Winters v. Sears, Roebuck and Co., 37373

• Decision Date: 26 July 1977
• Docket Number: No. 37373,37373
• Citation: 554 S.W.2d 565
• Parties: Benson L. WINTERS et al., Respondent, v. SEARS, ROEBUCK AND CO., Appellant. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 565

554 S.W.2d 565

89 A.L.R.3d 196

Benson L. WINTERS et al., Respondent, v.SEARS, ROEBUCK AND CO., Appellant.

No. 37373.

Missouri Court of Appeals, St. Louis District, Division Two.

July 26, 1977.

Robert C. Ely, Robertson, Ely & Wieland, St. Louis, for defendant-appellant.

John H. Marshall, Robert H. Burns, Clayton, for plaintiffs-respondents.

STEWART, Judge.

Defendant, Sears, Roebuck & Co., appeals from a jury verdict in favor of Benson and Alta Winters and their insurer, Western Casualty & Surety Co., in an action based on strict liability in tort for damages to the Winters' home caused by a fire involving a television set sold to Winters by Sears.Sears contends that the trial court erred in denying its motion for a judgment notwithstanding the verdict or alternatively for a new trial because the evidence in the case was insufficient to support a finding that the fire had been caused by a defect near the small end of the television picture tube or that any such defect had been present at the time the set was sold to Mr. and Mrs. Winters.Appellant also contends that the trial court erred in overruling defendant's objection to a hypothetical question propounded to the plaintiffs' expert which included an assumption that neither the picture tube nor its attachments had been the subject of repairs or replacement.We affirm the judgment of the trial court and remand for trial on the issue of damages.

Two and a half years before the fire, which gave rise to this action, Mr. and Mrs. Winters bought a color television set of the "instant-on" variety from Sears, along with a 26-month service contract.This set did not work properly and was replaced by the set which is the subject of this action.Within a month after delivery, the television set began to malfunction and Sears was called upon many times over the life of the service contract to repair the set.To Mr. Winters' knowledge Sears had never made any changes involving the picture tube or its attachments.The repairs included replacement of the tuner, some tubes, resistors, and a transformer.The repair slips, which plaintiff had received from Sears, did not reveal the nature of any of the repairs.They showed only that repairs had been made.No one but Sears serviced the set during the contract period.

A little more than a month after the service contract ended, the television set went dead.United Television Sales Service, (United), was called.United removed the bottom part or chassis of the set and took it to their shop.The picture tube, the deflection yoke, which fits over the small end of the picture tube, and the attachments to the tube were not touched.The repairman from United testified that he had worked on the voltage regulator and the horizontal output section and that he had replaced some tubes and resistors, all of which were located in the chassis portion of the set.He further testified that the work that he had performed made no changes in or alterations to the picture tube, or to any of the attachments to the picture tube, including the deflection yoke.Plaintiff testified that neither he nor his family or friends had ever attempted to work on the set.

On March 3, 1972, the chassis was returned to the Winters and the television appeared to operate properly.On April 13, 1972, Mr. Winters returned home early in the afternoon from working the night shift.He turned on the television and dozed off in front of it.He awakened to find that "fire was coming up out of the back of the T.V."He went for water to extinguish the fire and when he returned he tried to jerk the set away from the wall, at which point, "the fire just went every place."The assistant fire chief, who responded to the fire, testified that the fire originated in the area of the television set, along the southwest wall of the living room.He further testified that the wall directly behind the set, about 8-10 inches above the floor, was "scarred real bad."

Plaintiffs' expert, Dr. Richard Koopman, Professor Emeritus at Washington University and former head of the Electrical Engineering Department, testified that he had examined the set after the fire and concluded that the source of the fire was at the small end of the picture tube.He based his opinion on a burning pattern he had observed at the end of the picture tube and on the fact that the greatest distortions from the heat of the fire had occurred in that area.The neck of the picture tube had cracked and was hanging out of position.Some of the insulation and other material around this portion of the picture tube had burned completely; the remaining material was melted and distorted.Dr. Koopman admitted on cross-examination that he had been mistaken about the extent of the destruction to the deflection yoke that fits over the small end of the picture tube.He intended to refer to the deflection unit.The yoke is but one portion of the unit.He continued to maintain that the most intense heat had occurred in the middle of the set at the small end of the picture tube.He testified that if the fire had started below the picture tube in the chassis, the glass tubes in that area would have cracked from the heat.Many of these tubes were intact and the damage to the chassis area was less pronounced.He eliminated the cord and the electrical outlet as causes of the fire.No fuses were blown.The nature of the parts, which had been repaired or replaced by United, was such that they could not have had a detrimental effect on the picture tube.

Dr. Koopman testified that he could not pinpoint a specific defect because too many parts around the picture tube had been destroyed.However, he noted that there is a small coil in the neck of the television picture tube that must be "red hot" the entire time the set is plugged into the electrical outlet.He further stated that this heat could cause a deterioration in surrounding insulation and electrical components if a defect were present, which in turn would cause greater heat and electrical short circuiting resulting in fire.Based on this knowledge and on the condition in which he found the television after the fire, Dr. Koopman concluded that such a deterioration had occurred and that "the parts had to be defective or they wouldn't have broken down in that length of time."He also concluded that the initial cause was present when the set was delivered by Sears.

I

The doctrine of strict liability in tort as set forth in the Restatement (Second) of Torts§ 402A(1965) has been a part of the law in Missouri since its adoption in Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362(Mo.1969).

Under this doctrine one who sells a "product in a defective condition unreasonably dangerous to the user or consumer . . . is subject to liability" for injury to the user or the user's property caused by the defect.This doctrine also requires that the seller be in the business of selling the product and that the product reach the user in substantially the condition in which it is sold.Keener, 445 S.W.2d at 364.

As in other tortious actions the burden is upon plaintiffs to prove that there was a defect in the television set and that there had been no substantial change in the condition in which the set was delivered to the consumer.The doctrine of strict liability does not require impossible standards of proof.The proof "must be realistically tailored to the circumstances which caused the form of action to be created."Lindsay v. McDonnell Douglas Aircraft Corp., 460 F.2d 631, 639 (14)(8th Cir.1972).

The existence of a defect may be inferred from circumstantial evidence with or without the aid of expert opinion evidence.Williams v. Ford Motor Co., 411 S.W.2d 443, 447 (3)(Mo.App.1966).

In determining whether plaintiffs presented sufficient substantial evidence for submission to the jury, we must consider the evidence in the light most favorable to the plaintiffs, with all reasonable inferences to be drawn therefrom, and disregard the defendant's evidence unless it aids the plaintiffs' case.Lifritz v. Sears, Roebuck & Co., 472 S.W.2d 28, 31 (2)(Mo.App.1971);Williams v. Ford Motor Co., 411 S.W.2d 443, 445 (1)(Mo.App.1966).

There was ample evidence from which a jury could find that the fire, which damaged the Winters' home, started in the television set.Mr. Winters awakened to find "fire was coming up out of the back of the T.V."The only thing he saw on fire was the back of the television set.He went to get water with which to extinguish the fire, and on his return the wall behind the set was on fire.The fire chief testified that the television set was severely burned and that the wall directly behind the set was "scarred" starting about 8 or 10 inches from the floor.With the establishment of the television set as the source of the fire, the principal issue in this case focuses upon the plaintiffs' proof of a defective condition near the small end of the picture tube and of the existence of that condition when Sears delivered the set to Mr. and Mrs. Winters.Circumstantial evidence may be used to establish the existence of a defective condition.Lifritz v. Sears, Roebuck & Co., 472 S.W.2d 28(Mo.App.1971).It is held that the testimony of an expert may constitute substantial evidence; and a jury may determine that an incident resulted from a defect rather than from other causes based upon an opinion of a qualified expert that the defect was the more reasonable probable cause.Lifritz, 472 S.W.2d at 32.

Appellant argues that plaintiffs' expert had no facts upon which to base his opinion other than the fact that a fire had occurred in a television set that was 21/2 years old and had been the subject of repairs.Appellant therefore concludes that Dr. Koopman's opinion was based on mere conjecture and thus lacked the requirements of substantiality and probative force.Defendant would distinguish the present case from those cited by plaintiff, which have...