Timsah v. General Motors Corp.

• Decision Date: 24 February 1979
• Docket Number: No. 49058,49058
• Parties: Adnan J. TIMSAH, Amal Z. Timsah, and Lena A. Timsah and Talal A. Timsah, Minors, By and Through their Father and Natural Guardian, Adnan J. Timsah, Appellants, v. GENERAL MOTORS CORPORATION, Appellee.
• Court: Kansas Supreme Court

Page 154

591 P.2d 154

225 Kan. 305

Adnan J. TIMSAH, Amal Z. Timsah, and Lena A. Timsah and Talal A. Timsah, Minors, By and Through their Father and Natural Guardian, Adnan J Timsah, Appellants, v. GENERAL MOTORS CORPORATION, Appellee.

No. 49058.

Supreme Court of Kansas.

Feb. 24, 1979.

Syllabus by the Court

1. When a verdict is attacked on the ground it is contrary to the evidence, it is not the function of this court on appeal to weigh the evidence or pass on the credibility of the witnesses. If the evidence with all reasonable inferences to be drawn therefrom, when considered in a light most favorable to the successful party below, will support the verdict this court should not intervene.

2. A diagram of an accident scene prepared by an officer as part of an official report in the regular course of his duties may be admitted in evidence pursuant to the requirements of K.S.A. 60-460(D )(3) if the officer is unavailable as a witness at a subsequent trial. However, not only the requirements of 60-460(D )(3) must be satisfied but also the diagram must be sponsored by a proper witness who can authenticate it as genuinely the work of the unavailable officer done in the regular course of his duties.

3. Instructions should be general in nature insofar as possible, and should not be argumentative or unduly emphasize one particular phase of the case. If they properly and fairly state the law as applied to the facts in the case when considered as a whole, and if the jury could not reasonably be misled by them, the instructions should be approved on appeal.

4. Generally speaking, statements by counsel in an opening statement to the jury that certain evidence will be introduced are proper if made in good faith and with reasonable grounds to believe that the evidence is admissible, even though the intended proof referred to is afterward excluded.

5. K.S.A.1974 Supp. 60-232(A )(2) specifically authorizes the use by an adverse party, for any purpose, of a deposition of a party, without regard to the limitations applicable generally to the deposition of witnesses offered by either party.

6. A party may propose a hypothetical question, not only for the purpose of bringing out the party's theory respecting the matter, but to develop an answer against the theory of the opposite party.

7. Great latitude is necessarily indulged in the cross-examination of an expert witness in order that the intelligence and powers of discernment of the witness, as well as his capacity to form a correct judgment, may be submitted to the jury so it may have an opportunity for determining the value of his testimony.

8. The relevance of demonstrations or tests to be performed in the presence of the jury rests in the sound discretion of the trial court and its decision on the matter will not be reversed on appeal unless an abuse of discretion is apparent.

9. The record on appeal in a products liability case is examined and it is Held no reversible error is found.

Robert W. Kaplan of Kaplan, McMillan & Klinge, Wichita, argued the cause and was on the brief for appellants.

Richard C. Hite of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, argued the cause and was on the brief for appellee.

FROMME, Justice:

This is a products liability case brought by members of the Timsah family for personal injuries and property damage sustained in a single vehicle accident. The theories of recovery alleged against the manufacturer of a 1972 GMC 2-ton dump truck were (1) breach of an implied warranty of fitness and merchantability arising from an alleged defective power steering hose, and (2) negligence of the manufacturer in designing, testing, inspecting and equipping said vehicle with said defective power steering hose. The truck was purchased in September. The accident occurred the following month. It is contended the hose failed under pressure and caused a steering disability. The plaintiffs were unsuccessful below. Trial of the case resulted in a jury verdict for defendant, General Motors Corporation. The plaintiffs have appealed.

One question raised by appellants is whether the verdict is contrary to the evidence. The evidence introduced at the trial was sharply conflicting but in view of the general verdict for defendant all controverted issues of fact were resolved against the appellants and if supported by evidence or by reasonable inferences to be drawn from the evidence the verdict must stand. Montgomery v. Morgenson, 213 Kan. 167, 515 P.2d 746 (1973). We will review the evidence in a light most favorable to the appellee.

The truck had been driven without difficulty some 1700 miles prior to the accident. Mr. and Mrs. Timsah and their two small children left their home in Wichita and drove to Van Orme, Texas, which is 25 to 30 miles south of San Antonio. On the way down the family stopped overnight in Dallas, Texas. The purpose of the trip was to pick up a load of nursery stock. After arrival in Van Orme the truck was loaded and the family left at 2:30 p. m. on October 19. The accident occurred just south of the Wellington interchange on the Kansas Turnpike at 6:00 a. m. on October 20. A distance of about 600 miles had been traveled in approximately fifteen hours. However, the fifteen hours included two rest stops of two hours each. The family did not stop to sleep in a motel. Mr. Timsah testified that prior to the accident he was driving north in the right hand lane. His testimony as to how the accident happened was as follows:

"A. We left the roadside park going toward Wichita and then everything was normal. We were listening to the radio and just about the Interchange, the radio stopped for certain reasons so my wife asked me and then I put my hand on the steering wheel, left hand, that is and I had my knob in the right hand and I started back and forth and it won't respond and I pounded it two or three times and it won't respond for a while and then, at this time, I looked and I see that I am not no longer in the center of the lane. I was driving on, which is the right lane, so I tried to turn, straighten up the truck to the center lane and the course of my turning left, something happened and then I felt in my hand that the steering wheel went rigid and kind of locked and, by the time I tried to turn right, it was already late and I was right in the ditch, two seconds."

Appellant Timsah further testified he had been driving at a speed of from 55 to 60 m. p. h., had taken his foot off the accelerator, but did not apply the brakes. After crossing the median strip the truck turned over, either in the left hand ditch or on the left shoulder of the road.

The cause of the accident was attributed by the appellants to a malfunction in the steering system. The truck was equipped with dual capabilities for steering, a mechanical and a power assist steering system. The testimony indicates that either system will function independently of the other, and if the power assist system quits while the truck is being driven the truck can be steered by the mechanical system, although more pressure must be exerted. The power assist system has a hydraulic fluid reservoir and uses separate left and right turn high pressure hoses. The left turn hose was introduced in evidence at the trial as the defective component which failed and caused the truck to go out of control. The two independent steering systems on this type truck are in contrast to the type of power steering system on passenger cars which has no back-up mechanical system.

When introduced in evidence at the trial the left turn hose had three separate breaks in it. The defendant's expert witness testified that the breaks were caused by perforations or cuts which could not have occurred from failure under internal pressure. The reason given for this conclusion was that the hose showed no bulging or ballooning. He testified as to the manufacturer's test requirements for the hoses used on this model truck, which requirements were far in excess of the stress caused by down-the-road driving conditions.

All witnesses who examined the truck after the accident, including Karl Gragg, the plaintiffs' expert, said that the oil reservoir in the power steering system contained hydraulic fluid when they examined the truck after the accident. They further testified that if the hose had ruptured while the steering system was being used, the oil reservoir would have been drained in a very few seconds. A total loss of oil, however, would have caused only a partial loss of steering. The mechanical system alone will permit the driver to turn the front wheels. There was testimony from a mechanic and from defendant's expert that they tested the steering after the truck had been pulled off the road. The doors to the truck were damaged so they could not be opened. However, the two witnesses were able to turn the front wheels of the truck by turning the steering wheel while reaching through the broken windshield. They concluded the steering system was working on the truck after the accident.

From the foregoing evidence the jury might reasonably infer that the hose was not the cause of the accident. It might also have been inferred that the perforations in the hose occurred after the accident and were not caused by a defect in the hose. There was testimony to the contrary but when a verdict is attacked on the ground it is contrary to the evidence, it is not the function of this court on appeal to weigh the evidence or pass on the credibility of the witnesses. If the evidence with all reasonable inferences to be drawn therefrom, when considered in a light most favorable to the successful party below, will support the verdict this court should not intervene. Steele v. Harrison, 220 Kan. 422, Syl. P 1, 552 P.2d 957 (1976). The verdict for defendant in this case is not contrary to the evidence.

The appellants present various procedural questions which arose during the trial of the case and which we must consider...