Strick v. Stutsman

• Decision Date: 16 March 1982
• Docket Number: No. WD,WD
• Citation: 633 S.W.2d 148
• Parties: John STRICK, Jr., Respondent, v. D. E. STUTSMAN, d/b/a Woody's Tow Service, Appellant. 32164.
• Court: Missouri Court of Appeals

Page 148

633 S.W.2d 148

John STRICK, Jr., Respondent, v. D. E. STUTSMAN, d/b/a Woody's Tow Service, Appellant.

No. WD 32164.

Missouri Court of Appeals, Western District.

March 16, 1982.

Motion for Rehearing and/or Transfer to Supreme Court

Overruled and Denied May

4, 1982.

Application to Transfer Denied June 14, 1982.

Sylvester Powell, Jr. of Heilbron & Powell, Kansas City, for appellant.

James C. Wirken and Sue K. Willman of Spradley & Wirken, A Professional Corp., Kansas City, for respondent.

Before CLARK, P. J., and MANFORD and KENNEDY, JJ.

MANFORD, Judge.

This is an action seeking recovery of damages to a diesel truck transmission upon the alleged negligent operation of the vehicle. Judgment was entered upon a jury award of $3,650.00. This appeal followed. The judgment is reversed.

The parties are hereinafter referred to by their party designation at trial. Appellant, D. E. Stutsman, d/b/a Woody's Tow Service, was original defendant. Respondent, John Strick, Jr., was original plaintiff. The sole point on this appeal is that the trial court erred in submitting a verdict-directing instruction upon the doctrine of res ipsa loquitur.

Plaintiff was the owner of a 1972 KW-Dart tractor which he had purchased in July, 1978. He had leased the tractor to one Tracy Watson, who was the sole operator of the tractor. Watson had driven the tractor and an empty trailer from Dallas, Texas, arriving in Kansas City, Missouri in the early morning hours of January 24, 1979. At 5:00 a. m. on this same date, Watson parked the tractor in a private parking lot, left the motor running, locked it and proceeded to go home, which was a short distance from where he parked the tractor.

The owner of the premises arrived at approximately 9:00 a. m., and observed the tractor, which was blocking about 40% of his parking lot area. He called the police.

The police found the tractor locked. After several hours of trying to find the owner of the tractor, the police called defendant at approximately 3:00 p. m. to have the tractor towed. The officer did not observe any physical damage to the outside of the tractor. One of defendant's employees, (who also testified concerning his experience and familiarity with this type of tractor) stated that after entry to the tractor cab was achieved, he drove the tractor to defendant's tow lot. This employee also testified that when he drove the tractor from where it was parked (by Watson), the transmission would not fully engage in certain gears, but that the main gear box and reverse gear were working properly. ¹ This witness also testified that when he drove the tractor, the "forkshifts" and "sliding clutch" were working properly.

Later in the day, (approximately 5:30 p. m.) the tractor had not been claimed, so this same employee drove the tractor about 3/4 of a mile to refuel it. At this time, he experienced some shifting problems with the transmission. The evidence established that the engines on these tractors are permitted to run continuously, particularly during the cold winter months. Watson returned to where he had parked the tractor, and after discovering it missing from where he had parked it, inquired of the police and was advised that it was at defendant's lot. Watson was unable to retrieve the tractor until 10:00 or 11:00 a. m. the following morning. When he arrived at defendant's lot, he found the tractor with the motor running. After paying defendant, but prior to driving the tractor from defendant's lot, Watson experienced considerable difficulty getting the transmission into gear. As he drove it away, he tried shifting it into various gears.

The evidence was disputed as to how far Watson drove the tractor, (plaintiff's testimony was 6-7 blocks-defendant's testimony placed the distance at 6-7 miles) but the transmission "locked" in gear 2-2. After this "locking", defendant was called and towed the tractor to Mid-West Kenworth. Examination revealed that the shift forks, sliding clutch and auxiliary transmission were broken. The service manager for Kenworth testified that service and maintenance on this type of transmission were important, but stated that he had no knowledge concerning the maintenance and repair history of this particular transmission. The service manager was called as a witness by plaintiff, and in addition to the foregoing testimony, stated that the damage found regarding this particular transmission could occur from normal wear and tear, abuse, or in this particular case, high air pressure on the regulator. In addition, he added that such damage could arise if the driver did not know how to shift the gears, and admitted that this could occur with even the most experienced driver. The remaining evidence revealed that there was no written or actual knowledge of problems with the transmission prior to this damage. A replacement transmission was placed in the tractor at a cost of $4,546.28. The evidence closed. Judgment was entered and this appeal followed.

The question posed to this court is whether or not the evidence supported submission of plaintiff's claim upon the doctrine of res ipsa loquitur. The court submitted the following instruction pursuant to MAI 31.02(3):

INSTRUCTION NO. 4

Your verdict must be for plaintiff if you believe:

First, defendant operated the tractor, and

Second, the tractor's transmission was damaged, and

Third, from the facts in evidence and the reasonable inferences therefrom, you find such occurrence was the direct result of defendant's negligence, and

Fourth, as a direct result of such negligence plaintiff sustained damage.

The principles underlying the application of the doctrine of res ipsa loquitur were articulated in McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 559 (Banc 1932), wherein the court held that "the doctrine res ipsa loquitur does not apply except when (a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instrumentalities involved were under the management and control of the defendant; (c) and the defendant possesses superior knowledge or means of information as to the cause of the occurrence." See also, Carter v. Liberty Equipment Co., Inc., 611 S.W.2d 311 (Mo.App.1980).

In our courts, the doctrine is treated as a rule of circumstantial evidence whereby a submissible issue of negligence may arise through demonstration of an occurrence which, because of its character and circumstances, permits a jury to draw a rebuttable inference that the cause of the occurrence does not usually exist absent negligence. Hasemeier v. Smith, 361 S.W.2d 697, 700 (Mo.banc 1962). A party seeking application and benefit of the doctrine need not submit facts surrounding the occurrence which excludes every reasonable hypothesis except defendant's negligence, but application of the doctrine does require there be facts and circumstances from which one can conclude that, more often than not, an occurrence or accident of the type involved results from a failure to exercise reasonable care by the party in charge of the instrumentality. Walsh v. Phillips, 399 S.W.2d 123, 128 (Mo.1966) and Hall v. St. Louis Public Service Co., 248 S.W.2d 33 (Mo.App.1952). See also Restatement 2d Torts, § 328D (1966). It has been ruled that before the doctrine is applicable, there must be a showing by the party claiming its application that the party "must present more than a case of equal probabilities-one with liability and one without." Bone v. General Motors Corporation, 322 S.W.2d 916, 921 (Mo.1959). The doctrine and its application have been discussed in a more recent decision of our State Supreme Court, City of Kennett v. Akers, 564 S.W.2d 41, 45 (Mo.banc 1978) wherein the court held:

Falling objects have been fertile ground for the application of the res ipsa loquitur doctrine ever since a barrel of flour rolled out of a warehouse and fell on a passing pedestrian in Byrne v. Boadle, 2 H. & C. 722, 159 Eng.Rep. 299 (1863). Much has been written about the doctrine and the courts of various states have defined or explained it differently. In Missouri it is considered a rule of evidence. Empiregas, Inc., of Noel v. Hoover Ball & Bearing Co., 507 S.W.2d 657 (Mo.1974), 58 Am.Jur.2d Negligence, sec. 475, at 48, and, if applicable to a given factual situation or event, simply means that the happening of the event provides sufficient circumstantial evidence so as to allow, but not compel, the jury to infer from that evidence that the event happened because of the defendant's negligence and to so find. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 559 (Banc 1932). The event must be an unusual occurrence of a character which ordinarily results from negligence and from which, therefore, negligence is a reasonable inference. (emphasis added)

Our courts have further ruled that whether the event or occurrence is the kind of unusual event or occurrence which ordinarily results from negligence is a determination to be made judicially and to be arrived at by judges applying their common experience of life to the event giving rise to the suit and deciding whether the criteria for application of the doctrine of res ipsa loquitur has been satisfied. City of Kennett, supra. Upon review, an appellate court is prohibited from weighing the evidence in considering whether the evidence is sufficient to permit application of the doctrine, but an appellate court may determine whether that evidence is substantial and may point to inferences that may be drawn from that evidence. Gateway Chemical Co. v. Groves, 370 S.W.2d 302, 305, 306 (Mo.1963). As regards circumstantial evidence, our courts function to determine whether certain circumstances warrant an inference where application of the doctrine is sought. Determination of the application of the doctrine is a matter of law left to the exclusive province of our courts and is not a matter left for determination by a jury as factfinder. Cannamore v....