*1 by the trial is matter to be determined cy first time in a The defendant for the concerning rele doubt Knight if there is this court tenders information that court and for be admitted to should August guilty plea on entered a vance the evidence facts”. State degree trier of the charge of assault in the third evaluation (Mo.App. Lenza, upon which sentence was deferred and v. 582 S.W.2d un contention is Knight placed probation. Those 1979). The defendant’s discussed, for the the statute alleged may facts be asserted As heretofore sound. McMillin, recog time in v. expressly first this court. State defining burglary used in 612 (Mo.App.1979). partially building may only nizes that 569.010(8). evi public. open to § every pro It is not failure of a in determin question was relevant dence in spective juror respond a voir dire building open was not ing what qdestion that will entitle the defendant to a not err in The trial court did public. to the new trial. The defendant concedes Heinz, v. evidence. State admitting that degree felony assault in the third is not a judg (Mo.App.1980). disqualifies person serving ment is affirmed. juror. pro 561.026. Whether not a or § spective juror’s re intentional failure to PREWITT, J., and BILL- P. and HOGAN spond question to a voir dire will entitle a INGS, JJ., concur. defendant to a new trial is within the dis Scruggs, cretion of the trial court. State v. (Mo.App.1977).
al court to exercise that the de
fendant in his after-trial motions must
present pertinent by way facts of affi
davit. Crim. Rule 29.11. al “[Unverified
legations prove in a new trial motion do not COULTER, Nathan L. Underwood, themselves.” State v. Plaintiff-Respondent, (Mo.1971). The defendant failed to do merely so but stated in his unverified motion for a new trial “that CORPORATION, TIRE MICHELIN
juror Lloyd
Knight
Thomas
failed to dis
Defendant-Appellant.
close the fact that he had a criminal rec
No. 11336.
ord”. The trial court did not err in overrul
ing
unverified,
such an
vague
unspecif
Appeals,
Missouri Court of
Dennison,
ic basis for a new trial.
District,
State
Southern
(Mo.App.1978).
asserts for this assertion is not clear. It is
basis
apparently upon proposition based building open
because one area of the water, public get the whole build
ing open public and therefore evidence was immaterial. Evidence is prove disprove
relevant as it tends to question in issue and
fact of relevan- “[t]he
423
425 *4 severe, Plaintiff sustained exploded. This action followed.
disabling injuries.
has
the defendant
appeal,
On
assignments of er
argued five
briefed and
point
is that
principal
ror. Defendant’s
con
case.
plaintiff made no submissible
preliminary
a few
point,
nection with this
The cause
appropriate.
observations
theory
upon the
was tried and submitted
in Keener
Supreme
enunciated
our
Court
Manufacturing Compa
Dayton
Electric
Therein,
(Mo.1969).
ny, 445
concept
recognized
“. . .
court
in 2 Restate
liability in tort as stated
strict
Torts, Second,
ment,
402A.”
Law of
§
Motors, 551
Blevins v. Cushman
1977).
to recover
(Mo.banc
In order
liability, plain
of strict
under the doctrine
(1)
product
establish that:
tiff must
*5
Freeman, Neale, Newman,
Flavius B.
to. a
dangerous
put
when
was defective and
Freeman, Springfield,
Bradshaw &
John M.
the manufac
reasonably anticipated by
use
N.Y.,
Kenney,
Park,
New Hyde
for defend-
turer;
(2)
injury
sustained
plaintiff
and
the
ant-appellant.
defect.
damage
a direct result of the
or
as
Benjamin
Francka, Raymond
J.
E. Whi-
Motors, supra, 551
Blevins v. Cushman
teaker,
Price,
Fisher,
John E.
Woolsey,
Whi-
607[2, 3]; Rogers v. Toro Manu
S.W.2d at
teaker,
Ansley, Springfield,
McDonald &
for
facturing Company, 522 S.W.2d
637[4-
plaintiff-respondent.
And,
to estab
(Mo.App.1975).
in order
6]
case, plaintiff
of his
lish the first element
HOGAN, Judge.
(a) that
the
the burden to show both
has
In this action
liability
based on strict
in
product
left
the
defect existed when the
tort, plaintiff Nathan Coulter has had a
and entered the
manufacturer’s
control
judgment
verdict and
in the amount of
commerce, Brissette v. Milner
stream of
$140,000 against
Tire
defendant Michelin
176, 181
Company, 479 S.W.2d
Chevrolet
Corporation.
appeals.
Defendant
(b)
product
and
the
(Mo.App.1972),1
casualty
upon
July
reasonably anticipa
sued
occurred
being put
was
to a use
employed
Day
1970. Plaintiff was
as a tire
Keener
by
ted
the manufacturer.
corporation
mounter
known as “Tire
su
Manufacturing Company,
ton Electric
noon,
Springfield.” Shortly
Town of
before
Toro
365[6]; Rogers v.
pra, 445 S.W.2d
plaintiff
changers
and two other tire
were
Company, supra, 522 S.W.2d
Manufacturing
mounting a
tires on a
new set of Michelin
637;
Torts
(Second) of
Restatement
Lincoln Continental automobile. Plaintiff
402A,
(1965).
h.
Comment
§
removed a tire and rim from the vehicle
defendant’s
Fairly paraphrased,
placed
changer.
it
He re-
and
on
tire
plaintiff
is that
submissibility
rim and
moved
which was on the
any defect
the existence of
to
failed to show
undertook
mount the new tire. While
unreasonably
the
the which would make
tire
plaintiff
attempting
was
to seat
rim,
reasonably
antici-
against
dangerous
put
“bead” of the new tire
when
Keeton,
Liability,
equate
requirement
50 F.R.D.
proof
See W.
Products
1. We
of
with
likely present
“... a defect that was
when the
possession
maker surrendered
and control.”
pated
(1)
July
with,
use because:
sub-
begin
there was no
1970. To
the record
stantial evidence that
there was
defect
justifies the inference that the tire
new
present
pos-
when the
attempted
maker surrendered
unused when
plaintiff
and
session; (2)
plaintiff’s
ex-
injured.
it
Witness Pierson
mount
pert that the tire had a “kinked” bead wire
were
plaintiff
testified that
tires he and
value,
probative
is without
(3)
evi-
stock,
mounting were
taken
out of
dence establishes as a matter of law that
“wrapped
wrappings.”
in some
Pierson ex-
plaintiff’s injuries
were caused
abnormal
go
plained
“you take a knife
be-
use
the tire. We
set
one side the
paper
tween the two beads and cut the
...
defendant’s contention
its
for
motion
you
clean
inside
the tire out.”
judgment n.o.v. should have been sustained
“paper”
“trash”
then cleaned
plaintiff
because
failed
adduce
proof
tire,
plastic things”
out of the
some “little
the very
pleaded.
defect
This
very
case is
removed,
separated
the “beads” were
Co.,
similar to
Armstrong
Nielson v.
Rubber
Boswell,
and the tire was mounted. One
(8th
1978),
We proof conclude the suffi it was received when first cient to show August the existence of a of 1970.2 Ochs defect defendant Mr. response plain- yellow 2. witness’ marks been made seems to have been chalk had qualified yellow expert, there because were chalk Mr. Garvick. tiffs marks on the tire. It was shown that Sears, Winters v. Roebuck (we (Mo.App.1977); was asked about some raised striations 12) 569[5], 89 appear count which at intervals of about at supra, 202; 6½ inches around the circumference v. Milner Chev A.L.R.3d at Brissette tire. Counsel referred to “those little at Company, supra, 479 rolet 181-182[5]. explained marks.” Mr. Ochs that the raised expert may constitute of an rep- striations are called “mold flesh” and manufacturing de substantial evidence of a resent which during “excess” oozes out tire, has been though even the tire fect in a manufacturing process. was also Ochs v. Uni partially destroyed. used or Smith asked, you “Can tell whether or this tire Inc., (7th Cir. royal, 420 F.2d 441-442[4] has ever been mounted before and run on Com 1970); Brissette v. Milner Chevrolet highway?” answered, He say “I’d 181-182; Fire pany, supra, the condition of the tread face it has not King, Rubber Co. v. Ga. stone Tire & been run.” App. 244 S.E.2d 908-910[1-4] Corpora Motors Mullen General plaintiff’s expert
When Garvick first saw tion, N.E.2d Ill.App.3d the tire in it was still in possession of case, jury could plaintiff’s In this employer. Mr. Garvick testified 344[4-6] tire, (1) was a possession reasonably that after he took infer: that the tire he measured the depth, new, exploded tread and from this and in unused tire when it measurement he determined the tire (2) that jured plaintiff; that was a new tire which had never been in during long repeatedly been examined road service. This witness also observed elapsed between the accident period (striations) seg- “vent lines from the trial; experts who examined it and the two of the mold....” He continued: ment[s] damage to signs found no of use or external course, service, “If the tire had been in “bead wire” the tire sufficient to cause the worn, those would be so I knew that break; (3) of Mr. opinion in the tire had not something been in service but Garvick, expert, the defect had happened got to it before it into service.” produced been when the tire was manufac unequivocally Garvick also stated that tured, (4) that at the time of trial (the “kinked beads” alleged defect to have except for appeared to be a new tire plaintiff’s injuries) caused produc- had been explosion. There damage caused ed at the time of manufacture. This wit- was, therefore, substantial evidence ness also testified that he found no “exter- at the time it was the tire was defective damage” nal to the tire. sold. Perhaps the best evidence that the tire is testi- argues further Defendant *7 in the “same condition” as it was at the pro- expert was without mony plaintiff’s of time of the accident is the tire itself. As was not opinion value because his bative us, appears the tire before raised striations data, “fact, evidence, adequate based on produced in manufacturing process experience.” visible; clearly it is obvious that the tire liability usually products case in As is has not been used. is rather litigation, the evidence of defect The can be under- technical.
The rule is that the existence of a taken in connection with stood if it is manufacturing may proved by defect be exhibits, cannot but of course the exhibits any species evidence, of direct or circum We have incorporated opinion. in this stantial, be from which jury may a infer the very rough diagram a of prepared therefore existence of such defect without resort to if con- conjecture speculation. may helpful which be one Weatherford v. the tire Porter, Inc., 31, 33-34[2, H.K. circles. ceives a tire as a series of concentric 3]
The tire itself is the bead be “out described as a Michelin to of round.” One of tubeless 225—15 X. serial number on experts, Dunlop, defendant’s Mr. testified 01Y, the tire is F2613 experts and the “kink” is a “very word minor present at the trial testified with num- involving degree bend” “about ten distor- “straight up” ber or “in the 12:00 o’clock being tion from straight.” position.” We have made few measure- theory upon Plaintiff’s trial was that the ments with a flexible rule to indicate the exploded tire bead was because the wire approximate of dimensions the various this, prove “kinked.” To called parts of the tire. We measure the tread one R. Mr. Kenneth Garvick. Garvick was inches; and tread base about retired, “consulting for but did work” his carcass measures about 4 inches employer. experience former Mr. Garvick’s “bead,” incorporates wire,” which the “bead graduated as he follows: In measures about inches. “bead” is Technology Case School of with a B.S. de- part of the tire seats against gree engineering. in “went chemical He rim firmly wheel and holds it directly to For 17 Firestone.” [work for] place. “Mounting” the tire prelim- involves Firestone; years Mr. Garvick worked for inary rim, lubrication of the tire and then: years, for those he “involved (1) pushing the bottom into bead the “well” testing quality control.” While he [and] rim; of the (2) fitting top bead Firestone, employed he continued his tire onto the rim with rotating metal professional education. Mr. Gar- “finger” which is the mounting de- was employed by vick the Mansfield Tire vice; (3) tire, centering the making sure a Company; and Rubber he became director wheel; “hold down” device secures the division of com- engineering (4) inflating slowly until “bot- pany. engineering, As director of tire “top” tom” and the beads seat. The recom- responsibilities development included pressure seating mended is 40 beads specifications for each tire that Mansfield p.s.i.3 made. Mr. From Garvick had The defect or defects which product liability “handled the claims that prove evidence tended to were “kinks” in experience come trial.” includ- His [had] bead wire. “F” Defendant’s Exhibit is tires; ed Michelin tires as well other he sample of the bead wire used defend- up had measured and cut other manufactur- ant in the ques- manufacture tire in industry er’s tires “know what the [was] appears wires, tion. It to be a bundle of doing.” “indus- Mr. Garvick subscribed to larger but in fact one wire with a contin- *8 try servicefs].” [technical] uous 9-wire wrap. Lengths outer Tire hoop are Mr. Garvick first saw tire at spot wire bent into a which is is, wire, wires, way, white welded. This Town. The tire a or bundle of is tire, on incorporated then sidewall but the breaks are into the bead. Plaintiff’s expert the word “black” or blackwall side. He observed testified “kink” as position” used in rubber and technology actually to breaks at the “6:00 o’clock refers “slight wire, a in causing bend” the bead it would be position” “the 10:30 and decided pounds pressure per “P.s.i.” 3. means air square inch. manufacturers, that “the explained but good x-ray idea to the tire because sides, showed a and ... is
center strand of the bead wire solid on both bead “cup appearance and cone” the site of at being the tire is stationary cured].” [while appear- both “cup breaks. The and cone” cross-examination, repeated Mr. Garvick On cup ance indicated “tension break.” process did not segmented mold appearance readily and cone is not visible to the bead. affect eye, photographs x-rays, our but Mr. argues that vigorously Defendant as particularly photograph received evi was not substantial opinion Garvick’s 7,” Deposition clearly “Garvick Exhibit contained a manufactur that the tire dence appears show that the broken strand center without opinion his ing defect because “cupped” to be on one side and “coned” on fact, evidence, adequate data or support the other. Defendant cites Craddock experience. opinion Mr. as Garvick’s to the cause Mercantile, (Mo. Greenberg given the breaks was as follows: 1957) Skelly 364 Mo. Gaddy and Oil precedents
My opinion on this —the breaks ... undoubtedly relevance cited have some the result of kinks at those two locations Here, here, controlling. they but are not manufacture, the time of and this wholly does not rest case complete caused the to bead not be a was the case upon expert’s testimony, his as circle, hung up ... bead in those [so] Gaddy. the cases and Unlike Craddock two pressure locations . . . defendant, Mr. testi cited Garvick’s beyond stretched the beads the wires’ wholly suppositious mony was not based on areas, elastic limits in those two and as a upon assumed physical facts nor conditions result, broke ... on the black [the tire] to exist. side wall side at what I call the [6:00] ” positions.... [10:30] tes- Defendant’s that Garvick’s accepted be as substantial timony cannot Mr. Garvick was asked how such defects it, perceive As we during very could occur evidence is diffuse. manufacture of a tire. brief, expanded Michelin’s in its point, insistence that its method of re- defendant’s moving cured tires is fail- based (1) opinion mold was not is that: Garvick’s produced him; safe and could not have a kinked (2) to Garvick’s facts known important bead makes it note the lan- qualify him was not sufficient experience guage of his answer: Tires; (3) Michelin testify about
“Well, commonplace [stage] the most destroyed were fact that the “kinks” would be it’s forced off the bead pro- of all explosion deprives [when] seating rings curing at the end of the bative value. cycle, places. but it could be done other ad power may That contention be you would when had a The first failure where it’s a failure a tire mechanical examined shortly. dressed Garvick tire; being that would interfere with its re- he made inferably a new which was (Our moved and would twist bead. damaged inspected the measurements emphasis.) glass. magnifying tire with a area of the of the broken x-ray pictures Thereafter He supervision. under his bead were made questioned by This witness was defend- appearance “cup and cone” found knowledge ant about his of Michelin tires. knowledge first-hand He had bead wire. Mr. did know how a Michelin Garvick tire had ex and knew the about lifted in which it is tire was from the mold inspection was sufficient ploded. His made he had never been in because Tucker v. opinion. for an the basis provide plant. testify Michelin He did direct —on supra, 463 Company, Hardware Central examination —that he was familiar with the *9 539-541; v. United cf. Lewis at segmented processes mold used other 430 Company, stroyed Guernsey
States Rubber 414 202 or lost. Mr. Pa. was never- (1964).4 A.2d 22 permitted testify theless to the existence part of a defect in the the tire which had of exper The assertion that Garvick’s destroyed of been and the action the district tise did not extend to Miehelin tires is over upheld appeal. court was A similar con- stated. When the existence of a manufac presented Georgia tention Court turing issue, defect in a tire has been put in Appeals of in Firestone Tire & Rubber Co. the courts have generally ex looked King, supra, Ga.App. 244 S.E.2d proffered tent of the expert’s experience, at appellant 909. The manufacturer con- rather than his familiarity particular with a tended, among things, pre- other See, product. Inc., e. g., v. Uniroyal, Smith manufacturing of cise nature defect had supra, 441-442[4]; 420 F.2d at Edwards- been established. The court held that Warren Tire Co. v. J.J. Blazer Const. (6th manufacturing the existence of a defect 1977). F.2d Cir. Com circumstances, plete be from and knowledge could inferred about the field is not nec continued, essary. Berger, J. Weinstein S.E.2d at 909: and M. Evidence, 702[04], Weinstein’s pp. 702-28 § “Furthermore, in this defect case (1978). —702-29 assumption usually directly could not be observed [because] made by assessing courts in proffered the material in the area of the blowout expert’s knowledge par of the of a details To destroyed by the blowout. rule technology ticular is “... that if the assert prevented plaintiff] [the ed expert emerges respectable pro from a establishing a case would prima facie be environment, fessional errors in the detail liability to insulate manufacturers from honestly factual information assembled defect ... case where the causes imparted by capable preceptors and its own a result would destruction. Such associates will against tend check one totally untenable.” produce another and aggregate.”5 a reliable case, agree particular In this we with the assumption justified That was and is in Mr. Georgia court and find the defendant’s ar- Garvick’s case. gument untenable. The final aspect point of this deals with the condition tire at the time it part of defendant’s sub- third was x-rayed. Mr. Garvick testified that the missibility casualty point is that kinks in the bead were destroyed in the plaintiff’s injuries result of were the explosion, photo and were not visible in his careless of the tire. The sub handling graphs x-rays. of the Defendant would argument though stance of this that even have it that because the de kinks were appropriate used for an being tire was stroyed, their existence could not reason purpose—mounting of a wheel— on the rim ably be inferred. prac customary failure to follow barring recovery. tices constituted misuse
This is neither con- novel nor point is in We the law on this vincing. Uniroyal, Inc., realize that supra, Smith v. police state of evolution—“flux”6—but for the investigated the state officer who purpose analysis, we shall follow the accident testified our there was hole in the Court, tread, recognized by Supreme view missing. of which was our Infer- ably, part flange missing. Dean the Restatement. Care bead Prosser and George inspected handling species One use Guernsey the tire af- less is a abnormal accident; ter recovery thereafter it was de- which the doctrine of bars under Keeton, supra, Keeton, Liability 4. See also W. n. at Defenses— 50 F.R.D. 6.W. Products 342, discussing Misconduct, Intervening evidence of defects. 15 The Forum Noel, 111-116 D. Defective Products: Berger, supra, 5. 3 J. Weinstein and M. n. Use, Contributory Negligence, and Abnormal 702-14, citing p. Maguire Habesy, “Requi- Risk, Assumption 100- 25 Vand.L.Rev. Expert Opinion”, site Proof Basis for 5 Vand. (1972). L.Rev.
431 down, strict centers.” He liability. Dayton automatically Keener v. Electric tire] [the Manufacturing supra, have Company, they added that “sometimes devices 365[6]; Prosser, at you that you cylinders W. Torts 102 at 669 that on there like set § (Second) up Restatement Torts put the rim and it holds bead around ” 402A, j. (1965). Comment was such § to the .... There a cylinder here, plaintiff and it.8 cylinder used cases,” Ordinarily, in “defect tire, inflating the began Plaintiff then distinguished cases,” “design the issue valve. He without valve core in the did a question jury.7 abnormal use is a for the “you’ve got core to not use a because regard We [stem] it as a factual issue in case. this pounds way up forty air so it’ll it all the position Defendant’s may be summarized seat, you then let out so it will and the air by saying (1) plaintiff: it contends relax, you put then valve core in and failed apply mounting lubricant when air it the maximum you up when back tire; (2) inflated the tire with an exces- pressure.” that some- Plaintiff admitted sive pressure; (3) amount of failed to by using seated the more times he beads secure the tire to the tire device mounting i., particular than s. but on this occa- p. before he inflating started it. thousand, sion, plaintiff “counted” two “one Plaintiff experienced chang- was an thousand, thousand, thousand, three four occurred, er. At the time the casualty thousand, forty about five and that’s plaintiff employed had chang- been as a tire pounds air.” this because Plaintiff knew er for a little more than 6 months. He “many, many he tires times had mounted accident, estimated that before the he always way.” out that before and worked mounted day.” about Michelin tires “a amplified by saying he Plaintiff answer Assuming plaintiff worked a normal 40- pres- the air meant when he had checked week, hour he had mounted about gauge, sure a “five thousand with 22,1970, Michelin by July tires when he produced “pounds” of count” had about 40 injured. Plaintiff procedure described his air. at the injury by time of his testifying that point, plaintiff preparing At this he first removed the rim with tire” the “old the air hose off and let the air “[l]et on it “put the tire changer.” on the pressure out because the back [of tire]” The “changer” mounting device is flat (whitewall) not seated. “top” bead had circular plate metal pedestal; mounted on a thousand,” However, at the count “five the pedestal is attached to a metal circular exploded. the tire base which has been screwed into a concrete trial, good Upon there was a deal floor. There is a threaded post metal controversy about nut.” Mr. “lock center mounting platform. testimony he had Coulter’s threads accommodate “lock nut” which against lock nut the rim when screwed the secures the rim the changer on while the mounting he “centered” on tire is being mounted. Thereafter, he the lock device. loosened Plaintiff “broke down” the old tire not be “in slightly nut so the rim would Mr. Hamm him the handed “new tire” to be the tire was to seat the bind” when inflated beads, mounted. He “soaped then both ... bead. soaped the rim” and started to mount the tire. He stretched both beads over rim from which There was evidence flange. plaintiff Plaintiff’s jury was that infer that if the un could “you put when mounting mount the the manner to dertook to tire in [the tire] [the platform] testified, following proce- ... screw lock nut he was which he [the] Noel, “A”, Mounting supra, 7. See D. n. ant’s Exhibit Procedure,” entitled “Michelin Vand.L.Rev. 104-105. directs the tire mounter to use this “for difficult device inflation.” context, clear, 8. It is was refer- ring “Omega Expander.” Bead Defend- *11 dures ordinarily industry. followed in the argued Defendant has briefed and two It is true that the defendant proof adduced points alleging in the exclusion error of tending to indicate the did not stated, point, evidence. The first as is that lubricate attempted the tire before to he erroneously the evi- trial court excluded Further, it. mount there is evidence from Sentry dence of the involvement which it readily could be found that Mr. Company Insurance this cause. Defend- Coulter did not use the lock nut and that he ant argues that “such evidence” neces- overinflated the tire. This might evidence sary properly deposition the tes- to evaluate detail, be restated in but an extensive re- Dunlop of Mr. Robert and to timony countal only defendant’s evidence would Dunlop’s from account Mr. absence the demonstrate a jury reasonably that could courtroom. of its support point, defend- have reached a different conclusion. It City v. Houfburg ant cites Kansas Stock be must in jury-tried remembered that Maine, 539, Yards Co. of 283 S.W.2d 548- cases, appellate an court weigh does not (Mo.1955); 549 v. Louis Public Leavitt St. evidence; merely it determines whether 131, Company, Service 340 S.W.2d 138[9] there was competent and substantial evi (Mo.App.1960), and other cases which hold support' dence to jury’s finding. Diver that the interest or bias of a witness and his Sons, Corp. sified Metals v. Aaron Ferer & feelings parties to relations or toward Inc., 783, (Mo.1973); 498 S.W.2d Bo 785[2] matters, or the case are never irrele/ant v. nastia Terminal Railroad Ass’n of St. pecuniary of a that interest wit- Louis, 122, 409 (Mo.1966); S.W.2d 125[1] ness, may always prejudice or bias or be Pfingsten v. Franklin Life Insurance Com shown, subject may to such limitations as 806, pany, (Mo.1959). 330 S.W.2d 816[11] trial imposed by be court. Plaintiff jury was the judge sole of the credibili with that evidence counters ty of the weight witnesses and the to of the involvement or interest a work- given value testimony their and could compensation believe disbelieve men’s carrier not admis- that testi Sommer, 72, mony. Thayer v. 356 impede S.W.2d sible because such evidence tends to (Mo.1962). true, It is as the defendant injured right 77[6] man in the of his exercise asserts, submissibility ultimately a matter compensation. full cites receive Plaintiff of fact for the court. Craddock v. Green- Louis, Pritt R. Ass’n v. Terminal R. of St. Mercantile, berg supra, 297 S.W.2d 548. (Mo.1952). 251 625 It is also true that much of the evidence is circumstantial that some the infer It is a reasonable inference from ences must by choosing be drawn between plaintiff’s employer’s the record that work the conflicting opinions of experts. Never compensation joined men’s carrier in this jury theless the had the function and the Nevertheless, subrogee. action facts, right to find some of the even some principle by invoked the defendant does not plaintiff’s case, facts essential by is, apply It and has been for case. reasoning upon evidence, including cir many years, the rule in Missouri that a evidence, inferring cumstantial from impeach the party may directly credibil required such evidence thing certain Goforth, v. ity own Wells of his witness. or fact existed or was true. Hart-Bartlett- (Mo.banc 1969). 155, 159[6] 443 S.W.2d Co., Sturtevant Grain Co. Aetna Ins. 365 rule been relaxed as to witnesses who has 1134, 1149-1150, Mo. 293 S.W.2d 923- Wells, parties, supra, 443 adverse (1956), 924 cert. denied 352 U.S. 159-160, but the witness defend S.W.2d at 562,1 S.Ct. L.Ed.2d 548 Hardwick v. an sought impeach ant was not adverse City Kansas Gas 355 Mo. party. 508[4], 166 A.L.R. benefit of Defendant had the (1946). say We as a matter of cannot law technology. experts in tire Mr. three that it was error to submit that tire was Ochs, plaintiff, testi- being reasonably used in who was called anticipa a manner exploded. ted the tire manufacturer when fied on cross-examination (1885); Woelfle er, 600-601 mismounting and overin- Mo. failed because Co., Mo.App. Ins. Avila, expert Life independent Mut. Mr. an Connecticut flation. 148-149, defendant, he called testified that carefully and had the had examined the tire defend- by the point advanced A further manufacturing opinion that the tire had no erroneously refus- court that the trial ant is defect. Mr. Avila concluded parts read permit ed to defendant because it not been lubricated failed part of in evidence as deposition *12 and had been overinflated. parts of because the case the defendant’s substan- constituted deposition offered the taken in Dunlop’s deposition Mr. was part. plaintiff’s on tive admissions 31, credentials Florida on March 1978. His expert technology as an in tire are not in deposition was taken The questioned, certainly but the defendant was 1975; used counsel September defendant’s Dunlop obliged rely not on Mr. as the on plaintiff the impeach deposition that only prove witness which it could some plain- Upon deposition, cross-examination. its defense. Nor can it what the element essential to had “no idea” that he tiff testified just before it surprised; be said that the defendant was it was in the tire pressure air go up Dunlop’s “wouldn’t had known of the contents of Mr. up; blew that went, up, there it deposition to trial. I aired it prior right for some time and when deposition the Nevertheless, the time up.” defendant offered Mr. Dun- At it Mowed remem- taken, he didn’t plaintiff said lop’s deposition and insisted it was entitled was mounting in he used lubricants employed by to show he had been the work- ber if accident, day of the plain- tires on the compensation men’s carrier for lock he had screwed “no idea” how far Upon plaintiff’s objection, tiff’s employer. he before mounting device on the nut down parts deposi- the trial court excluded other These and the tire. began to inflate indicating correspondence tion and some put were before statements inconsistent Dunlop employed that Mr. had indeed been during cross-examination. jury defendant’s Otherwise, deposition the carrier. evidence; was admitted and read in Mr. paraphrased, slightly point, Defendant’s Dunlop’s testimony very favorable to permitted to have been is that it should the defendant. again statements offer these inconsistent inconsistent because the part of its case The rule in Missouri is that the constitute party-opponent aof statements deposition introduction of a or a there substantive evidence. con any purpose of for other than that of tradicting impeaching deponent or doubt can be no There par deponent makes the the witness of the statements, by prior inconsistent party’s ty, deponent party. unless the is the adverse otherwise, are admissible or deposition Neiswender, Conner v. 360 Mo. in the evidence against him as substantive In the case true that It is also an admission. nature of hand, manifestly sought defendant also admis inconsistent statements such Dunlop’s testimony; benefit Mr. purpose more limited sible its here is that Mr. thrust of Hyatt, v. 578 S.W.2d Welch impeachment. and com v. Dunlop experienced 1979); was the most Pulitzer (Mo.banc Defendant, in petent expert 318[3], who testified. 85 S.W.2d Chapman, 337 Mo. effect, 1935); v. sought (banc to have the benefit of Mr. White 410-411[5-7] (Mo. value Dunlop’s testimony and increase the Burkeybile, 422-423[3] defined the testimony showing And, his bias in have 1965). our courts the tes generously; plaintiff very favor of the or his insurer. term “admission” be a direct such need not refusing permit trial did not err in received as timony court issue; it fact in an ultimate defendant to discredit its own witness. admission of the issue it bears on Neiswender, competent if supra, may 360 Mo. at Conner White 474; circumstantially. incidentally or Dunn v. Dunnak- 232 S.W.2d at Burkeybile, supra, So, down) supination (rotation 422. outward so S.W.2d at suppose, we plaintiff jointure the fact that “had no is of the ulna at palm up). idea” or “did not remember” or permits one another the elbow flexion and extension evidentiary detail his case occa damage on one the forearm. Permanent might sion conceivably probative have some impedes ulna both of the hand rotation value as an admission on another occasion the manner flexion and ex- described and connection, when he could remember or had refreshed tension of the forearm. In this so, his memory. Even the trial court’s rul be noted is left- should ing If, it, prejudicial. oriented, specific put in a have left- parties or as the instance, a trial court excludes evidence handed. admitted, which should have been error Plaintiff was admitted to the intensive is if harmless same evidence found Springfield hospital care unit of a about or the same other witness 22,1970. noon He was unconscious. July given es objection before after the an open, Examination disclosed comminuted sustained. Boring City v. Kansas In Life fracture9 of the left ulna short distance *13 233, surance Company, 274 S.W.2d 238- elbow, below the dislocation of the radius at (Mo.1955); Steffen v. Southwestern 239[7] its the articulation with ulna a fracture Co., 574, 583, Bell Telephone 331 Mo. 56 of the left zygoma, cheekbone. 47, (1932); Kaime, Hastey v. 48[1-3] concussion; he Plaintiff had suffered a
317 Mo. 297 S.W. 52[3] by neurosurgeon was and was examined a Moore v. Ry. St. Louis & F.S. gener- an A operating then taken to room. (Mo.App.1925). S.W. The al An anesthetic was administered. ortho- point is without merit. pedic surgeon the wound to cleaned out The point final substantive made de- and, plaintiff’s using arm a knife and left excessive, fendant is that the verdict the scissors, foreign all material. The removed ignored trial court its a request for remitti- enlarged slightly; orthope- was the wound tur, granted. and a new trial should be surgeon a hole in olecra- dic then drilled the again, Here proper ar- consideration non and undertook to reduce and fixate gument requires preliminary explica- some by screwing the fracture a 6-inch bone tion. bone, pushing screw into the broken fragments place fracture into as screw explosion The per- of the tire resulted in was turn of the advanced. At last injury plaintiff’s manent left forearm screw, snap “a felt.” The radius was was and to the left injury side his skull. The position, a placed then in its normal to his left disabling injury. forearm is his “long laceration of the forehead and lateral Relying upon the record and that common together several repaired, face” was with of knowledge fund all educated men are smaller lacerations about the face and presumed have, we infer that there are long applied plain- mouth. A cast was part two bones in the forearm —that of the tiff’s left arm. arm between the elbow and wrist. If down) one prone extends his forearm (palm later, days plaintiff underwent anoth- Six surface, upon a flat the bone which runs surgical repair er his facial procedure along the outside of the arm from the elbow Plaintiff’s left cheekbone was fracture. ulna; to the wrist is called the the bone fragments. found to have been broken into along the inside of the arm is called the together and the fragments The were wired articulated, radius. These i. two bones bone was “formed.” The wounds e., jointed plaintiff’s the elbow and at the wrist. and a sterile face were closed The August articulations of of the bandage applied. the bones fore- was On permit discharged hospi- arm from the rotating plaintiff movement of the was (hand outpatient basis.” pronation hand described be followed on an palm tal “to process projects 9. of the ulna which be- The term means a break into 10. The denotes several pieces. hind the elbow. that saw and “Q. you actually take operation produced satisfactory Neither So itself? piece ulna bone off surgeon result. The slice orthopedic Yes, just out of you cut a slot A. [plaintiff] “followed on a basis in serial [the bone, yes.” office,” surgeon’s] apparent but it became was healing. ulnar fracture physician that this transcript shows physician suggested might that reoperation records, but hospital not studied provide plaintiff “better fore- with a with his testi- of those records comparison 10,1970, plaintiff arm.” December On accurately de- the witness mony indicates again hospital. admitted to the Plaintiff’s plain- operation performed by scribed the performed then orthopedic surgeon what is surgeon on December orthopedic tiff’s “sliding graft.” called a bone The nature 1970. operation described graphically plaintiff examined April orthopedic surgeon another who exam- scars around plastic surgeon because the
ined plaintiff behalf of the defend- and the the facial fracture had widened ant. physician explained plain- This bone, up the lower zygomatic which makes tiff’s fracture left arm had distinctive char- socket, so there portion eye had sunk and was “Monteg- acteristics often called orbital rim.” On was a “defect of left gia’s He fracture.” continued: a two- April underwent head of the scars on the displaced operation during
“... radius is hour [T]he forehead, eyebrow, upper and lower goes upper and all of the force left on the excised; which had ulna, eyelids were the wire large which is bone *14 to reduce the facial fracture was been used usually broken. This occurs about three removed, below and the rim of the bone in joint. inches below the elbow And eye up by using plaintiff’s left was built fracture, supply such a the is some- blood implant was anchored to some sort of which what interfered with. And instead of a 23, plaintiff underlying April bone. the On good formation, callous bone tissue scar discharged hospital. In again from the develops at the fracture site so bone 1971, to work. plaintiff June returned solidly, doesn’t heal a and it is called non-union. surgeon exam- plaintiff's orthopedic The 31,1978, prepa- in on March patient ined his occurs, Now when this condition examination, trial. Upon ration for this fracture site has to be exposed by surgi- had a 15 physician plaintiff found that this operation cal and scar tissue about the old forearm, of his percent loss of extension fracture removed. The is freshened bone loss forearm rotation— percent and 50 of and then ... the incision is extended which supination and has pronation expose bone, down to then and a [the] which x-ray An was taken been described. graft bone slot of really is—it’s a put in the that the three screws showed by a bone cut double saw —and then this still graft were in hold bone ulna to slipped new is bone across the fracture ap- injury bone was The old place. site ... it’s usually and maintained frac- physician thought the parent but this type [plaintiff’s] some of fixation. elbow “probably ture was healed.” case, three metal screws were used.” “wear and tear joint beginning to show Counsel asked the explain witness to which had been accelerated changes” use of the saw. The replied: witness physician This plaintiff’s original injury. “Usually, why, we have a two-bladed loss plaintiff percent had a 35 estimated the saw. That run along is across the shaft of use of his forearm. Usually, of a the bone. two-bladed saw is defend- by the The medical witness called gives proper graft used because 24, 1977, plaintiff on October ant examined proportion snugly where it will fit in the 6,1978. phy- This again and November slot in which it is being placed.” to flex plaintiff’s ability loss of sician noted forearm; plaintiff’s interrogation left proceeded: then his extend 436 Brothers, Inc., of
loss motion had slightly increased be- discretion. Morris v. Israel 437, tween (Mo.1974); October 1977 and November 1978. 510 William- S.W.2d 447[13] 256, physician’s testimony Co., 248, This was similar to R. Mo. 196 son v. Wabash given by plaintiff’s 129, that physician, ex- v. Illi- S.W.2d Woodford 134[9] cept he opinion testified that in his nois Railroad Central Gulf S.W.2d 712, fracture of the ulna would never heal. This is of (Mo.App.1974). There a rule noted, moreover, physician that because usually of criminal invoked in cases— law— rotating loss motion of his that a trial court’s refusal exercise forearm, plaintiff left would obliged may discretionary power properly invoked to many things learn do with right hand require exercise remand formerly which he had done with his discretion, Damon, left. v. 350 Mo. State In November plaintiff complained (1943), 169 S.W.2d but 383[2] pain in his left elbow working. after here we rule has been invoked application sua decline consider its reiterate, To the defendant’s as sponte. We neither an abuse of the find signment error, briefed, is that “the discretion, in trial court’s nor excessiveness jury’s $140,000 verdict of favor of the verdict. size excessive, plaintiff was court ig [trial] nored requesting essentials, point defendant’s motion a re- Reduced to defendant’s mittitur, and a grant jury new trial should be is too simply awarded much— argument unconvincing. this We find ed.” law. the verdict excessive as matter of We that, understand jurisdiction, fairly The ultimate test is what and reason- categories: (1) excessive verdicts fall in ably compensates plaintiff inju- two for the those reflecting verdicts simple Baptist Temple excessive ries sustained. Graeff v. ness, (2) (Mo. reflecting those Springfield, excessiveness misconduct, here, 1978). where the we Applying result savors of banc that test prejudice. Meder, bias and Walker say 609 unable to the verdict is excessive. The (Mo.banc 1981); plaintiff permanent Moore sustained two severe Glasgow, injuries. (Mo.App. July June Between 1963). many surgical pro- As those eases and others underwent four *15 hold, simple which, excessiveness may be cured with deference to skillful cedures enforced good remittitur but excessiveness with surgeons, have a deal common result of bias prejudice requires and a new that everyday carpentry. Plaintiff testified trial. We also trial two operations understand that a court before and after the first has a discretion to order remittitur which arm hurt and bothered him all “[his] appellate ready courts do not felt have. Nussbaum v. time. face like it about [His] Maine, City break, Kansas out hardly Stock Yards Co. of 359 to and couldn’t see of [he] 335, (Mo.1962). S.W.2d pain We further Plaintiff had at the time of eye.” 341[6] agree possible, nearly it is even 7 likely, operations, two second afterward, complained pain trial years court misconstrued the still of defendant’s motion for new trial when ruled arm. upon it movement his left motion was insufficient to invoke that The no defendant’s court’s discretionary power to order a re- be in impairment earning capacity can mittitur. plaintiff because has sustained ferred
It does not follow is unsound. Kle earnings that defend no actual loss of court, 887, 906-907, Foskin, ant is 13 entitled to a new trial. In this v. 321 Mo. inlein 648, has v. defendant abandoned its contention Baker S.W.2d 657-658[14] Norris, 870, (Mo. that the verdict is grossly so excessive as to 248 S.W.2d 875-876[9-12] able- prejudice, young, reflect bias and was a App.1952). plaintiff trial The refusal, reason, injured. court’s for time he was He whatever to or bodied man at the was, ground is, der a His remittitur is a for left-oriented. manner reversal or only very when the court he is speech trial has abused and discourse indicates its
437 heard filed always opinion well educated. He has been em- had never been nullity as if it had never been ployed as a manual became laborer. The evidence McMenamy’s Guardianship, re written. clearly joint shows he has lost motion essen- 98, 116-117, 662, 270 307 Mo. S.W. performance 667[6] tial to the any manual la- Estate, 1925); (banc In re Thomasson’s jury reasonably bor. A could infer a loss of (Mo.1946). par- The S.W.2d 870[4—6] earn, capacity to work quite without argue any point free to brief or ties were expertise. the aid of might prolong We our review, preserved though even point, discussion of this it but would serve first point upon had not been mentioned purpose. no useful The contention is with- Bell Martin v. submission. Southwestern out merit. Co., 83, 85-86, 125 Telephone 344 Mo. A final contention must be no However, the mo- S.W.2d 20[4] ticed, although pass we cannot on it. De accompanied by any request to tion was not fendant asserts that judge the trial ate argue points or file new briefs or raise lunch with counsel for at a appeal originally when the not briefed snack bar in the County Greene Courthouse We therefore ordered the cause submitted. on the day third of the trial. Speculating originally panel resubmitted to the that members of jury may have seen upon originally heard the case the briefs judge company of counsel for the originally heard arguments filed and plaintiff, defendant asserts that the trial King, and recorded here. Cf. Thummel v. judge’s conduct was improper and a denial 1978). (Mo.banc 570 S.W.2d 690[19] process of due to the defendant. given entirely The cause has been It duty is the appellant provide an Upon rehearing, fresh consideration. an appellate an court with a containing record opin appellate may adopt court its former everything necessary to ion, the determination expand opinion, its or modify former questions presented Ingram adopt to it. v. Froh opinion, a new and different Lowenstein, 339, 348, Commission, Civil Service man 303 Mo. (banc 1924); (Mo.App.1979). point S.W. State being now 635[4] 461[1] Barnes, (Mo.App.1974), considered was raised in the motion for new hold trial, although may not reverse its former but was not supported by affidavit or ing without actual resubmission and rehear provided by otherwise as Rule 78.05. Fac- Bituminous Pav ing appeal. Granite tual assertions in the supple- brief cannot ing View R. I. 270 Mo. Co. v. Park & Will, ment the transcript. In re Jackson’s (banc 700-703, 196 S.W. (Mo.App.1956). There is 1917). consideration of the en Upon fresh nothing before us point. for review on this record, we reach the same result. We find no error in respect briefed or opinion August filed on heretofore argued in this Accordingly, court. court. adopted opinion as the of this *16 judgment respects all affirmed. rehear applications for Successive they ing required are neither nor can BILLINGS, J., MAUS, J., P. concur. 84.17, Rule V.A.M.R. No fur entertained. rehearing appel application ther for ON MOTION FOR OR REHEARING to transfer to necessary. lant is motion TRANSFER TO THE is denied. Supreme Court SUPREME COURT PER CURIAM: BILLINGS, J., and P. HOGAN MAUS, JJ., appellant concur. timely filed a motion cause, rehearing earnestly argu ing that this court had overlooked material
matters of fact and misinterpreted
law. The rehearing grant motion for
ed, and of appeal course this left the as if it