Fisher v. Scott & Fetzer Co.

• Decision Date: 31 January 1984
• Docket Number: No. WD,WD
• Citation: 664 S.W.2d 662
• Court: Missouri Court of Appeals
• Parties: Worley Hall FISHER and Marjorie Fisher, his wife, Appellants, v. SCOTT & FETZER CO., Roger Glen Harris and Ronnie Dalton, Respondents. 34540.

Page 662

664 S.W.2d 662

Worley Hall FISHER and Marjorie Fisher, his wife, Appellants, v. SCOTT & FETZER CO., Roger Glen Harris and Ronnie Dalton, Respondents.

No. WD 34540.

Missouri Court of Appeals,

Western District.

Jan. 31, 1984.

Terrence F. Pyle of Crews, Gaw & Pyle, Tipton, for appellants.

R.L. Veit, Jefferson City, for respondent Roger Glen Harris.

Hamp Ford and Michael R. Baker, Columbia, for respondent Scott & Fetzer Co.

Before PRITCHARD, P.J., and SHANGLER and MANFORD, JJ.

MANFORD, Judge.

This is a direct appeal from a summary judgment. The judgment is reversed and the cause is remanded.

Appellants present two points, but due to the disposition of this appeal, only one point is taken up and ruled. Appellants contend that the trial court erred in granting summary judgment in favor of respondent Scott and Fetzer Co. because there existed a genuine issue of fact relative to respondent's alleged liability relative to the defective manufacture of a trailer hitch.

The record reveals the following pertinent facts:

At about 10:00 p.m. on July 25, 1979, appellant Worley Hall Fisher was driving his automobile eastward on U.S. 50 Highway near the Morgan/Moniteau County line. A pickup truck pulling a flatbed trailer and being driven by Roger Glenn Harris was traveling westward on U.S. 50 Highway. The trailer broke loose and struck Fisher's automobile. It was alleged that the trailer hitch was manufactured by respondent Scott and Fetzer Co. (hereinafter S & F). The hitch consisted of three parts, the ball itself, the bolt, and a lock washer. Neither the bolt nor washer were ever found.

During discovery, appellant secured the deposition of Robert Wolf, a professor of engineering at the University of Missouri at Rolla. The Wolf deposition revealed that the ball portion of the hitch (only part recovered) was of a generally accepted design and that it was not defective. Wolf further testified that the trailer disengaged from the truck because the bolt came out of the ball portion of the hitch. Wolf listed five possible reasons for this failure. These were: (1) that the bolt was not tightened into the ball, (2) that the lock washer failed, (3) that the lock washer was not present at all, (4) that the trailer hitch was mounted on too thin a bumper plate, and/or (5) that the bolt used was too long. Wolf further testified that he could not say with certainty that one of the five reasons was more probable than any of the others.

On this appeal, appellants spend an inordinate amount of time charging the trial court with error in not having taken into consideration the deposition of Harris. The record clearly shows that the trial court never saw this particular deposition, because of appellants' failure to have the deposition timely filed relative to the disposition of the motion for summary judgment. The record shows that a hearing was held on the motion for summary judgment by S & F on October 15, 1982. Although the Harris deposition was secured some two months earlier, appellants did not cause the Harris deposition to be filed until October 29, 1982. While the record shows that the trial court entered its formal order on the motion for summary judgment as of November 9, 1982, it is evident also from the record that the trial court ruled the motion on October 15, 1982. The trial court cannot be and will not be condemned for the dilatory action of appellants. If appellants wanted the benefit of the Harris deposition for the purpose of the hearing, etc., on the motion for summary judgment, appellants should have made the deposition available to the trial court in a timely fashion. "When a motion for summary judgment is filed, the party against whom it is directed may not stand idly by doing nothing." Tobler's Flowers, Inc. v. Southwestern Bell Telephone Co., 632 S.W.2d 15, 19 (Mo.App.1982). As regards the Harris deposition, appellants did nothing but "stand idly by."

The Harris deposition and appellants' attack on the trial court in this regard have nothing to do with the disposition of this appeal. Appellants' focus on the Harris deposition was in support of appellants' contention that the Harris deposition eliminated three of the five possibilities enunciated by Prof. Wolf above.

This being an appeal from a summary judgment, the rules applicable thereto must be considered. A summary judgment is authorized "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." Rule 74.04(c) "In no case shall a summary judgment be rendered on issue triable by jury or the court without a jury unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law." Rule 74.04(h). On appeal, review is made of the entire record in a light most favorable to the party against whom summary judgment is entered. E.O. Dorsch Electric Co. v. Plaza Construction Co., 413 S.W.2d 167, 169 (Mo.1967); ...