Magnuson by Mabe v. Kelsey-Hayes Co., KELSEY-HAYES
| Decision Date | 27 October 1992 |
| Docket Number | KELSEY-HAYES,No. WD,WD |
| Citation | 844 S.W.2d 448 |
| Court | Missouri Court of Appeals |
| Parties | Prod.Liab.Rep. (CCH) P 13,502 Eric MAGNUSON, a minor, by his Next Friend, Judy MABE, Appellant, v.COMPANY and Kelsey-Hayes Canada, Ltd., Respondents, v. CHRYSLER CORPORATION, Appellant. 45086. |
John C. Risjord, Risjord & James, Overland Park, Kan., for appellant.
Robert R. Raymond, Shughart Thomson & Kilroy, P.C., Kansas City, for respondents Kelsey-Hayes Co. and Kelsey-Hayes Canada, Ltd.
Thomas N. Sterchi, Baker & Sterchi, Kansas City, for appellant Chrysler Corp.
Before BRECKENRIDGE, P.J., and SHANGLER and HANNA, JJ.
Eric Magnuson, by his next friend, Judy Mabe, appeals from the grant of a new trial to defendants, Kelsey-Hayes Company and Kelsey-Hayes Canada, Ltd., on a finding by the trial court that it erred in dismissing Chrysler Motors Corporation before trial. Magnuson argues that by his action in voluntarily dismissing Chrysler, he has rendered the issue of the trial court's dismissal moot. He further argues that the trial court erred in granting a new trial to Kelsey-Hayes and Kelsey-Hayes Canada because they were not prejudiced by the dismissal of Chrysler and had no standing to complain about Chrysler's dismissal from the case. Chrysler joins in Magnuson's appeal, briefing both points presented by Magnuson and further challenging the trial court's grant of a new trial, claiming that Kelsey-Hayes and Kelsey-Hayes Canada waived any objection to the trial court's dismissal of Chrysler because they did not oppose Chrysler's motion to dismiss, file a cross-claim against Chrysler or file a motion to rejoin Chrysler as a party.
Kelsey-Hayes and Kelsey-Hayes Canada claim that the issue is not moot or, if it is found to be, that the trial court erred in denying their motions for judgment notwithstanding the verdict because Magnuson failed to make a submissible case. Kelsey-Hayes and Kelsey-Hayes Canada also contend that should this court overrule the trial court's order, the cause should be remanded for consideration of the issue of remittitur.
On September 23, 1987, four and one-half-year old Eric Magnuson was injured when he was struck by a wheel and tire which had broken loose from a passing Dodge pick-up truck. The wheel involved in the accident had been designed by Kelsey-Hayes and Chrysler. It was manufactured by Kelsey-Hayes Canada under the direction of Kelsey-Hayes which had established quality assurance standards and policies for the process. Eric Magnuson was struck in the head. He suffered a contrecoup brain injury and went into a coma. Upon waking he suffered temporarily from bilateral cortical blindness, leaving him with residual visual perception defects. As a result of his injuries, Eric Magnuson suffers from permanent right side hemiparesis; retarded growth of his right leg, arm and hand; auditory impairment; aphasia; fine motor skills defects; poor balance; and diminished cognitive thinking, including a lower I.Q., defective abstract thinking, memory loss, poor concentration and emotional behavior problems. Expert testimony established that Eric Magnuson is unlikely to be employed in a competitive market. His projected lost earnings, reduced to present value, are in excess of $1,130,000.00.
On April 3, 1989, Eric Magnuson filed suit against Kelsey-Hayes, Chrysler and Raytown Dodge. 1 Chrysler filed a motion to dismiss pursuant to § 537.762, RSMo Supp.1987, which was denied by the trial court. Magnuson was given time to conduct discovery in an attempt to establish facts supporting a claim against Chrysler.
On November 3, 1989, Magnuson filed his first amended petition, adding Kelsey-Hayes Canada as a defendant. Chrysler renewed its motion to dismiss which was not opposed by Kelsey-Hayes or Kelsey-Hayes Canada. The trial court entered its order on August 22, 1990, granting Chrysler's motion to dismiss without prejudice.
Magnuson proceeded to trial against Kelsey-Hayes and Kelsey-Hayes Canada on theories of strict liability and negligence, claiming that the wheel was defectively manufactured and that defendants failed to warn. Magnuson abandoned his earlier claim of design failure, having conceded during discovery that he had no evidence to support a claim of design defect.
Dr. Robert Bohl, Eric Magnuson's expert metallurgist, testified that the steel forming the wheel had a defective microstructure and that had Kelsey-Hayes microscopically examined the microstructure of the steel, it could have detected the flaw. Dr. Bohl concluded that the design of the wheel was reasonable and that failure was only apt to occur in the case of poor metallurgical structure. He testified that the defective microstructure was related to cooling the steel too slowly during the rolling of the steel. Dr. Bohl also expressed the opinion that the steel was improperly thinned during the manufacturing process.
The Kelsey-Hayes defendants did not object to Dr. Bohl's testimony that the steel was improperly thinned. The Kelsey-Hayes defendants cross-examined Dr. Bohl extensively on the thinning issue. At the close of Magnuson's evidence the defendants moved for mistrial on the grounds that Magnuson was pursuing a claim based on the design of the wheel and that Chrysler was substantially responsible for that design. The court denied the motion. Magnuson submitted the case to the jury on theories of manufacturing defect and failure to warn. The jury returned a $4,750,000.00 verdict against Kelsey-Hayes and Kelsey-Hayes Canada on claims of strict liability manufacturing defect, strict liability failure to warn and negligent manufacturing defect. The jury found for defendants Kelsey-Hayes and Kelsey-Hayes Canada on the claim of negligent failure to warn. The trial court entered judgment based on the jury's verdict on April 9, 1991.
On April 19, 1991, Kelsey-Hayes and Kelsey-Hayes Canada filed alternative post-trial motions for judgment notwithstanding the verdict (JNOV), new trial and remittitur. Following argument on these motions, the trial court granted the defendants' motions for new trial "for the reason that it was error for the Court to dismiss defendant Chrysler Motors Corporation." The trial court further ordered that its previous order, dismissing Chrysler, be set aside.
On July 19, 1991, Magnuson filed his notice of appeal in this court. Chrysler filed its notice of appeal on July 25, 1991. Kelsey-Hayes and Kelsey-Hayes Canada also filed a notice of appeal, attempting to appeal from the denial of their JNOV motions. 2
On October 24, 1991, Eric Magnuson, pursuant to Rule 67.01, filed a voluntary dismissal of Chrysler from the case. On November 15, 1991, Magnuson and Chrysler filed a stipulation of dismissal. Kelsey-Hayes and Kelsey-Hayes Canada objected to the dismissal as inappropriate under Rule 67.01. This court reserved any ruling on motions pertaining to the dismissal until the submission of the case.
Eric Magnuson's dismissal of Chrysler under Rule 67.01 was proper and an order of this court dismissing Chrysler from the case is not required. Rule 67.01 provides, in pertinent part:
A civil action may be dismissed by the plaintiff without prejudice without order of court any time prior to the introduction of evidence at the trial. After the introduction of evidence is commenced, a plaintiff may dismiss his action without prejudice only by leave of court or by written consent of the adverse party.
In the instant case, Chrysler consented to the dismissal. Kelsey-Hayes and Kelsey-Hayes Canada argue that Rule 67.01 is available only if no evidence has been introduced and consent of the adverse party has first been obtained. This is not what the Rule requires, however, as Rule 67.01 is written in the disjunctive. A plaintiff may dismiss after the introduction of evidence "by leave of court or by written consent of the adverse party." Rule 67.01 (emphasis added). See Reed v. Mirts, 437 S.W.2d 719, 721 (Mo.App.1969).
The Kelsey-Hayes defendants further argue that their permission is necessary as they are adverse parties under the rule. They are not adverse parties under Rules 67.04 and 67.05 as to Chrysler, having not availed themselves of the opportunity to bring Chrysler into the case by third-party action or by a cross-claim. See Camden v. St. Louis Public Serv. Co., 206 S.W.2d 699 (Mo.App.1947). Having obtained the consent of Chrysler, Magnuson's dismissal is permitted by Rule 67.01. Rule 67.01 is made applicable to this court under Rule 41.01(a)(1) which provides that Rules 41 through 101 govern civil actions pending in the Court of Appeals.
The practical effect of Magnuson's dismissal of Chrysler is to render the trial court's order moot since it was specifically based upon the trial court's reasoning that "it was error for the Court to dismiss defendant Chrysler Motors Corporation." This is the only ground specified in the trial court's order. Where a trial court grants an order on a specific basis all of the other grounds asserted in the motion are deemed overruled. Roux v. City of St. Louis, 690 S.W.2d 448, 450 (Mo.App.1985). Whether or not the motion for new trial should have been sustained on any of the other grounds specified in the motion for new trial is not a matter under review because the Kelsey-Hayes defendants do not argue this point on appeal. Id.
Magnuson cannot be forced to maintain its suit against Chrysler at Kelsey-Hayes and Kelsey-Hayes Canada's behest. Magnuson has the right to pursue and collect from any tortfeasor of his choosing regardless of any right to contribution that the Kelsey-Hayes defendants may or may not have. See Missouri Pac. R. Co. v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo. banc. 1978). The court in Whitehead & Kales, after discussing relative fault among joint tortfeasors concluded that a "[p]...
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