Pisha v. Sears Roebuck & Co.
| Decision Date | 04 June 1973 |
| Docket Number | No. KCD,KCD |
| Citation | 496 S.W.2d 280 |
| Parties | Donat PISHA and Earlene Pisha, Appellants, v. SEARS ROEBUCK & COMPANY, Respondent. 26037. |
| Court | Missouri Court of Appeals |
Gordon, Adams, Niewald & Risjord, Kansas City, for appellants.
John R. Gibson, John W. Cowden, Morrison, Hecker, Cozad, Morrison § Curtis, Kansas City, for respondent.
Before DIXON, C.J., and SWOFFORD and SHANGLER, JJ.
Donat Pisha and Earlene Pisha, husband and wife, hereinafter referred to as Pishas, filed suit against Sears Roebuck & Company, hereinafter referred to as Sears.
Pishas' suit against Sears contained three counts. Count one sought damages to their real and personal property resulting from a fire on the theory of negligence, count two sought actual and punitive damages for conversion of their refrigerator-freezer, and, alternatively, count three sought damages to their real and personal property resulting from fire on the theory of strict liability. Pishas submitted their case to the jury under counts two (conversion) and three (strict liability). The jury returned a verdict in favor of Pishas on count two and awarded them $380.00 actual damages and $8,000.00 punitive damages, but as to count three, the jury returned a verdict in favor of Sears.
In the lower court, Sears, with respect to the verdict and judgment in favor of Pishas on count two, moved for judgment in accordance with its motion for a directed verdict at the close of all the evidence, or, in the alternative, for a new trial. Pshas moved for a new trial with respect to the judgment in favor of Sears on count three.
The lower court overruled Pishas' motion for a new trial respecting count three, but sustained Sears' motion for a new trial respecting count two, unless Pishas voluntarily remitted $4,000.00 of the $8,000.00 awarded as punitive damages. Pishas refused to remit and the order granting Sears a new trial as to count two stood.
Pishas appeal from the lower court's order granting Sears a new trial as to count two, and from the judgment in favor of Sears as to count three.
Pishas claim the lower court erred in awarding Sears a new trial as to count two (conversion) because of their refusal to voluntarily remit $4,000.00 of the $8,000.00 punitive damages awarded, and, further erred with respect to count three, in admitting, over their objection, the opinion of Sears' expert witness as to the cause of the fire on the theory that it was not a 'proper subject of expert testimony'.
The issues joined, plus the somewhat unusual joinder of conversion and damage to property predicated on strict liability, necessitate delineation of certain evidence.
Pishas purchased a new refrigerator-freezer from Sears which subsequently malfunctioned. At Pishas' request, Sears took the unit into its service shop for repairs. During the repair interim, Sears provided Pishas with a 'loaner refrigerator'. Sears, prior to delivery of the 'loaner refrigerator', required Mrs. Pisha to sign a document acknowledging receipt of the 'loaner refrigerator' and agreeing to pay Sears the value thereof if she failed to return it in its original condition, ordinary wear from normal use excepted. Completion of repairs to Pishas' refrigerator-freezer, as per Sears' original estimate of time, was delayed better than three and one-half weeks.
Mrs. Pisha testified that on the evening of Thursday, September 19, 1968, the 'loaner refrigerator', which was still being used due to the delay in completing repairs to Pishas' refrigerator-freezer, was malfunctioning. This was reported to Sears. Sears advised Mrs. Pisha that all service personnel had left for the day, and, further, her refrigerator-freezer was on a delivery truck and would be delivered the next morning (Friday) or the following Monday. Mrs. Pisha, by manipulating the circuit breaker in the main wiring panel of her home, succeeded in getting the 'loaner refrigerator' to again function.
The following morning (Friday) Mrs. Pisha prepared breakfast for her husband, using their electric range and electric toaster. According to her testimony, she unplugged the electric toaster and placed it in a cabinet after breakfast had been prepared. Thereupon, Mrs. Pisha returned to bed and was later awakened by the smell of smoke. As Mrs. Pisha left the house, she testified she looked into the kitchen and could tell the fire was in the north part of the kitchen (the 'loaner refrigerator' was in the northeast corner of the kitchen, backed against the north wall). While outside the house she looked through the kitchen window and testified she observed the 'loaner refrigerator' on fire with fire coming from the bottom portion thereof.
Alfred Benherg, a consulting engineer, was called as a witness by Pishas. According to his testimony, he inspected and photographed the damaged premises the day after the fire, at which time he observed a pattern of burning indicating a general flash of fire against the wall behind the 'loaner refrigerator'. Pictures taken by Benberg and introduced into evidence by Pishas show cabinets and counterspace along the west wall of the kitchen, and further show extensive fire damage to the referred to cabinets and counterspace, as well as extensive fire damage to the east wall of the kitchen. Additionally, Benberg testified that he removed the 'loaner refrigerator' from the north wall, and observed the rubber electric plug jammed against the metal refrigeration coils (all on the back side of the 'loaner refrigerator'), which created a 'short' between the plug and the coils. With this groundwork laid, Benberg testified that, in his opinion, the 'short' accounted for the 'loaner refrigerator's' malfunction the night before the fire and caused the fire.
Clifford Dotson, fire chief of the City of Gladstone at the time of the fire, was called as a witness by Sears. He arrived at the scene while the fire was in progress. Testimony was elicited at length from Dotson showing his qualification as an expert fire investigator. In addition to supervising the fighting of the fire, the following day he conducted two investigations of the burned area and its contents. His investigation disclosed an electric toaster and coffee pot sitting on the kitchen countertop. During his investigation he pulled the 'loaner refrigerator' from the wall and unplugged it. He found nothing unusual about the plug of the 'loaner refrigerator' that indicated a short. Over objection, Dotson testified that, in his opinion, the fire was caused by the electric toaster.
Following the fire, Mrs. Pisha requested Sears to return the Pishas' refrigerator-freezer. Sears advised Mrs. Pisha that their refrigerator-freezer would be returned to them when they made arrangements to pay for the 'loaner refrigerator' that had been destroyed in the fire. Mrs. Pisha indicated to Sears that arrangements would be made to pay for the 'loaner refrigerator' but arrangements were not made and Pishas made no firm commitment to pay. Sears did not deliver the Pishas' refrigerator-freezer and suit was filed.
First, attention is focused on Pishas' assertion that the lower court erred in ordering remittitur respecting the award of punitive...
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