Slocum v. Ford Motor Co.

• Decision Date: 26 January 1982
• Docket Number: Docket No. 47173
• Citation: 314 N.W.2d 546,111 Mich.App. 127
• Parties: Hope SLOCUM and Ray Slocum, Plaintiffs-Appellants, v. FORD MOTOR COMPANY a corporation and Spiker Ford, Inc., a corporation, Defendants-Appellees, Third-Party Plaintiffs, v. UNIROYAL, INC., a New Jersey corporation, Third-Party Defendant. 111 Mich.App. 127, 314 N.W.2d 546
• Court: Court of Appeal of Michigan — District of US

Page 546

314 N.W.2d 546

Hope SLOCUM and Ray Slocum, Plaintiffs-Appellants, v. FORD MOTOR COMPANY a corporation and Spiker Ford, Inc., a corporation, Defendants-Appellees, Third-Party Plaintiffs, v. UNIROYAL, INC., a New Jersey corporation, Third-Party

Defendant.

Docket No. 47173.

111 Mich.App. 127, 314 N.W.2d 546

Court of Appeals of Michigan.

Submitted Oct. 16, 1980.

Decided Nov. 3, 1981.

Released for Publication Jan. 26, 1982.

[111 MICHAPP 129] Kelman, Loria, Downing, Schneider & Simpson, Detroit, for plaintiffs-appellants.

Dickinson, Wright, McKean, Cudlip & Moon, Detroit (by Robert S. Krause and Richard A. Glaser, Detroit), for defendants-appellees, third-party plaintiffs.

Before BRONSON, P. J., and HOLBROOK and RANSOM ^*, JJ.

RANSOM, Judge.

This is an action for personal [111 MICHAPP 130] injuries commenced by plaintiff, Hope Slocum, and her husband, Ray Slocum, against Ford Motor Company and Spiker Ford, Inc. Plaintiffs' complaint alleged that Hope Slocum was injured in an accident which occurred when the automobile in which she was a passenger went out of control and rolled over due to a defective tire. The automobile involved, manufactured by Ford Motor Company and sold by Spiker Ford, Inc, was equipped with tires manufactured by Uniroyal, Inc. At the time of the accident the car had been driven approximately 2,500 miles. Plaintiffs sought recovery based on theories of breach of warranty and negligence.

Defendant Ford Motor Company filed a third-party complaint against Uniroyal, Inc., seeking indemnification in the event plaintiffs obtained judgment against Ford Motor Company.

The critical factual issue at trial of this case turned on the cause of the vehicle's going out of control. All parties produced testimony of expert witnesses.

Jury trial resulted in a verdict of no cause of action.

Plaintiffs raise, on appeal, an issue of first impression to this jurisdiction as well as issues of interpretation of Michigan Rules of Evidence.

ISSUES

I. May allegations made in a third-party complaint which are inconsistent with the pleader's defense in the principal action be used as admissions?

II. Did the trial court err in permitting defendant Ford Motor Company's expert witness to [111 MICHAPP 131] express an opinion based upon facts not in evidence?

III. Does the foundation for expert opinion testimony require the offeror to establish that said opinion is "necessary" to enable the triers of fact to make appropriate determinations?

IV. Did the trial court err in admitting into evidence a copy of a newspaper article relied upon by plaintiff's expert for the purpose of impeachment and without extrinsic evidence of authenticity?

DISCUSSION

ISSUE I

During the course of trial, plaintiffs' attorney read certain allegations contained in the third-party complaint as admissions against Ford Motor Company. An objection was made by defense counsel when the following paragraph of the third-party complaint was offered:

"That the accident of which plaintiffs complain was the, or a, result of Third Party Defendant, Uniroyal's breaches of the aforementioned expressed and implied warranties in several particular respects, including but not limited to the failure of said tires to properly adhere to the wheels to which they were mounted after only approximately 2,500 miles of use, and the defective nature of the tires due to their inability to withstand normal use as more fully alleged in Plaintiffs' Complaint." (Emphasis added.)

While noting that the allegations in the third-party complaint were affirmative and not conditional, the court did not permit plaintiffs to place Ford's allegation of defectiveness before the jury. The court ruled Ford's posture in the initial action [111 MICHAPP 132] was to deny the tires were defective and the third-party complaint, considered as a whole, was a conditional pleading, not an admission. The court stated Ford was "only alleging what is necessary to state a cause of action against the third-party defendant".

The trial court also ruled, pursuant to MRE 403, that said allegations should be excluded because the probative value was outweighed by the prejudicial effect.

Plaintiffs contend that the trial court's refusal to allow the allegations to be read to the jury requires reversal. We disagree.

GCR 604 (originally GCR 606; renumbered March 1, 1978) provides:

"Any statement of fact set forth in any pleading shall be treated as an admission by the pleader and need not be proved by the opposite party."

Additionally, statements contained within pleadings are not considered hearsay. MRE 801(d)(2).

Accordingly, admissions of fact appearing in pleadings may be used as admissions. Cady v. Doxtator, 193 Mich. 170, 159 N.W. 151 (1916); Freeman v. Meijer, Inc., 95 Mich.App. 475, 291 N.W.2d 87 (1980).

However, GCR 1963, 111.9(2) provides:

"Inconsistent claims or defenses are not objectionable, and when a party is in doubt as to which of 2 or more statements of fact is true, he may allege them in the alternative. A party may also state as many separate claims or defenses as he has regardless of consistency and whether based upon legal or equitable grounds or upon both."

This court rule has been interpreted to allow a [111 MICHAPP 133] pleading party to assert inconsistent claims without the assertion of one claim estopping the party from asserting the other. Barron v. Edwards, 45 Mich.App. 210, 206 N.W.2d 508 (1973).

The interplay of these rules in the context of a third-party complaint poses an issue of first impression in this jurisdiction. The issue, however, has been considered in federal courts in interpreting the Federal Rules of Civil Procedure. GCR 1963, 111.9(2) is comparable to F.R.Civ.P. 8(e)(2). ¹

In Continental Ins. Co. of New York v. Sherman, 439 F.2d 1294, 1298 (CA 5, 1971), the defendant had filed a cross-claim against a third-party defendant and plaintiff introduced a portion of that cross-claim in the principal action against the defendant. The court reversed a jury verdict returned in plaintiff's favor, stating:

"As a general rule the pleading of a party made in another action, as well as pleadings in the same action which have been superseded by amendment, withdrawn or dismissed, are admissible as admissions of the pleading party to the facts alleged therein, assuming of course that the usual tests of relevancy are met. * * * Strictly applied, however, this rule would place a litigant at his peril in exercising the liberal pleading and joinder provisions of the Federal Rules of Procedure in that inconsistent pleadings under Rule 8(e)(2) could be used, in the proper circumstances, as admissions negating each other and the allegations in third-party complaints and cross-claims seeking recovery over in the event of liability in the principal action could be used in that action as admissions establishing liability. Thus, as a necessary exception to the general rule, there is ample authority that one of two inconsistent pleas [111 MICHAPP 134] cannot be used as evidence in the trial of the other. * * * McCormick on Evidence, § 242, pp. 509-510 (1954) * * *."

See also Douglas Equipment, Inc. v. Mack Trucks, Inc., 471 F.2d 222 (CA 7, 1972); City of Kingsport, Tennessee v. Steel & Roof Structure, Inc., 500 F.2d 617 (CA 6, 1974).

We find the Sherman court's reasoning persuasive and conclude the trial court correctly ruled that plaintiffs could not use defendant Ford's third-party allegation as an admission. While the allegations appearing in defendant Ford's third-party complaint were not stated in the alternative, the very nature of defendant Ford's third-party complaint was contingent upon the jury first finding defendant liable in the initial action. A party wishing to make alternative or contingent claims should not be placed in the perilous situation of either foregoing one claim or having one claim used against another as an admission.

Further, we agree with the trial court's determination that the allegation of defectiveness in defendant Ford's third-party complaint, even if relevant, should not have been admitted since its probative value was substantially outweighed by the prejudice to defendant. MRE 403.

Exclusion of evidence as being overly prejudicial is within the trial court's discretion. The trial court's determination will not be reversed absent an abuse of discretion. Aetna Life Ins. Co. v. Brooks, 96 Mich.App. 310, 292 N.W.2d 532 (1980).

We find no abuse of discretion in the case at bar. If the trial court had allowed plaintiffs to use the allegations appearing in the third-party complaint, defendant Ford Motor Company would have been left virtually without its defense, a manufacturer of a motor vehicle being liable for damages caused [111 MICHAPP 135] by component parts which are defective, even if those parts are supplied by another manufacturer. Comstock v. General Motors Corp., 358 Mich. 163, 99 N.W.2d 627 (1959).

ISSUES II and III

Defendant Ford Motor Company called John Sheehan as an accident reconstruction expert. Mr. Sheehan had reviewed pertinent documentary evidence including depositions taken prior to trial. Based upon that review, he performed an accident reconstruction analysis and expressed his opinion as to how the accident occurred.

Plaintiffs contend admission of Mr. Sheehan's expert testimony was error because (1) it was based upon facts allegedly not in evidence, therefore lacking proper foundation, and (2) the case did not invoke subject matter necessitating expert analysis. In both instances, plaintiffs rely upon cases involving evidentiary questions that predate the Michigan Rules of Evidence. Michigan Rules of Evidence, effective March 1, 1978, govern proceedings in state courts after that date and supersede prior rules pertaining to the admissibility of evidence. January 5, 1978, order of the Michigan Supreme Court adopting the Michigan Rules of Evidence, 402 Mich. lxxxviii; MRE 101.

Plaintiff relies upon ...