Townsend v. U.S. Rubber Co.
| Decision Date | 18 May 1964 |
| Docket Number | No. 7390,7390 |
| Citation | 74 N.M. 206,1964 NMSC 103,392 P.2d 404 |
| Parties | Juanita TOWNSEND, Robert Townsend, and James Richard Townsend, a minor, by his next friend and father, Robert Townsend, Plaintiff-Appellants, v. UNITED STATES RUBBER COMPANY, a corporation, Tidewater Oil Company, a corporation, and Gold Cross Ambulance Service, a corporation, Defendants-Appellees. |
| Court | New Mexico Supreme Court |
Matteucci, Gutierrez & Franchini, Albuquerque, Boccardo, Blum, Lull, Niland & Teerlink, San Jose, Cal., for appellants.
Rodey, Dickason, Sloan, Akin & Robb, Adams & Pongetti, Albuquerque, for appellees.
The plaintiffs appeal from a judgment entered in favor of the defendants notwithstanding a jury verdict to the contrary.
The action was instituted by the plaintiffs to recover damages for personal injuries suffered by them in a one-car accident allegedly caused by a defective tire or tires manufactured and sold, respectively, by the United States Rubber Company and the Tidewater Oil Company, defendants.
The complaint, in separate causes of action, alleged negligence on the part of the defendants in their design, manufacture, inspection, distribution, sale and mounting of the tires sold to the plaintiffs, and the breach of implied warranties of their fitness and merchantability. The defendants denied the allegations of all causes of action and alleged contributory negligence. The cause was tried to a jury. During the course of the trial the testimony of the plaintiffs' expert witness, Robert Snyder, relating to his opinion of the nature, type, extent and cause of the alleged manufacturing defect in the bead area of the right rear tire on plaintiffs' car, was admitted over the objections of the defendants. At the close of the plaintiffs' case, and again at the completion of all of the evidence, the defendants moved to strike the above-referred to testimony, and also for a directed verdict on the grounds, among others, that the plaintiffs had failed to sustain the essential allegations of their complaint as to negligence or implied warranties; that there was no privity of contract between the parties without which there could be no implied warranties; and that the evidence showed, as a matter of law, the plaintiffs were guilty of contributory negligence. The motions were denied except for the ruling of the court that the causes of action alleging negligence were to be withdrawn from consideration by the jury.
The cause was submitted to the jury on the issues of breach of implied warranties and contributory negligence. A verdict awarding substantial sums to the plaintiffs was returned. Thereafter the defendants moved for judgment notwithstanding the verdict or, in the alternative, for a new trial, and also, again, moved the court to strike the objectionable testimony of the plaintiffs' expert witness. It is from the granting of the defendants' motion for judgment notwithstanding the verdict that the plaintiffs appeal.
In seeking to have this court set aside the judgment entered below, the appellants urge that the court committed prejudicial error (1) in striking testimony of their expert witness after the trial was concluded and the jury had returned a verdict in their favor, and (2) in granting judgment notwithstanding the verdict as the verdict was supported by substantial evidence.
As we view it, the primary question raised is whether the granting of judgment notwithstanding the verdict was proper under the circumstances of this case. We are impressed with the appellants' contention, on oral argument, and implicit in their points on appeal, that there was no proper basis here for the granting of such judgment.
For the sake of clarity, we will look to the language of the judgment itself. Its pertinent portions read:
'* * * the United States Rubber Company and Tidewater Oil Company having thereafter [after the verdict] filed a Motion for judgment notwithstanding the verdict, for new trial and to strike the testimony of the expert witness, Robert Snyder; the court, having considered the evidence and heard the arguments of counsel; being fully advised in the premises; having determined that said Motion should be granted to the extent herein provided; and that the testimony of the expert witness, Robert Snyder, should be stricken for the reason that the Court was in error in allowing said witness to testify as an expert as to any defect in the bead area of the tire, and that said witness was not qualified to give such an opinion and that his testimony in that regard was speculative and not based on fact; and the Court having further determined that there was not substantial evidence to support the verdict of the jury and that a judgment notwithstanding the verdict should be entered in favor of the defendants United States Rubber Company and Tidewater Oil Company and against the plaintiffs; thereupon, upon consideration thereof
'IT IS ORDERED, ADJUDGED, and DECREED AS FOLLOWS:
Thus we have the granting of a judgment nowithstanding the verdict of a diminished record after the elimination of evidence submitted to and considered by the jury.
This court has held that in considering a motion for judgment notwithstanding the verdict, the favored party is entitled to have the testimony considered in a light most favorable to him and is entitled to every inference of fact fairly deducible from the evidence; Michelson v. House, 54 N.M. 197, 218 P.2d 861; Carpenter v. Yates, 58 N.M. 513, 273 P.2d 373; Rivera v. Ancient City Oil...
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