Welkener v. Kirkwood Drug Store Co., 52057

• Decision Date: 30 June 1987
• Docket Number: No. 52057,52057
• Citation: 734 S.W.2d 233
• Parties: Prod.Liab.Rep. (CCH) P 11,471 Leonard WELKENER and Cinda Welkener, Plaintiffs, v. KIRKWOOD DRUG STORE CO., Defendant-Respondent, Third Party Plaintiff, v. PIONEER COMPANY, Third Party Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 233

734 S.W.2d 233

Prod.Liab.Rep. (CCH) P 11,471

Leonard WELKENER and Cinda Welkener, Plaintiffs, v. KIRKWOOD DRUG STORE CO., Defendant-Respondent, Third Party Plaintiff, v. PIONEER COMPANY, Third Party Defendant-Appellant.

No. 52057.

Missouri Court of Appeals,

Eastern District,

Division Five.

June 30, 1987.

Motion for Rehearing and/or Transfer Denied Aug. 13, 1987.

Daniel J. Harlan, Harlan and Harlan, St. Louis, for third party defendant-appellant.

Paul S. Brown, Brown, James & Rabbitt, P.C., St. Louis, for defendant-respondent, third party plaintiff Kirkwood Drug.

Mary Elizabeth Kaslick, Witzel & Kearns, St. Louis, for plaintiffs.

SIMEONE, Senior Judge.

I

This is an appeal by Pioneer Company (Pioneer), an Ohio corporation, from a judgment entered upon a jury verdict in favor of respondent, Kirkwood Drug Company (Kirkwood), against appellant, Pioneer, on Kirkwood's claim for indemnity. In this products liability action, plaintiffs brought suit against Kirkwood, the retailer, for injuries sustained when the plaintiff, Leonard Welkener, was injured while using a pair of crutches which collapsed. Kirkwood, the retailer, filed a third party claim against Pioneer for "indemnity or contribution." The jury returned a verdict in favor of Leonard Welkener in the amount of $255,000 and in favor of Cinda, his wife, for loss of consortium in an amount of $10,000, and found in favor of Kirkwood Drug Company against Pioneer for the same amounts on Kirkwood's claim of "indemnity." The court entered judgment in favor of Kirkwood against Pioneer for $265,000.00. Pioneer appeals contending (1) that the court did not have in personam jurisdiction over it because it did not have sufficient minimum contacts with the state of Missouri; (2) the trial court erred (a) in giving certain instructions which authorized Kirkwood (retailer) to recover full indemnity from Pioneer (manufacturer) and (b) refusing certain tendered instructions which would have allowed contribution or apportionment of fault between Kirkwood and Pioneer and (3) the trial court erred in refusing to permit a witness for Pioneer to testify that no other accidents had been reported to the company, since such testimony was relevant on the issue of design. For reasons hereinafter stated, we affirm.

II

These proceedings began when Leonard Welkener and his wife, Cinda, filed their third amended petition in the circuit court of the City of St. Louis against Kirkwood and Pioneer, among others, seeking to recover damages for injuries sustained by Leonard when one of the crutches which he had rented from Kirkwood Drug collapsed and the handle thereof "disengaged." The theory of the petition was based upon strict products liability. The petition alleged inter alia that the crutch which collapsed was defective and dangerous; that the handle of the crutch was "designed in such a manner as to allow it to become dislodged from the crutch assembly while being used," and that the handle was manufactured without proper safety devices to prevent the handle from being disengaged from the crutch assembly. The petition further alleged that Pioneer manufactured, distributed and sold crutches in Missouri for the use of Missouri consumers; that they were "designed, manufactured and placed into the channels of commerce," and that the crutch was defective and dangerous. Plaintiffs did not make any allegation concerning Kirkwood's duty or failure to inspect the crutch before it was rented to Leonard Welkener.

Prior to trial, Kirkwood filed its third-party petition against Pioneer alleging that it is an Ohio corporation subject to jurisdiction pursuant to § 351.633, R.S.Mo.1978; that Pioneer manufactured the crutches; that Pioneer distributed the crutches into the stream of the "national channels of commerce" through the use of distributors, and that if Kirkwood were held liable to plaintiffs, it have judgment in a "like amount" against Pioneer or "in the alternative" that the court and jury determine the proportionate fault between Kirkwood and Pioneer and assess damages accordingly. Service of summons was made upon the Secretary of State pursuant to § 351.633, R.S.Mo.1978. Pioneer opposed the third party petition on the ground that the court had no jurisdiction over it. This motion was overruled and Pioneer was ordered to answer. In proper time, Pioneer appeared "specially" and answered the third party petition, again asserting lack of jurisdiction.

On April 7, 1986 the trial began. The jury could reasonably find the following.

Leonard E.C. Welkener, a 39-year old man, weighing about 265 pounds was injured on September 8, 1981 when in the course of his job, he attempted to unload a bag of flour from a tractor-trailer in Illinois. He fell on his leg and injured his left knee. Early the next morning, Cinda took him to St. Joseph's Hospital in Kirkwood, Missouri. The hospital personnel placed an "ace bandage" on the knee and advised him to contact an orthopedic group and "rent a set of crutches." When they left the hospital, the Welkeners went to the Kirkwood Drug Store and asked to rent a set of crutches. The saleslady, Jackie Morris, brought out a set of crutches and attempted to fit them to his height. As she was doing so, Leonard "glanced" down and noticed that one of the wing nuts "supporting the lower main support" was missing. The saleslady took the crutches back and returned with a pair of crutches (perhaps the same pair) complete with "wing nuts." The saleslady adjusted the height by placing the handle in the lowest position and placed them under Leonard's arms. Leonard rented the crutches, paid the saleslady and received a receipt.

Eventually Leonard went to the St. Louis County Orthopedic Group, and his knee was treated by physicians by placing the leg in a "straight leg brace." On October 2, 1981 Leonard had surgery on his knee at St. Anthony's Hospital--"they reconstructed my left knee"--and about a week later he was released and returned home to convalesce.

Leonard's leg was in a "full leg cast." He used the crutches to walk around the house. The Welkener house had a living room, kitchen, bath and the daughter's bedroom on the first floor and the Welkener's bedroom was in the "basement." A stairwell proceeded to the basement bedroom. Leonard negotiated the steps on crutches at a minimum of "twice a day." About midnight, October 17, 1981, Leonard began to traverse the stairwell. When he "got" to the opening of the stairway, he placed the crutches on the "first step below the level of the kitchen floor, ... eased his weight forward to let the crutches accept my body weight, ... brought my good leg forward and brought it down to the level of where the ends of the crutch were on the first step." When he reached the second step the "left crutch fell apart." The handle came off; it was in his hand and he "fell down the flight of steps." He had broken his wrist--"the bones was [sic] sticking out at the wrist and I was bleeding." His forearm was also injured. He called his wife; the paramedics arrived and took him to St. Joseph's Hospital. He incurred substantial medical expenses, spent several weeks in two hospitals, took physical therapy treatments, suffered a "frozen shoulder syndrome" and suffered lost wages in a substantial amount.

The crutches involved in this proceeding were manufactured, designed, and distributed by Pioneer. They were made about "twenty years ago, about 1965." Pioneer is a corporation organized and existing in the State of Ohio with its factory and headquarters in Lisbon, Ohio. The crutches are marked as being manufactured by Pioneer. The Company manufactures and distributes medical equipment. The president of Pioneer, Mr. Tuseck, testified that Pioneer has been in the business of manufacturing aluminum crutches with wood tops and handles for twenty-five years. He testified that the company had no dealer or representative in Missouri, nor could he find any record that the company ever did business with Kirkwood. He had no knowledge of how the crutches came into Kirkwood's possession. Pioneer, however, sends out almost 15,000-20,000 catalogues each year to advertise its products throughout the country, including Missouri. Catalogues are sent to every state and Pioneer makes no attempt to limit the sales of its crutches to any particular state. But it has no dealer or supplier in Missouri. An affidavit of one Jack Dunning made during pre-trial, stated that he owned a pharmacy in Farmington and had received brochures from Pioneer advertising their products. In the 1970's he "ordered" some walkers which Pioneer delivered. His dealings were directly with Pioneer "through their brochure and by direct mail." Tuseck's counter-affidavit stated that the company has no record of ever having done business with Kirkwood Drugs or with anyone else in Missouri except Jack Dunning in 1976. The catalogues are sent to surgical supply houses, wholesale druggists and druggists. Mr. Tuseck testified that he expected that and it would not be unusual that their products would be retailed to a drug store from a supply house. Jack Richard Bishop testified that Kirkwood purchased Pioneer crutches indirectly from Professional Convalescent Products located in Cincinnati, and had never done business with Mr. Tuseck of Pioneer.

Miss Peggy Greco of Des Peres, Missouri, testified that in October 1985, she bought a pair of crutches with a plastic, rather than wooden, top from Pioneer by ordering them by telephone.

Mr. Tuseck, who is "most familiar with the testing procedures performed on their crutches, described the design and manufacture of the crutches in question. Pioneer manufactures its crutches for the general population without regard to the height or size of the person using them, but it would expect a 265 pound person to use them. The crutches are made mostly of aluminum. The top of the crutch which fits under the person's arm is wooden; there is an...