Belk v. Montgomery Ward and Co., Inc.
| Decision Date | 21 January 1987 |
| Docket Number | No. 18344-CA,18344-CA |
| Citation | 501 So.2d 1008 |
| Parties | Terry Lynn BELK, et al., Plaintiffs-Appellants, v. MONTGOMERY WARD AND COMPANY, INC., Defendant-Appellee. |
| Court | Court of Appeal of Louisiana — District of US |
C. William Gerhardt & Associates by C. William Gerhardt, Shreveport, for plaintiffs-appellants.
Blanchard, Walker, O'Quin & Roberts by Roy S. Payne, Shreveport, for defendant-appellee.
Before JASPER E. JONES, FRED W. JONES, Jr. and SEXTON, JJ.
This is an appeal of a judgment pursuant to a jury verdict rejecting in this products liability and breach of contract suit, claims for damages resulting from the operation of a riding lawn mower. The plaintiffs-appellants are Terry Lynn Belk and Jerry Ray Belk, individually and as natural tutor for the minor child Ashley Michelle Belk. 1 The defendant-appellee is Montgomery Ward & Company, Inc., the retailer of the lawn mower.
We affirm.
On or about August 23, 1981, the plaintiffs purchased a riding lawn mower from the defendant. The plaintiffs also purchased a three year service contract on the mower from the defendant. On June 30, 1982, the plaintiffs reported to the defendant the following problems with the mower: (1) The clutch needing adjusting as it caused the mower to "rear up" on an incline; (2) a loose seat; (3) loose wiring that comes in contact with exhaust; and (4) poor braking. The defendant picked up the mower on that date, pursuant to the service contract, and returned it approximately two to three weeks later. No further problems were encountered by plaintiffs in the subsequent use of the mower until the date of the accident here sued upon.
On October 15, 1982, while Jerry Ray Belk was mowing his yard, his 2 1/2 year old daughter, Ashley Michelle Belk, was playing on a swingset in the yard. Terry Lynn Belk, mother of the child, was away at work. Jerry stopped the mower and disembarked in order to remove some obstacles from his path. Prior to leaving the machine he pushed the clutch pedal to its maximum limit, which disengaged the clutch and he locked the clutch in this position and he set the brake. The stopped mower was still in forward gear with the motor running and blade turning. The blade height adjustment was such that the child's feet could slide under the metal guard to a point where they would be in contact with the turning blade. The father testified he walked approximately ten feet in fifteen seconds to remove a portable child's pool from his mowing path and when he turned he observed the mower moving forward 2 1/2 feet and colliding with his daughter. The child's right foot had come into contact with the blade. She was immediately rushed to a hospital where her third, fourth and fifth toes eventually had to be amputated and a skin graft accomplished to help repair damage to the top of the injured foot. The plaintiffs alleged the return spring attached to the clutch pedal was defectively designed and improperly maintained and the faulty spring caused the harm.
At trial plaintiffs asserted the clutch return spring had broken at one attachment hook immediately after the father locked the clutch and disembarked. Plaintiffs' theory was that because of the broken spring the clutch became unlocked and when the child subsequently approached the mower and touched the clutch pedal it engaged the gear system of the mower and caused it to go forward and over the child's foot. The plaintiffs asserted the attachment hook on one end of the spring was broken at the time defendant was repairing the mower on June 30, 1982. The plaintiffs contended there was evidence the hook had been recreated by re-bending the end of the spring during the repair efforts and re-attached to the proper position on the mower.
The defendant denies the spring was defective by design or otherwise and denied that it was repaired by it in June of 1982 or at any other time. The defendant called as a witness James C. McKinney, the repairman who worked on the mower when it was picked up for repairs. The defendant also called Donald Thon, Manager of Product Development at MTD Products, Inc., who was accepted as an expert in the field of the manufacture and design of lawn mowers. His company actually manufactured the lawn mower for resale by the defendant.
The jury rendered a unanimous verdict on behalf of the defendant and judgment was rendered rejecting plaintiffs' demands for damages.
The plaintiffs appeal. The plaintiffs' assignments of error present the following issues for decision:
(1) Was the jury manifestly in error in not holding Montgomery Ward at fault and in not awarding damages on the theory the mower was defective and the repair was performed in a negligent manner?
(2) Was the trial court clearly wrong in accepting Donald Thon as an expert in the manufacture and design of lawn mowers?
(3) Was the trial court clearly wrong in allowing Donald Thon to testify concerning the results of tests conducted upon a similar lawn mower in anticipation of trial?
Issue No. 1--Was the jury clearly wrong in not finding the defendant liable?
Except as limited by the Louisiana Constitution or laws concerning the review of administrative agency determinations, appellate jurisdiction of a court of appeal extends to the facts in civil cases. LSA-Const. Art. 5, § 10(B). When there is evidence before a jury which, upon its reasonable evaluation of credibility, furnishes a reasonable basis for its factual findings, on review the finding should not be disturbed by the appellate court in the absence of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Doss v. Hartford Fire Ins. Co., 448 So.2d 813 (La.App.2d Cir.1984),writ den., 450 So.2d 359 (La.1984).
Should the jury's finding of non-liability be reversed?
The plaintiffs argue they proved by an overwhelming preponderance of the evidence the defendant negligently maintained the mower by re-bending and re-attaching the broken clutch return spring and that the jury was clearly wrong in finding otherwise and not awarding damages.
The record shows the plaintiffs' report of problems with the mower did not include a specific reference to the clutch return spring. The defendant's repair efforts were evidenced by the plaintiffs' copy of the original work order which was admitted into evidence. This largely illegible document showed that no parts were ordered and only the mower blade was replaced. James C. McKinney, the defendant's serviceman who signed the original work order, was the only individual to work on the mower and he testified he could not recall the work he did upon the mower. He did testify unequivocably that in the event he had found a broken clutch spring he would have replaced it and under no circumstances would he have attempted to repair it by recreating a hook by bending the broken end of the spring. He also related the clutch problem reported by the plaintiffs would not have been related to the clutch spring so there would have been no reason to investigate this particular component part in the repair of the mower. The plaintiffs testified the mower operated correctly after its return and that the machine sat immobile in the back yard after the accident, exposed to the elements, for two months before being pushed by hand into a shed. The mower was later transported by the plaintiffs in a pickup truck to an engineer for inspection. It was only then discovered that the spring was broken.
The testimony of the defendant's repairman, the fact that the lawn mower sat idle for two months exposed to the elements before the broken spring was discovered, together with the testimony of Donald Thon, defendant's expert, that extensive testing revealed no defect in an identical spring, provides substantial evidence to support the jury's factual finding of no fault on the part of the defendant, either as a result of a defect in the mower or of negligence in the repair of the mower.
It is asserted the erroneous verdict was also due to the trial court's jury instructions which merged the concepts of negligence and defect so that the jury may have believed that liability could not be found for the negligent repair of the machine. The trial court's instructions included a verbatim recitation of the relevant part of LSA-C.C. art. 2315 and informed the jury that fault meant negligence which, in turn, was defined as the failure to do something a prudent and reasonable person would do or the doing of something a prudent and reasonable person would not do. A defect was defined as a flaw that rendered the mower unreasonably dangerous in normal use and the instructions specified that in order to return a verdict against the defendant without proof of carelessness the jury would have to be convinced by a reasonable preponderance of the evidence that the mower was defective. The first interrogatory on the jury verdict form read: "Do you find by a preponderance of the evidence that Montgomery Ward and Company, Incorporated, was guilty of any fault in connection with this accident?"
The record shows that the jury was adequately instructed as to the concepts of negligence and product liability. The jury verdict form clearly provided the jury an opportunity to reflect a finding of liability for any negligence in the repair of the mower. In brief, the defendant complains that no specific instruction as to negligent repair was given. However, the record reveals no evidence that the defendant submitted such an instruction for the court's approval and no evidence that an objection to the lack of such a specific instruction was made to the trial court. Cf., Ealy v. Bill Allen Dodge, Inc., 466 So.2d 52 (La.App.2d Cir.1985). The jury's determination is reasonably supported by the evidence and is not manifestly erroneous.
Issue No. 2--Was the trial court in error in accepting the defense witness as an expert in the...
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