Summary
holding that a trier of fact "can accept all, a part or none of the testimony offered by a witness whether it is expert opinion or eyewitness fact"
Summary of this case from Sauer v. CrewsOpinion
No. 40497
Decided July 5, 1967.
Evidence — Expert opinion testimony admissible, when — Expert witness on welding — Expert opinion as to ultimate facts — Function of jury not infringed upon, when.
1. In all proceedings involving matters of a scientific, mechanical, professional or other like nature, requiring special study, experience or observation not within the common knowledge of laymen, expert opinion testimony is admissible to aid the court or the jury in arriving at a correct determination of the litigated issue.
2. The "art" of welding is a subject the nature of which is not within the common knowledge of laymen, and the testimony and opinion of an expert witness on this subject is admissible.
3. Expert opinion testimony is admissible as to an ultimate fact without infringing the function of the jury, if the determination of such ultimate fact requires the application of expert knowledge not within the common knowledge of the jury.
APPEAL from the Court of Appeals for Stark County.
C.j. Rodman, hereinafter referred to as defendant, invented and patented a process to manufacture bathtubs from a lighter gauge steel plate than was ordinarily used for making bathtubs by welding a series of steel strips (laminates) to the bottom of the lighter gauge tub. In so doing defendant obtained the same stability found in the heavier gauge pressed steel tub. However, defendant discovered, through experimentation with single spot welding equipment, that, when the steel strips (laminates) were welded to the bottom of the tub, the welding process created depressions (a dimpling effect) in the bottom of the tub to the extent that they were discernible even after the tub had been covered with porcelain enamel. Rather than abandon his project altogether, defendant contacted one Leslie Walker, a manufacturer's agent, whose function was to call on prospective purchasers and help them design equipment for their various needs. Walker is conceded to be a welding expert. As a result of his conference, defendant ordered from the plaintiff herein a special resistance, multiple, spot welder designed to weld steel strips (laminates) to bathtub bottoms. The purchase order prepared by defendant was for $17,246 with advance payments of $3,500. It contained the following proviso typed in by defendant:
"Note: The above machine is to produce a satisfactory and approved weld on either 14 ga. and/or 18 ga. tub with a 19 ga. laminate."
The welding machine was delivered to defendant who refused to pay the balance due. He maintained that such machine created depressions or dimples in the bottom of the tub thereby rendering his final product unsaleable.
Plaintiff sued defendant for the balance due, and defendant cross-petitioned for his advance payment.
At the trial plaintiff called Leslie Walker and qualified him as an expert on welding. The following ensued:
"Q. Will you tell us what is meant by `the above machine is to produce a satisfactory and approved weld on either 14 gauge or 18 gauge tub with a 19 gauge laminate' in the welding industry, or by anyone familiar with welding?
"* * *
"A. Terminology of a satisfactory and approved weld, as used by welding industry and in the fabricating industry, is when two pieces of metal are welded together so that they will not break apart, with a minimum amount of marking or identation.
"* * *
"Q. When the machine was finally finished, did the machine produce the approved and acceptable weld, such as you have just stated? A. Yes, sir."
Plaintiff also called its sales manager, Francis Bodenheim, also an expert on the subject of welding, and the following ensued:
"Q. I will ask you, based upon your opinion and experience as an engineer, based upon your knowledge of welding equipment and machinery, whether or not this order was filled as requested by Mr. Rodman? A. Yes, sir."
Defendant made timely objection to all the above on the basis that the questions called for a conclusion from the witness as to the ultimate question in the case, which question is one for the jury.
The court in its charge to the jury instructed that welding is a subject with which the general public is not familiar, and that therefore experts may give their opinions as to the quality of the welds produced by the machine in question. However, the court warned that the jury must itself determine the weight given such testimony and in so doing should consider the interest such a witness has in the case.
The jury rendered a verdict for plaintiff for the full amount remaining due to plaintiff.
The Court of Appeals reversed on the basis that the testimony set out above was inadmissible in that (1) it allowed a witness to answer the ultimate question and thus usurped the function of the jury, and (2) the ultimate question was within the common knowledge of the jury and was therefore not the proper subject of expert testimony.
The cause is before this court pursuant to the allowance of a motion to certify the record.
Messrs. Evans, Gentithes Meermans, Messrs. Mills, Mills, Fiely Lucas and Mr. Virgil F. Mills, for appellant.
Messrs. Blumenstiel, Williams Blumenstiel and Mr. J. B. Blumenstiel, for appellee.
The issue presented by this appeal concerns the admissibility of certain expert opinion testimony. At the trial, the evidence showed that defendant ordered from plaintiff a resistance, multiple, spot welder. The order was accepted and filled by plaintiff. Defendant, however, refused to pay the balance due, alleging that the welder did not perform in accordance with the following proviso which he typed upon the purchase order:
"Note: The above machine is to produce a satisfactory and approved weld on either 14 ga. and/or 18 ga. tub with a 19 ga. laminate."
The meaning of this proviso and the fact of whether the welder performed in accordance therewith are the crux of this cause. At the trial, the court allowed plaintiff to introduce the testimony of welding experts as to the meaning of these words and as to the quality of the welds that the welder produced. (See statement of facts, supra.) The defendant contends that this was error and the Court of Appeals so held.
At the outset, it must be noted that the precise meaning of the defendant's proviso is not particularly clear. At the very best it means one thing to defendant and another to plaintiff. In such cases, the rule is well established that where there is doubt or ambiguity in the language of a contract it will be construed strictly against the party who prepared it. Smith, Admr., v. Eliza Jennings Home, 176 Ohio St. 351. In other words, he who speaks must speak plainly or the other party may explain to his own advantage.
In this instance, the proviso seeks to set a standard of performance for a welding machine, a subject that a layman is not usually versed in. The court, therefore, allowed a welding expert to give opinion testimony both as to the meaning of the proviso as it would be construed by one versed in the art of welding and as to the actual performance of the machine. In justification thereof the court stated in its charge:
"* * * in cases such as this, involving the art and science of welding, opinion testimony was given as it had to be, because the subject of welding is, as to other such matters as medicine, are subjects with which the general public are not familiar, and in such event witnesses who have had training and knowledge and experience in the matter of welding were permitted to give opinions as to the quality of the welds that this machine did produce."
No one can validly contend that an expert in a particular field that is beyond the experience, knowledge or comprehension of a layman should be silenced where such knowledge is vital to a proper determination of litigation. Rather, this court has continuously held that in all proceedings involving matters of a scientific, mechanical, professional, or other like nature, requiring special study, experience or observation not within the knowledge of laymen in general, expert opinion testimony is admissible to aid the court or the jury in arriving at a correct determination of the litigated issue. To now hold that the field of welding does not fall within the above order would be absurd.
Expert testimony as to the meaning of the proviso in question is indispensable, for the layman is certainly not familiar with the technical requirements of a "satisfactory and approved weld." Further, once this concept is recognized and the need for expert opinion established, there is no sound reason for holding, as did the Court of Appeals, that such testimony cannot be admitted into evidence merely because it permits the witness to answer the ultimate question for the jury. In 1949 this court held that:
"Where an ultimate fact to be determined by the jury is one depending upon the interpretation of certain * * * facts which are beyond the experience, knowledge or comprehension of the jury, a witness qualified to speak as to the subject matter involved may express an opinion as to the probability or actuality of a fact pertinent to an issue in the case, and the admission of such opinion in evidence does not constitute an invasion or usurpation of the province or function of the jury, even though such opinion is on the ultimate fact which the jury must determine." Paragraph two of the syllabus in Shepherd v. Midland Mutual Life Ins. Co., 152 Ohio St. 6.
Thus, this court recognizes that expert testimony, where admissible as outlined above, may be addressed to the ultimate issue. Nor does this "usurp the function of the jury" as defendant contends. This argument is totally without merit. It overlooks the fact that in the last analysis, the jury or the court, if a jury is waived, is the sole weigher of credibility and testimony. The jury can accept all, a part or none of the testimony offered by a witness whether it is expert opinion or eyewitness fact, whether it is merely evidential or tends to prove the ultimate fact. In other words, "[t]he jury is the sole judge of the weight of the evidence and the credibility of witnesses. It may believe or disbelieve any witness or accept part of what a witness says and reject the rest. [In so doing it] * * * should consider the demeanor of the witness and the manner in which he testifies, his connection or relationship with the * * * [plaintiff] or the defendant, and his interest, if any, in the outcome." State v. Antill, 176 Ohio St. 61, 67. Thus the function of the expert who gives opinion testimony in order to aid the jury in reaching a just determination is entirely separate from the function of the jury which must assess credibility and settle controverted issues of fact.
We note that the court did charge the jury in this context, which charge was almost identical to the above statement.
In conclusion, we hold that where a subject is such that it is not within the common knowledge of a layman, an expert in that particular field may give opinion testimony thereon, and where such testimony tends to render probable the existence or non-existence of the ultimate fact in issue there is no usurpation of the function of the jury for that body may accept or reject that opinion testimony as it sees fit.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.