decided.: June 8, 1956.
NEAL H. GIFFIN AND DOROTHY L. GIFFIN
JOHN B. ENSIGN, GEORGE F. BURNETT COMPANY, INC., THE TIMKEN DETROIT AXLE COMPANY, AND THE STUDEBAKER CORPORATION, JOHN B. ENSIGN AND GEORGE F. BURNETT COMPANY, INC., APPELLANTS.
Before BIGGS, Chief Judge, and KALODNER and HASTIE, Circuit Judges.
BIGGS, Chief Judge.
This appeal is concerned with a negligence action arising out of a collision in Pennsylvania between an automobile belonging to the plaintiffs, the Giffins, and a truck owned by the defendant, George F. Burnett Company, Inc., and driven by the defendant Ensign in the course of his employment by Burnett. The complaint charges negligence in the operation of the Burnett truck on the part of Ensign and negligence on the part of the defendant, Timken Detroit Axle Company,*fn1 in manufacturing the front axle of the truck and negligence on the part of the defendant, Studebaker Corporation, in assembling the left front axle assembly of the vehicle.
The jurisdiction of the district court is based on diversity of citizenship. The plaintiffs are citizens of Pennsylvania while the defendants are an Indiana resident and the three foreign corporations, Burnett, Studebaker and Timken. The summons and complaint were served on all of the defendants by sending copies by registered mail, return receipt requested, to the Secretary of the Commonwealth of Pennsylvania and to the defendants at their last known addresses with endorsements showing that service had been made on the Secretary. Neither Timken nor Studebaker objected to service in this manner. The defendants Ensign and Burnett, however, did object to the mode of service, basing their position on the provisions of Fed.Rules Civ.Proc. rule 4(f), 28 U.S.C.A. The trial court overruled this objection, D.C.M.D.Pa. 1953, 15 F.R.D. 200, and the case proceeded to trial. The jury found in favor of the plaintiffs against Ensign and Burnett but absolved Timken and Studebaker from liability. After the denial of a motion for a new trial, Ensign and Burnett brought this appeal.
Before turning to the many objections raised to the conduct of the trial, we must determine whether the defendants Ensign and Burnett were properly before the district court. The method of service above was in accord with the Pennsylvania non-resident motorist statute. See 75 P.S.Pa. § 1201, as affected by 17 P.S.Pa. § 61, and Pa.R.C.P. Nos. 2079 and 2100, 12 P.S.Pa.Appendix. F.R.C.P. 4(d)(7) authorizes service in the manner prescribed by State law. However, Ensign and Burnett argue that Rule 4(d)(7) is in turn limited by Rule 4(f), which restricts the service of process to the territorial limits of the State in which the district court sits. In support of their position they cite language in the concurring opinion of Judge Maris in McCoy v. Siler, 3 Cir., 1953, 205 F.2d 498, 501.
The problem comes before us in the appeal at bar only as a question in the application of the Federal Rules of Civil Procedure relating to summons by substituted service. Though there are far reaching undertones in the principle enunciated by the concurring opinion in McCoy v. Siler it is not necessary to deal with them here.*fn2 There is no dispute that Rule 4(d)(7), F.R.C.P., if read alone, authorizes the procedure followed in the case at bar to bring the non-resident defendants before the court and to subject them to its jurisdiction. The only question is whether a reasonable man must construe Rule 4(f) as so limiting Rule 4(d)(7) that it cannot apply to the situation of these non-resident defendants. Judge Maris's position in McCoy v. Siler is carefully reasoned and he insists that Rule 4(f) does limit Rule 4(d)(7) but we are now persuaded that such a limitation was not intended and is not logically inescapable. We think that it can be said fairly that Rule 4(f) does not address itself to or cover non-resident procedures authorized by State law, which are the subject of Rule 4(d)(7). That conclusion, and no more, is needed to decide this case.*fn3*fn4*fn5 The service was lawful.
As to the conduct of the trial, the appellants raise thirteen objections. In reviewing these, we are bound by Rule 61, F.R.C.P., which provides that a verdict shall not be set aside for errors in the conduct of the trial "unless refusal to take such action appears to the court inconsistent with substantial justice." We have read the record of this lengthy trial and given careful consideration to these objections. We shall consider them seriatim.
Initially, the appellants contend that the court prematurely placed upon them the burden of proving affirmatively that the defendants Timken and Studebaker were guilty of negligence which was the proximate cause of the accident. It became apparent at the pre-trial conference that, although the plaintiff had named four defendants in the complaint, when the case came to trial they might not rely too strongly on that portion of their case dealing with Timken and Studebaker. Thus the defendants-appellants, Ensign and Burnett, were put in the position of being forced to try to shift the blame from themselves to the defendants Timken and Studebaker, or either of them, if the plaintiffs made out a good case. Before the jury was sworn, the matter was taken up again by counsel for Timken who stated that at pretrial the defendants Ensign and Burnett contended that the nuts fastening the spindle on the knuckle casting on the left front wheel of the truck were not properly tightened, were either too loose or too tight. Counsel for Timken insisted that it should appear on the record just what was the position of counsel for Ensign and Burnett in respect to this allegation of negligence on the part of Timken. The court ruled that the substance of the defense should be disclosed. This was a proper ruling. A law suit today is not a game of chance.
The conference on this question was had at sidebar and we fail to see how the position of Ensign and Burnett could possibly have been prejudiced by the court's ruling. As a matter of fact, the issue could not and did not become pertinent until the completion of the plaintiffs' case when Ensign and Burnett put in their case in the normal fashion.
The appellants also charge error in the fact that they were not permitted rebuttal at the closing arguments. But this argument is unimpressive. The decisions which the appellants cite do not present situations comparable to the case at bar. Indeed, the decision on which they rely most heavily, Silver v. New York Life Ins. Co., 1940, 116 F.2d 59, is against them. At page 62 of that opinion the Court of Appeals for the Seventh Circuit quotes with approval from Lancaster v. Collins, 1885, 115 U.S. 222, 225, 6 S. Ct. 33, 29 L. Ed. 373: "'It is also assigned for error that the court refused to permit the counsel for the plaintiff to make the closing argument to the jury, the contention on the part of the plaintiff being that the affirmative was with him. But this is purely a question of practice, to be reviewed only by a motion for a new trial in the trial court, and, is not the proper subject of a bill of exceptions or of a writ of error, because it does not affect the merits of the controversy.'" Under the circumstances at bar we cannot agree that the denial of rebuttal argument to the appellants was an abuse of discretion by the trial court. Certainly that denial under the circumstances was not an action "inconsistent with substantial justice" within the purview of Rule 61.
Next the appellants argue that the verdict is against the uncontrovertible physical facts of this case.On reading the record, we consider this contention insubstantial. There is ample evidence to support the verdicts, and what the appellants urge as uncontrovertible physical facts are not uncontroverted, even by the testimony of their own expert witnesses.*fn6
The appellants also contend that the proffered testimony of a State police officer who investigated the accident with regard to the point of impact on the vehicles in the collision was improperly excluded. But since the officer did not see the accident, the exact place of impact was clearly a matter of opinion and further one on which the jury was capable of drawing its own conclusions. Cf. Della Porta v. Pennsylvania R. Co., 1952, 370 Pa. 593, 598-599, 88 A.,2d 911, 913.*fn7
The appellants also submit that there was "no competent testimony of speed even though [the plaintiffs'] entire case [was] based on speed." But the plaintiffs' case was not based on speed alone. The appellants ignore the admitted fact that the Burnett truck was on the wrong side of the road. Such evidence of negligence is of itself sufficient to make out a prima facie case against the appellants. See Fisher v. Hill, 1949, 362 Pa. 286, 289-290, 66 A.2d 275, 277. The burden was then on the appellants to explain away the inference of negligence. This, they attempted to do by the contention that the left front wheel came off the truck, causing it to veer over onto the left side of the road. The jury rejected this theory as it had the right to do. But quite apart from the foregoing, Miller's and Molek's testimony as to speed was competent. With regard to Miller's testimony, Ealy v. New York Central R. Co., 1939, 333 Pa. 471, 5 A.2d 110, is the only decision cited by the appellants which excluded pertinent testimony as to speed. In that case not only was the witness's observation limited to a distance of 25 feet during which he observed the train bearing down upon the car in which he was riding, but the issue of speed was irrelevant because the train was traveling in a rural area where it was not subject to any speed limit. The other cases cited merely note that testimony as to speed based on momentary observation is entitled to little weight and standing alone will not support a finding of negligence. Moreover, there is ample other evidence to support the verdict. Cf. Shaffer v. Torrens, 1948, 359 Pa. 187, 193-194, 58 A.2d 439, 442. Molek's testimony was considerably stronger than Miller's. The facts that his speedometer was broken and that he did not in this case use mileposts and a watch do not discredit his testimony based on over a million miles of driving experience.
Next, the appellants try to discredit the testimony of both witnesses because Molek stated that brakes were applied on the Burnett truck, whereas Miller did not recall whether the brakes were or were not applied. It should be pointed out that Molek was behind the Burnett truck and thus would have his attention drawn to any braking by the braking lights, whereas Miller was traveling towards the truck. Assuming a conflict in the testimony of Molek and Miller, that conflict is readily explainable in view of the limited period of time which Miller had for observation.
The appellants complain of the exclusion of the proffered testimony of their witness Mullin, who was driving another of their trucks ahead of Ensign. Where a preceding vehicle actually limits the speed of another vehicle following close behind, testimony as to the speed of the former is admissible to show the speed of the latter. Mullin testified that he had not observed Ensign in his rear view mirror for the half-mile prior to the accident.*fn8 Thus the necessary foundation for introduction of this evidence was lacking, and the testimony as to Mullin's speed properly was excluded. The appellants also assert that Mullin was not permitted to testify as to statements allegedly made to him by the plaintiffs' witnesses Molek and Miller immediately after the accident. Apart from the appellants' failure to prove an involvement, psychological or factual, in the accident which would sustain the admissibility of the statements as part of the res gestae, the appellants defeated any possibility of that rule's application when they admitted that the statements were not spontaneous exclamations but were solicited by Mullin for his company accident report. Cf. Allen v. Mack, 1942, 345 Pa. 407, 410, 28 A.2d 783, 784-785.
The statements referred to were pure hearsay. They could have been admissible for the purposes of impeachment had the appellants laid the necessary groundwork by confronting Molek and Miller with the contents of the statements when Molek and Miller were on the witness stand. Lacking such a foundation, the trial court properly excluded the allegedly contradictory statements. See Giles v. Valentic, 1946, 355 Pa. 108, 110, 49 A.2d 384, 385.
The appellants argue that certain photographs of the Burnett truck taken at a garage by their witness Crist on the day following the accident were excluded improperly. The record contains no testimony or offer of testimony that the condition of the truck was substantially the same as it was immediately following the accident. In fact, the only testimony as to these photographs was by Crist, who did not see the truck until the morning on which he took to photographs. The trial judge's ruling in excluding the photographs was correct. See Taylor v. Modena Borough, 1952, 370 Pa. 100, 101-102, 87 A.2d 195, 196.
The appellants also assert that they were prejudiced by the exclusion of important expert testimony. A reading of the record at the points cited by the appellants' brief indicates that the trial judge properly excluded such evidence because the proper factual foundations for the witnesses' opinions had not been laid. See Peters v. Mutual Life Ins. Co. of New York, 3 Cir., 1939, 107 F.2d 9, 12. Kanatser v. Chrysler Corp., 10 Cir., 1952, 199 F.2d 610, certiorari denied 1953, 344 U.S. 921, 73 S. Ct. 388, 97 L. Ed. 710, cited by the appellants, did not consider this problem. Moreover, when the appellants elicited the necessary grounds for an expert opinion, the appellants' witness Jacklin was permitted to testify repeatedly to his views.*fn9 Finally on this issue, a trial judge may without error exclude expert testimony which is merely repetitive and cumulative as here. See Kanatser v. Chrysler Corp., supra, 199 F.2d at page 619.
The appellants further charge error in the trial court's refusal to permit their witness Jacklin to define his use of the work "immaterial." We fail to perceive why a definition is needed of this ordinary word used in its usual sense or how the appellants could conceivably have been prejudiced by the absence of a definition. The members of a jury possess knowledge of English; and the word "immaterial" is scarcely a word of art, even at law. A trial is not an exercise in semantics.
The appellants next complain that the trial court refused to permit their witness Wheeler to demonstrate with an axle assembly "how the principle of clearance operated in the wheel of the Ensign truck between the back plate and brake drum so that there was not sufficient space to permit the nuts to escape the knuckle housing." The quoted language appears in appellants' brief, but no indication of its purpose appears in the transcript of the trial. Moreover, the appellants failed to show that the axle assembly to be used for the demonstration, which was not a Timken assembly, had the same spacing as the Timken assembly in the Burnett truck. The demonstration was therefore incompetent and properly disallowed.
The appellants charge error in that "improper remarks of [opposing] counsel [during the course of the trial and in their opening and closing statements to the jury were] condoned by the [trial] court." As for the remarks during the course of the trial, the appellants complain that counsel for Timken accused their counsel of twisting the evidence. These instances were comparatively rare when we consider the fact that this trial was hotly contested and lasted for eleven days. The accusation that the court below condoned these remarks is baseless. Very occasionally the trial judge's recollection of what had been said was incorrect, a by no means unusual occurrence in a trial of this length. However, his misimpressions were immediately corrected by references to the record. In any event, this challenge, raised for the first time on the motion for a new trial, came too late. Cf. Chicago & N.W. Ry. Co. v. Green, 8 Cir., 1947, 164 F.2d 55, 64.
The opening statements of counsel to the jury are not in the record. As to the arguments to the jury at the close of the case, counsel for the appellants said that he was satisfied "that they be not reported" and in accordance with that view the court stated that it "is agreed all the way through that the addresses will not be reported." Some months after the verdicts had been rendered a motion was filed for "diminution" of the record by Timken (Rockwell Spring & Axle Company) and a few days later a similar motion was filed by Ensign and Burnett. Timken filed an answer to the motion of Ensign and Burnett. Both motions and the answer asserted versions as to what opposing counsel had stated to the jury in their closing arguments. A date was set for hearing and on that date Timken withdrew its motion. Following the hearing the court below entered an order denying the motion of Ensign and Burnett for diminution of the record.Insofar as the instant record shows, the court below did not state its reasons for the denial of the remaining motion.
We will assume that the parties were making an attempt to proceed as prescribed by Rule 75(h), F.R.C.P, and we omit comment, because unnecessary, on the fact that the parties sought to correct or supplement material which by express agreement was not included in the record and therefore can scarcely be described accurately as part of it. Insofar as correction or modification of a record in the district court is concerned, Rule 75(h) provides that if counsel cannot settle their difference as to what was said, the "difference" shall be submitted to and settled by the court and the record made to conform to the truth. Obviously the trial court denied the motion of Ensign and Burnett either because the motion was without merit or because the trial judge (as counsel suggests) could not remember what was said by counsel to the jury after such a lapse of time. In any event we cannot pass on the allegedly improper arguments which are not before us in any definitive state.*fn10 See Illinois Terminal R. Co. v. Friedman, 8 Cir., 1954, 210 F.2d 229, 231.
Finally, the appellants argue that the amounts of the verdicts were excessive. The jury awarded to Giffin $15,000 and to Mrs. Giffin $60,000. The trial judge was not dissatisfied with the amounts. In view of the very serious injuries sustained by Mrs. Giffin, if we were to substitute our own judgment for that of the jury, we would deem the amount of $60,000 not too liberal. Giffin suffered the loss of his wife's services and consortium. He also incurred substantial medical bills. The amounts of the verdicts clearly are such as not to be outrageous. See Johnson v. Baltimore & O.R. CO., 3 Cir., 1953, 208 F.2d 633, and Zarek v. Fredericks, 3 Cir., 1943, 138 F.2d 689.
The judgments will be affirmed.