Mamula v. Ford Motor Company

275 N.E.2d 849, 150 Ind. App. 179, 1971 Ind. App. LEXIS 514

• Court: Indiana Court of Appeals
• Decided: December 6, 1971
• Docket: 371A49
• Status: Published

Opinions

BUCHANAN, J.

STATEMENT OF THE CASE AND FACTS — This is an appeal of a personal injury products liability case from a directed verdict entered for the defendant-appellee, Ford Motor Company (Ford),, at the close of plaintiff’s evidence. .

In December of 1964, . plaintiff-appellant, Peter Mamula (Mamula) purchased a new 1965 Ford Ranch Wagon. Only routine service was required thereafter except for replacing the left shock absorbers twice and the clutch once.

On May 28, 1967, at 3:30 A.M., the Ranch Wagon had been driven about 21,600 miles. At that time Mamula was' a passenger in the car while it was . being driven south on the Mackinac Bridge by one Ted Szabo (Szabo). Suddenly, the car began to bounce wildly. Szabo testified that he lost complete control of the steering. The car veered sharply to the right striking the guard rail and the concrete median strip of the bridge, resulting in bodily injury to Mamula.

When it came to a halt, another passenger, Willis Bradway (Bradway), found the right front tie rod assembly about 120 feet to the rear of the car. Bradway testified that the ball-joint of the tie rod was snapped off flush with the socket. The tie rod was wrapped in a rag and retained by Mamula until December 20, 1967, when he delivered it toj a Ford service representative for inspection. The service representative found no visible defect, so he sent the tie rod to Ford’s facilities in Allen Park, Michigan, where it subsequently was lost and so not available at the trial.

Mamula brought an action against Ford alleging negligence in that: (1) Ford failed to properly inspect the car’s right front tie rod assembly; (2) Ford used inferior metal in manufacturing the tie rod; and (3) Ford failed to properly install the assembly.

Mamula’s expert witness, George Rohrback, testified that a broken tie rod assembly could cause this type of an accident, but that other factors could also be a cause.

At the close of Mamula’s presentation of evidence, the lower court granted Ford’s Motion for a Directed Verdict. Mamula now appeals.

ISSUE — Was there any evidence of negligence or a reasonable inference thereof which could have been the basis for submitting the case to a jury?

Mamula contends that the accident was caused by the tie rod breaking. Since the testimony of Bradway and Rohrback supported this assertion, a question of fact for the jury arose.

Ford contends that Mamula’s evidence produced nothing more than conjecture. Accordingly, the case was properly taken from the jury.

DECISION — It is our opinion that there was a reasonable inference of negligence to be drawn from the conflicting evidence. Consequently, the case should not have been taken from the jury.

This court has recently held in Rouch v. Bisig (1970), 147 Ind. App. 142, 258 N. E. 2d 883, that:

“On appeal we will consider only the evidence most favorable to the party against whom the motion for directed verdict was made and all reasonable inferences from such evidence. Layman v. Hall Omar Baking Co., 138 Ind. App. 673 [7 Ind. Dec. 459], 213 N. E. 2d 726, rehearing denied [8 Ind. Dec. 186], 215 N. E. 2d 692 (1966) ; Monon R. R. v. New York Central R. Co., 141 Ind. App. 277 [10 Ind. Dec. 644], 227 N. E. 2d 450 (1967) ; and Beem v. Steel, 140 Ind. App. 512 [10 Ind. Dec. 158], 224 N. E. 2d 61 (1967) .”

The quantum of evidence necessary for a plaintiff to avoid a directed verdict at the close of his evidence has been determined by our Supreme Court to be arvy evidence or legitimate inference therefrom tending to support at least one of the plaintiff’s allegations. Specifically, our Supreme Court held in Hendrix v. Harbelis (1967), 248 Ind. 619, 623, 230 N. E. 2d 315, that:

“It is only where there is a total absence of evidence or legitimate inferences in favor of plaintiff upon the issues, or where the evidence is without conflict and is susceptible of but one inference and that inference in favor of the defendant, that the court may give a peremptory instruction ....” (Emphasis supplied.)

Likewise, it was held in Sears v. Moran (1945), 223 Ind. 179, 181, 59 N. E. 2d 566, that:

“[I]f there is any evidence or reasonable inference, that can be drawn from the evidence, . . . the disputed position will be deemed sufficiently proven.” (Emphasis supplied.)

See also Watson v. Watson (1952), 231 Ind. 385, 108 N. E. 2d 893; Gamble v. Lewis (1949), 227 Ind. 455, 85 N. E. 2d 629.¹

The rule is often stated to be that in a jury trial a court should not direct a verdict for a defendant at the close of a plaintiff’s evidence unless there is a total absence of evidence or reasonable inference on at least one essential element of a plaintiff’s case. Hendrix v. Harbelis, supra; Whitaker v. Borntrager (1954), 233 Ind. 678, 122 N. E. 2d 734 ;Ecoff v. Central Indiana Gas Co. (1968), 143 Ind. App. 119, 238 N. E. 2d 676; Stivers v. Old National Bank in Evansville (1970), 148 Ind. App. 196, 264 N. E. 2d 339; Rouch v. Bisig, supra.

When passing on a motion for a directed verdict, the court is merely called on to determine if there is some evidence of negligence on the part of the defendant which the jury is entitled to consider. Jones v. Furlong (1951), 121 Ind. App. 279, 97 N. E. 2d 369. Where the evidence is such that the minds of reasonable men might differ, or if the determination of negligence depends on conflicting evidence, then the question is for the jury. Hatmaker v. Elgin, Joliet & Eastern Railway Company (1956), 126 Ind. App. 566, 133 N. E. 2d 86; Heiny v. Pennsylvania Railroad Company (1943), 221 Ind. 367, 47 N. E. 2d 145; Robertson Brothers Department Store v. Stanley (1950), 228 Ind. 372, 90 N. E. 2d 809; Haney v. Meyer (1966), 139 Ind. App. 633, 215 N. E. 2d 886; Oliver v. Clemons’ Estate (1968), 142 Ind. App. 499, 236 N. E. 2d 72.

Therefore, a directed verdict is proper only when the evidence is without conflict and is susceptible of but one inference in favor of the moving party. State Farm Life Ins. Co. v. Spidel (1964), 246 Ind. 458, 202 N. E. 2d 886; Gibson v. Froman (1965), 138 Ind. App. 497, 212 N. E. 2d 25; Mitchell v. Smith (1965), 138 Ind. App. 93, 211 N. E. 2d 809; Reynolds v. Langford (1961), 241 Ind. 431, 172 N. E. 2d 867.

Certain Indiana Appellate Court decisions in recent years have seemed to hold that there must be a total lack of substantial evidence to obtain a directed verdict. Richey v. Sheaks (1967), 141 Ind. App. 423, 228 N. E. 2d 429; Layman v. Hall Omar Baking Co. (1965), 138 Ind. App. 673, 213 N. E. 2d 726; Sparks v. Baldwin (1964), 137 Ind. App. 64, 205 N. E. 2d 173; Bradford v. Chism (1963), 134 Ind. App. 501, 186 N. E. 2d 432. Other language with essentially the same meaning as “substantial” has also been used, such as “substantial evidence of probative value” or “more than a scintilla or suspicion.” We think any conflict between these cases and the standard defined by our Supreme Court, i.e., “any evidence” is more apparent than real. A close examination of these cases indicates lip service to the “substantial” test while applying the “any evidence” rule in result. Through frequent usage aged concepts often become encrusted with unrelated layers of distortion which must be broken away from time to time. This is such an occasion.

Although we find no Supreme Court civil cases using language similar to “substantial”, our attention has been directed to two cases which seemingly use the “substantial” test. Echterling v. Kalvaitis (1955), 235 Ind. 141, 126 N. E. ; McCague v. New York, Chicago & St. Louis Railroad Co. (1946), 225 Ind. 83, 71 N. E. 2d 569. Echterling, supra, does say that there must be substantial evidence of probative value to sustain the decision of the court below, but it can be distinguished because it does not deal with the quantum of evidence necessary for a directed verdict. It deals with that evidence necessary for a trial court to enter a final judgment. Likewise, McCague, supra, deals with the weight and sufficiency of evidence required to uphold a final jury verdict, not a directed verdict.

Directing a verdict against a plaintiff at the close of his evidence deprives him of a jury decision. He may well feel robbed of what he considers a sacred right of his American heritage. While this right is not absolute in a civil case,² the cases cited herein support the rule that whenever there is any evidence allowing reasonable men to differ, a plaintiff should be given the benefit of the doubt, even though he has not substantially supported his allegations. Furthermore, such a requirement is not weighing the evidence —it merely allows a jury to decide whether negligence exists.

What harm can result from permitting a plaintiff a jury decision when a reasonable inference from the evidence exists in his favor? The trick is to determine what constitutes a “reasonable inference” and what is mere conjecture or speculation. To require an issue to be submitted to the jury, there must be something more than a mere scintilla of evidence. Hollowell v. Greenfield (1966), 142 Ind. App. 344, 216 N. E. 2d 537. This can only be accomplished by an examination of the circumstances of a particular case.

In International Harvester Co. v. Sharoff, 202 F. 2d 52 (10th Cir. 1953), a truck manufactured by the defendant, Harvester, mysteriously overturned during normal use. The plaintiff brought an action against Harvester for failure to inspect the truck, particularly the torque rod and springs. It was admitted by Harvester that only a visual inspection was made, but that lack of inspection alone was not sufficient evidence for a jury to infer negligence.

Like Harvester, the case before us also alleges a failure to inspect on the part of Ford with an unexplained accident resulting. Unlike Harvester, however, an expert witness testified for Mamula as to the possible cause of the accident. Despite the lack of direct evidence as to the cause of the accident in Harvester, the case was allowed to go to the jury on the question of whether Harvester properly discharged its duty of inspection.

Conversely, in Halkias v. Gary National Bank (1968), 142 Ind. App. 329, 234 N. E. 2d 652, the plaintiff slipped on a piece of ice on the sidewalk in front of the defendant’s bank building. No evidence was presented as to how the ice came to be on the sidewalk other than the defendant’s employees’ attempt to remove some ice and snow on the sidewalk earlier that day. In affirming a directed verdict against the plaintiff, this court held that the evidence presented could not support a reasonable inference of negligence because it would require a jury to speculate or guess as to the proximate cause of the accident.

We think Halkias is distinguishable. In that case, there was no duty on the part of the defendant to rid its sidewalk of the ice and snow, whereas in the instant case Ford is bound by the duty defined in MacPherson v. Buick Motors Co. (1916), 217 N. Y. 382, 111 N. E. 1050. No evidence was presented in Halkias that the defendant was even responsible for the ice being there, whereas Ford was in fact connected with Mamula’s car as Ford was the manufacturer. Furthermore, the court stated that there was no showing that the acts of the defendant made the sidewalk more slippery or hazardous than it would have been if the defendant had not attempted to remove the ice. Not so with regard to Mamula’s automobile, because there was expert testimony that the automobile would be unsafe without the tie rod assembly. Halkias presents only an unexplained circumstance. No more.

In reviewing the evidence presented by Mamula, it is apparent that it is not such as would support only a single inference in favor of Ford. On the contrary, a conflict exists from which a reasonable man could justifiably infer negligence. Szabo testified that before the accident occurred, he lost control of the steering. An essential element for steering, to-wit, the tie rod, was found 120 feet behind the car. Whether this tie rod fell off first, thereby causing the accident, or whether the accident itself caused the tie rod to fall off, is not known. The same question was raised in International Harvester Co. v. Sharoff, supra, in which the court said:

“We are also of the view that there was sufficient evidence to take the case to the jury on whether the breaking of the parts caused the accident or were the results of the accident.”

Mamula’s expert witness, Professor Rohrback, testified that a broken tie rod could cause this type of accident, thereby dispelling speculation or conjecture, if believed by the jury. Willis Bradway testified that the tie rod was broken. Yet Ford’s service representative claims to have found no visible defect.

This court held in Hummel v. New York Central Railroad Co. (1946), 117 Ind. App. 22, 66 N. E. 2d 901, that:

“ [W] e may not weigh the testimony of one witness against the conflicting testimony of another, nor may we weigh conflicting portions of the testimony of the same witness. If the same witness makes contradictory assertions, we will not undertake to determine which of the assertions are true, that being a question for the jury.” (Emphasis supplied.)

One of these facts alone may not present a reasonable inference of negligence. Viewed as a whole, there is some evidenc from which negligence on the part of Ford may be reasonably inferred. The door of the jury room should have been opened just wide enough to allow plaintiff’s frail case to submit itself to the jury for examination. The question was one for the jury.

The decision of the trial court is therefore reversed and remanded for a new trial.

Lowdermilk and Robertson, JJ., concur; Sullivan, P.J., dissents with opinion.

1 . In passing we comment on an apparent difference in the quantum of evidence necessary to avoid a directed verdict against the plaintiff and a dismissal of his complaint in a court trial. Rule TR. 50(A), applicable to cases tried before a jury, requires only sufficient evidence for plaintiff to avoid a directed verdict. On the other hand, Rule TR. 41(B), applicable to a case tried before the court without a jury, requires substantial evidence of probative value for a plaintiff to avoid dismissal. The words “no substantial evidence of probative value” were inserted into Rule TR. 41(B) when the Rule was revised on January 1, 1970 and thereby created the apparent difference referred to above. The use of the word “substantial” does, in our opinion, create confusion because “sufficient evidence” and “substantial evidence” are not identical concepts. As the case before us was tried to a jury, we need not consider this conflict, if such it be, between the two Rules.

2 . Confusion has resulted in attempting to apply the quantum of evidence in a criminal case to civil cases. However, the “substantial” test as used in criminal cases is not applicable to civil cases because there is a different burden of proof.