Storm v. Ford Motor Co.

• Decision Date: 04 August 1975
• Docket Number: No. KCD,KCD
• Citation: 526 S.W.2d 875
• Parties: Janice (Honn) STORM, Plaintiff-Respondent, v. FORD MOTOR COMPANY and Broadway Motors, Inc., Defendants-Appellants. 26863.
• Court: Missouri Court of Appeals

Page 875

526 S.W.2d 875

Janice (Honn) STORM, Plaintiff-Respondent, v. FORD MOTOR COMPANY and Broadway Motors, Inc., Defendants-Appellants.

No. KCD 26863.

Missouri Court of Appeals, Kansas City District.

Aug. 4, 1975.

Motion for Rehearing and/or Transfer Denied Sept. 2, 1975.

Application to Transfer Denied Oct. 13, 1975.

Fred J. Wilkins, Shughart, Thomson & Kilroy, Kansas City, for defendant-appellant Ford Motor Co.

James H. Ottman, Shook, Hardy & Bacon, Kansas City, for defendant-appellant Broadway Motors, Inc.

Before WASSERSTROM, P.J., and SHANGLER and DIXON, JJ.

SHANGLER, Judge.

This claim arises from a collision between a tractor-trailer and an automobile alleged to have been defectively manufactured by the defendant Ford Motor Company and sold to plaintiff by the defendant Broadway Motors.

The plaintiff Janice Storm was operating her 1967 Ford Mustang easterly on Interstate 70 at about 70 miles per hour. As she approached Sweet Springs, Missouri, she moved her car into the left lane in order to pass a tractor-trailer. As she did so, she noticed that her vehicle had drifted to the right, and attempted to correct this position by turning the wheels to the left. At this point, so she testified, her Mustang suddenly fishtailed and started to swerve around the road. As she turned the steering wheel to the right and then to the left, the car responded to the direction but remained out of control and suddenly veered across the road and lodged its nose under the truck at an angle of about 45 . Engaged in this position, the Mustang was dragged down the highway for about 1000 feet.

The driver of the tractor-trailer heard a loud noise and then saw the Mustang on the median strip out of control. Another witness, driveing behind the tractor-trailer, saw the Mustang catch the left shoulder of the highway. These witnesses both testified that the Mustang reeled across the highway from the left and nosed under the trailer, so that the right side of the car came into collision with the front of the left rear wheels of the truck. The highway patrolman found two skid marks created by the Mustang, measured at 1020 feet.

The plaintiff had purchased the Mustang as a new car although it had been a demonstrator for Broadway Motors and driven 80 miles in that use. Since the purchase in July of 1967, the plaintiff had driven the Mustang about 3100 miles, all without any steering difficulty. Other than for regular service, the Mustang had never required maintenance or repairs.

The plaintiff had judgment for personal injury and property damage on a theory of strict tort liability. It was the trial contention that the casualty occurred when the right rear wheel bearing gave way.

The appellants assign four points of error for reversal, among them that appellants were prejudiced by the exclusion from evidence of Exhibit 6 proffered by defendant Ford. That exhibit was a wheel bearing, asserted by Ford as a component of the right rear axle assembly of the Mustang in place at the time of the casualty, the mechanical part which the plaintiff alleged was defective and caused her injury. The court allowed the exhibit for purposes of demonstration only, but not as real evidence on the theory that the wheel bearing had not been identified through an authentic chain of custody.

The petition of the plaintiff proceeded on a pleading of strict tort liability in that the Mustang was rendered dangerous because of a defect in the wheel bearing, and the proof was that the right rear wheel bearing gave way, causing the automobile to go out of control. Thus, the condition of that mechanical element of the right rear axle assembly became the focus of the proof.

The expert witness for the plaintiff, Cecil France, testified that the collision was caused when the right rear wheel bearing gave way, so that the wheel thus detached from the pinion assembly was no longer subject to steering control. Both France and the expert for Ford, Hugh Daley, agreed that if the right rear axle was laterally displaced during the forward operation of the Mustang, the wheel and axle would start wobbling. Daley added that the wobbling of the axle would be accentuated by the fishtailing which the plaintiff described and that the movement of the axle shaft would cause the wheel bearing to discolor and probably rupture.

It was the trial contention of the defendants that the wheel was not displaced until after the Mustang collided with the truck and was dragged sideways. They contend that the wheel bearing, offered as Exhibit 6, was palpably free of any distortion or discoloration, and therefore was persuasive evidence that the axle was not out of place before the Mustang lodged under the truck. They contend also that the bearing was sufficiently identified to allow the jury to decide whether the proffered exhibit was in fact in place in the Mustang at the time of the casualty, and that they were prejudiced by the refusal of the court.

Whether proffered Exhibit 6 was identified, prima facie, as the wheel bearing component of the right rear axle assembly of the Mustang on the date of the casualty rests on this evidence of custody: On the day of the collision, December 22, 1967, the car was towed from the scene to the Hall Motor Company in Sweet Springs, Missouri, where it was inspected several days later by Cecil France. France, an employee of Auto Damage Appraisers, had received this assignment from the Automobile Club Inter-Insurance Exchange, collision carrier for the plaintiff. France noticed that the right rear axle was out against the fender, concluded something was amiss, and received permission from the Auto Club to remove the rear axle and housing. France photographed the Mustang and observed as a Hall mechanic removed the axle, tire and wheel on December 27, 1967. France then took these parts to his Columbia office where he cleaned them, and then had them photographed. A short time later, France returned the parts to the Auto Club, and at their direction, marked the axle with his initials. The other parts were not marked. The parts were then kept by the Auto Club until late 1968.

On the motion of defendant Ford for production and inspection, the court ordered the plaintiff to produce all the parts of the Mustang, the subject of the pending action, still in her actual or constructive possession. On December 6, 1968, a clerk from the law firm representing Ford took possession of the right rear axle assembly and gave a signed receipt for 'the following parts of the automobile which (plaintiff) owned and was operating on the date of the casualty of December 22, 1967: right rear axle assembly with bearing'. Nine months later, on September 22, 1969, the parts were returned by Ford's counsel to Carl Crick, Auto Club claims manager, whose signed receipt acknowledged the return of the same parts as had been relinquished. These parts remained in the custody of the Auto Club until they were given over to counsel for plaintiff for the trial.

The contention of the plaintiff that the chain of custody of the wheel bearing does not permit prima facie identification rests upon the inability of her expert, France, to identify proffered Exhibit 6 as the bearing taken from the damaged Mustang. Although he had inscribed his...