McKay Mach. Co. v. Rodman

• Decision Date: 05 July 1967
• Docket Number: No. 40497,40497
• Citation: 228 N.E.2d 304,40 O.O.2d 87,11 Ohio St.2d 77
• Parties: , 40 O.O.2d 87 McKAY MACHINE CO., Appellant, v. RODMAN, Appellee.
• Court: Ohio Supreme Court

Page 77

11 Ohio St.2d 77

228 N.E.2d 304, 40 O.O.2d 87

McKAY MACHINE CO., Appellant, v. RODMAN, Appellee.

No. 40497.

Supreme Court of Ohio.

July 5, 1967.

Syllabus by the Court

1. In all proceedings involving matters of a scientific, mechanical, professional or other like nature, requiring special study, experience or observation not within the common knowledge of laymen, expert opinion testimony is admissible to aid the court or the jury in arriving at a correct determination of the litigated issue.

2. The 'art' of welding is a subject the nature of which is not within the common knowledge of laymen, and the testimony and opinion of an expert witness on this subject is admissible.

3. Expert opinion testimony is admissible as to an ultimate fact without infringing the function of the jury, if the determination of such ultimate fact requires the application of expert knowledge not within the common knowledge of the jury.

C. J. Rodman, hereinafter referred to as defendant, invented and patented a process to manufacture bathtubs from a lighter gauge steel plate than was ordinarily used for making bathtubs by welding a series of steel strips (laminates) to the bottom of the lighter gauge tub. In so doing defendant obtained the same stability found in the heavier gauge pressed steel tub. However, defendant discovered, through experimentation with single spot welding equipment, that, when the steel strips (laminates) were welded to the bottom of the tub, the welding process created depressions (a dimpling effect) in the bottom of the tub to the extent that they were discernible even after the tub had been covered with porcelain enamel. Rather than abandon his project altogether, defendant contacted one Leslie Walker, a manufacturer's agent, whose function was to call on prospective purchasers and help them design equipment for their various needs. Walker is conceded to be a welding expert. As a result of his conference, defendant ordered from the plaintiff herein a special resistance, multiple, spot welder designed to weld steel strips (laminates) to bathtub bottoms. The purchase order prepared by defendant was for $17,246 with advance payments of $3,500. It contained the following proviso typed in by defendant:

'Note: The above machine is to produce a satisfactory and approved weld on either 14 ga. and/or 18 ga. tub with a 19 ga. laminate.'

The welding machine was delivered to defendant who refused to pay the balance due. He maintained that such machine created depressions or dimples in the bottom of the tub thereby rendering his final product unsaleable.

Plaintiff sued defendant for the balance due, and defendant cross-petitioned for his advance payment.

At the trial plaintiff called Leslie Walker and qualified him as an expert on welding. The following ensued:

'Q. Will you tell us what is meant by 'the above machine is to produce a satisfactory and approved weld on either 14 gauge or 18 gauge tub with a 19 gauge laminate' in the welding industry, or by anyone familiar with welding?

'* * *

'A. Terminology of a satisfactory and approved weld, as used by welding industry and in the fabricating industry, is when two pieces of metal are welded together so that they will not break apart, with a minimum amount of marking or identation.

'* * *

'Q. When the machine was finally finished, did the machine produce the approved and acceptable weld, such as you have just stated? A. Yes, sir.'

Plaintiff also called its sales manager, Francis Bodenheim, also an expert on the subject of welding, and the following ensued:

'Q. I will ask you, based upon your opinion and experience as an engineer, based upon your knowledge of welding equipment and machinery, whether or not this order was filled as requested by Mr. Rodman? A. Yes, sir.'

Defendant made timely objection to all the above on the basis that the questions called for a conclusion from the witness as to the ultimate question in the case, which question is one for the jury.

The court in its charge to the jury instructed that welding is a subject with which the general public is not familiar, and that therefore experts may give their opinions as to the quality of the welds produced by the machine in question. However, the court warned that the jury must itself determine the weight given such testimony and in so doing should consider the interest such a witness has in the case.

The jury rendered a verdict for plaintiff for the full amount remaining due to plaintiff.

The Court of Appeals reversed on the basis that the testimony set out above was inadmissible in that (1) it allowed a witness to answer the ultimate question and thus usurped the function of the jury, and (2) the ultimate question was within the common knowledge of the jury and was therefore not the proper subject of expert testimony.

The cause is before this court pursuant to the allowance of a motion to certify the record.

Evans, Gentithes & Meermans, Warren, Mills, Mills, Fiely & Lucas and Virgil F. Mills, Canton, for appellant.

Blumenstiel, Williams & Blumenstiel and J. B. Blumenstiel, Alliance, for appellee.

MATTHIAS, Judge.

The issue presented by this appeal concerns the admissibility of certain expert opinion testimony. At the trial, the evidence showed that defendant ordered from plaintiff a resistance, multiple, spot welder. The order was accepted and filled by plaintiff. Defendant, however, refused to pay the balance due, alleging that the welder did not perform in accordance with the following proviso which he typed upon the purchase order:

'Note: The above machine is to produce a satisfactory and approved weld on either 14 ga. and/or 18 ga. tub with a 19 ga. laminate.'

The meaning of this proviso and the fact of whether the welder performed in accordance therewith are the crux of this cause. At the trial, the court allowe...