Lietz v. Snyder Mfg. Co.

• Decision Date: 10 January 1972
• Docket Number: No. 1,No. 55438,55438,1
• Citation: Lietz v. Snyder Mfg. Co., 475 S.W.2d 105 (Mo. 1972)
• Parties: Kenneth Gary LIETZ, a Minor, by F. Ken Lietz, Next Friend, Appellant, v. SNYDER MANUFACTURING COMPANY, a Corporation, and Central Hardware Company, a Corporation, Respondents
• Court: Missouri Supreme Court

Page 105

475 S.W.2d 105

Kenneth Gary LIETZ, a Minor, by F. Ken Lietz, Next Friend, Appellant, v. SNYDER MANUFACTURING COMPANY, a Corporation, and Central Hardware Company, a Corporation, Respondents.

No. 55438.

Supreme Court of Missouri, Division No. 1.

Jan. 10, 1972.

Sommers & Montrey, James P. Holloran, St. Louis, for appellant.

R. E. Keaney, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, for respondent Synder Mfg. Co.

Louis W. Riethmann, Thomas E. Fitzgibbons, St. Louis, for respondent Central Hardware Co.

HOUSER, Commissioner.

Kenneth Gary Lietz, pro ami, sued the manufacturer, Snyder Manufacturing Company, and the retailer, Central Hardware Company, for $65,000 damages for personal injuries sustained while using a gym bar. Following a verdict for both defendants plaintiff appealed, raising three procedural points.

The petition alleged that defendants impliedly warranted the gym bar to be fit and safe for the purposes for which it was intended when used in the manner directed and that he relied upon the implied warranty; that the gym bar was 'in a defective condition and unreasonably dangerous to the users thereof by reason of the fact that said exercise bar, or gym bar, was inadequately and insufficiently constructed and designed for use in the manner directed in the instructions and directions contained * * * in its package and when used in the manner and for the purposes for which it was intended.' Defendants pleaded contributory negligence.

Defendant Snyder admitted that it manufactured and sold to defendant Central the gym bar purchased by plaintiff's father from Central. Father and son put up the gym bar in a doorway in plaintiff's bedroom one morning. Plaintiff's father installed the bar parallel to the floor. After tightening the gym bar into the door frame the father tried it, found that it slipped a little out of the door frame, tightened it again and when it held him and his son he left it as it was until the time of the accident that evening. Plaintiff's father warned plaintiff to keep the bar tight. Plaintiff used the gym bar on the morning it was installed and again some eight or nine hours later in the evening. While using the gym bar that evening, without having further tightened it, plaintiff pulled his chin up even with the bar and as he attempted to lift his legs parallel to the floor the bar collapsed and plaintiff fell to the floor on his tailbone, causing him to sustain substantial injuries. The bar itself did not break or come apart. Either one or both of the two ends slipped and came out of position from the door jamb.

Fred Deppe of St. Louis Testing Laboratory (plaintiff's expert witness) ran tests on the gym bar to determine its holding characteristics after being placed in a door frame in accordance with directions for its use. He testified that the bar was tightened to extreme resistance by a man who weighed 180 pounds; that with the load hanging six inches from either end of the bar the immediate load to slip was 255 pounds; that after thirty minutes the load from either end of the bar was 265 pounds (an increase of 10 pounds); that after four hours, without any further adjustment, it decreased to 210 pounds; that with the bar horizontal the most important single factor in the bar's load-carrying capacity is the pressure with which it is put up. Mr. Deppe had the bar apart, looking for defects, but neither saw nor recorded any mechanical defect in the bar itself.

Error is assigned in refusing to admit plaintiff's proffered evidence that if the gym bar was not installed in a perfectly horizontal position it would have a greater tendency to slip and fall. Plaintiff's testimony and that of his father was that the gym bar was placed in position according to instructions, i.e., horizontal. In making his offer of proof plaintiff's attorney stated that '* * * the evidence will show that the bar was installed in exactly the same fashion as directed on the pamphlet.' Plaintiff's Exhibits 3 and 4, photographs of the bar placed in the doorway at plaintiff's home, show that the bar was installed in a horizontal position, parallel to the floor, in accordance with instructions. Appellant would nevertheless have the Court take judicial notice of the fact that an ordinary person installing such a bar cannot get it perfectly horizontal without leveling or precision measuring edvices, which were not used.

The tests made by Mr. Deppe, as to which he was permitted to testify, were experimental tests conducted under circumstances substantially similar in essential particulars to the conditions prevailing at the time of the occurrence in question. That evidence met the approved standard of sufficiency of the probative value of testimony relating to experiments. Lynch v. Missouri-Kansas-Texas R. Co., 333 Mo. 89, 61 S.W.2d 918; James v. Bailey Reynolds Chandelier Co., 325 Mo. 1054, 30 S.W.2d 118; Wilcox v. St. Louis-Southwestern R. Co., Mo.Sup., 418 S.W.2d 15.

The evidence excluded related to tests conducted under circumstances substantially dissimilar to the conditions existing at the time plaintiff fell, i.e., with the gym bar at various angles and positions, none of which was horizontal. Whether evidence of tests made should be admitted is a matter peculiarly within the discretion of the trial judge, Wilcox, supra; Calvert v. Super Propane Corp., Mo.Sup., 400 S.W.2d 133. The trial judge's discretion in that regard should not be interfered with on appeal unless it is manifest that he abused his discretion. Lynch v. Railway Mail Ass'n, Mo.App., 375 S.W.2d 216. We find no abuse of discretion in the refusal of the trial judge to admit evidence of tests made under conditions admittedly dissimilar and substantially different from the conditions admittedly prevailing at the time the plaintiff fell. State v. Beal, Mo.Sup., 474 S.W.2d 830 (decided December 13, 1971).

Next, plaintiff claims error in not allowing his counsel to argue and explain to the jury the law of strict liability as it applied to defendants. Examination of the record does not bear out this claim. It is true that at the outset of plaintiff's closing argument an objection was sustained after his first reference to the doctrine and before counsel completed the sentence, viz.: 'I told you to begin with this is what is known as a product liability case and under the laws of the State of Missouri one who manufactures or sells * * * a product for the sale and ultimate use by the public, generally is strictly liable, strictly liable * * *' (objection interrupting). This was stricken, on what theory we are not advised. Counsel then indicated his desire to argue strict liability and offered to do so. The court answered 'Yes, you may, but don't argue that. You may aruge the evidence and the facts.' Continuing, counsel was permitted to argue as follows:

'Let me put it this way: Under the evidence adduced here, and under the instructions His Honor has given you, it makes no difference whether or not Central Hardware Company or Snyder Manufacturing Company exercised any degree of care or was negligent. It's simply a case, was that the gym bar--who was it marketed and sold by, Snyder Company and by Central Hardware Company, in a defective condition, and to the ultimate user thereof.

'Now, that is the only issue you have to really decide, because the other element of the instructions, first of all, did Snyder manufacture and sell gym bars. That is admitted.

'Did Central Hardware sell gym bars. That is admitted.

'Second, did the gym bar as manufactured and sold, was it defective and therefore dangerous when put to a use reasonably anticipated.

'This one I will come back to and talk about in a minute.

'Third, when the plaintiff used the gym bar it was in substantially the same condition as when manufactured and sold by the defendant, Central Hardware Company. There is no doubt this is the gym bar as in the same condition it was used this one day, and that is the evidence, and it is not disputed.

'Fourth, when the plaintiff used the gym bar in a manner reasonably anticipated and was damaged as a direct result of the gym bar being defective, we use the word damaged rather than injured, because when you're injured you're damaged, and there is no doubt he was damaged, and then there are the words 'reasonably anticipated manner' and there is going to be a lot of talk from the defendants about whether or not this was defective, and I am not going to argue too much about that. There is nothing wrong about this, there is nothing about this that was not exactly as manufactured. I understand it to be a bar that screws to another bar, and that there are cushions on it and so forth, but don't be fooled by a play on words.

'This is the defect, that they failed to notify in advance that it's only supposed to be used for thirty minutes--if it's only supposed to be used thirty minutes I don't know, but if it's only supposed to be used thirty minutes and they don't warn you about it then it's a defect, the commodity isn't right. That is a defect.

'They have a right to their claim to put it on the market. My objection is that they make something that has an unknown danger, and not tell the public about it. That is not the law when you do that. You are putting a commodity on, and they don't tell you what really will happen if you leave this thing up tightened as best you can tighten it...