Major, Senior Circuit Judge, and Cummings and Kerner, Circuit Judges.
MAJOR, Senior Circuit Judge.
In this diversity action, plaintiffs sought to recover for damages sustained in an automobile accident which allegedly resulted from a defective tire manufactured by defendant and placed on plaintiffs' automobile. The complaint contained three counts based upon negligence, breach of implied warranty and strict liability. The case was tried to a jury, and submitted on counts 2 and 3, count 1 having been dismissed during the trial. Defendant's motions for a directed verdict made at the conclusion of plaintiffs' evidence and at the conclusion of all of the evidence were denied by the court. The jury found for plaintiffs, awarding to Edna M. Smith damages in the amount of $20,000, and to Noble Smith damages in the amount of $7,500. Defendant's motion for judgment notwithstanding the verdict or for a new trial was denied. Judgment was entered in favor of plaintiffs in accordance with the jury's verdict, from which defendant appeals.
Inasmuch as defendant makes no complaint as to the amount which the jury awarded to plaintiffs, no detailed statement in this respect is required. It is sufficient to note that Edna Smith sustained severe injuries from which she was still suffering at the time of the trial, and that both plaintiffs incurred large hospital, medical and other expenses in her behalf.
It is agreed that plaintiffs had the burden of proving (1) a defect in the U.S. Royal tire manufactured by defendant; (2) that the defect existed when the tire left defendant's control and entered the stream of commerce, and (3) that the defect was the proximate cause of plaintiffs' injuries and damages.
Defendant contends that the court erred in admitting the testimony of plaintiffs' expert witness, George Guernsey, concerning the cause of the tire failure when such tire was neither made available to defendant for examination and inspection nor presented in evidence at the trial. Closely related to this issue, defendant contends that the court erred in permitting Guernsey to give an opinion as an expert witness as to the cause of the tire failure. These issues were properly raised by defendant's objection during the trial and by its motion at the conclusion of the trial to strike Guernsey's testimony. Defendant also contends that the court erred in its denial of defendant's motion for a directed verdict and its motion for judgment notwithstanding the verdict. Lastly, defendant contends that the court erred in its refusal to give certain instructions offered by it.
We need not cite cases for two well established rules to which both parties on brief subscribe, (1) that a trial court has wide discretion in determining the competency of a witness to testify as an expert, and (2) that in ruling on a motion for a directed verdict as well as a motion notwithstanding the verdict, the court must consider the facts, together with all reasonable inferences which may be drawn therefrom, in the light most favorable to plaintiffs. We also note that Judge James E. Noland, the trial Judge, in connection with defendant's post-trial motions rendered a well reasoned opinion (not published) in which he considered and decided adversely to defendant the issues raised on this appeal.
On November 3, 1966, plaintiff Noble Smith purchased two new U.S. Royal Winter Patrol snow tires, manufactured by defendant, from its approved tire dealer, George's of Seymour, Inc., who mounted the tires on the rear wheels of plaintiffs' 1966 Buick automobile. Noble Smith told defendant's dealer that he wanted the best tires he could get because his wife had to drive back and forth to Indianapolis where his little girl was in Riley Hospital. On the evening of January 27, 1967, he took his automobile to a service station, checked the tires for cuts or nails and found nothing wrong with them. He found that each tire carried the correct amount of air.
Plaintiff Edna M. Smith testified that on the next morning, January 28, 1967, she left her home in said Buick automobile with her son and daughter. About 10:30 a.m., while driving south on Interstate Highway 65 in Clark County, Indiana, she heard a "booming noise," a "sizzy-like" noise of air, then the rim of the right rear wheel hit the road. The right rear tire, one of the two new U.S. Royal tires manufactured by defendant, had blown out. The back end of her automobile started "fishtailing" and she could not hold it on the road; it turned over two times and came to rest upside down on its top. She and her children were suspended upside down in their seat belts. During the time she drove the car that morning, there was no broken glass, debris or foreign matter on the road. At the time it blew out, said U.S. Royal tire had never been overloaded and had traveled only 3,000 miles.
A state police officer who had 9 years' experience during which he had investigated approximately 75 to 100 automobile accidents each year was called to the scene of the accident. He testified that he made a detailed examination of the highway in the area and found no road hazards or any foreign matter. He inspected said right rear U.S. Royal tire and saw a hole in the tread, with a portion of it missing. There was also a large area of this tire where he could put his hand through between the rim and the tire, where the tire was broken loose from the rim. The tire appeared to have lost air pressure suddenly; it was a blowout. All three of the other tires were still on the rims, intact as far as he could see. The right rear tire was the only tire that did not appear to be on the rim.
The officer further testified there were skid marks on the pavement from a tire for approximately 360 feet. The skid marks were intermittent for 240 feet, and then became solid for 120 feet, to the point where the car left the pavement and rolled over. At the point where the skid marks became solid, there was also a scratch and a gouge in the concrete pavement which ran right along with the skid marks directly to the point where the car left the pavement and rolled over. The gouge marks in the pavement were caused by the rim of the wheel on which this U.S. Royal tire was mounted, rolling along the pavement after the tire blew out. This rim was bent and showed abrasion marks caused by its contact with the pavement.
Shortly after the accident, the automobile was removed to the garage operated by George Guernsey, where the tire in question was inspected by him. He was permitted, over defendant's objection, to testify as an expert witness and to give his opinion as to the cause of the blowout. Defendant urgently insists that the court erred in the admission of his testimony because the tire was not presented in evidence or made available to defendant for examination and inspection. On this point we can do no better than quote from the opinion of the district court:
"The parties stipulated at trial that the tire in question was not preserved and was unavailable for inspection by defendant or as evidence at trial. They also stipulated that the auto and the tire were transported to the Guernsey Garage immediately after the accident, that they were thence sent to a storage pool in Jeffersonville, Indiana, finally being salvaged in Louisville, Kentucky. Defendant contends that under these circumstances the plaintiffs breached a duty to preserve the tire and that, consequently, they should not have been permitted to present testimony of a person who inspected the tire, as to the presence of a defect.
"The Court disagrees. While the record, through investigation by counsel, shows the journey taken by the tire up to its unfortunate demise, it does not show that plaintiffs had knowledge of the tire's location and willfully permitted it to be ...