reasonable men could differ." 5 Moore, Federal Practice, ¶ 50.02 1 (2d Ed. 1969). On motions for directed verdict and J.N.O.V. the trial court, and a reviewing court, must view the evidence and all inferences most favorable to the party against whom the motion is made. Boeing v. Shipman, 411 F.2d 365 (5th Cir., 1969);¹ 2B Barron & Holtzoff, Federal Practice and Procedure, § 1075, p. 378 (Wright Ed. 1961).

Appellant asserts that the facts are "equiponderant" as to what caused the automobile to strike the culvert. In support of its position at trial, appellant introduced numerous films, exhibits and expert opinion testimony concerning the degree of tightening of the bolt, the shape of the pull-through hole, and of tests conducted on Corvair automobiles. A witness testified that he found the "missing" bolt forty-one feet away from the scene of the accident, and according to appellant's experts the bolt was sheared at impact. This was contrasted with the expert testimony utilized by appellee supporting her theory of the case, including evidence of the condition of the brakes, of rotational marks on the left rear axle indicating it was out of position before impact, and of the condition of the left rear wheel, found "canted out" after the accident but with evidence of only minimal damage from impact.²

It all boils down to a battle of experts and, as such, the trial court did not err in submitting the case to the jury. The jury was allowed to inspect and even handle the various components of the rear suspension assembly involved, including the "wallowed out" hole and the "missing" bolt. In addition, they viewed the hundreds of photographs, exhibits and the movies that were shown. The jury was not bound by the appellant's evidence, nor forced to accept the testimony of its experts, even if uncontradicted. Remington Arms Company, Inc. v. Wilkins, 387 F.2d 48, 54 (5th Cir., 1967); American Cyanamid Company v. Fields, 204 F.2d 151, 153 (4th Cir., 1953). The jury was authorized to make reasonable inferences even if some speculation and conjecture was required. Lones v. Detroit, Toledo & Ironton Railroad Co., 398 F.2d 914, 919 (6th Cir., 1968); Equitable Life Assur. Society of the United States v. Fry, 386 F.2d 239, 248 (5th Cir., 1967). We reject appellant's contention that there was an absence of probative facts to support the conclusion reached by the jury.

Appellant, however, cites several auto accident cases which it contends establishes that the evidence was insufficient to allow the instant case to go to the jury. Each case of this nature turns on its own facts, and facts differ. Many courts have been faced with similar conflicts in evidence under circumstances parallel to those in the case at bar. For example, in Kanatser v. Chrysler Corporation, 199 F.2d 610, 616-617 (10th Cir., 1952), cert. denied 344 U.S. 921, 73 S.Ct. 388, 97 L.Ed. 710 (1953), the court stated:

"The allegation of negligence in this case was to the effect that the Chrysler Corporation sold and delivered to the petitioner a new Dodge automobile with a defective `tie rod\'; that while riding in the same upon the highway five days after the purchase and delivery, the defective tie rod failed, causing the accident and damages complained of. The verdict of the jury is necessarily based upon a finding of negligence, as alleged. The first assignment of error is that on the evidence, the trial court should have directed a verdict for the respondent for lack of sufficient evidence to show that the tie rod was defective when the car was sold and delivered, or that the accident was caused from the failure of such alleged defect.

"There was competent evidence to the effect that while the car was traveling upon the highway at a reasonable rate of speed, the left front wheel suddenly turned toward the inside of the highway causing a collision with an oncoming car. It was also shown that the left tie rod was broken, and there was expert testimony to the effect that it was partially broken and in a defective condition before the accident occurred. While there was competent evidence to the contrary, the petitioner\'s proof was entirely sufficient to present issuable facts for the jury."

In Hupp Motor Car Corporation v. Wadsworth, 113 F.2d 827, 828 (6th Cir., 1940), a six weeks' old car traveling at 35 miles per hour on a dry level cement road suddenly veered and swerved back and forth and finally struck a culvert killing its occupant. After the accident, "it was found that the pitman arm of the steering gear, which should be held upon the ball stud of the steering drag link by a castellated nut secured by a cotter pin, was disconnected and that the nut and cotter pin were missing." Despite the conflict in expert testimony and the parties' theories concerning causation, the court found that:

"the jury might rightfully have inferred that the pitman arm had been loose. It was testified that otherwise no wear would have been shown on the taper. * * * Two experts * * * testified that evidently the nut had been working loose, and stated as their opinion that no cotter pin had ever been properly inserted, if inserted at all, in the cotter pin hole." 113 F.2d at 829.

The defendant's motions for directed verdict and ...