Tennis v. General Motors Corp., s. 11907

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: TITUS; FLANIGAN; PREWITT; PREWITT
• Citation: 625 S.W.2d 218
• Decision Date: 24 November 1981
• Docket Number: Nos. 11907,11910,s. 11907
• Parties: Larry TENNIS, Plaintiff-Respondent-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Respondent, and Universal Tool & Stamping Company, Inc., Defendant-Appellant.

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625 S.W.2d 218 26 A.L.R.4th 350 Larry TENNIS, Plaintiff-Respondent-Appellant,
v.
GENERAL MOTORS CORPORATION, Defendant-Respondent,
and
Universal Tool & Stamping Company, Inc., Defendant-Appellant. Nos. 11907, 11910. Missouri Court of Appeals, Southern District, Division One. Nov. 24, 1981.

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Thomas G. Strong, Mathew W. Placzek, Strong & Placzek, P.C., Springfield, for plaintiff-respondent-appellant.

Donald R. Duncan, Turner, Reid, Duncan & Loomer, P.C., Springfield, for defendant-respondent; Otis M. Smith, Gen. Counsel, General Motors Corp., Detroit, Mich., of counsel.

Glenn A. Burkart, Bruce E. Hunt, Mann, Walter, Burkart, Weathers & Walter, Springfield, for defendant-appellant.

TITUS, Judge.

Plaintiff sued General Motors Corporation (General Motors) and Universal Tool & Stamping Co., Inc. (Universal) for damages resulting from personal injuries received when a Chevrolet Caprice automobile, on which he was installing shock absorbers, fell as the result of an allegedly defective bumper jack manufactured by Universal and furnished by General Motors. Plaintiff's

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claims were predicated on defendants' strict liability per § 402A, 2 Restatement of Torts 2d as adopted in Keener v. Dayton Electric Manufacturing Company, 445 S.W.2d 362 (Mo.1969). The jury's verdicts were in favor of General Motors and in favor of plaintiff against Universal. In the latter verdict plaintiff was awarded damages in the sum of $570,550.67. Both plaintiff and Universal have appealed.

Then 33 years old, plaintiff was at the home of his father-in-law, Jesse Townlian, on Thanksgiving Day 1977. Townlian owned a 1972 Chevrolet Caprice which he had purchased used in the spring of 1977. According to Townlian, the car was equipped with the jack when he bought it but he had never used nor inspected the jack. Plaintiff volunteered to install the shock absorbers which Townlian had acquired. Townlian, plaintiff and Bill Volner went to where the Caprice was parked in a driveway and Townlian opened its trunk. A sticker on the trunk door warned: "CAUTION Apply parking brake and block diagonally opposite wheel before operating jack. Do not get under car while using jack." After Townlian placed blocks under the vehicle's wheels and made sure the gear lever was in "Park," plaintiff took the jack and base plate from the trunk and commenced jacking up the right rear wheel in preparing to install the shock absorbers. Volner and Townlian then left the vicinity of the automobile as plaintiff continued his labors. While plaintiff was in the process of installing the fourth shock absorber on the left front of the car, he was sitting on the tire and wheel, which he had removed and was partially beneath the fender at that location when the car fell straight down. Plaintiff was "sort of folded up" under the fender with his legs extended forward. Volner recounted that when the car fell he heard "sort of a ripping ratchet sound and then a crash." Although the jack was still "hooked under the bumper" after the car had fallen, it would not work to lift the car off plaintiff and he had to be extracted otherwise before being taken to the hospital.

Volner related that before plaintiff commenced using the jack it looked "like new then" and after the car had fallen onto plaintiff, the jack was still in an upright position on the base plate, but the hook or load rest was lower on the column of the jack. Later the same day, Townlian finished installing the last shock absorber on the Caprice by use of the jack. However, before doing so he ground the load rest on the jack to make it fit into a slot in the front bumper and beat on the load rest with a two-pound hammer to get it to fit into the bumper slot. The next day while looking at the load rest on the jack, Townlian saw on it the words "Chevy II, 1968."

Reginald Aspland and Steve Kendall owned the Caprice before Kendall sold it to Townlian. Aspland testified there was no jack in the vehicle while he owned it. Kendall said he owned the Caprice just a short time after he bought it from Aspland and before selling it to Townlian and that he had not put a jack in the car and did not know if one had ever been in the trunk. As previously noted, Townlian said the jack was in the car when he purchased it. Other facts will be detailed, when necessary, in our discussion of the points relied on raised by the appealing parties.

UNIVERSAL'S APPEAL

I.

Universal's first point relied on is that the trial court erred in overruling its motion for a directed verdict filed at the close of all the evidence because plaintiff failed to prove the jack housing-column assembly was in substantially the same condition at the time of the accident as it was when manufactured.

Section 402 A, 2 Restatement of Torts 2d states: "(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does

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reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller." As seen from Universal's first point relied on, it is its position that proof of elements (1)(b) were absent from the case.

In resolving Universal's first point, we bear in mind that the jury in a strict or products liability case, as in any other such case, has leave to believe or disbelieve all, part or none of the testimony of any witness (Gibson v. Reliable Chevrolet, Inc., 608 S.W.2d 471, 473(1) (Mo.App.1980) ) and that this court is obliged to consider the evidence in the light most favorable to the verdict, remembering that the credibility, value and weight of the testimony of the witnesses is a matter for the jury. Tile-Craft Products Co., Inc. v. Exxon Corporation, 581 S.W.2d 886, 888(2) (Mo.App.1979). Also to be observed is that the doctrine of strict liability in tort does not require impossible standards of proof nor does the doctrine require that the product be new at the time of the occurrence-only that it be in substantially the same condition as when it left the manufacturer thereof. Williams v. Deere & Co., 598 S.W.2d 609, 612(2 and 5) (Mo.App.1980). Likewise, if plaintiff has evidence that no alterations were made to the product after leaving the manufacturer which would cause the damages incurred, he has made a submissible case as to the existence of the defect at the time of such leaving. Winters v. Sears, Roebuck and Co., 554 S.W.2d 565, 573(18) (Mo.App.1977), 89 A.L.R.3d 196.

Plaintiff's expert witness, James Somerset, had Bachelor of Science and Master of Science degrees in Mechanical Engineering and a Ph.D. degree in Mechanical and Aerospace engineering. He was employed as a professor at Syracuse University, Syracuse, N.Y. He had tested, visually and microscopically, the jack in question and other identical jacks. He found no alterations in the accident-jack, except for the load rest which had been altered subsequent to the casualty, and declared the jack had not been subjected to excessive wear or tear. His conclusion was the jack fell at the time of the accident because the pawl and configuration of the jack's teeth were improperly designed and also that the teeth had not been manufactured to conform to the design criteria in the blueprints. In short, the witness concluded the jack fell down the column thereof because it was both defectively designed and manufactured.

It is the general rule in civil cases that the testimony of a single witness, if accepted as true, is usually sufficient to establish a fact for jury consideration. Scherffius v. Orr, 442 S.W.2d 120, 124(2) (Mo.App.1969), and cases there cited. While we hold that Dr. Somerset's testimony was sufficient alone to establish the jack was in substantially the same condition at the time of the accident as it was when manufactured, there was other testimony along this line which the jury could have also considered. As previously noted Bill Volner, an eyewitness to the accident, testified the jack looked "like new then" and that "it wasn't in any way altered like that. It was new." The owner of the jack, Jesse Townlian, inspected it after the accident and recounted the teeth on the column were all shiny, thereby indicating the jack had been well-kept and was like new. William Christiansen examined the jack for General Motors and Keith Ulm examined it for Universal. Neither found any alterations to the jack's housing or column and no sign of excessive use or improper maintenance. In fine, neither Ulm nor Christiansen made any claim the jack was not in substantially the same condition when the accident occurred as it was when manufactured by Universal.

Universal's first point relied on is denied.

II.

Universal says the trial court erred in denying its motion for a mistrial when plaintiff's counsel in his opening statement said to the jury: "Let's now look at the

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parties to this lawsuit. The plaintiff, the person bringing this lawsuit, is Larry Tennis. Larry, before this injury, was a proud, kind, loyal, helpful 34 year old married man with three children, who had a job." Universal said a mistrial was in order, as it so moved, because the statement, though true, was inflammatory, irrelevant to any trial issue and was prejudicial to Universal's right to a fair and impartial trial.

Prior to overruling Universal's motion for a mistrial and in consideration thereof, the court, out of the jury's hearing, inquired of plaintiff's lawyer why a reference to the fact plaintiff was married and had three...