Brissette v. Milner Chevrolet Co.

• Decision Date: 28 March 1972
• Docket Number: No. 34348,34348
• Citation: 479 S.W.2d 176
• Parties: Earl L. BRISSETTE, Plaintiff-Appellant, v. MILNER CHEVROLET COMPANY, Inc., a Corporation, et al., Defendants-Respondents. . Louis District
• Court: Missouri Court of Appeals

Page 176

479 S.W.2d 176

Earl L. BRISSETTE, Plaintiff-Appellant, v. MILNER CHEVROLET COMPANY, Inc., a Corporation, et al Defendants-Respondents.

No. 34348.

Missouri Court of Appeals, St. Louis District.

March 28, 1972.

William R. Kirby, St. Louis, for plaintiff-appellant.

Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, Joseph H. Mueller, Murphy & Kortenhof, Ben Ely, Heneghan, Roberts & Godfrey, George F. Kosta, W. Munro Roberts, Jr., St. Louis, for defendants-respondents.

SIMEONE, Judge.

This case is one of first impression in this State. It presents unique issues in the expanding field of products liability. ¹ The principal issues raised are: (1) whether the failure to produce the tire in a products liability case is essential in the proof of the plaintiff's case; (2) whether the plaintiff-appellant may be permitted to introduce expert testimony regarding an alleged defect in an automobile tire which is claimed to have failed, causing the plaintiff's injuries, when the plaintiff is unable to produce the allegedly defective tire for examination; and (3) whether a directed verdict, under the circumstances, at the close ² of the plaintiff's opening statement was proper.

Following the plaintiff's opening statement, the trial court granted defendants' motion for a directed verdict, ruling that the plaintiff's offer of proof made during the course of argument on defendants' motion, was rejected 'first, because the object was not made available to the defendants, and secondly, that a case could not be made even in the absence of this, by expert testimony.'

According to the record, on July 25, 1964, the plaintiff-appellant went to Milner Chevrolet Co., Inc. (hereinafter Milner) and advised the company that he wanted to purchase a two-door Impala hardtop with certain accessories, including four-ply tubeless tires. He was informed that he could have the four-ply tires but at an extra charge, and that the company did not have the car in stock but that one would be located.

On July 29, 1964, the automobile was delivered to the plaintiff. It was equipped with two-ply tires with four-ply rating. According to the plaintiff, the automobile was driven carefully and almost exclusively by him and the auto had only about 900 miles on it as of August 29, 1964.

On that date, as plaintiff alleged in his pleadings, he was driving the automobile on Highway 61 in Ste. Genevieve County when the left front tire 'did then and there fail and collapse' causing the automobile to skid and spin across the highway eventually landing in a ditch. As a result, plaintiff suffered various injuries which required hospitalization.

Some three years later, on September 14, 1967, plaintiff filed his petition in the Circuit Court of the City of St. Louis seeking damages against Milner; General Motors Corporation, the manufacturer of the automobile (hereinafter General Motors); and General Tire and Rubber Company, the alleged manufacturer of the tire (hereinafter General Tire). The petition was framed on both theories of negligence and breach of warranty. ³

During the pre-trial stage of the proceedings in April, 1968, the plaintiff testified in a deposition that after the accident he had possession of the tire for a period of time but turned it over to his insurance company, Covenant Security Insurance Company, in connection with his claim for property damage. Subsequently, interrogatories and supplemental interrogatories were filed upon plaintiff, and in answer to General Tire's supplemental interrogatories, plaintiff indicated that the tire had 'no pjysical tests,' that the tire had been in the possession of the insurance adjuster and then in the possession of Covenant. Plaintiff's answers to General Tire's second supplemental interrogatories later filed, indicated that the tire had been examined by Rip's Garage and Service. Later, and on the date of trial, March 15, 1971, the plaintiff, by way of amended answers to General Tire's second supplemental interrogatories, indicated that the tire had been examined by plaintiff, his father Louis Brissette, Mr. Adrian Meyer and Bernell Ruebsam of Rip's Garage, and that they made an examination within two weeks after August 29, 1964. ⁴

Prior to the trial in October, 1970, General Tire filed a motion to produce the tire. Plaintiff, however, was unable to comply with the motion.

The cause ultimately came to trial in the circuit court on March 15, 1971.

The opening statement of the plaintiff reveals that on July 25, 1964, the plaintiff went to Milner and advised them that he wanted a two-door Impala hardtop with certain accessories including four-ply tires; 'that these were to be tubeless tires.' The salesman told him that he could have the four-ply tires at an extra charge; that they did not have the car in stock but that they would locate one.

The following then occurred on the opening statement:

Mr. Kirby (plaintiff's counsel): 'The evidence will show that as far as the automobile was concerned, up until August 29, 1964, it had approximately nine hundred miles on it; that he had not run into any curbing with the automobile; that he had not hit any chug (sic) holes with the tires on the car or he hadn't struck any rocks or obstacles with it to where there might be bruising or damaging of the tires at all.'

At that point the attorney for General Tire objected to the plaintiff's attorney 'making any mention or anything about any inspection of the tire' on the basis that the plaintiff was 'unable to produce the tire for inspection by General Tire' and hence the plaintiff is 'foreclosed from putting on any evidence regarding any inspection they may have had of the tire.'

After a discussion out of the hearing of the jury, the court discharged the jury following which the attorney for General Tire elaborated on his earlier motion to preclude plaintiff's attorney from 'mentioning in his opening statement that he will produce evidence of expert witnesses to show a defect existed in the tire. . . .' The plaintiff then made an offer of proof. His offer showed that if permitted to make an opening statement that the plaintiff, under the provisions of his insurance policy to cooperate, delivered the tire to the adjuster for the Covenant Security Insurance Company in November, 1964, and that since that time he has not had the tire in his possession; that some three years later a letter was sent to Covenant attempting to locate the tire and any reports of inspection but that no answer was ever received. He stated also that the tire was not 'destroyed for the purpose of destroying evidence' and that this information was given when his deposition was taken on April 19, 1968. He also stated that the plaintiff, his father, one Adrian Meyer and Bernell Ruebsam the owner of Rips Garage, saw the tire and that Mr. Ruebsam 'has had experience in handling, selling, changing, repairing tires since 1938; that he is thoroughly familiar with the construction of tubeless tires; that he examined this tire and he is in a position to describe the condition of the beads of the tire; that it would be his opinion that the condition of the bead . . . would be a defect that cause (sic) the tire to come off of the rim . . .' As far as the other witness, Adrian Meyer, is concerned, the offer of proof showed that he also had examined the tire while still at the garage. Mr. Meyer had worked one year in a service station and had repaired and changed over two thousand tires, of which one thousand had gone flat or had some type of defect or blowout--or something similar, and that he had examined the tire and that it was his opinion that the defect was due to a defect in manufacture.

The attorneys for the defendants objected to the offer of proof and moved for a directed verdict.

The court then rejected the offer of proof '. . . first, because the object was not made available to the defendants, and, secondly, that a case could not be made even in the absence of this, by expert testimony. It follows that I will sustain the Motion for a Directed Verdict.'

In effect, therefore, although the manner of proceeding was somewhat unusual in that the opening statement was in reality in two parts, the directed verdict was granted at the termination of the opening statement.

The plaintiff complains that the trial court erred in sustaining the defendants' motion during the opening statement.

An examination of the cases from this and other states shows that there are two situations in which a trial court may direct a verdict in favor of the defendant on the plaintiff's opening statement: (1) when counsel makes an admission which affirmatively demonstrates as a matter of law that his client has no cause of action or is not entitled to recourse, Wood v. Wells, Mo.Sup., 270 S.W. 332; Oscanyan v. Winchester Repeating Arms Co., 103 U.S. 261, 26 L.Ed. 539, and (2) when counsel in his statement recites facts which would not as a matter of law be sufficient when established by evidence to make a submissible case, and plaintiff's counsel admits that he has stated all his material evidence, Hays v. Missouri Pac. R. Co., Mo.Sup., 304 S.W.2d 800. In this latter situation there are definite principles which narrow the situation when a verdict may be directed. Such action by the trial court 'should be taken with caution.' Hays, supra. Directing a verdict at the close of an opening statement 'is an extreme measure and should be exercised cautiously and only in a clear case.' National Dairy Products Corp. v. Freschi, Mo.App., 393 S.W.2d 48, 52. It should not be done because of the mere failure to state facts sufficient to constitute a submissible case unless counsel affirmatively ladmits that no additional facts will be shown by the evidence. Butcher v. Main, Mo.Sup., 371 S.W.2d 203, 206. Counsel should be given wide latitude in making an opening statement for it is only an outline of his anticipated proof and not a detailed statement. The...