747 S.W.2d 239 | Mo. Ct. App. | 1988
Appellant’s motel complex was substantially destroyed by fire on November 27, 1979. The complex consisted of guest rooms, and an indoor pool and sauna for guests of the entire complex, and had been open for about a year. The indoor pool was heated by a pool heater, Model DR-250, designed and manufactured by respondent.
The case was submitted to the jury upon the theory of strict liability in tort and failure to warn of a defect in the pool heater. At the trial, the claimed defect was that respondent furnished the heater which lacked an installation of a “fusible link”. That device is designed to break electrical connections when a “flame roll-out” occurs which would damage or short circuit electrical wiring and cause the heater, which would be without a water supply, to overheat and possibly cause a fire. The jury returned a verdict for respondent on appellant’s claim upon which judgment was entered.
In appellant’s first point, it is claimed that the trial court erred in refusing to allow appellant to cross-examine respondent’s Vice President of Engineering, William Raleigh (called as an adverse witness), to impeach and counter his direct testimony
The general rule is that the trial court is clothed with broad discretion on whether or not to permit cross-examination of a witness upon collateral, irrelevant matters. Huston v. Hanson, 353 S.W.2d 577, 582[3,4] (Mo.1962); Lineberry v. Shull, 695 S.W.2d 132 (Mo.App.1985). Here, however, cross-examination of witness Raleigh was not collateral or irrelevant because his direct testimony went to the issue of whether or not there existed a defect, by reason of a lack of a protective fusible link, in respondent’s pool heater, as contended by appellant. As noted, he testified that the Model DR pool heater was a “trouble-free” device, and that he had never seen a situation like the one in this case. Raleigh, however, acknowledged that he interacted with John Klof’s department; that he exchanged information with Klof; and that Klof and he provide information to each other about the products. Importantly, Klof had testified that he managed product liability claims; that four pool heaters had fired without water flowing through the heat exchanger tubes; and that he had performed a test by cutting all four of the safely controls on a heater, allowing the heater to fire at full fire, and the heater burned up. In the quiet title case of Sandy Ford Ranch, Inc. v. Dill, 449 S.W.2d 1, 6 (Mo.1970), it was held proper to cross-examine plaintiff's principal owner, Kennedy, that he had bought the ranch from an individual who purchased it from the Alien Property Custodian for which Kennedy worked as an appraiser, because of which Kennedy could not buy it in his own name. It was said, page 6[7,8], “It has long been the rule in Missouri that on cross-examination a witness may be asked any questions which tend to test his accuracy, veracity or credibility or to shake his credit by injuring his character. He may be compelled to answer any such question, however irrelevant it may be to the facts in issue, and however disgraceful the answer may be to himself, except where the answer might expose him to a criminal charge.” See also Chism v. Cowan, 425 S.W.2d 942, 948[6,7] (Mo.1967).
Further, under Point I, appellant claims that the trial court erred in reversing a prior ruling and sustaining an objection to a question put to John Klof, called as an adverse rebuttal witness, as to his receiving complaints over the years concerning the Teledyne-Laars DR-250 pool heaters. As noted, Raleigh testified that the Model DR pool heater was a trouble-free device, and he had never seen a situation like the one in this case. He also acknowledged that he exchanged information with Klof as to products, but an objection was sustained as to his reviewing Klof’s claim files, above held to have been error. The general rule is stated in 63 Am.Jur.2d, Products Liability, § 236, (1984): “However, proof that injury from the use of the product alleged to have caused the subject injury was suffered by persons other than the one for whose injury recovery is sought has been viewed as evidencing, but not establishing, the product’s defectiveness.” See also 63 Am.Jur.2d Products Liability, § 237, (1984), on the admissibility of other accidents involving the same product, with the proviso that such other accidents occurred under the same or substantially similar conditions as that involving the plaintiff, and with reasonable proximity in time; and American Law of Products Liability 3d § 30.30 (1987), and extensive footnoted cases; and West’s Handbook Series, Products Liability, § 225, (1979). Note also the case of Albers Milling Company v. Carney, 341 S.W.2d 117, 123 (Mo.1960), where the same feed was fed by other turkey growers as the plaintiff, which resulted in other losses, was held admissible. Here, no opportunity
On August 5, 1985, the trial court ruled that appellant was only entitled to discovery for the time that the Model DR 250 pool heater was manufactured, December 1977 through December 1979. At that time, appellant believed that the failure in the pool heater was caused by a defective pressure switch, but several months later during depositions, it learned that “flame rollout” was occurring in respondent’s heaters with sufficient frequency that in 1983, it installed a fusible link in its pool heaters to detect and eliminate flame roll-out problems, and service orders were generated by respondent which service orders were not consulted for claims or complaints such as that here. Appellant requested further discovery which was denied upon respondent’s claim that it would be too burdensome. Prior to retrial, appellant should be allowed to make discovery beyond the December 1979 period first allotted and at least up to the time that respondent began installing the fusible link in its pool heaters, about 1983. In this connection, appellant, on retrial, should be permitted to inquire whether the installation of fusible links solved any preexistent problems of flame rollout damaging wiring and permitting heaters to continue to fire without water and thus to bum up. See 63 Am.Jur.2d, Products Liability, § 251, (1984), et seq., stating to the effect that in products liability cases, as distinguished from negligence cases, design changes have probative value on the issue of whether or not a product is defective. See also Annot. 74 A.L.R.3d 1001 (1976), et seq.
On retrial, appellant should further be permitted to show its lost profits occasioned by the fire if the evidence then offered is sufficiently definite and certain so the jury can make a reasonable estimate of the loss without resorting to speculation. Chmieleski v. City Products Corp., 660 S.W.2d 275, 298 (Mo.App.1983). It appears that appellant’s owner and manager, Leigh Wilson, did present evidence from its business books which would reasonably establish that loss, although, since the jury in this trial returned a verdict for respondent, the issue need not be now ruled.
Appellant says that it was entitled to a judgment N.O.V., but that relief may not be given because the issue of the cause of the fire under the circumstances and the differing expert testimonies was for the jury to determine.
Because of trial errors as ruled above under appellant’s Point I, the judgment is reversed and the case is remanded for new trial.
All concur.