Wojciuk v. U.S. Rubber Co.

• Decision Date: 05 March 1963
• Citation: 19 Wis.2d 224,120 N.W.2d 47
• Parties: , 6 A.L.R.3d 1357 Dorothy WOJCIUK et al., Appellants, v. UNITED STATES RUBBER CO., et al., Defendants-Respondents, Market Mens Mut. Ins. Co., a Wisconsin corporation, Interpleaded Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 47

120 N.W.2d 47

19 Wis.2d 224, 6 A.L.R.3d 1357

Dorothy WOJCIUK et al., Appellants, v. UNITED STATES RUBBER CO., et al., Defendants-Respondents Market Mens Mut. Ins. Co., a Wisconsin corporation Interpleaded Defendant-Respondent.

Supreme Court of Wisconsin.

March 5, 1963.

Rehearing Granted April 30, 1963.

See 121 N.W.2d 294.

Foley, Sammond & Lardner, John R. Collins, Milwaukee, for appellants.

Arnold, Murrary & O'Neill, Milwaukee, for defendant-respondent Stuewer.

Wickham, Borgelt, Skogstad & Powell, Kurt H. Frauen, Milwaukee, for defendants-respondents U. S. Rubber Co. and Phillips Petroleum Co.

FAIRCHILD, Justice.

Two issues are presented on this appeal: (1) Did the trial court abuse its discretion in not allowing the plaintiffs' witness, Dr. Alfred Schmidt, to testify as an expert? (2) Did the trial court err in directing verdict in favor of the respective defendants?

1. Did the trial court abuse its discretion in not allowing the plaintiffs' witness, Dr. Alfred Schmidt, to testify as an expert?

'* * * The question of whether a witness possesses sufficient knowledge to qualify as an expert is generally one for the trial court, and unless it appears that in its determination the court is guilty of an abuse of discretion, the court's ruling will stand * * *.' ²

'The questions in that regard however, relate to mere competency, and therefore, the trial judge's determination thereof, within all reasonable limits is supreme.' ³

Dr. Schmidt is a mechanical engineer, employed by Marquette University as research professor of engineering. He worked for a number of years as a mechanical engineer, mainly with optical industries, and received graduate degrees of Master and Doctor of Science in engineering at the University of Michigan. He had taught at other universities and had been employed at Kearney & Trecker as research engineer in charge of metal cutting and as chief research engineer. He was asked what experience he had in observing the mechanics of automobile tires. He answered that early in life he had worked for an organization that sold tractors, trucks and automobiles, and often examined tires which customers brought back, claiming defects; he had his own bicycle, motorcycle and car. When he studied at the University of Michigan they went around to various automobile factories and saw their testing procedures. He had recently spent a week at the General Motors test center and spent one day observing demonstrations and tests of tires. He testified that while at Kearney & Trecker he had studied adhesives, including rubber, and the bonding of rubber to other materials in connection with fastening components of machinery together, or insulating precision parts of a machine from vibration.

The offer of proof included testimony that there was a separation of plies in the vicinity of one of the breaks, and that the separation was caused by incomplete bonding in the vulcanizing process; that friction between the separated plies caused more heat than normal and weakened the material; that the deflation of the tire was caused by sudden loss of most of the air pressure due to the holes in the sidewall; that the lack of bonding caused the structure to lose full strength, and this condition caused the holes.

The learned circuit judge acknowledged Dr. Schmidt's standing as a mechanical engineer but ruled that he was not qualified to testify as an expert in rubber. He said:

'* * * The mere fact that he has worked with rubber pads in heavy machine equipment at Kearney & Trecker certainly doesn't qualify him to testify as to what caused an alleged blowout or explosion of an automobile tire. His only affinity to tires is * * * owning a bicycle or being involved in the sale of automobiles where he examined the tires as to the amount of rubber left on them, and his trip over to General Motors. * * *'

Although the decision was based upon Dr. Schmidt's lack of experience with automobile tires, it was not based upon a supposed rule that practical experience is always an essential qualification of an expert witness. Such a rule would be erroneous. ⁴

In this case plaintiffs were attempting to establish, from expert examination of the tire, that it had been defectively manufactured and that its failure resulted from such defect or at least had occurred in a manner which was a breach of alleged warranties. The ground which Dr. Schmidt's opinion was to cover was peculiar to the manufacture, structure and behaviour of rubber tires. We cannot say that it was an abuse of discretion to decide that Dr. Schmidt's knowledge of general scientific and mechanical engineering principles and his practical experience with materials and products other than tires did not qualify him to express opinions which would aid the jury in determining the facts of this case.

2. Direction of a verdict. The consideration of the propriety of directing a verdict can be readily divided into two parts: one relating to the causes of action for negligent manufacture and for breach of implied warranty, and the other relating to the causes of action for breach of express warranty and negligent representation.

Negligent manufacture and breach of implied warranty. In order to maintain their causes of action, plaintiffs must necessarily, in these circumstances, produce evidence that the failure of the tire resulted from a defect in its manufacture. Dr. Schmidt's opinion having been excluded, the record contained no such evidence unless the occurrence of the accident gave rise to a permissible inference of negligence.

Plaintiffs urge that an inference of negligent manufacture is permissible under the doctrine of res ipsa loquitur. Concededly the tire which failed had been out of the possession of the manufacturer for more than two weeks before the accident, but plaintiffs rely on three cases where the doctrine has been applied even though the article causing the injury was no longer in the exclusive control of defendant at the time it caused injury. ⁵

In each of the situations considered in those decisions there was reason to say that there was much greater probability that the defect causing injury existed when the article left defendant's possession than that it was created by subsequent occurrences. In Weggeman v. Seven-Up Bottling Co., supra, at page 514, 93 N.W.2d at page 474, we said:

'* * * It is not essential that the possibility of other causes of the accident be altogether eliminated, but only that their likelihood be so reduced that the greater probability lies at defendant's door. The evidence must afford a rational basis for concluding that the cause of the accident was probably such that the defendant would be responsible for any negligence connected with it. 2 Harper & James, Law of Torts, sec. 19.7, p. 1086; Prosser on [Law of] Torts 2d ed., 205 [sec. 42].'

In the case before us the tire had been on the car for two weeks and been driven 3100 miles. The exposure of automobile tires to possible injury and abuse while being used is common knowledge. There was a cut through which air could have leaked, and there were marks and breaks which indicated, according to Mr. Gray, that the tire had been used while not sufficiently inflated. As was said in Ryan v. Zweck-Wollenberg Co., supra, 266 Wis. at page 639, 64 N.W.2d at page 231:

'* * * If the refrigerator were a machine or appliance, such as an automobile or sewing machine, the moving parts of which are capable of...