Means v. Sears, Roebuck & Co.

• Decision Date: 12 May 1977
• Docket Number: No. 59571,59571
• Citation: 550 S.W.2d 780
• Parties: Robert MEANS, Respondent, v. SEARS, ROEBUCK AND COMPANY, a corporation, Appellant.
• Court: Missouri Supreme Court

Page 780

550 S.W.2d 780

Robert MEANS, Respondent, v. SEARS, ROEBUCK AND COMPANY, a corporation, Appellant.

No. 59571.

Supreme Court of Missouri, En Banc.

May 12, 1977.

Joel D. Monson, Anderson, Gilbert, Wolfort, Allen & Bierman, St. Louis, for appellant.

James P. Holloran, Sommers & Holloran, Inc., St. Louis, for respondent.

PER CURIAM:

In an opinion written by Simeone, P. J., the Court of Appeals, St. Louis District, affirmed a judgment for plaintiff and against defendant in the amount of $40,000 (the jury had returned a verdict for $65,000); but transferred the case to this court pursuant to Mo.Const. art. V, § 10, saying, "We believe, however, that the authority of an appellate court to review the amount of the remittitur, both as to inadequacy or excessiveness when that issue is raised on appeal by the defendant should be reexamined by the Supreme Court. We therefore order this case transferred for that purpose." We decide the case as though here on direct appeal. We affirm.

The opinion by Judge Simeone (without quotation marks), to and including transfer to this court, is as follows:

This is an appeal by the defendant-appellant, Sears, Roebuck and Company, for a judgment entered by the circuit court of the City of St. Louis on March 10, 1975, in the amount of $40,000 in favor of the plaintiff-respondent, Robert John Means, for personal injuries sustained as a result of a fall from a bicycle purchased at the defendant's store. The judgment of March 10, 1975, was reduced from the jury verdict of $65,000 after plaintiff remitted $25,000. Sears raises several issues on this appeal: (1) the propriety of the verdict directing instruction; (2) the injection of insurance; (3) the gross excessiveness of the verdict and (4) the remittitur. For reasons hereinafter stated, we affirm the judgment of the trial court.

It is not necessary to detail each and every fact in this litigation. We shall state only those sufficient and relevant facts necessary to dispose of the points raised by the appellant on this appeal.

On the evening of Wednesday, August 29, 1973, Mr. Means and his wife, Carolee, together with their minor children, went to the defendant's store in Northwest Plaza Shopping Center for the purpose of purchasing a bicycle which was to be used mainly by Mrs. Means. They purchased a man's five-speed, 27-inch bicycle from the salesman in the sporting goods department Mr. Robert Lesan. The cost of the bicycle was $79.50. They also purchased a "child carrier" to be attached to the rear of the bicycle for $15.69. Although a floor sample was available, they requested that Sears assemble a bicycle, for which they paid an additional cost of.$7.00. This cost of assembling was added to the sales receipt at the time of the purchase.

The following evening, Thursday, Mr. Means and his family returned to the store to "pick up" the purchase. At the time the bicycle was brought to him, Mr. Means noticed that "(t)he rear fender was rubbing against the wheel." He informed a Sears employee (not Mr. Lesan), whereupon the employee "went and got a wrench and loosened (the fender) back from the wheel and tightened it back up." Mr. Means then placed the bicycle in the trunk of his automobile and drove to Mrs. Means' parents' home "to show them, and we were going to ride it that evening." But "(b)efore we could ride it we found the seat was loose. We had to tighten that. It was wobbling back and forth." That evening, both he and Mrs. Means rode the bicycle. They did not "jump any curbs," "hit any large chuckholes" or "have any type of accident." After riding the cycle that evening, it was taken to their home and placed in the garage. The next afternoon, Mrs. Means rode, but Mr. Means did not. On Saturday, Mr. and Mrs. Means and a neighbor, James Keating, rode the cycle. On this occasion, Mr. Means noticed that the "gearshift lever was loose on the stem." This was tightened. On this occasion, none of the riders experienced any difficulty while riding.

The following morning, Sunday, September 2, 1973, Mr. Means took the bicycle and was going "to ride up to the Target Store to a big parking lot and then just ride back." When he was on top of a hill heading down, the "front wheels (sic) started vibrating very rapidly sideways back and forth approximately six inches or so." He tried to stop. But "(s)uddenly the front wheel went to the left a full ninety degrees. At that time the next thing I knew I was skidding along the road on my stomach." All during this time the handlebars were perfectly straight and "didn't vibrate at all." He stood up, his knee was bleeding, and he flexed his leg. "I could feel something in there, but it still moved. . . ." He walked back to the bicycle and found the front wheel was "somewhat bent." While standing near the bike, a car pulled up with a couple in it. They asked if he were hurt. They asked if they could take Mr. Means to the hospital or to his house. Mr. Means then hid the bicycle in the weeds, and as he walked "I couldn't move my left knee any more and I kind of fell down." The couple was kind enough to take him to the Christian Northwest Hospital, where he was placed under the care of Dr. Charles Powell, an orthopedic surgeon. After an examination which showed a comminuted fracture of the left patella, Mr. Means was taken to surgery and a total patellectomy was performed. Dr. Powell removed all the fragments of the fractured patella and sutured the quadriceps muscle tendon to the patellar ligament. Mr. Means was placed in a cast. The hospital called Mrs. Means, and she and James Keating arrived at the hospital. Mr. Means informed Mr. Keating of the whereabouts of the bicycle, and later Mr. Keating picked it up and placed it in Mr. Means' garage. Mr. Means spent a week in the hospital and two weeks at home recuperating, before returning to work on crutches. Because he was unable to "get around in the field," Mr. Means' supervisor "gave him some office work," during the time he was in the cast. When the cast was taken off about six weeks later, he couldn't move his leg "(t)he leg muscles were I don't know what you call it, they were like jelly . . .."

By January, 1974, Mr. Means could not bend his left knee more than an inch, but did resume his regular duties in February. When Dr. Powell saw him in December, 1973, some four months after the operation, he "showed only about 10 degrees of active knee flexion and at this time it was apparent that the quadriceps tendon was bound down to the underlying femur and was sticking there which prohibited the tendon moving when he attempted to flex the knee, so he had only 10 degrees of active flexion." So another operation was decided upon. This operation pulled the "knee on both sides of the stuck-down tendon and (was to) just free it up from the underlying femur . . .." This second operation was performed on March 18, 1974 (although Dr. Powell stated he was admitted in February, 1974), for lysis of the quadriceps tendon. He remained in the hospital after this second operation for a period of two weeks or until March 30, 1974. He convalesced for a period of two more weeks.

Following his discharge, Mr. Means participated in a physical therapy program three times a week until about June 1, 1974. As a result of the second operation and the physical therapy, Mr. Means was able to flex his knee approximately 90 degrees, and was able to return to his normal work. Although he is able to flex his knee, there is still 35% to 40% loss of flexion "approximately 40 percent range of normal motion." This condition is considered by the physician as permanent.

Dr. Powell stated his opinion that "I don't think that he will ever regain any significant improvement in knee flexion." Despite his condition, Mr. Means returned to his regular job activities by the time of trial in January, 1975. But his condition caused him several problems. He can no longer "squat." In his duties he has to "lay down" to get under something and "going up and down steps is quite difficult." He cannot bend his leg as much as he used to, and there has never been a day when he has not had "some difficulty" with his leg. He can no longer take part in "playing softball" or "run like I used to" or "sit in the front seat of the canoe any more . . ."

Mr. Means was absent from his employment a total of seven weeks and lost approximately $100.00 per month overtime compensation, and because of his morning therapy he missed other work time.

As a result of all this, he incurred medical and hospital expenses of approximately $2,600.00, and loss of wages and overtime of approximately $2,100.00. ¹

After the unfortunate accident on September 2, 1973, the bicycle was eventually transferred to the custody of Professor Wallace Diboll, Associate Professor of Mechanical Engineering at Washington University, ² who, at the request of Mr. Means' attorneys, performed several tests. The professor stated that he had testified in court before and that mechanical engineering "basically involves making of energy and the making of things, equipment, machinery. My particular area is the area of machinery, and the study of that, vibrations, stresses, forces involved in machinery." As stated, Professor Diboll examined the bicycle. He found the wheel distorted. He also testified in some detail concerning the assembly of the handlebars and tube of the fork. In order to make the wheel turn with the handlebars so that a person can have control of the wheel through the handlebars, a sliding nut must be turned and "tightened correctly, fully, sufficiently" so that it is one "rigid piece, so that when you turn the handlebar . . . the wheels will also turn . . .." Professor Diboll performed tests on the cycle to determine the rigidity of the connection between the handlebars and the wheel. This was accomplished by putting the bicycle on a table and holding the "wheel tightly and then (loading) it with a known weight." He...