Daniel v. Indiana Mills & Mfg., Inc.

Citation103 S.W.3d 302
Decision Date19 March 2003
Docket NumberNo. 24693.,24693.
PartiesLarry DANIEL, Plaintiff-Respondent, v. INDIANA MILLS & MANUFACTURING, INC., Defendant-Appellant.
CourtMissouri Court of Appeals

Charles B. Cowherd, Husch & Eppenberger, LLC, Springfield, Edward M. Kay, Melinda S. Kollross, Clausen Miller, P.C., Chicago, IL, for appellant.

Steve Garner, Steven D. Harrell, James A. Burt, Strong Law Firm, Springfield, for respondent.

JOHN E. PARRISH, Judge.

Indiana Mills & Manufacturing, Inc., (defendant) appeals a judgment in a case in which Larry Daniel (plaintiff) prevailed in a products liability claim for personal injuries. Plaintiff was injured when a truck he was driving jackknifed and left the roadway. Plaintiff was ejected from the vehicle. Plaintiff contended his seat belt failed, causing him to be ejected from the vehicle during the course of the accident; that he was injured as a consequence of having been thrown from the vehicle. Defendant is the manufacturer of the seat belt assembly. This court affirms.

Defendant presents five points on appeal. Defendant's first point claims the trial court erred in denying defendant's motion for judgment notwithstanding the verdict. The second argues the trial court erred in failing to instruct the jury on comparative fault of plaintiff. The third asserts trial court error in three evidentiary rulings. The fourth claims trial court error in denying defendant's motion for new trial because of juror misconduct. The fifth contends the trial court erred by failing to grant a request by defendant to allocate proceeds from plaintiff's wife's settlement of her claim against other parties for loss of consortium as an offset against damages plaintiff was awarded in his personal injury claim against defendant.

This court first considers Point IV. Point IV asserts the trial court erred in denying defendant's motion for new trial based on juror misconduct. It alleges one juror "performed his own self-test experiment during the trial to determine whether a seatbelted driver could reach across and open the passenger side door of a vehicle as [plaintiff] allegedly did and discussed his positive findings with the other jurors during deliberations."

Where the decision of a trial court is the subject of the appeal, the point must identify the trial court ruling being challenged. Rule 84.04(d)(1)(A). It must concisely state the legal reasons why it contends the ruling constitutes reversible error. Rule 84.04(d)(1)(B). The point must then explain in summary fashion why, in the context of the case, the legal reasons stated support a claim of reversible error. Rule 84.04(d)(1)(C).

Point IV is not in the form directed by Rule 84.04(d). The point includes a statement that complies with requirements of Rule 84.04(d)(1)(A); it asserts the trial court erred in denying defendant's motion for new trial. It fails, however, to meet requirements of Rule 84.04(d)(1)(B). It does not identify a legal reason why the ruling would constitute reversible error. After stating the ruling it asserts was error, Point IV narrates circumstances relating to the conduct of one of the jurors who served in the case. Because no legal reason is stated for the alleged error, the narration is meaningless. "Without a concise statement of a legal reason for a claim of reversible error, there can be no explanation, in the context of the case, supportive of a claimed error." Hampton v. Davenport, 86 S.W.3d 494, 497 (Mo.App.2002). Point IV does not meet requirements of Rule 84.04(d). It preserves nothing for appellate review. Tidball v. A.G. Service Center, L.C., 75 S.W.3d 850, 853 (Mo.App.2002). Nevertheless, this court may exercise its discretion to consider a deficient point if the issue the point intended to raise can be identified and addressed on its merits. Bolz v. Hatfield, 41 S.W.3d 566, 571 (Mo.App.2001). In this case, plaintiff does not appear to have had difficulty gleaning the basis for the claimed error and in responding to that claim. This court can likewise discern the basis for the claimed error. For those reasons, the issue to which Point IV is directed is considered on its merits.

Defendant filed a post-trial motion entitled "Motion for Judgment Notwithstanding the Verdict and Alternative Motion for New Trial or to Amend and Correct Judgment with Suggestions in Support Thereof." It asserts as a basis for defendant's request for a new trial:

[T]here is evidence the jury in this cause considered extraneous, prejudicial information concerning a critical issue in this case. Specifically, jury foreperson Elizabeth Levkulich and juror Natalie Walters have attested upon affidavit that juror William Irmen performed his own self-test experiment during the course of the trial to determine whether a driver could reach over and open the passenger side door of a vehicle while wearing a seatbelt (as [plaintiff] allegedly did in this case) and discussed the results of this self-test experiment (he was able to reach the door) and how it impacted the case with the other jurors during deliberations.

Defendant's post-trial motion attached affidavits of jurors Elizabeth Levkulich and Natalie Walters as exhibits. Each affidavit had the caption of the case at the top of its first page. After the caption, each affidavit identified the affiant whose statement followed and stated each was "duly sworn and of lawful age" followed by numbered paragraphs. In the first three numbered paragraphs of each affidavit, the juror stated she was a resident of Greene County, Missouri, and was competent to give the affidavit; that she was a juror in the trial of the case that took place between April 30, 2001, and May 11, 2001 that she attended each day of trial and participated in jury deliberations after all the evidence was presented. Paragraph three of Ms. Levkulich's affidavit added that she had been foreperson of the jury. Ms. Levkulich's affidavit included a forth and fifth paragraphs:

4. During our deliberations, I recall another juror named Mr. William Irmen stating that he had done a measurement in his van and he made some remarks about how it impacted the case.

5. Other than that, I do not recall the details of his other statements to the jury during our deliberations or anything else about his test.

Ms. Walters' affidavit included numbered paragraphs 4 through 6:

4. During our deliberations, one of the two male jurors explained how he had gone home and measured the distance between the driver side door and the passenger side door of his van.

5. The same male juror explained to the other jurors, including myself, that he had belted himself into his van and was able to reach across the van to open the passenger side door.

6. That same male juror stated that he had conducted this test during the course of the trial.

The issue at trial was whether plaintiff was wearing the seat belt in the Mack truck he was driving at the time of the accident. Plaintiff contended he was wearing the seat belt; that the seat belt restraint failed and came unlatched during the accident. Defendant asserted plaintiffs evidence had not established that the seat belt caused plaintiffs injuries; that the evidence before the jury had not excluded the possibilities that plaintiff either was not wearing the seat belt or had unlatched himself during the accident to avoid becoming trapped with the gasoline tank he was pulling.

The issue of a driver's ability to unlatch the passenger side door while his seatbelt was in place arose as a result of testimony of plaintiffs daughter, Karen Conran. Ms. Conran told the jury she saw her father in the truck that was later involved in the accident at a truck stop a short time before the accident occurred. She said plaintiff reached across the cab of the truck and unlatched the passenger door; that he was wearing his seat belt when he did so. Defendant contended plaintiff could not have reached the distance required to unlatch the passenger door if his seatbelt had been fastened. Each party presented demonstrative evidence in support of their respective argument that plaintiff either could or could not have unlatched the passenger door if his seatbelt were fastened.

Defendant's characterization of the information Mr. Irmen is represented to have disclosed to other jurors as "extraneous evidence" derived from "his own self-test experiment during the trial" is somewhat of an overstatement. The fact issue raised at trial was whether plaintiff, while seated in the driver's seat with his seatbelt fastened, could have reached the latch on the passenger door. Whether a juror's experience in his own vehicle is "extraneous evidence" of what another person could accomplish in a different vehicle is questionable. Even if what occurred could be deemed disclosure of extraneous evidence, "[a] motion for new trial, based on a juror's acquisition of extraneous evidence, is left to the sound discretion of the trial court." Travis v. Stone, 66 S.W.3d 1, 3 (Mo. banc 2002); see also Collins v. Hertenstein, 90 S.W.3d 87, 109 (Mo.App.2002). Under the facts that were before the trial court, this court finds no abuse of discretion by that court's denial of defendant's motion for new trial on the basis of asserted juror misconduct.1 Point IV is denied.

Point I asserts trial court error in denying defendant's motion for judgment notwithstanding the verdict. Defendant argues "plaintiff failed to adduce sufficient `legal and substantial' evidence that the ... seatbelt was worn and inertially released during his accident." Defendant argues that expert evidence presented by plaintiff that his seatbelt inertially released due to acceleration forces sustained in the accident was contrary to physical facts; that plaintiff's...

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  • Peters v. General Motors Corp., WD 62807.
    • United States
    • Missouri Court of Appeals
    • January 17, 2006
    ...device. Sufficient circumstantial evidence will support a jury verdict in a products liability case. Daniel v. Ind. Mills & Mfg., Inc., 103 S.W.3d 302, 309 (Mo.App. S.D.2003)(citing Winters v. Sears, Roebuck & Co., 554 S.W.2d 565, 569 (Mo.App.1977)). A plaintiff who relies on circumstantial......
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    ...tends to be highly prejudicial. Newman v. Ford Motor Co. , 975 S.W.2d 147, 149 (Mo. banc 1998) ; Daniel v. Ind. Mills & Mfg., Inc. , 103 S.W.3d 302, 316 (Mo. App. S.D. 2003). Because it is highly prejudicial, evidence of settlement agreements is, generally, not admissible and should be kept......
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12 books & journal articles
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive Is It Admissible? - 2015 Part IV - Demonstrative Evidence
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    ...S.E.2d 368 (1998), §10.500 Daniels v. Tew Mac Aero Services, Inc., 675 A.2d 984 (Me. 1996), §21.402 Daniel v. Indiana Mills & Mfg., Inc., 103 S.W.3d 302 (Mo.App. 2003), §44.400 Darling v. Charleston Community Memorial Hosp., 50 Ill.App.2d 253, 200, N.E.2d 149 (1964), aff’d., 33 Ill.2d 326, ......
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    • United States
    • James Publishing Practical Law Books Archive Is It Admissible? - 2014 Part IV - Demonstrative Evidence
    • July 31, 2014
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    • United States
    • August 2, 2016
    ...1996), §21.402 Daniels v. U.S ., 86 F.Supp.3d 1375 (U.S. Dist.Ct., S.D. Georgia, 2015), §30.300 Daniel v. Indiana Mills & Mfg., Inc., 103 S.W.3d 302 (Mo.App. 2003), §44.400 Darling v. Charleston Community Memorial Hosp., 50 Ill.App.2d 253, 200, N.E.2d 149 (1964), aff’d., 33 Ill.2d 326, 211 ......
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