Record and brief — Michelin Tire Corp. v. Coulter

UONNed

Office -Sunreme Court, U.S.

81-1450 FILED

FEB & 1982

No, _.-

L. STEVAS.,

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

MICHELIN TiRE CORPORATION, Petitioner,

¥.

NATHAN L. COULTER, Respondent.

PETITION FOR A WRIT OF

CERTIORARI TO THE MISSOURI

COURT OF APPEALS,

SOUTHERN DISTRICT

JOHN M. KENNEY

3000 Marcus Avenue

Lake Success, New York 11042

(516) 775-7800

FLAvius B. FREEMAN

One Corporate Square

P.O. Box 4203 G.S.

Springfield, Missouri 65808

(417) 882-9090

February 2, 1982 Counsel for Petitioner

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

QUESTIONS PRESENTED

1. Whether a party to a civil action is denied its due

process right to a fair trial when the trial judge is observed

eating lunch with counsel for an opposing party in the public

lunchroom of the courthouse during the trial while the jury is

free to observe the meeting.

2. Whether an appellant in a civil action is denied its

right to due process when an appellate court refuses to consider

the prejudicial conduct of the trial judge, the facts of which are

undisputed and conceded in the respondent's papers, on the

ground that those facts had not been stated in an affidavit by trial

counsel pursuant to state procedural rules.

LISTING PURSUANT TO SUPREME COURT RULE 28.1

Michelin Tire Corporation is a New York corporation. Its

parent companies are the Michelin Corporation, the Michelin

Investment Holding Company, Compagnie Financiere Miche-

lin and Compagnie Generale des Etablissements Michelin. It

has no subsidiaries or affiliates.

INDEX

Page

SS IS oi bacucpacnanceueneeeedubes i

RED FURIE WO TNE TILE occ cc civic cdccsseveccs i

I ee oie cv edenenns ekesemed l

Ee er et ere l

CONST: /UTIONAL, STATUTORY PROVISIONS AND CANONS OF JUDI-

ee Be ED o'cinGcsccccsb suadendeasecses 2

RAISING THE FEDERAL QUESTIONS ..........00000 cece eee 2

os ois ddccendenedtveveseceuss 3

REASONS FOR GRANTING THE WRIT ...........06 000 ee eee 6

ES And ote e i cease hebdnseeeetensaesane? 11

I secs ah ae eg ag oe el ee ata la

TABLE OF CASES

CASES: Page

Agee v. Lofton, 287 F.2d 709 (8th Cir. 1961) ........... y

Commonwealth Coatings Corp. v. Continental Casualty Co.,

SU PPE ban conupeatestuneseseusss 7

Goldberg v. Kelly, 397 U.S. 254 (1970) .. 0.0... eee 6

Hanch v. K.F .C. National Management Corp., 615 S.W.2d 28

a Eh 4 ac WTAE Ore reas een esas e ees 9

In re Murchison, 349 U.S. 133 (1955)... 06. oe 8

Marshall v. Jerrico, Inc., 446 U.S. 238 (1980) .......... 6,7

Miley v. Delta Marine Drilling Co., 473 F.2d 856 (Sth Cir.

1973), cert. denied, 414 U.S. 871 (1973) ........... )

Newman v.A.E. Staley Mfg. Co., 648 F.2d 330 (Sth Cir. 1981) i)

Noll v. Harrison County Bank, \1 S.W.2d 1076 (Mo. App.

DD. so ce cautied ta ceiacde keene ebe cicareeahss 10

Pratt v. Conway, 148 Mo. 291, 49 S.W. 1028 (1899) .... 10

Public Utilities Commission v. Pollak, 343 U.S. 451 (1952) 6

Starr v. United States, 153 U.S. 614 (1894) ............. 8

State v. Charles, 538 S.W.2d 944 (Mo.App. 1976) ...... 10

Walsh v. City of St. Louis, 142 S.W.2d 465 (Mo. 1940) .. 10

Withrow v. Larkin, 421 U.S. 35 (1975) ............445. 8

Woosley v. State Automobile Mut. Ins. Co., 600 S.W.2d 210

EE UE ccaccuenhess Weenasebeneeaeenceas )

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1981

No, _-_

MICHELIN TirE CORPORATION, Petitioner,

we

NATHAN L. Coutter, Respondent.

PETITION FOR A WRIT OF

CERTIORARI TO THE MISSOURI

COURT OF APPEALS,

SOUTHERN DISTRICT

The petitioner Michelin Tire Co: poration respectfully prays

that a writ of certiorari issue to review the judgment and opinion

of the Missouri Court of Appeals, Southern District, entered in

this proceeding on August 13, 1981, subsequently withdrawn,

and republished on October 6, 1921, after a motion for re-

hearing.

OPINION BELOW

The opinion of the Missouri Court of Appeals is reported at

622 S.W. 2d 421 (Mo. App. 1981), and appears in the Appen-

dix hereto.

JURISDICTION

The judgment of the Missouri Court of Appeals was entered

on August 13, 1981. Upon a motion for rehearing, it was

withdrawn on September 22, 1981, and was republished on

October 6, 1981. A timely motion for transfer to the Supreme

2

Court of Missouri was denied on November 10, 1981, and this

petition for certiorari was filed within 90 days of that date. This

Court's jurisdiction is invoked under 28 U.S.C. § 1257(3).

CONSTITUTIONAL, STATUTORY PROVISIONS AND

CANONS OF JUDICIAL ETHICS INVOLVED

Fourteenth Amendment, United States Constitution:

No State shall. . . deprive any person of life, liberty, or

property, without due process of law... .

Missouri Rules of Civil Procedure, Rule 78.05:

Rule 78.05. After-Trial Motions, Including a Motion for a

New Trial Based Upon Affidavits.

When any after-trial motion, including a motion for new

trial, is based on facts not appearing of record, affidavits

may be filed which affidavits shall be served with the

motion. (. . . ) Depositions and oral testimony may be

presented in connection with after-trial motions.

Canon 2, Missouri Canons of Judicial Ethics:

A Judge Should Avoid Impropriety and the Appearance of

Impropriety in His Official Activities.

* * * *

B. A judge should not allow his family, social, or

other relationships to influence his judicial conduct or

judgment. He should not lend the prestige of his office to

advance the private interests of others; nor should he

convey or permit others to convey the impression that they

are in a special position to influence him. (. . . )

RAISING THE FEDERAL QUESTIONS

The Petitioner raised the first federal question, concerning its

due process right to a fair trial, in its after-trial motion before the

trial judge. See Petitioner's Memorandum in Support, and

Petitioner's Motion, (A 32, 36-37).* The trial court entered an

*Reference is to the pages of the Appendix annexed hereto.

3

order denying the Petitioner’s after-trial motions in all respects

without discussion of the merits of the points urged in the

motion. See Order of Circuit Judge John C. Crow, (A 28-29).

The Fourteenth Amendment fair trial claim was reiterated by

the Petitioner before the Missouri Court of Appeals. See the

Petitioner’s Statement, Brief and Argument, (A 42, 45). The

Missouri Court of Appeals noted the Petitioner's argument

“that the trial judge s conduct was improper and a denial of due

process to the defendant.” Opinion of Judge Hogan, (A 22).

In denying the Petitioner relief on appeal on this constitution-

al issue, Court of Appeals stated that “|t}here is nothing before

us for review on this point.” (A. 23) The Court of Appeals thus

refused to consider undisputed facts, which were conceded in

Respondent's brief to that Court, for the reason that they were

not contained in an affidavit. (A. 22) The Petitioner contends

that this ruling was a second denial of due process. Since the

Petitioner’s Motion to Transfer to the Supreme Court of Mis-

souri was denied, see Order of the Supreme Court of Missouri,

(A 30), this second constitutional issue could be first raised only

upon this petition for certiorari.

STATEMENT OF THE CASE

The personal injury upon which this strict tort liability litiga-

tion is based occurred on July 22, 1970, when Respondent

Nathan L. Coulter was injured by the failure of a passenger car

tire, distributed by Petitioner Michelin Tire Corporation, while

he was attempting to mount it on a rim. The trial of the action

before a jury commenced on November 27, 1978, in the Circuit

Court of Greene County, Missouri. On November 29, 1978,

during the trial, the trial judge was observed by the Petitioner’s

trial counsel eating lunch with one of Respondent’s counsel at

an open, public snack bar in the Greene County Courthouse, at

a time when the jury had been released for a lunch period and

were free to observe this conduct.

4

The jury ultimately rendered a verdict in favor of the Respon-

dent in the sum of $140,000 as compensation for personal

injuries.

The Petitioner made a timely after-trial motion for judgment

in its favor in accordance with its motion for a directed verdict

or for a new trial. Petitioner set forth the facts of the trial judge's

luncheon with Respondent’s counsel in its motion and its sug-

gestions in support of its motion, albeit not in the form of an

affidavit. The Respondent conceded these basic facts in its

suggestions in opposition to the Petitioner's motion:

In point seven of defendant’s motion defendant states that

“the Honorable John C. Crow, Circuit Judge for tie Cir-

cuit Court of Greene County, Missouri, did between ite

hours of 12:00 and 12:30 p.m. and 1:15 p.m. on the 29th

day of November, 1978, which was the third day of trial,

eat lunch with one of plaintiff's counsel, Mr. Raymond

Whiteaker, at a corner table at an open public snack bar in

the Greene County Courthouse.” It should be specifically

noted that the aforementioned encounter between the Hon-

orable Judge Crow and Attorney Whiteaker was very

brief, that there were no jurors present, that the case was

in no manner discussed and that defendant voiced no

objection to the conduct which it now complains of, made

no record regarding this alleged inappropriate conduct,

and furthermore did not request a mistrial.

The court can take judicial notice of the fact that the public

snack bar referred to by defendant is of course quite small

and as a result necessitates persons being in close proxim-

ity to one another. Under these circumstances it is hard to

imagine how such conduct could be construed as con-

veying the impression that plaintiff's counsel was in a

special position to influence the judge. (Emphasis in Ori-

ginal) (A 39-40).

The Respondent did not expressly deny that any other lunch

meetings between his trial counsel and the trial judge occurred.

The trial judge, of course, had personal knowledge of these

5

facts. The Petitioner’s after-trial motion was denied by the trial

judge, after oral argument, on March 13, 1979.

The Petitioner timely appealed to the Missouri Court of

Appeals, Southern District from the order denying its after-trial

motion. Once again, the Respondent’s brief conceded that the

trial judge had lunched with Respondent's counsel. Point V of

the Respondent’s Statement, Brief and Argument filed in the

Missouri Court of Appeals states:

The Conduct Of The Honorable John C. Crow In Eating

Lunch And Having Brief Social Conversation With Coun-

sel For Plaintiff In The Snack Bar Of The Courthouse

During The Third Day Of The Trial Was Not Improper,

And Defendant Has Waived Any Claim That It’s Constitu-

tional Rights Were Violated By Such Conduct In That

Defendant Failed To Raise Such Claim At Its Earliest

Possible Opportunity In The Trial Court And Defendant

Has Failed To Assert That Any Prejudice Resulted To It

As A Result Of Such Conduct. (A 47)

Eleven months after argument, the Court of Appeals affirmed

the judgment of the trial court in an opinion entered on August

13, 1981. The Court of Appeals disposed of the issue of the trial

judge’s eating lunch with counsel for the Respondent on the last

page of its opinion, holding that the issue was not properly

before it, because the facts of the lunch meeting were not in the

transcript or in affidavit form. On the principle that “[f]actual

assertions in the brief cannot supplement the transcript,” the

Court of Appeals stated, “There is nothing before us for review

on this point.” (A 22-23).

The opinion of the Court of Appeals was withdrawn on

September 22, 1981, after Petitioner filed a motion for rehear-

ing and for transfer to the Missouri Supreme Court, and the

same opinion was republished on October 6, 1981, thirteen

months after argument. No additional briefs or further argu-

ment were requested by the Court of Appeals. (A 24) The

6

Petitioners’ timely motion for transfer of the appeal to the

Supreme Court of Missouri was denied by the Supreme Court of

Missouri on November 10, 1981.

REASONS FOR GRANTING THE WRIT

The Decision Of The Missouri Court Of Appeals Was Not

In Accord With Applicable Decisions Of This Court.

That due process requires an impartial decision maker is a

basic proposition. Goldberg v. Kelly, 397 U.S. 254, 271

(1970). In Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980),

this Court wrote:

The Due Process Clause entitles a person to an impartial

and disinterested tribunal in both civil and criminal cases.

. . . The neutrality requirement helps to guarantee that

life, liberty, or property will not be taken on the basis of an

erroneous or distorted conception of the facts or the law.

. . .Atthe same time, it preserves both the appearance and

reality of fairness, “generating the feeling, so important to

popular government, that justice has been done, Joint

Anti-Fascist Committee v. McGrath, 341 U.S. 123, 172,

(1951) (Frankfurter, J., concurring). . . .

The requirement of neutrality has been jealously guarded

by this Court.

Since there was no hearing below on the details of the

discussion between the trial judge and Respondent’s counsel

over lunch, there is no proof of actual bias on the part of the trial

judge, except for the luncheon itself and one other indication.

That indication was the trial judge’s statement in his order

denying Petitioner's after-trial motion that Petitioner had not

requested a remittitur, when in fact Petitioner had requested that

precise form of relief, (A 28, 33).

Instead, the violation of due process at issue is the trial

judge’s appearance of partiality. As Justice Frankfurter wrote in

recusing himself in Public Utilities Commission v. Pollak, 343

U.S. 451, 467 (1952), “[T]he administration of justice should

7

reasonably appear to be disinterested as well as be so in fact.”

And in Commonwealth Coatings Corp. v. Continental Casual-

ty Co., 393 U.S. 145, 150 (1968), the Court stated that “any

tribunal permitted by law to try cases and controversies not only

must be unbiased but also must avoid even the appearance of

bias.”

The appearance of partiality impugns the integrity of the

judicial process by destroying “the feeling . . . that justice has

been done,” as noted in Marshall, supra. Lunching with coun-

sel for one party during a trial is clearly a breach of judicial

ethics, as well. Canon 2 of the Missouri Code of Judicial

Conduct explicitly states that a judge should not “convey or

permit others to convey the impression that they are in a special

position to influence him.” The commentary to this Canon

States:

“A judge must avoid all impropriety and appearance of

impropriety in his official activities. He must expect to be

the subject of constant public scrutiny. He must therefore

accept restrictions on his conduct that might be viewed as

burdensome by the ordinary citizen and should do so freely

and willingly.” (Emphasis supplied)

A trial judge is particularly open to scrutiny in the public

snack bar of his courthouse. A judge’s dining with attorneys for

one of the litigants before him gives the clear impression that

they are in a special position to influence him. If the Petitioner

has no remedy for the harm caused by the foregoing prejudicial

conduct, the canons of judicial ethics are rendered meaning-

less. '

‘In any evcat, the trial judge’s luncheon conference with plaintiff's

counsel during a pending proceeding is also in conflict with Canon 3(4) of

the Code of Judicial Conduct which provides in pertinent part: “A judge

should accord to every person who is legally interested in a proceeding, or

his lawyer, full right to be heard according to law, and, except as authorized

by law, neither initiate nor consider ex parte or other communications

concerning a pending or impending proceeding. . . .”

8

The appearance of bias, when displayed before members of

the jury, directly impinges upon the fairness of the trial. “Not

only is a biased decisionmaker constitutionally unacceptable

but ‘our system of law has always endeavored to prevent even

the probability of unfairness.” ” Withrow v. Larkin, 421 U.S.

35, 47 (1975), quoting from /n re Murchison, 349 U.S. 133,

136 (1955). An analogous way that a judge may convey his

sympathies or his evaluation of the disputed issues is by com-

menting on the evidence in the courtroom. As this Court wrote

in Starr v. United States, 153 U.S. 614, 626 (1894), “It is

obvious that under any system of jury trials the influence of the

trial judge on the jury is necessarily and properly of gre.

weight, and that his lightest word or intimation is received with

deference, and may prove controlling.” Petitioner submits that

a judge who dines with counsel for a party in the view of the

public, including the members of the jury, sends a very strong

signal to the jury that his sympathies lie with that party.

The Missouri Court of Appeals compounded the violations of

the Petitioner’s due process right to a fair trial by refusing to

consider the propriety and effect of the judge’s luncheon with

counsel for the Respondent. The Court of Appeals refused to

review the trial court’s ruling on this point because, it stated, the

facts upon which the trial court’s decision were based were not

in the record. To the contrary, the Petitioner did properly raise

the issue of the trial judge’s conduct, the facts were before the

trial court on the Petitioner’s after-trial motion, the trial court

ruled on the issue, the facts were conceded by the Respondent

before the Court of Appeals, and the Court of Appeals denied

the Petitioner due process by not reviewing the trial court’s

ruling.

The Petitioner was not obliged, during the trial, to request

that the judge not eat lunch with counsel for the Respondent. By

objecting to the trial judge’s conduct at trial, the Petitioner

would have only antagonized the judge and aggravated what-

ever bias he appeared to have in the Respondent’s favor.

9

The trial judge’s conduct should have been reviewed by the

Missouri appellate courts in any event, under the plain error

rule. It is well established that

counsel, in a trial such as this, are, understandably, loath

to challenge the propriety of a trial judge’s utterances, for

fear of antagonizing him and thereby prejrdicing a client's

case. This Court, regardless of the absence of objections or

exceptions, may notice plain error, and is under obligation

to see that trials in the district courts are conducted impar-

tially and that they are not without some measure of

dignity and decorum.

Agee v. Lefton, 287 F.2d 709, 710 (8th Cir. 1961); accord,

Newman» A.E. Staley Mfg. Co., 648 F.2d 330, 335 (Sth Cir.

1981); Miiey v. Delta Marine Drilling Co., 473 F.2d 856,

857-8 (Sth Cir. 1973), cert. denied, 414 U.S. 871 (1973).

Missouri also follows the plain error rule. Hanch v. K.F.C.

National Management Corp., 615 §.W.2d 28, 33 (Mo. 1981);

Woosley v. State Automobile Mut. Ins. Co., 600 S.W.2d 210

(Mo. App. 1980).

Again, that the trial judge was antagonized by the Petition-

er’s objection to his conduct is evidenced by the statement in his

after-trial order that the Petitioner had not requested a remitti-

tur, when the Respondent had in fact moved for remittitur, (A

28, 33).

The Court of Appeals noted that the Petitioner raised the

point of the judge’s conduct in making its after-trial motion, but

the motion was “not supported by affidavit or otherwise as

provided by Rule 78.05.” (A. 22) Missouri Rule 78.05 provides

in pertinent part, “When any aftef-trial motion, including a

motion for new trial, is based on facts not appearing of record,

affidavits may be filed which affidavits shall be served with the

motion.” The Petitioner submits that it is a clear violation of due

process to require an affidavit as a condition precedent to

raising the issue relating to judicial misconduct when the facts

were well known to the trial judge, were set forth in the

10

Petitioner's after-trial motion papers, and were conceded by the

Respondent in its papers in opposition to the Petitioner’s motion

and in the Respondent's brief to the Court of Appeals, (A 32,

39-40, 47).

It is well established in Missouri law that an admission by

counsel establishes the admitted facts as true in the record. For

example, the Supreme Court of Missouri, in Walsh v. City of St.

Louis, 142 S.W.2d 465, 467 (Mo. 1940), held that considera-

tion of an issue of notice to the city of the plaintiff's claim was

foreclosed by an admission of proper notice by counsel for the

city at trial. The court found the fact established by reading the

record and by “observ|ing]} the conduct of counsel and of the

trial judge. . . .” And in Noll v. Harrison County Bank, 11

S.W.2d 1076, 1077 (Mo.App. 1928), the Court of Appeals

found facts to be admitted when, “|wJhile there was no specific

testimony on the question, the record shows that this was not a

contested point. It fairly discloses that it was admitted. . . .”

The fact of the luncheon is all the more firmly established in

the record of the instant litigation, where the facts were uncon-

tested, were known first-hand to the judge and counsel for both

parties and were admitted in Respondent's motion papers. See

also Pratt v. Conway, 148 Mo. 291, 49 S.W. 1028, 1030

(1899), “Courts are warranted in acting upon the admissions of

counsel in the trial of a cause,” recently quoted with approval in

State v. Charles, 538 S.W.2d 944, 945-46 (Mo.App. 1976).

Therefore, the refusal of the Court of Ay peals to consider the

issue of the trial judge’s conduct merely because no affidavit

was filed was contrary to Missouri law, common sense and the

fundamental fairness required by due process.

CONCLUSION

Petitioner has been deprived of due process by the prejudicial

conduct of the trial judge, and again by the actions of the

Missouri appellate courts in refusing to deal with a violation of

the Canons of Judicial Ethics. A writ of certiorari should issue

to review the judgment and opinion of the Missouri Court of

Appeals.

Respectfully submitted,

JOHN M. KENNEY

3000 Marcus Avenue

Lake Success, New York 11042

FLAVius B. FREEMAN

One Corporate Square

P.O. Box 4203 G.S.

Springfield, Missouri 65808

Counsel for Petitioner

February 2, 1982

~ yipuaddy

In The Missouri Court of Appeals

SOUTHERN DISTRICT

Division Two

No. 11336

NATHAN L. COULTER,

Plaintiff-Respondent,

v.

MICHELIN TIRE CORPORATION,

Defendant-Appellant.

APPEAL FROM THE CIRCUIT COURT

OF GREENE COUNTY, MISSOURI

Honorable John C. Crow, Judge

FLavius B. FREEMAN

NEALE, NEWMAN,

BRADSHAW & FREEMAN of Springfield

JOHN M. KENNEY, of New Hyde Park, NY For Defendant-

Appellant

BENJAMIN J. FRANCKA of Springfield

RAYMOND E. WHITEAKER

JOHN E. Price

WOOLSEY, FISHER,

WHITEAKER, MCDONALD

& ANSLEY of Springfield _ for Plaintiff-Respondent

AFFIRMED

HOGAN, J.

In this action based on strict liability in tort, plaintiff Nathan

Coulter has had a verdict and judgment in the amount of 140,000

against defendant Michelin Tire Corporation. Defendant appeals.

2a

The casualty sued upon occurred July 22, 1970. Plaintiff was

employed as a tire mounter by a corporation known as “Tire Town of

Springfield.” Shortly before noon, plaintiff and two other tire chan-

gers were mounting a new set of Michelin tires on a Lincoln Con-

tinental automobile. Plaintiff removed a tire and rim from the vehicle

and placed it on a tire changer. He removed the tire which was on the

rim and undertook to mount the new tire. While the plaintiff was

attempting to seat the “bead” of the new tire against the rim, the tire

exploded. Plaintiff sustained severe, disabling injuries. This action

followed.

On this appeal, the defendant has briefed and argued five assign-

ments of error. Defendant's principal point is that plaintiff made no

submissible case. In connection with this point, a few preliminary

observations are appropriate. The cause was tried and submitted upon

the theory enunciated by our Supreme Court in Keener v. Dayton

Electric Manufacturing Company, 445 S.W.2d 362, 364 (Mo.

1969). Therein, the court “. . . recognized the concept of strict

liability in tort as stated in 2 Restatement, Law of Torts, Second,

§ 402A.” Blevins v. Cushman Motors, 551 S.W.2d 602, 606[1]

(Mo.banc 1977). In order to recover under the doctrine of strict

liability, a plaintiff must establish that: (1) the product was defective

and dangerous when put to a use reasonably anticipated by the

manufacturer; and (2) the plaintiff sustained injury or damage as a

direct result of the defect. Blevins v. Cushman Motors, supra, 551

S.W.2d at 607[2, 3]; Rogers v. Toro Manufacturing Company, 522

S.W.2d 632, 637[4-6] (Mo.App. 1975). And, in order to establish

the first element of his case, a plaintiff has the burden to show both (a)

that the defect existed when the product left the manufacturer's

control and entered the stream of commerce, Brissette v. Milner

Chevrolet Company, 479 S.W.2d 176, 181 (Mo.App. 1972), ' and

(b) that the product was being put to use reasonably anticipated by the

manufacturer. Keener v. Dayton Electric Manufacturing Company,

supra, 445 §.W.2d 365|6]; Rogers v. Toro Manufacturing Com-

' We equate this requirement with proof of “. . . a defect that was likely

present when the maker surrendered possession and control.” See W.

Keeton, Products Liability, 50 F.R.D. 338, 341 (1970).

3a

pany, supra, 522 S.W.2d at 637; Restatement (Second) of Torts

§ 402A, Comment h. (1965).

Fairly paraphrased, defendant's submissibility argument is that

plaintiff failed to show the existence of any defect which would make

the tire unreasonably dangerous when put to a reasonably anticipated

use because: (1) there was no substantial evidence that there was any

defect present when the maker surrendered possession; (2) the testi-

mony of plaintiff's expert that the tire had a “kinked” bead wire is

without probative value, and (3) the evidence establishes as a matter

of law that plaintiff's injuries were caused by abnormal use of the tire.

We set to one side the defendant’s contention that its motion for

judgment n.o.v. should have been sustained because plaintiff failed

to adduce proof of the very defect pleaded. This case is very similar to

Nielson v. Armstrong Rubber Co., 570 F.2d 272 (8th Cir. 1978),

upon the relevent law and facts, and the issue submitted must be

regarded as having been tried by implied consent pursuant to Rule

55.33(b), Missouri Rules of Court (9th ed. 1978). See Nielson v.

Armstrong Rubber Co., supra, 570 F.2d at 275{1,2]. We also bear in

mind that when the submissibility of a plaintiff's cause is challenged

on appeal, the plaintiff is entitled to the benefit of all the evidence

construed in the light most favorable to the result reached, together

with the reasonable inferences to be drawn therefrom. Tucker v.

Central Hardware Company, 463 S.W.2d 537, 540 (Mo. 1971);

Winters v. Sears, Roebuck and Co., 554 S.W.2d 565, 569-5706]

(Mo.App. 1977), 89 A.L.R.3d 196, 202 (1977); Lifritz v. Sears,

Roebuck and Company, 472 S.W.2d 28, 31{2] (Mo.App. 1971).

Defendant's assertion that the plaintiff adduced no substantial

evidence of any manufacturing defect is obliquely put in terms of the

admissibility of evidence, but its position is clear. As put, the argu-

ment is that the testimony of plaintiff's expert should not have been

received because the expert did not examine the tire until October

1977, and there was no showing that the tire was in the same condition

then as it was on July 22, 1970.

We conclude the proof was sufficient to show the existence of a

defect on July 22, 1970. To begin with, the record justifies the

inference that the tire was new and unused when the plaintiff attemp-

ted to mount it and was injured. Witness Pierson testified that the tires

4a

he and plaintiff were mounting were taken out of stock, “wrapped in

some wrappings.” Pierson explained that “you take a knife and go

between the two beads and cut the paper. . . and you clean the inside

of the tire out.” The “paper” or “trash” was then cleaned out of the

tire, some “little plastic things” which separated the “beads” were

removed, and the tire was mounted. One Boswell, plaintiff's “straw

boss” at the time, testified that he examined the tire after plaintiff was

injured. Being asked if the tire appeared to be in the same condition as

it had been at the time of plaintiff's injury, Boswell replied, “It looks

the way I remember it, yes.”

By answer to interrogatories, defendant admitted it received the

tire for inspection on August 20, 1970, and defendant’s expert Ochs

testified that photographs of the tire were taken about that time. Ochs

had seen those photographs. The answers to interrogatories show the

defendant returned the tire to plaintiff's employer in January 1971.

Defendant was again in possession of the tire from November 1972 to

April 25, 1973, when it was again returned to the plaintiff's em-

ployer, Tire Town of Springfield. This action, we note, was com-

menced in August 1974, although it was not tried until November

1978.

Ochs appeared at the trial. He was employed as “director of product

analysis” for the Michelin Tire Corporation. He testified that he had

seen the photographs taken in 1970, and based on his examination of

those photographs and his examination of the tire in 1977, the tire

appeared to be in the same condition “in terms of physical damages”

as it was when it was first received by the defendant in August of

1970. Mr. Ochs was asked about some raised striations (we count

12) which appear at intervals of about 6 1/2 inches around the

circumference of the tire. Counsel referred to “those little marks.”

Mr. Ochs explained that the raised striations are called “mold flesh”

and represent “excess” which oozes out during the manufacturing

process. Ochs was also asked, “Can you tell whether or not this tire

has ever been mounted before and run on the highway?” He

? The witness’ response seems to have been qualified because there were

yellow chalk marks on the tire. It was shown that the yellow chalk marks had

been made by plaintiff's expert, Mr. Garvick.

Sa

answered, “I'd say from the condition of the tread face it has not been

”

run.

When plaintiff's expert Garvick first saw the tire in 1977, it was

still in possession of plaintiff's employer. Mr. Garvick testified that

after he took possession of the tire, he measured the tread depth, and

from this measurement he determined that the tire was a new tire

which had never been in road service. This witness also observed the

“vent lines (striations) from the segment|s] of the mold. . . .” He

continued: “If the tire had been in service, of course, those would be

worn, so I knew that the tire had not been in service but something

happened to it before it got into service,” Garvick also unequivocally

stated that the “kinked beads” (the defect alleged to have caused

plaintiff's injuries) had been produced at the time of manufacture.

This witness also testified that he found no “external damage” to the

tire.

Perhaps the best evidence that the tire is in the “same condition” as

it was at the time of the accident is the tire itself. As the tire appears

before us, raised striations produced in the manufacturing process are

clearly visible; it is obvious that the tire has not been used.

The rule is that the existence of a manufacturing defect may be

proved by any species of evidence, direct or circumstantial, from

which a jury may infer the existence of such defect without resort to

conjecture and speculation. Weatherford v. H. K. Porter, Inc., 560

S.W.2d 31, 33-34[2,3] (Mo.App. 1977); Winters v. Sears, Roebuck

and Co., supra, 554 §.W.2d at 569[5], 89 A.L.R.3d at 202; Brissette

v. Milner Chevrolet Company, supra, 479 at 181-182[5]. The testi-

mony of an expert may constitute substantial evidence of a manufac-

turing defect in a tire, even though the tire has been used or partially

destroyed. Smith v. Uniroyal, Inc., 420 F.2d 438, 441-442[4] (7th

Cir. 1970); Brissette v. Milner Chevrolet Company, supra, 479

S.W.2d at 181-182; Firestone Tire & Rubber Co. v. King, 145

Ga.App. 840, 244 S.E.2d 905, 908-910|1-4] (1978); Mullen v.

General Motors Corporation, 32 U.App.3d 122, 336 N.E.2d 338,

344|4-6] (1975). In this case, the jury could reasonably infer: (1) that

the tire was a new, unused tire when it exploded and injured the

plaintiff; (2) that the tire had been repeatedly examined during the

6a

long period which elapsed between the accident and the trial; two

experts who examined it found no signs of use or external damage to

the tire sufficient to cause the “bead wire” to break; (3) that in the

opinion of Mr. Garvick, plaintiff's expert, the defect had been pro-

duced when the tire was manufactured, and (4) that at the time of trial

the tire appeared to be a new tire except for the damage caused by the

explosion. There was, therefore, substantial evidence that the tire

was defective at the time it was sold.

Defendant further argues that the testimony of plaintiff's expert

was without probative value because his opinion was not based on

“fact, evidence, adequate data, or experience.”

As is usually the case in products liability litigation, the evidence of

defect is rather technical. The testimony can be understood if it 1s

taken in connection with the exhibits, but of course the exhibits

cannot be incorporated in this opinion. We have therefore prepared a

very rough diagram of the tire which may be helpful if one conceives a

tire as a series of concentric circles.

10:30 break serial no.

i ——- tread and tread base

bead wire, covered w.:h

6:00 break rubber

~striations

The tire itself is described as a Michelin tubeless 225-15 X. The

serial number on the tire is F2613 01Y, and the experts present at the

trial testified with this number “straight up” or “in the 12:00 o’clock

position.” We have made a few measurements with a flexible rule to

indicate the approximate dimensions of the various parts of the tire.

We measure the tread and tread base to be about 2 inches; the carcass

measures about 4 inches and the “bead,” which incorporates the

“bead wire,” measures about 2 inches. The “bead” is that part of the

tire which seats against the rim of the wheel and holds it firmly in

place. “Mounting” the tire involves preliminary lubrication of the tire

and rim, then: (1) pushing the bottom bead into the “well” of the rim;

(2) fitting the top bead of the tire onto the rim with a rotating metal

“finger” which is part of the mounting device; (3) centering the tire,

making sure a “hold down” device secures the wheel; and (4) inflating

7a

the tire slowly until the “bottom” and the “top” beads seat. The

recommended pressure for seating the beads is 40 p.s.i.’

The defect or defects which plaintiff's evidence tended to prove

were “kinks” in the bead wire. Defendant’s Exhibit “F” is a sample of

the bead wire used by defendant in the manufacture of the tire in

question. It appears to be a bundle of wires, but is in fact one larger

wire with a continuous 9-wire outer wrap. Lengths of this wire are

bent into a hoop which is spot welded. This wire, or bundle of wires,

is then incorporated into the bead. Plaintiff's expert testified that the

word “kink” as used in rubber technology actually refers to a “slight

bend” in the bead wire, causing the bead to be “out of round.” One of

defendant's experts, Mr. Dunlop, testified that the word “kink” is a

“very minor bend” involving “about a ten degree distortion from

being straight.”

Plaintiff's theory upon trial was that the tire exploded because the

bead wire was “kinked.” To prove this, plaintiff called one Kenneth

R. Garvick. Mr. Garvick was retired, but did “consulting work” for

his former employer. Mr Garvick’s experience was as follows: In

1936, he graduated from Case School of Technology with a B.S.

degree in chemical engineering. He “went directly to [work for]

Firestone.” For 17 years Mr. Garvick worked for Firestone; for 8 of

those years, he was “involved in testing |and] quality control.” While

he was employed at Firestone, he continued his professional educa-

tion. In 1953, Mr. Garvick was employed by the Mansfield Tire and

Rubber Company; he became director of the tire engineering division

of that company. As director of tire engineering, his responsibilities

included development of the specifications for each tire that Mans-

field made. From 1962 to 1977, Mr. Garvick had “handled the

product liability claims that [had] come to trial.” His experience

included Michelin tires as well as other tires; he had measured and cut

up other manufacturer’s tires to “k° ow what the industry [was]

doing.” Mr. Garvick subscribed to “industry {technical} service[s].”

Mr. Garvick first saw the tire at Tire Town. The tire is, by the way,

a white sidewall tire, but the breaks are on the “black” or blackwall

*“P.s.i.” means pounds of air pressure per square inch.

8a

side. He observed breaks at the “6:00 o'clock position” and “ihe

10:30 position” and decided it would be a good idea to x-ray the tire

because the center strand of the bead wire showed a “cup and cone”

appearance at the site of both breaks. The “cup and cone” appearance

indicated a “tension break.” The cup and cone appearance is not

readily visible to our eye, but photographs of the <-rays, particularly

the photograph received as “Garvick Deposition Exhibit 7,” clearly

show that the broken center strand appears to be “cupped” on one side

and “coned” on the other.

Mr. Garvick’s opinion as to the cause of the breaks was given as

follows: .

“*¢ * *

My opinion on this — the breaks . . . are the result of kinks at

those two locations at the time of manufacture, and this caused

the bead to not be a complete circle, . . . [so] the bead hung up in

those two locations and . . . the pressure stretched the beads

beyond the wires’ elastic limits in those two areas, and as a

result, |the tire] broke . . . on the black side wall at what I call

the {6:00} and [10:30] positions. . . .”

Mr. Garvick was asked how such defects could occur during

manufacture of a tire. Michelin’s insistence that its method of remov-

ing cured tires from the mold is fail-safe and could not have produced

a kinked bead makes it important to note the language of his answer:

“Well, the most commonplace [stage] would be |when] it’s

forced off the bead seating rings at the end of the curing cycle,

but it could be done other places. That would be when you hag a

power failure where it’s a mechanical failure that would inter-

fere with its being removed and would twist the bead. (Our

emphasis. )

ee 8 FY

This witness was questioned by defendant about his knowledge of

Michelin tires. Mr. Garvick did not know how a Michelin tire was

lifted from the mold in which it is made because he had never been ina

Michelin plant. He did testify — on direct examination — that he was

familiar with the segmented mold processes used by other tire manu-

facturers, but explained that “the bead part is solid on both sides, and

9a

. is stationary [while the tire is being cured]. On cross-

examination, Mr. Garvick repeated that the segmented mold process

did not affect the bead.

Defendant vigorously argues that Mr. Garvick’s opinion was not

substantial evidence that the tire contained a manufacturing defect

because his opinion was without support in fact, evidence, adequate

data or experience. Defendant cites Craddock v. Greenberg Mercan-

tile, 297 S.W.2d 541 (Mo. 1957) and Gaddy v. Skelly Oil Co., 364

Mo. 143, 259 S.W.2d 844 (1953). The precedents cited undoubtedly

have some relevance here, but they are not controlling. Here, the

plaintiff's case does not rest wholly upon his expert’s testimony, as

was the case in Craddock and Gaddy. Unlike the cases cited by the

defendant, Mr. Garvick’s testimony was not based on wholly sup-

positious physical facts nor upon conditions assumed to exist.

Defendant's argument that Garvick’s testimony cannot be

accepted as substantial evidence is very diffuse. As we perceive it,

defendant's point, as expanded in its brief, is that: (1) Garvick’s

opinion was not based on any facts known to him; (2) Garvick’s

experience was not sufficient to qualify him to testify about Michelin

Tires; and (3) the fact that the “kinks” were destroyed by the explo-

sion deprives his testimony of all probative value.

The first contention may be addressed shortly. Garvick examined a

tire which was inferably a new tire; he made measurements and

inspected the damaged area of the tire with a magnifying glass.

Thereafter x-ray pictures of the broken bead were made under his

supervision. He found a “cup and cone” appearance to the bead wire.

He had first-hand knowledge about the tire and knew the tire had

exploded. His inspection was sufficient to provide the basis for an

opinion. Tucker v. Central Hardware Company, supra, 463 S.W.2d

at 539-541; cf. Lewis v. United States Rubber Company, 414 Pa. 626,

202 A.2d 20, 22 (1964). *

The assertion that Garvick’s expertise did not extend to Michelin

tires is overstated. When the existence of a manufacturing defect in a

*See also W. Keeton, supra, n. 1, 50 F.R.D. at 342, discussing evidence

of defects.

10a

tire has been put in issue, the courts have generally looked to the

extent of the proffered expert's experience, rather than his familiarity

with a particular product. See, e.g, Smith v. Uniroyal, Inc., supra,

420 F.2d at 441-442|4]; Edwards-Warren Tire Co. v. J. J. Blazer

Const. Co., 565 F.2d 401, 404[3} (6th Cir. 1977). Complete know-

ledge about the field is not necessary. 3 J. Weinstein and M. Berger,

Weinstein’s Evidence, § 702|04], pp. 702-28 — 702-29 (1978). The

assumption usually made by courts in assessing a proffered expert's

knowledge of the details of a particular technology is“. . . that if the

asserted expert emerges from a respectable professional environ-

ment, errors in the detail of factual information honestly assembled

and imparted by capable preceptors and associates will tend to check

against one another and produce a reliable aggregate.” ° That assump-

tion was and is justified in Mr. Garvick’s case.

The final aspect of this point deals with the condition of the tire at

the time it was x-rayed. Mr. Garvick testified that the kinks in the

bead were destoyed in the explosion, and were not visible in his

photographs of the x-rays. Defendant would have it that because the

kinks were destroyed, their existence could not reasonably be in-

ferred.

This argument is neither novel nor convincing. In Smith v. Uni-

royal, Inc., supra, the state police officer who investigated the

accident testified there was a hole in the tread, part of which was

missing. Inferably, a part of the bead flange was missing. One George

Guernsey inspected the tire after the accident; thereafter it was des-

troyed or lost. Mr. Guernsey was nevertheless permitted to testify to

the existence of a defect in the part of the tire which had been

destroyed and the action of the district court was upheld on appeal. A

similar contention was presented to the Georgia Court of Appeals in

Firestone Tire & Rubber Co. v. King, supra, 145 Ga.App. 840, 244

S.E.2d at 909. The appellant manufacturer contended, among other

things, that the precise nature of the manufacturing defect had not

been established. The court held that the existence of a manufacturing

*3J. Weinstein and M. Berger, supra, n. 20, at p. 702-14, citing Maguire

and Habesy, “Requisite Proof of Basis for Expert Opinion, 5 Vand.L.Rev.:

432, 433, 438 (1952).

lla

defect could be inferred from circumstances, and continued, 244

S.E.2d at 909:

“Furthermore, the defect in this case could not be directly

observed |because| the material in the area of the blowout was

destroyed by the blowout. To rule that this prevented |the

plaintiff] from establishing a prima facie case would be to

insulate manufacturers from liability . . . in any case where the

defect causes its own destruction. Such a result would be totally

untenable.”

in this particular case, we agree with the Georgia court and find the

defendant's argument untenable.

The third part of defendant's submissibility point is that the casual-

ty and plaintiff's injuries were the result of his careless handling of the

tire. The substance of this argument is that even though the tire was

being used for an appropriate purpose — mounting on the rim of a

wheel — plaintiff's failure to follow customary practices constituted

misuse barring recovery. We realize that the law on this point is in a

state of evolution — “flux” ® but for the purpose of our analysis, we

shall follow the view recognized by our Supreme Court, Dean Prosser

and the Restatement. Careless handling is a species of abnormal use

which bars recovery under the doctrine of strict liability. Keener v.

Dayton Electric Manufacturing Company, supra, 445 S.W.2d at

365[6]; W. Prosser, Torts § 102 at 669 (1971); Restatement (Second)

of Torts § 402A, Comment j. (1965).

Ordinarily, in “defect cases,” as distinguished from “design

cases,” the issue of abnormal use is a question for the jury.’ We

regard it as a factual issue in this case.

Defendant's position may be summarized by saying that it con-

tends plaintiff: (1) failed to apply lubricant when mounting the tire;

(2) inflated the tire with an excessive amount of pressure; and (3)

°W. Keeton, Products Liability and Defenses — Intervening Miscon-

duct, 15 The Forum 109, 111-116 (1979); D. Noel, Defective Products:

Abnormal Use, Contributory Negligence, and Assumption of Risk, 25

Vand.L.Rev. 93, 100-103 (1972).

’See D. Noel, supra, n. 6, 25 Vand.L.Rev. at 104-105.

l2a

failed to secure the tire to the tire mounting device before he started

inflating it.

Plaintiff was an experienced tire changer. At the time the casualty

occurred, plaintiff had been employed as a tire changer for a little

more than 6 months. He estimated that before the accident, he had

mounted about 15 Michelin tires “a day.” Assuming plaintiff worked

a normal 40-hour week, he had mounted about 1800 Michelin tires by

July 22, 1970, when he was injured. Plaintiff described his procedure

at the time of his injury by testifying that he first removed the rim with

the “old tire” on it and “put the tire on the changer.” The “changer” or

mounting device is a flat circular metal plate mounted on a pedestal;

the pedestal is attached to a circular metal base which has been

screwed into a concrete floor. There is a threaded metal post in the

center of the mounting platform. The threads accommodate a “lock

nut” which secures the rim on the changer while the tire is being

mounted.

Plaintiff “broke down” the old tire and Mr. Hamm handed him the

“new tire” to be mounted. He then “soaped both beads, . . . soaped

the rim” and started to mount the tire. He stretched both beads over

the rim flange. Plaintiff's testimony was that when “you put [the tire]

on [the mounting platform] and screw . . . [the] lock nut down, [the

tire] automatically centers.” He added that “sometimes they have

devices that you set on there like cylinders that you put around the rim

and it holds the bead up to the cylinder. . . .” There was such a

cylinder here, and plaintiff used it. *

Plaintiff then began inflating the tire, without a valve core in the

valve. He did not use a core [stem] because “you've got to air it all the

way up to forty pounds so it'll seat, and then you let the air out so it

will relax, and then you put the valve core in when you air it back up to

the maximum pressure.” Plaintiff admitted that sometimes he seated

the beads by using more than 40 p.s.i., but on this particularoccasion,

plaintiff “counted” “one thousand, two thousand, three thousand,

*It is clear, in context that plaintiff was referring to the “Omega Bead

Expander.” Defendant's Exhibit “A,” entitled “Michelin Mounting Proce-

dure,” directs the tire mounter to use this device “for difficult inflation.”

I3a

four thousand, five thousand, and that’s about forty pounds of air.”

Plaintiff knew this because he had mounted tires “many, many times

before and it always worked out that way.” Plaintiff amplified this

answer by saying he meant when he had checked the air pressure with

a gauge, his “five thousand count” had produced about 40 “pounds”

of air.

At this point, the plaintiff was preparing to “|I]et the air hose off

and let the air pressure back out [of the tire] because the “top”

(whitewall) bead had not seated. However, at the count of “five

thousand,” the tire exploded.

Upon trial, there was a good deal of contre versy about the “lock

nut.” Mr. Coulter's testimony was that he had screwed the lock nut

against the rim when he “centered” the tire on the mounting device.

Thereafter, he loosened the lock nut slightly so the rim would not be

“in a bind” when the tire was inflated to seat the bead.

There was evidence from which a jury could infer that if the

plaintiff undertook to mount the tire in the manner to which he

testified, he was following procedures ordinarily foilowed in the

industry. It is true that the defendant adduced proof tending to

indicate the plaintiff did not lubricate the tire before he attempted to

mount it. Further, there is evidence from which it could readily be

found that Mr. Coulter did not use the lock nut and that he overin-

flated the tire. This evidence might be restated in detail, but an

extensive recountal of defendant's evidence would only demonstrate

that a jury could reasonably have reached a different conclusion. It

must be remembered that in jury-tried cases, an appellate court does

not weigh the evidence; it merely determines whether there was

competent and substantial evidence to support the jury’s finding.

Diversified Metals Corp. v. Aaron Ferer & Sons, Inc., 498 S.W.2d

783, 785|2] (Mo. 1973); Bonastia v. Terminal Railroad Ass'n of St.

Louis, 409 §.W.2d 122, 125|1] (Mo. 1966); Pfingsten v. Franklin

Life Insurance Company, 330 S.W .2d 806, 816| 11] (Mo. 1959). The

jury was the sole judge of the credibility of the witnesses and the

weight and value to be given their testimony and could believe or

disbelieve any part of that testimony. Thayer v. Sommer, 356S.W.2d

72, 77|6|] (Mo. 1962). It is true, as the defendant asserts, submissibil-

l4a

ity is ultimately a matter of fact for the court. Craddock v. Greenberg

Mercantile, supra, 297 S.W.2d at 548. It is also true that much of the

evidence is circumstantial and that some of the inferences must be

drawn by choosing between the conflicting opinions of experts.

Nevertheless the jury had the function and the right to find some of the

facts, even some facts essential to the plaintiff's case, by reasoning

upon the evidence, including circumstantial evidence, and inferring

from such evidence that a certain required thing or fact existed or was

true. Hart-Bartlett-Sturtevant Grain Co. v. Aetna Ins. Co., 365 Mo.

1134, 1149-1150, 293 S.W.2d 913, 923-924 (1956), cert. denied

352 U.S. 1016, 77 S.Ct. 562, | L.Ed.2d 548 (1957); Hardwick v.

Kansas City Gas Co., 355 Mo. 100, 107, 195 S.W.2d 504, 508/4},

166 A.L.R. 556, 561 (1946). We cannot say as a matter of law that it

was error to submit that the tire was being uséd in a manner reason-

ably anticipated by the manufacturer when it exploded.

Defendant has briefed and argued two points alleging error in the

exclusion of evidence. The first point, as stated, is that the trial court

erroneously excluaed evidence of the involvement of the Sentry

Insurance Company in this cause. Defendant argues that “such evi-

dence” was necessary to properly evaluate the deposition testimony

of Mr. Robert Dunlop and to account for Mr. Dunlop's absence from

the courtroom. In support of its point, defendant cites Houfburg v.

Kansas City Stock Yards Co. of Maine, 283 $8.W.2d 539, 548-549,

(Mo. 1955); Leavitt v. St. Louis Public Service Company, 340

S.W.2d 131, 138[9] (Mo.App. 1960), and other cases which hold

that the interest or bias of a witness and his relations to or feelings

toward the parties or the case are never irrelevant matters, and that the

pecuniary interest of a witness, or his bias or prejudice may always be

shown, subject to such limitations as may be imposed by the trial

court. Plaintiff counters with the argument that evidence of the

involvement or interest of a workmen's compensation carrier was not

admissible because such evidence tends to impede the injured man in

the exercise of his right to receive full compensation. Plaintiff cites

Prittv. Terminal R.R. Ass'n of St. Louis, 251 S.W.2d 622, 625 (Mo.

1952).

It is a reasonable inference from the record that plaintiff's em-

ployer’s workmen's compensation carrier joined in this action as a

1Sa

subrogee. Nevertheless, the principle invoked by the defendant does

not apply in this case. It is, and has been for many years, the rule in

Missouri that a party may not directly impeach the credibility of his

own witness. Wells v. Goforth, 443 S.W.2d 155, 1596] (Mo.banc

1969). The rule has been relaxed as to witnesses who are adverse

parties, Wells, supra, 443 S.W.2d at 159-160, but the witness defen-

dant sought to impeach was not an adverse party.

Defendant had the benefit of testimony from three experts in tire

technology. Mr. Ochs, who was called by the plaintiff, testified on

cross-examination that the tire failed because of mismounting and

overinflation. Mr. Avila, an independent expert called by the defen-

dant, testified that he had examined the tire carefully and had the

opinion that the tire had no manufacturing defect. Mr. Avila con-

cluded that the tire failed because it had not been lubricated and had

been overinflated.

Mr. Dunlop's deposition was taken in Florida on March 31, 1978.

His credentials as an expert in tire technology are not questioned, but

certainly the defendant was not obliged to rely on Mr. Dunlop as the

only witness by which it could prove some element essential to its

defense. Nor can it be said that the defendant was surprised; it had

known of the contents of Mr. Dunlop's deposition for some time prior

to trial. Nevertheless, defendant offered Mr. Dunlop's deposition and

insisted it was entitled to show he had been employed by the work-

men’s compensation carrier for the plaintiff's employer. Upon plain-

tiff's objection, the trial court excluded parts of the deposition and

some correspondence indicating that Mr. Dunlop had indeed been

employed by the carrier. Otherwise, the deposition was admitted and

read in evidence; Mr. Dunlop's testimony was very favorable to the

defendant.

The rule in Missouri is that the introduction of a deposition or a part

thereof for any purpose other than that of contradicting or impeaching

the deponent makes the deponent the witness of the party, unless the

deponent is the adverse party. Conner v. Neiswender, 360 Mo. 1074,

1081, 232S.W.2d 469, 473 (195C .. In the case at hand, the defendant

manifestly sought the benefit of Mr. Dunlop's testimony; the thrust of

its argument here is that Mr. Dunlop was the most experienced and

l6a

competent expert who testified. Defendant, in effect, sought to have

the benefit of Mr. Dunlop's testimony and increase the value of that

testimony by showing his bias in favor of the plaintiff or his insurer.

The trial court did not err in refusing to permit defendant to discredit

its own witness. Conner v. Neiswender, supra, 360 Mo. at 1082, 232

S.W.2d at 474; Dunn v. Dunnaker, 87 Mo. 597, 600-601 (1885);

Woelfle v. Connecticut Mut. Life Ins. Co., 234 Mo.App. 135, 148-

149, 112 S.W.2d 865, 872[7] (1938).

A further point advanced by the defendant is that the trial court

erroneously refused to permit defendant to read parts of the plaintiff's

deposition in evidence as part of the defendant's case because the

parts of the deposition offered constituted substantive admissions on

plaintiff's part.

The plaintiff's deposition was taken in September 1975; defen-

dant’s counsel used that deposition to impeach the plaintiff on cross-

examination. Upon deposition, plaintiff testified that he had “no

idea” wh the air pressure in the tire was just before it blew up; that

the tire “wouldn't go up right and when | aired it up, there it went, it

blowed up.” At the time the deposition was taken, plaintiff said he

didn’t remember if he used any lubricants in mounting tires on the day

of the accident, and had “no idea” how far he had screwed the lock nut

down on the mounting device before he began to inflate the tire.

These and other inconsistent statements were put before the jury

during defendant's cross-examination.

Defendant's point, slightly paraphrased, is that it should have been

permitted to offer these inconsistent statements again as part of its

case because the inconsistent statements of a party-opponent consti-

tute substantive evidence. *

There can be no doubt that a party's prior inconsistent statements,

by deposition or otherwise, are admissible against him as substantive

evidence in the nature of an admission. It is also true that such

inconsistent statements are also admissible for the more limited

purpose of impeachment. Welch v. Hyatt, 578 S.W.2d 905, 9134]

(Mo.banc 1979); Pulitzer v. Chapman, 337 Mo. 298, 318{3]}, 85

S.W.2d 400, 410-41 1|5-7] (bane 1935); White v. Burkeybile, 386

S.W.2d 418, 422-423)|3] (Mo. 1965). And, our courts have defined

17a

the term “admission” very generously; the testimony received as such

need not be a direct admission of an ultimate fact in issue; it may be

competent if it bears on the issue incidentally or circumstantially.

White v. Burkeybile, supra, 386 S.W .2d at 422. So, we suppose, the

fact that plaintiff “had no idea” or “did not remember” one or another

evidentiary detail of his case on one occasion might conceivably have

some probative value as an admission on another occasion when he

could remember or had refreshed his memory. Even so, the trial

court’s ruling was not prejudicial. If, in a specific instance, a trial

court excludes evidence which should have been admitted, the error

is harmless if the same evidence is found in the testimony of the same

or other witnesses given before or after the objection was sustained.

Boring v. Kansas City Life Insurance Company, 274 §.W.2d 233,

238-239|7| (Mo. 1955); Steffen v. Southwestern Bell Telephone Co.,

331 Mo. 574, 583, 56 S.W.2d 47, 48) 1-3] (1932); Hastey v. Kaime,

327 Mo. 1010, 1017, 297 S.W. 50, 52{3] (1927); Moore v. St. Louis

& S.F. Ry. Co., 267S.W. 945, 949|9| (Mo.App. 1925). The point is

without merit.

The final substantive point made by defendant is that the verdict is

excessive, the trial court ignored its request for a remittitur, and a new

trial should be granted. Here again, proper consideration of the

argument requires some preliminary explication.

The explosion of the tire resulted in permanent injury to plaintiff's

left forearm and to the left side of his skull. The injury to his left

forearm is his disabling injury. Relying upon the record and that

common fund of knowledge all educated men are presumed to have,

we infer that there are two bones in the forearm — that part of the arm

between the elbow and the wrist. If one extends his forearm prone

(palm down) upon a flat surface, the bone which runs along the

outside of the arm from the elbow to the wrist is called the u/na, the

bone along the inside of the arm is called the radius. These two bones

are articulated, i.e., jointed at the elbow and at the wrist. The

articulations of the bones of the forearm permit a rotating movement

of the hand described as pronation (hand palm down) and supination

(rotation outward so the palm is up). The jointure of the ulna at the

elbow permits flexion and extension of the forearm. Permanent

damage to the ulna impedes both rotation of the hand in the manner

Ika

described and flexion and extension of the forearm. In this connec-

tion, it should be noted that the plaintiff is left-oriented, or as the

parties have put it, left-handed.

Plaintiff was admitted to the intensive care unit of a Springfield

hospital about noon on July 22, 1970. He was unconscious. Examina-

tion disclosed an open, comminuted fracture ° of the left ulna a short

distance below the elbow, dislocation of the radius at its articulation

with the ulna and a fracture of the left zygoma, or cheekbone.

Plaintiff had suffered a concussion; he was examined by a neuro-

surgeon and was then taken to an operating room. A general anesthe-

tic was administered. An orthopedic surgeon cleaned out the wound

to plaintiff's left arm and, using a knife and scissors, removed all

foreign material. The wound was enlarged slightly; the orthopedic

surgeon then drilled a hole in the olecranon “’ and undertook to reduce

and fixate the fracture by screwing a 6-inch bone screw into the

broken bone, pushing the fracture fragments into place as the screw

was advanced. At the last turn of the screw, “a snap was felt.” The

radius was then placed in its normal position, and a “long laceration of

the forehead and lateral face” was repaired, together with several

smaller lacerations about the face and mouth. A long cast was applied

to plaintiff's left arm.

Six days later, plaintiff underwent another surgical procedure to

repair his facial fracture. Plaintiff's left cheekbone was found to have

been broken into fragments. The fragments were wired together and

the bone was “formed.” The wounds to the plaintiff's face were

closed and a sterile bandage was applied. On August 3, 1970, the

plaintiff was discharged from the hospital “to be followed on an

outpatient basis.”

Neither operation produced a satisfactory result. The plaintiff's

orthopedic surgeon “followed [plaintiff] on a serial basis in [the

surgeon’s| office,” but it became apparent the ulnar fracture was not

healing. The physician suggested that reoperation might provide the

plaintiff with a “better forearm.” On December 10, 1970, plaintiff

*The term means denotes a break into several pieces.

" The process of the ulna which projects behind the elbow.

19a

was again admitted to the hospital. Plaintiff's orthopedic surgeon

then performed what is called a “sliding bone graft.” The nature of

this operation was graphically described by another orthopedic

surgeon who examined the plaintiff on behalf of the defendant. This

physician explained that plaintiff's left arm fracture had distinctive

characteristics and was often called “Monteggia’s fracture.’ He con-

tinued:

“. . [T]he head of the radius is displaced and all of the force

goes on the upper part of the ulna, the large bone which is

broken. This usually occurs about three inches below the elbow

joint. And in such a fracture, the blood supply is somewhat

interfered with. And instead of a good callous bone formation,

scar tissue develops at the fracture site so the bone doesn’t heal

solidly, and it is called a non-union.

Now when this condition occurs, the fracture site has to be

exposed by surgical operation and scar tissue about the old

fracture removed. The bone is freshened and then .. . the

incision is extended down to expose [the] bone, and then a bone

graft which is — it’s really a slot of bone cut by a double saw —

and then this new bone is slipped across the fracture site . . . and

it’s usually maintained by some type of fixation. In [plaintiff's]

case, three metal screws were used.”

Counsel asked the witness to explain the use of the saw. The

witness replied:

“Usually, why, we have a two-bladed saw. That is run across

along the shaft of the bone. Usually, a two-bladed saw is used

because it gives a graft a proper proportion where it will fit

snugly in the slot in which it is being placed.”

The interrogation then proceeded:

“Q. So you actually take that saw and slice off a piece of the

ulna bone itself? A. Yes, you just cut a slot out of the bone,

yes.

The transcript shows that this physician had not studied the hospital

records, but comparison of those records with his testimony indicates

the witness accurately described the operation performed by plain-

tiff's orthopedic surgeon on December 11, 1970.

In April 197!, plaintiff was examined by a plastic surgeon because

the scars around the facial fracture had widened and the zygomatic

20a

bone, which makes up the lower portion of the eye socket, had sunk

so there was a “defect of the left orbital rim.” On April 20, 1971,

plaintiff underwent a two-hour operation during which scars on the

left forehead, eyebrow, upper and lower eyelids were excised; the

wire which had been used to reduce the facial fracture was removed,

and the rim of the bone below plaintiff's left eye was built up by using

some sort of implant which was anchored to the underlying bone. On

April 23, plaintiff was again discharged from the hospital. In June

1971, plaintiff returned to work.

The plaintiff's orthopedic surgeon examined his patient on March

31, 1978, in preparation for this trial. Upon examination, this physi-

cian found that plaintiff had a 15 percent loss of extention of his

forearm, and 50 percent loss of forearm rotation — the pronation and

supination which has been described. An x-ray was taken which

showed that the three screws put in the ulna to hold the bone graft

were still in place. The old injury to the bone was apparent but this

physician thought the fracture was “probably healed.” The elbow

joint was beginning to show “wear and tear changes” which had been

accelerated by plaintiff's original injury. This physician estimated the

plaintiff had a 35 percent loss of use of his forearm.

The medical witness called by the defendant examined plaintiff on

October 24, 1977, and again on November 6, 1978. This physician

noted loss of plaintiff's ability to flex and extend his left forearm; the

plaintiff's loss of motion had increased slightly between October

1977 and November 1978. This physician's testimony was similar to

that given by the plaintiff's physician, except he testified that in his

opinion, the fracture of the ulna would never heal. This physician

noted, moreover, that because of plaintiff's loss of the rotating

motion of his left forearm, plaintiff would be obliged to learn to do

many things with his right hand which he had formerly done with his

left. In November 1978, plaintiff had complained of pain in his left

elbow after working.

To reiterate, the defendant's assignment of error, as briefed, is that

“the jury’s verdict of $140,000 in favor of the plaintiff was excessive,

the [trial] court ignored defendant's motion requesting a remittitur,

and a new trial should be granted.” We find this argument unconvinc-

2la

ing. We understand that, in this jurisdiction, excessive verdicts fall in

two categories: (1) those verdicts reflecting simple excessiveness,

and (2) those reflecting excessiveness by misconduct, where the

result savors of bias and prejudice. Walker v. Meder, 609 S.W.2d

390, 391 (Mo.banc 1981); Moore v. Glasgow, 366 S.W .2d 475, 478

(Mo.App. 1963). As those cases and many others hold, simple

excessiveness may be cured by enforced remittitur but excessiveness

as a result of bias and prejudice requires a new trial. We also

understand that a trial court has a discretion to order a remittitur which

appellate courts do not have. Nussbaum v. Kansas City Stock Yards

Co. of Maine, 359 S§.W .2d 335, 341|6| (Mo. 1962). We further agree

it is possible, even likely, that the trial court misconstrued the defen-

dant’s motion for new trial when it ruled the motion was insufficient

to invoke that court's discretionary power to order a remittitur.

It does not follow that defendant is entitled to a new trial. In this

court, defendant has abandoned its contention that the verdict is so

grossly excessive as to reflect bias and prejudice, and the trial court's

refusal, for whatever reason, to order a remittitur is a ground for

reversal only when the trial court has abused its discretion. Morris v.

Israel Brothers, Inc., 510 S.W.2d 437, 447[13] (Mo. 1974); Wil-

liamson v. Wabash R. Co., 355 Mo. 248, 256, 196 S.W.2d 129,

134[9] (1946); Woodford v. Illinois Central Gulf Railroad Co., 518

S.W.2d 712, 718 (Mo.App. 1974). There is a rule of law — usually

invoked in criminal cases — that a trial court’s refusal to exercise a

discretionary power properly invoked may require remand for the

exercise of that discretion, State v. Damon, 350 Mo. 949, 955, 169

S$.W.2d 382, 383|2] (1943), but that rule has not been invoked here

and we decline to consider its application sua sponte. We find neither

an abuse of the trial court's discretion, nor excessiveness in the size of

the verdict.

Reduced to essentials, defendant's point is simply thai the jury

awarded too much — the verdict is excessive as a matter of law. The

ultimate test is what fairly and reasonably compensates the plaintiff

for the injuries sustained. Graeff v. Baptist Temple of Springfield,

576 S.W.2d 291, 309[18] (Mo.banc 1978). Applying that test here,

we are unable to say the verdict is excessive. The plaintiff sustained

22a

two severe permanent injuries. Between July 22, 1970, and June

1971, plaintiff underwent four surgical procedures which, with defer-

ence to skillful surgeons, have a good deal in common with everyday

carpentry. Plaintiff testified that before and after the first two opera-

tions “{his] arm hurt and bothered him all the time. [His] face felt like

it was about ready to break, and [he] couldn't hardly see out of his

eye.” Plaintiff had pain at the time of the second two operations, and

nearly 7 years afterward, still complained of pain upon movement of

his left arm.

The defendant's argument that no impairment of earning capacity

can be inferred because the plaintiff has sustained no actual loss of

earnings is unsound. Kleinlein v. Foskin, 321 Mo. 887, 906-907, 13

S.W.2d 648, 657-658 [14] (1929); Baker v. Norris, 248 S.W.2d 870,

875-876|9-12] (Mo.App. 1952). The plaintiff was a young, able-

bodied man at the time he was injured. He is, or was, left-oriented.

His manner of speech and discourse indicates he is not very well

educated. He has always been employed as a manual laborer. The

evidence clearly shows he has lost joint motion essential to the

performance of any manual labor. A jury could reasonably infer a loss

of capacity to work and earn, quite without the aid of expertise. We

might prolong our discussion of this point, but it would serve no

useful purpose. The contention is without merit.

A final contention must be noticed, although we cannot pass on it.

Defendant asserts that the trial judge ate lunch with counsel for the

plaintiff at a snack bar in the Greene County Courthouse on the third

day of the trial. Speculating that members of the jury may have seen

the judge in the company of counsel for the plaintiff, defendant

asserts that the trial judge’s conduct was improper and a denial of due

process to the defendant.

It is the duty of an appellant to provide an appellate court with a

record containing everything necessary to the determination of ques-

tions presenied to it. Ingram v. Civil Service Commission, 584

S.W.2d 633, 635[4] (Mo.App. 1979). The point now being consi-

dered was raised in the motion for new trial, but was not supported by

affidavit or otherwise as provided by Rule 78.05. Factual assertions

in the brief cannot supplement the transcript. /n re Jackson's Will,

23a

294 S.W.2d 953| 1] (Mo.App. 1956). There is nothing before us for

review on this point.

We find no error in any respect briefed or argued in this court.

Accordingly, the judgment is in all respects affirmed.

/s/ Ropert E. HOGAN

Robert E. Hogan, Judge

BILLINGS, P.J., and MAUS, J., CONCUR

24a

ON MOTION FOR REPEARING OR TRANSFER TO THE

SUPAEME COURT

PER CURIAM:

The appellant timely filed a motion for rehearing in this cause,

earnestly arguing that this court had overlooked material matters of

fact and had misinterpreted the law. The motion for rehearing was

granted, and of course this left the appeal as if it had never been heard

and the opinion filed became a nullity as if it had never been written.

In re McMenamy’'s Guardianship, 307 Mo. 98, 116-117, 270 S.W.

662, 667|6] (banc 1925); /n re Thomasson’ s Estate, 192 8.W.2d 867,

870|4-6] (Mo. 1946). The parties were free to brief or argue any point

preserved for review, even though that point had not been mentioned

upon the first submission. Martin v. Southwestern Bell Telephone

Co., 344 Mo. 83, 85-86, 125S.W.2d 19, 20|4] (1939). However, the

motion was not accompanied by any request to file new briefs or to

raise Or argue points not briefed when the appeal was originally

submitted. We therefore ordered the cause resubmitted to the panel

which originally heard the case upon the briefs originally filed and the

arguments originally heard and recorded here. Cf. Thummel v. King.,

570 S.W.2d 67°, 6Y0|19] (Mo.banc 1978).

The cause has been given entirely fresh consideration. Upon re-

hearing, an appellate court may adopt its former opinion, modify or

expand its former opinion, or adopt a new and different opinion,

Frohman v. Lowenstein, 303 Mo. 339, 348, 260 S.W. 460, 461[1]

(bane 1924); State v. Barnes, 517 S.W.2d 155, 169(Mo.App. 1974),

although it may not reverse its former holding without actual resub-

mission and rehearing of the appeal. Granite Bituminous Paving Co.

v. Park View R. & 1. Co., 270 Mo. 698, 700-703, 196 S.W. 1142,

1144 (banc 1917). Upon fresh consideration of the entire record, we

reach the same result. ihe opinion heretofore filed on August 13,

1981, is adopted as the opinion of this court.

Successive applications for rehearing are neither required nor can

they be entertained. Rule 84.17, V.A.M.R. No further application

for rehearing by the appellant is necessary. The motion to transfer to

the Supreme Court is denied.

BILLINGS, P.J., and HOGAN and MAUS, JJ., CONCUR

25a

In THe Circuit Court Or

Greene County, Missouri

Case No. 73927-2

NATHAN L. COULTER,

Plaintiff,

ve

MICHELIN Tire CORPORATION,

Defendant.

JUDGMENT

Now on this 27th day of November, 1978, being one of the regular

days of the Circuit Court of Greene County, Missouri, come the

parties herein before Division 2 of the aforesaid Circuit Court, Plain-

tiff appearing in per on and by Attorneys Benjamin J. Francka and

Raymond E. Whiteaker, and Defendant appearing by Attorneys

Flavius B. Freeman and Larry K. Bratvold. Both parties announce

ready for trial. The jury pannel is sworn. Court and counsel conduct

voir dire examination. A panel of 18 veniremen is qualified. A jury of

12 good and lawful, qualified persons being duly selected, was sworn

to enter their verdict in the case as required by law. Jury Instruction

No. | was read by the Court. Trial commences. Plaintiff makes

Opening statement to the jury. Defendant makes opening statement to

the jury. Plaintiff presents evidence. Trial adjourns for the day at 4:56

p.m..

November 28, 1978. Trial resumes at 9:10 a.m. Both parties are

present with the same appearances and all 12 members of the jury are

present. Plaintiff presents further evidence. Plaintiff rests. Defendant

files Motion For Directed Verdict at the close of Plaint:ff's evidence,

together with Suggestions in support thereof which is duly argued and

submitted. Plaintiff dismisses all of Plaintiff's negligence theories in

Count | without prejudice. Defendant's Motion for Directed Verdict

at the close of Plaintiff's evidence sustained as to subparagraphs (a),

(e), (f), (g), (h), (i), Gj), and (k) of Paragraph 7 of Count II of

26a

Plaintiff's Petition, and overruled with respect to subparagraphs (b),

(c), and (d) of Paragraph 7 of Count II of Plaintiff's Petition. Except

as set out herein Defendant's Motion for Directed Verdict at the close

of Plaintiff's evidence is overruled. Defendant presents evidence.

Trial adjourns for the day at 4:52 p.m.

November 29, 1978. Trial resumes at 9:02 a.m.. Both parties are

present with the same appearances and all 12 members of the jury are

present. Defendant presents further evidence. Defendant rests. Plain-

tiff offers no rebuttal evidence. Defendant's Motion For A Directed

Verdict at the close of all evidence is filed together with Suggestions

in support thereof, which is duly argued and submitted. Defendant's

Motion For Directed Verdict at the close of all evidence is overruled.

Trial adjourns for the day at 5:05 p.m.

November 30, 1978. Trial resumes at 9:00 a.m. Both parties are

present with the same appearances and all 12 members of the jury are

present. The jury is instructed by the Court. The Court reads Instruc-

tions 2 through 7, inclusive. The cause is thereafter argued to the jury

by Attorneys for the Plaintiff and Attorneys for the Defendant. The

Sheriff's Officer, Bailiff Swackhamer is duly sworn and charged by

the Court. The jury is given written Instructions | through 7, inclu-

sive. The jury retires to deliberate at 10:12 a.m. in charge of said

Bailiff.

Afier due deliberation, the jury returns into open Court at 12:24

p.m. the following verdict:

“We the undersigned jurors find the issues in favor of the

Plaintiff, and assess Plaintiff's damages at One Hundred Forty

Thousand Dollars ($140,000.00).”

Said verdict is signed by nine (9) jurors, to wit: John Walton, Mida

Weaver, Judy West, Wilma Whittenburg, Carolyn Wade, Leonard

R. Sims, Glen E. Parkison, Becky C. Wilcox, and Kathryn Stewart.

The foregoing verdict was received and read in open Court and

ordered filed by the Clerk. The jurors’ verdict is approved and filed.

The jurors are polled by Defendant. The jury is discharged.

Judgment is hereby entered for the Plaintiff and against the Defen-

dant for the sum of One Hundred Forty Thousand Dollars

27a

($140,000.00) on Count II of Plaintiff's Petition in keeping with the

judgment and verdict rendered by the jury in this cause. Costs of this

action are hereby assessed against the Defendant. Execution may

issue.

SO ORDERED.

/s/ John C. Crow

Circuit Judge, Division 2

Dated: November 30, 1978

(Signed: March 21, 1979)

28a

In THe Circurr Court OF

GREENE CouNTYy, Missouri

Division 2

NATHAN L. COULTER,

Plaintiff,

Vv.

MICHELIN Tire CORPORATION,

Defendant.

ORDER

The Court has considered defendant's Motion for a Judgment in

Accordance with Defendant's Motion for Directed Verdict at the

Close of all of the Evidence or in the Alternative for a New Trial, the

written suggestions of the parties and the oral arguments of February

15, 1979.

As observed during the oral arguments one is well within the

evidence in arguing that the jury was generous in assessing plaintiff's

damages. The Court has carefully considered whether some remedial

action is called for regarding the amount of the verdict.

In considering the issue the Court has carefully noted that the only

relief requested by defendant in its after-trial motion is judgment in its

favor in accordance with its Motion for Directed Verdict at the Close

of all the Evidence or, in the alternative, a new trial. Defendant has

not suggested that it would be in order for the Court to grant relief by

way of remittitur. '

Accordingly the Court has concluded it should not endeavor to

grant unrequested relief, and that its attention should be limited to the

relief defendant requested.

Restricting its consideration to the relief sought by defendant, the

Court has concluded that no error occurred which would justify a new

trial on all issues, and that defendant is not entitled to judgment in its

'See P & S Leasing Company v. Ray Smith Ford, Inc., 533 S.W.2d 733

(Mo. App. 1977).

29a

favor in accordance with its Motion for Directed Verdict at the Close

of all the Evidence.

It is therefore ORDERED that defendant's Motion for a Judgment

in Accordance vith Defendant's Motion for Directed Verdict at the

Close of all of the Evidence or in the Alternative for a New Trial, be,

and the same is, hereby overruled in all respects.

Entered this 13th day of March, 1979.

/s/ Joun C. Crow

John C. Crow

Circuit Judge

Distribution:

Benjamin J. Francka, Esq., 726 Woodruff Building, Springfield,

MO 65806

Raymond E. Whiteacker, Esq., 600 Bank of Springfield Officer

Center, Springfield, MO 65806

Flavius B. Freeman, Esq., and Larry K. Bratvold, Esq., 705

Woodruff Building, Springfield, MO 65806

30a

No. 63487

IN THE SupREME Court OF Missouri

SD #63487

SEPTEMBER SESSION, 1981

NATHAN L. COULTER,

Plaintiff-Respodent,

v. TRANSFER

MICHELIN TIRE CORPORATION,

Defendant-Appellant

Now at this day, on consideration of Appellant's Application to

transfer the above entitled cause from the Southern District Court of

Appeals, it is ordered that said application be, and the same is hereby

denied.

STATE OF MISSOURI — SCT.

1, THOMAS F.. SIMON, Clerk of the Supreme Court of the State of

Missouri, certify that the foregoing is a full, true and complete

transcript of the judgment of said Supreme Court, entered of recordat

the September Session thereof, 1981, and on the 10th day of Novem-

ber 1981, in the above entitled cause.

Given under my hand and seal of said Court, at the City of

Jefferson City this 10th day of November 1981.

/s/ Thomas F. Simon, Clerk.

/s/ By: Norma Jean Creach D.C.

3la

In THe Circurr Court Or

GREENE CouNTy, Missouri

Case No. 73927-2

NATHAN L. COULTER, Plaintiff,

v.

MICHELIN TIRE CORPORATION, Defendant.

DEFENDANT’S MOTION FOR A JUDGMENT IN ACCORD-

ANCE WITH DEFENDANT’S MOTION FOR DIRECTED VER-

DICT AT THE CLOSE OF ALL OF THE EVIDENCE OR IN THE

ALTERNATIVE FOR A NEW TRIAL

Comes now defendant, Michelin Tire Corporation, and moves the

Court to set aside the verdict of the jury and to enter judgment in favor

of the defendant in accordance with its Motion For Directed Verdict

At The Close of All The Evidence, or if the foregoing motion be

denied to set aside the verdict and the judgment entered thereon and

grant defendant a new trial for the following reasons:

1. No evidence has been offered or received which raises a

jury issue on the allegations contained in paragraph 7 subparagraph

(b), (c) and (d) of Count II of plaintiff's Complaint that the tire in

question was in a defective condition. Therefore, a verdict should

have been directed in favor of defendant.

2. No evidence has been offered or received which raises a

jury issue on the allegations contained in paragraph 7 of Count II in

plaintiff's Complaint that the tire in question was unreasonably

dangerous. Therefore, a verdict should have been directed in favor of

defendant.

3. The Court erroneously admitted into evidence plaintiff's

exhibit |, a certain 225-15X Michelin radial tire, without a proper

foundation having been laid for the admission into evidence of said

tire as to whether said tire was the tire involved in plaintiff's accident

and whether it was in substantially the same condition at the time of

trial as it was at the time of the accident on July 22, 1970. The

32a

erroneous admission of said tire was highly prejudicial to the defen-

dant. Therefore, a new trial should be granted.

6. Contrary to Missouri Supreme Court Rule 57.07 (a)(2)

which provides without qualification that “The deposition of a party,

. . . may be used by an adverse party for any purpose. “the Court

erroneously prevented the defendant from reading into evidence, as

part of the defendant's case and in support of defendant's claim of

contributory fault, several portions of plaintiff's deposition testimony

which defendant offered as admissions of a party opponent and

substantive evidence of said contributory fault. The Court’s action in

excluding such deposition testimony deprived the defe adant of one of

its primary sources of substantive evidence of the conduct that plain-

tiff caused his injuries through his own contributory fault. The por-

tions of plaintiff's deposition testimony so excluded have been

attached to this motion and marked Exhibit D. The erroneous exclu-

sion of such deposition testimony was highly prejudicial to the

defendant. Therefore, a new trial should be granted.

7. The Honorable John C. Crow, Circuit Judge for the Circuit

Court of Greene County, Missouri, did between the hours of 12:30

p.m. and 1:15 p.m. on the 29th day of November, 1978, which was

the third day of the trial, eat lunch with counsel for the plaintiff, Mr.

Raymond Whiteaker, at a corner table at an open public snack bar in

the Greene County Court House. The Honorable John C. Crow and

Mr. Raymond Whiteaker were seated by themselves eating lunch and

talking to one another, at which time they were observed by one of

defendant's counsel of record and Mr. Jack Friedmann, a member of

the New York Bar, who is house counsel for defendant Michelin Tire

Corporation. The conduct of the Honorable John C. Crow in eating

lunch and having conversation with counse! for the plaintiff in an

open public snack bar within the Court House during the trial and at a

time when the jurors had also been released for a lunch period and

were free to observe the conduct of Honorable John C. Crow in

having lunch and conversation with Mr. Raymond Whiteaker, plain-

tiff's counsel, was improper and highly prejudicial to the defendant

and may have created the impression that the Honorable John C.

Crow favored the counsel of the plaintiff or the plaintiff's position in

the lawsuit. Therefore, a new trial should be granted.

33a

8. The verdict of the jury in favor of the plaintiff was against

the weight of the evidence and against the weight of the credible

evidence. The opinion testimony of plaintiff's expert was not based

upon sufficient facts in evidence. The testimony of plaintiff was

contrary to the physical facts and therefore not credible. Plaintiff's

testimony was completely refuted by all three witnesses to the acci-

dent who were disinterested in the outcome of the litigation. There-

fore, a new trial should be granted.

9. The jury’s verdict in the amount of $140,000 was grossly

excessive for the reasons that plaintiff was only able to prove special

damages of approximately $7,000.00 including $3,500.00 in medic-

al expenses and $3,500.00 in lost wages, all of which accrued

between July 22, 1970, and May 31, 1971. There also was no proof of

a diminished earning capacity and immediately after returning to

work plaintiff earned more pay in his same job for more than 4 years

before voluntarily leaving for a better job. The disfigurement to

plaintiff's face and left arm and the limitation of motion of his left arm

were shown to be only minimally disabling. The excessive verdict is

therefore not based upon the evidence but is obviously the result of

bias in favor of the plaintiff and prejudice against the defendant.

Therefore, a new trial must be granted.

10. In the event the court finds the verdict for plaintiff was

excessive but was not so grossly excessive as to indicate bias and

prejudice on the part of the jury, defendant requests the court to

require plaintiff to remit a substantial portion of said judgment as may

be determined by the court, or, in the alternative that the court grant a

new trial to defendant.

11. Mr. Raymond Whiteaker, during his closing argument

improperly argued outside the bounds of the facts in evidence or

reasonable inferences from said facts. He stated to the jury that he

would show them how the kinks got in the bead of the tire. He placed

the tire on the floor and asked the jury to imagine that the tire was in

the mold. Then he quickly reached down, grasped the bead of the tire

at the location of the breaks, and violently jerked the tire upward

stating, “That's the way those kinks got in the tire. Look at where my

hands are.” There was no evidence that the tire had been so violently

34a

treated nor that such treatment could cause kinks in the bead. Such

theatrics were beyond the bounds of permissible argument and highly

prejudicial to defendant. Therefore, a new trial should be granted.

WHEREFORE, defendant prays the Court to enter its order grant-

ing defendant's Motion for a Judgment in Accordance with its Motion

for Directed Verdict or in the Alternative for a new trial.

NEALE, NEWMAN, BRADSHAW & FREEMAN

by Flavius B. Freeman

by Larry K. Bratvold

Woodruff Building

Suite 705

P.O. Box 1035 S.S.S.

Springfield. Missouri 65805

Attorneys for Defendant

35a

In THe Circurr Court OF

GREENE CouNTYy, Missouri

Case No. 73927-2

NATHAN L. COULTER, Plaintiff,

v.

MICHELIN TIRE CORPORATION, Defendant.

SUGGESTIONS IN SUPPORT OF DEFENDANT’S MOTION FOR

A JUDGMENT IN ACCORDANCE WITH DEFENDANT'S MO-

TION FOR A JUDGMENT AT THE CLOSE OF ALL OF THE

EVIDENCE OR IN THE ALTERNATIVE FOR A NEW TRIAL

Comes now defendant, Michelin Tire Corporation, and submits

the following Suggestions in support of its Motion For A Judgment In

Accordance With Defendant’s Motion For A Judgment At The Close

Of All Of The Evidence Or In The Alternative For A New Trial, to

wit:

1. In response to defendant's Motion For A Directed Verdict

At The Close Of Plaintiff's Evidence all of the allegations contained

in plaintiff's complaint concerning the condition of the tire were

dismissed without prejudice with the exception of those contained in

subparagraphs (b), (c) and (d) of paragraph 7 of Count II.

No evidence was offered or received which raised a jury issue on

the allegations contained in subparagraphs (b), (c) and (d) of para-

graph 7 of Count II that the tire in question was defective in any of the

respects therein alleged. Therefore, a verdict should have been

directed in favor of defendant.

In subparagraph (b) plaintiff alleged that the bead wires were weak

or thin at one or more places. This allegation does not fit the facts of

this case.

The court's ruling excluded from evidence one of defendant's

primary sources of positive proof that the plaintiff had caused his own

injuries by his contributory fault. The ruling of the court was clearly

36a

erroneous. The error was very prejudicial to the defendant in that it

limited its positive proof of plaintiff's conduct and the scope of its

argument to the jury. It deprived defendant of a fair trial. Therefore, a

new trial must be granted.

7. The conduct of the Honorable John C. Crow, Circuit Judge

for the Circuit Court of Greene County, Missouri, in having lunch and

conversing with counsel for the plaintiff in a public snack bar in the

Greene County Court House on the third day of the trial was in-

appropriate conduct for a Circuit Judge. It was inappropriate because

the jury had also been released for lunch and had free access to the

snack bar where the Judge and counsel for the plaintiff were eating

together. The conduct of the Judge may have created the impression

that the Judge favored the plaintiff’ s counsel or the plaintiff's position

in the lawsuit.

The Missouri Code of Judicial Conduct, Canon 2 provides as

follows:

The Judge Should Avoid Impropriety and the Appearance Of

Impropriety in his Official Activities

A. A judge should respect and comply with the law and

should conduct himself at all times in a manner that promotes

public confidence in the integrity and impartiality of the

judiciary.

B. A judge should not allow his family, social, or other

relationships to influence his judicial conduct or judgment.

He should not lend the prestige of his office to advance the

private interests of others; nor should he convey or permit

others to convey the impression that they are in a special

position to influence him. He should not testify voluntarily as

a character witness.

In the Commentary following the text is stated:

A judge must avoid all impropriety and appearance of impropri-

ety in his official activities. He must expect to be the subject of

constant public scrutiny. He must therefore accept restrictions

on his conduct that might be viewed as burdensome by the

ordinary citizen and should do so freely and willingly.

The Honorable John C. Crow as an experienced trial lawyer and

Circuit Judge is well aware that a small action by a trial judge can

37a

greatly affect the outcome of a lawsuit. He is also aware that his

actions are watched closely by the jurors as well as the lawyers

involved in a lawsuit. Defendant is helpless to prove what effect the

Judge’s conduct may have had upon any of the jurors. In a case such

as this one where the corporate defendant was obliged to contend not

oniy with the factual issues but with the obvious sympathies that

favored the plaintiff, the conduct of the trial judge, if observed by a

juror, may have had a psychological impact which distracted that

juror’s attention from the factual issues. It may well have deprived the

defendant of the one vote which would have defeated the plaintiff's

verdict. Clearly the conduct was inappropriate for a trial judge.

Such inappropriate conduct can not be overlooked. It was highly

prejudicial to defendant and deprived the defendant of a fair trial.

Therefore, a new trial must be granted.

8. The verdict in favor of plaintiff and against the defendant on

the issue of liability was against the great weight of the evidence.

Specifically, the verdict was against the weight of the evidence on the

factual issues concerning the alleged defective condition of the tire

and the manner in which plaintiff had used the tire.

First of all, the testimony of Mr. Garvick, plaintiff s expert, was so

incredible and lacking in probative value that a verdict based on his

testimony must be set aside. Mr. Garvick admitted he had never

examined a Michelin tire in the field of commerce before he examined

this one. He admitted that he had never seen a Michelin tire manufac-

tured nor had he seen a Michelin tire mold like the one used to make

the tire involved in this case. He admitted that there was no tangible

or observable evidence of a defect in the tire. He further admitted that

this tire was the first one that he had ever seen that contained two

breaks in a bead of the tire.

**# * *

38a

In THe Circurr Court OF

GREENE CouNTy, Missouri

Division 2

Case No. 73927-2

NATHAN L. COULTER, Plaintiff,

v.

MICHELIN TIRE CORPORATION, Defendant.

PLAINTIFF’S SUGGESTIONS IN OPPOSITION TO DEFEN-

DANT’S MOTION FOR A JUDGMENT IN ACCORDANCE

WITH DEFENDANT’S MOTION FOR A DIRECTED VERDICT

AT THE CLOSE OF ALL OF THE EVIDENCE OR IN THE

ALTERNATIVE FOR A NEW TRIAL

Defendant in the instant motion requests the Court to set aside the

jury’s verdict and enter judgment in favor of Defendant in accordance

with Defendant's Motion for Directed Verdict At The Close Of All Of

The Evidence or in the alternative to grant defendant a new trial.

Defendant's motion is in eleven enumerated points suggesting why

said motion should be sustained. Plaintiff will respond to each point

as briefly as possible.

To state a well known rule of law, Defendant is not entitled to a

directed verdict unless Plaintiff totally fails to make a submissible

case on any theory of liability and reasonable minds could not differ

on the proper disposition of the case. See, Connizzo v. General

American Life Insurance Company, 520 S.W.2d 661 (Mo. App.

1975). In making such a determination the Court must consider the

evidence in light most favorable to the Plaintiff, together with the

benefit of all reasonable inferences which might be reasonably drawn

from the evidence, disregarding any evidence or inferences adverse

to the Plaintiff. Stevens v. Raney, 520 S.W.2d 615 (Mo. App. 1975);

Reed v. Shelly, 378 S.W.2d 291 (Mo. App. 1964); Abel v. Campbell

66 Exp., Inc., 378 S.W.2d 269 (Mo. App. 1964).

39a

It logically follows that if reasonable minds could differ as to the

sufficiency of the evidence in support of Plaintiff's claim and whether

Plaintiff was entitled to recover, the Court cannot properly sustain a

motion for directed verdict in favor of the Defendant. See, W.

Crawford Smith, Inc. v. Watkins, 425 S.W.2d 276 (Mo. App. 1968).

Thus, it should be noted at the outset that Defendant carries a very

heavy burden in seeking to establish that it is entitled to a verdict as a

matter of law; one which Defendant in this case clearly fails to meet.

Plaintiff objected to the reading of the questions and answers that

had previously been read by defendant's counsel in his cross ex-

amination of the plaintiff. The basis of the objection was not that they

were not properly presented as admissions against interest, but rather

that the defendant’s counsel reading of them a second time and that

this was repititious. They were already before the jury, therefore the

Court properly sustained the objection because it in fact was repiti-

tious. The evidence was already in. Defendant argues that it inay use

the depositions for both impeachment and admissions but that the

court through its ruling, in effect, stated that the deposition could be

used for either impeachment or admissions, but not both. This argu-

ment is without logic. If the deposition was read once then the

statements made in the deposition could obviously be used to im-

peach the plaintiff if he testified inconsistently. On the other hand

those same statements could be construed as admissions. Defendant

seems to be arguing that in order to be used for impeachment and as an

admission, the statements must necessarily be read twice and

apparently would have to be designated as impeachment on one

occasion and as an admission on the other hand, but that it could not

serve both purposes by being read only once. In any event, the

Statements made in the deposition were received into the evidence

and read to the jury. They were all before the jury. Under these

circumstances it is difficult to see how defendant could have been

prejudiced the jury, was well aware of the contents of the statements.

7. In point seven of defendant's motion defendant states that

“the Honorable John C. Crow, Circuit Judge for the Circuit Court of

Greene County, Missouri, did between the hours of 12:00 and 12:30

p.m. and !:15 p.m. on the 29th day of November, 1978, which was

the third day of trial, eat lunch with one of plaintiff's counsel, Mr.

40a

Raymond Whiteaker, at a corner table at an open public snack bar in

the Greene County Courthouse.” ’ It should be specifically noted that

the aforementioned encounter between the Honorable Judge Crow

and Attorney Whiteaker was very brief, that there were no jurors

present, that the case was in no manner discussed and that defendant

voiced no objection to the conduct which it now complains of, made

no record regarding this alleged inappropriate conduct, and furth-

ermore did not request a mistrial.

The court can take judicial notice of the fact that the public snack

bar referred to by defendant is of course quite small and as a result

necessitates persons being in close proximity to one another. Under

these circumstances it is hard to imagine how such conduct could be

construed as conveying the impression that plaintiff's counsel was in

a special position to influence the judge.

Even assuming that the aforementioned encounter between the

Honorable Judge Crow and Attorney Whiteaker could somehow be

construed as prejudicial, defendant waived any such prejudice

through its failure to voice any objections to the conduct or request a

mistrial. It should be specifically noted that the silence of defendant

preserved nothing for review. See Rule 84.13 of the Missouri Rules

of Civil Procedure. If counsel considered such matter prejudicial

counsel should have requested a mistrial or should have requested the

court to inquire into the maiter further. Even if plaintiff would seek to

invoke the plain error rule as provided by Rule 84.13(c) of the

Missouri Rules of Civil Procedure which said rule plaintiff would

argue is inapplicable, defendant should be barred by taking refuge in

such rule, for the rule is not intended as a refuge for the maladroit or

neglectful. See Stevens v. Wettererou Foods, Inc., 501 S.W.2d 494

(Mo. App. 1973).

*e * *

*See page 21 of Defendant's Suggestions.

4la

No. 11,336

In The

Missouri Court of Appeals

Southern District

NATHAN L. Coulter,

Plaintiff-Respondent,

V.

MICHELIN TiRE CORPORATION,

Defendant-Appellant.

Appeal From The Circuit Court Of

Greene County, Missouri, Division Two

Honorable John C. Crow, Judge

DEFENDANT-APPELLANT’S STATEMENT, BRIEF

AND ARGUMENT

NEALE, NEWMAN, BRADSHAW & FREEMAN

Fiavius B. FREEMAN No. 10575

705 Woodruff Building

Springfield, Missouri 65806

Joun M. KENNEY

Of Counsel

3003 New Hyde Park Road

New Hyde Park, New York 11042

Attorneys for Appellant

Oral Argument Requested

* * * *

Vv.

The Conduct Of The Honorable John C. Crow, Trial Judge In This

Cause, In Eating Lunch And Having Conversation With Counsel

For Plaintiff In An Open Public Snack Bar Within The Courthouse

During The Third Day Of The Trial At A Time When The Jury

Had Also Been Released For Lunch Period Aad Were Free To

42a

Observe Such Conduct Of The Honorable John C. Crow, Was Im-

proper And Highly Prejudicial And Constituted A Denial Of Due

Process To The Defendant In That Such Conduct May Have Cre-

ated The Impression That The Honorable John C. Crow Favored

Those Identified With The Plaintiff Or The Plaintiff's Position In

The Lawsuit And Such Impropriety Could Not Be Properly Cured

During The Trial Without Further Prejudicing The Defendant In

The Eyes Of The Jury And The Judge.

The conduct of the Honorable John C. Crow, Circuit Judge for the

Circuit Court of Greene County, Missouri in having lunch between

the hours of 12:30 p.m. and 1:15 p.m. on the third day of the trial and

conversing with counsel for plaintiff at a corner table where the two of

them were eating together in a public snack bar in the courthouse, was

inappropriate conduct for a Circuit Judge. They were observed by one

of defendant's counsel and the member of the New York Bar who was

a lawyer in the office of outside general counsel for Michelin Tire

Corporation for products liability matters. They came into the lunch-

room shortly before 1:00 p.m. and were enly there briefly. It was

particularly inappropriate because the jury had also been released for

lunch and had free access to the open snack bar. Obviously they were

free to observe the conduct of the trial judge having lunch and

conversing with one of plaintiff's counsel. The conduct of the judge

was improper and prejudicial to defendant and may have created the

impression that the trial judge favored the counsel for plaintiff or the

plaintiff's position in the lawsuit. (Tr. 558)

The title of Canon | of the Missouri Code of Judicial Conduct

states:

“A Judge Should Uphold the Integrity and Independence of the

Judiciary”

Irrespective of the purpose of the judge and plaintiff's counsel eating

together — which we are more than willing to assume was solely for

the purpose of being sociable — we do not feel this type of conduct

under these circumstances qualifies as to the high standard of conduct

contemplated “so that the integrity and independence of the judiciary

may be preserved.”

The title of Canon 2 of the Missouri Code of Judicial Conduct is as

follows:

43a

“A Judge Should Avoid Impropriety and the Appearance of

Impropriety in His Official Activities”

Obviously this Canon contemplates more than impropriety or the

appearance of impropriety in his official duties. In fact the language

of the Canon seems obvious to set a standard for social conduct and

requires that he should not convey or permit others to convey the

impression that they are in a special position to influence him. The

activity with which we are concerned here certainly conveyed that

impression, even assuming it was entirely unintentional, to Miche-

lin’s New York counsel and could hardly do otherwise with such

members of the twelve person jury as may have eaten lunch or had

coffee in the snack bar.

The language of Canon 2 provides:

“A. A judge should respect and comply with the law and

should conduct himself at all times in a manner that promotes

public confidence in the integrity and impartiality of the

judiciary.

B. A judge should not allow his family, social, or other rela-

tionships to influence his judicial conduct or judgment. He

should not lend the prestige of his office to advance the private

interests of others; nor should he convey or permit others to

convey the impression that they are in a special position to

influence him. He should not testify voluntarily as a character

witness.”

In the Commentary following the text it is stated:

“A judge must avoid all impropriety and appearance of im-

propriety in his official activities. He must expect to be the

subject of constant public scrutiny. He must therefore accept

restrictions on his conduct that might be viewed as burdensome

by the ordinary citizen and should do so freely and willingly.”

(Emphasis supplied)

The Honorable John C. Crow as an experienced trial lawyer and

Circuit Judge is well aware that a small action by a trial judge can

greatly affect the outcome of a lawsuit. He is also aware that his

actions are watched closely by the jurors as well as the lawyers

involved in a lawsuit. Defendant is helpless to prove what effect the

Judge’s conduct may have had upon any of the jurors, who only voted

44a

9 to 3 in favor of the plaintiff. In a case such as this one where the

corporate defendant was obliged to contend not only with the factual

issues but with the obvious sympathies that favored the plaintiff, the

conduct of the trial judge, if observed by even one juror, may have

had a psychological impact which distracted that juror’s attention

from the factual issues. It may well have deprived the defendant of the

one vote which would have defeated the plaintiff's verdict. Clearly

the conduct was inappropriate for a trial judge.

The Canons of Judicial Ethics admonish judges to avoid “even a

suspicion of unfairness” by being careful about their “utterances, tone

of voice or general attitude.” Duncan v. Pinkston, 340 S.W.2d 753,

757 (Mo. 1960). Courts have recognized the powerful effect which

even unintentional acts of a judge may have on a jury:

In the eyes of the jury the trial judge is the epitome of justice and

wisdom. His influence upon the jurors is immense. A trial judge

is obligated to maintain strict impartiality as between the adverse

parties to a lawsuit. Jurors are quick to detect and respond to his

slightest inclination toward or against either side of a lawsuit; to

condemn the side which he condemns and to approve the party

litigant or the cause upon which he smiles. Wright v. Richmond,

21 Mo. App. 76. It is easy for a trial judge, unintentionally to

prejudice a jury for or against one party or another. He must be

extremely cautious in his comments, considerate in his rulings,

and thoughtful, patient and forbearing in his conduct. Any

appearance of partiality, favoritism or persuasion one way or the

other is strictly to be eschewed. Harms v. Simkin, 322 S.W.2d

930, 938 (St. L. App. 1959).

Ethics rulings have repeatedly cautioned the bench and bar to avoid

ex parte communications. See Canon 3(a) ( -s aad comments, Thode,

Reporter's Notes to Code of Judicial Conduct, p. 11-13, A.B.A.

Informal Opinion 251 (Maru, 1970 Supp. to Digest of Bar Ass’n

Ethics Opinions #4980); Opinion 1-1962, (Maru, 1975 Supp. to

Digest of Bar Ass'n Ethics Opinions #8387) 11 Res Gestae 20

(July-August, 1967). The A.B.A. House of Delegates has even

recognized the effect of lunch arran ements on the administration of

justice:

Particularly to be avoided are physical arrangements under

which judges and prosecutors share a lunchroom from which

45a

defense counsel are excluded. Any appearance that suggests a

special relationship between the district attorney's office and the

judiciary is certain to create doubts concerning the impartial

administration of justice. A.B.A. Standards Relating to the

Function of the Trial Judge, § 1.5, p. 34 (1972 Approved

Draft).

It is elemental that a “fair trial in a fair tribunal is a basic require-

ment of due process,” Jn re Murchison, 349 U.S. 133, 136 (1955).

Prejudicial influences on a jury can and should constitute a denial of

due process and a basis for reversal. Edwards v. Sears, Roebuck and

Co., 512 F.2d 276, 281 (Sth Cir. 1975).

Such inappropriate conduct can not be overlooked. It was highly

prejudicial to defendant and deprived the defendant of due process.

Therefore, a new trial must be granted.

* * * *

46a

In The

Missouri Court of Appeals

Southern District

No. 11,336

NATHAN L. COULTER,

Plaintiff-Respondent,

Vv.

MICHELIN TIRE CORPORATION,

Defendant-Appellant.

Appeal From The Circuit Court Of

Greene County Missouri, Division Two

Honorable John C. Crow, Judge

STATEMENT, BRIEF AND ARGUMENT OF

PLAINTIFF-RESPONDENT NATHAN L. COULTER

BENJAMIN J. FRANKA, #15009

726 Woodruff Building

Springfield, Missouri 65806

WooLsey, FISHER, WHITEAKER,

McDonaLp & ANSLEY

RAYMOND E. WuITEAKER, #15574

Joun E. Price, #28150

Suite 600, Bank of Springfield

300 South Jefferson

Springfield, Missouri 65806

Attorneys for Respondent

ORAL ARGUMENT REQUESTED

* *+ * &

47a

V.

The Conduct Of The Honorable John C. Crow In Eating Lunch

And Having Brief Social Conversation With Counsel For Plaintiff In

The Snack Bar Of The Courthouse During The Third Day Of The

Trial Was Not Improper, And Defendant Has Waived Any Claim

That It’s Constitutional Rights Were Violated By Such Conduct In

That Defendant Failed To Raise Such Claim At Its Earliest Possible

Opportunity In The Trial Court And Defendant Has Failed To

Assert That Any Prejudice Resulted To Do It As A Result Of Such

Conduct.

On the third day of trial, the trial judge and ali counsel conferred for

some time after the jury had been released for a lunch break (Tr. 437).

Shortly before 1:00 p.m., and after the jurors had returned to the

courtroom, it is alleged that the Honorable John C. Crow, Circuit

Judge for the Circuit Court of Greene County, Missouri, and counsel

for plaintiff sat together very briefly in the Courthouse Snack Bar

while eating lunch. Defendant contends that the judge’s action was

improper and resulted in a denial of due process of law to defendant,

requiring a new trial.

Initially, plaintiff would submit that any error which may have

occurred was not properly presented to the trial court or preserved for

review. Defendant has gone totally outside the record to state its

claims of error. A review of the transcript reveals absolutely no

reference to the alleged incident during the trial until defendant filed

its after trial motion for judgment or in the alternative, a new trial (Tr.

554-563). By virtue of its silence, defendant prevented the trial court

from undertaking to determine if any juror had, in fact, witnessed this

alleged rendezvous and, if so, what effect it might have had upon the

deliberations. Defendant in effect sandbagged the trial judge until the

conclusion of the trial and the rendition of an adverse verdict, and

then belatedly attempted to raise a claim of denial of due process of

law.

Missouri law is clear that a constitutional issue must be raised at the

earliest opportunity. City of Olivett v. Grader, 369 S.W.2d 85 (Mo.

1963); May Furnace Co. v. Conaway, 352 8.W.2d 40 (Mo. 1962).

“If a constitutional issue is not properly raised at the trial level,

nothing in the nature of a constitutional issue exists to be preserved for

48a

appellate review.” Oliver v. City of Higginsville, 527 S.W.2d 690

(Mo. App. 1975). Regardless of the merits of defendant's claim of

error, the issue has not been properly raised and preserved and is not

before the Court at this juncture.

However, even if the Court were to consider the merits of defen-

dant’s claim of error under a plain error standard of review, it is clear

that the trial judge’s action was not improper and that defendant had

failed to allege or establish that it suffered any prejudice as a result of

this action. Any discussion which occurred between the Honorable

John C. Crow and counsel for plaintiff was purely social in nature,

and defendant has so conceded. The Code of Professional Responsi-

bility, adopted in Missouri as Supreme Court Rule 4, and specifically

EC 7-35 and DR 7-110(b) thereof, specifically prohibit ex parte

communications between counsel and a judicial tribunal involving

discussion of the issues of a pending matter. There is no similar

prohibition of purely incidental contact between an attorney and the

trial judge. The absence of any case law or ethical advisory opinions

on this subject indicates that the alleged conduct of the trial judge and

plaintiff's counsel was neither onerous nor improper and that defen-

dant’s contention has no merit.

Nevertheless, even assuming that the alleged action could be

construed to be improper, defendant has totally failed to allege or

demonstrate any actual prejudice as a result of the action. Nowhere in

defendant's after trial motion and suggestions in support of that

motion, or in defendant's brief on appeal, is there any intimation that

a single juror saw or was aware of the alleged episode. In this regard,

the cases of Duncan v. Pinkston, 340 S.W.2d 753 (Mo. 1960);

Wardenburg v. White, 518 S.W.2d 152 (Mo. App. 1973); and Harms

v. Simkin, 322 S.W.2d 930 (Mo. App. 1959), are all factually

distinguishable. Those cases all involved conduct of a trial judge in

the courtroom in the presence of the jury. The appellants in those

cases were at least able to assert a colorable claim that they had been

prejudiced by the trial judge’s actions. Defendant’s claim here is

based wholly in speculation and conjecture. Such surmise does not

furnish a sufficient ground for a finding of prejudice to the defendant.

As is stated 88 CJS Trial, Section 51, Page 138, “private com-

munications or conferences between the judge and one of counsel

49a

. . while not commendable, ordinarily are not prejudicial where the

principal of judicial integrity is not, in fact, infringed.” Any alleged

discussion alluded to by defendant would have been purely casual in

nature; both the trial judge and counsel for plaintiff are experienced

enough to know better than to discuss issues in a current trial over

lunch. Further, there is absolutely no indication that any juror

observed or was aware of the alleged conversation. A finding of

prejudice cannot be made in the absence of any facts to support such

an allegation, and a new trial is not required.

* * * *

S0a

In The Supreme Court of Missouri

Case No.

NATHAN L. CouLTER,

Plaintiff-Respondent,

V.

MICHELIN TiRE CORPORATION,

Defendant-Appellant.

APPLICATION FOR TRANSFER BY THE SUPREME COURT

AFTER OPINION BY MISSOURI COURT OF APPEALS,

SOUTHERN DISTRICT, DIVISION TWO

Comes now Michelin Tire Corporation, Defendant-Appellant, and

pursuant to Supreme Court Rule 83.03, moves the Court for an order

transferring the above cause to the Supreme Court for hearing.

In support of this application, Defendant-Appellant states to the

Court:

1. The question of general interest and importance involved in

this case can be stated as follows:

Whether or not in a products liability case against the manufac-

turer of an allegedly defective tire, a submissible case is made

when the only evidence of the alleged defect comes in the form

of an opinion from an expert who lacked the experimental

capacity to form and express an opinion of probative value

because he (1) had never before examined a Michelin tire

(Appellant's Brief p. 48), (2) was not familiar with the Michelin

manufacturing process (Appellant's Brief p. 48) and (3) had

never before seen two breaks in any tire such as occurred in this

instance (Appellant’s Brief p. 44); and yet was permitted to

testify the fact there were two breaks indicated the presence of a

defect in this Michelin tire.

The Court’s opinion is obviously contrary to the requirements for

this type of expert testimony as established by the Supreme Court in

two cases, Craddock v. Greenburg Mercantile, 297 S.W.2d 541

Sla

(Mo. 1957) and Gaddy v. Skelly Oil Co., 364 Mo. 143, 259 S.W.2d

844 (1953). (Appellant's brief p.p. 39-49) To permit plaintiff's

expert to testify based upon speculation or conjecture without facts or

adequate data would be to change the law in Missouri.

2. The second question of general interest to the bar and

importance to the public is the propriety of the trial judge's eating

lunch with counsel for plaintiff in the courthouse’s public snack bar

while the members of the jury had been released for lunch and were

free to observe this lunchtime meeting. The unfairness and impropri-

ety of such a public luncheon during trial were first argued to the trial

judge as part of the defendant's after trial motion for a directed verdict

at the close of all the evidence or, alternatively, for a new trial. In

Plaintiff's Suggestions in Opposition to this motion, made by the

defendant, plaintiff's counsel conceded the basic facts of the meeting

between plaintiff's counsel and the trial judge, but sought to mini-

mize its significance by characterizing the encounter as brief and

stating that the instant action was in no manner discussed.

Since plaintiff's counsel admitted the meeting, and since the trial

judge, himself, obviously had first-hand knowledge of the facts,

there was no dispute over the basic facts and no affidavit by defen-

dant’s counsel was required for a ruling. The trial judge simply

overruled the defendant's motion, without comment on the propriety

of the meeting.

The Court of Appeals wrote that “|t}here is nothing before us for

review on this point,” because the point “was raised in motion for new

trial, but was not supported by affidavit or otherwise as provided by

Rule 78.05.” (Opinion p. 24) As just demonstrated, the facts of the

encounter were established by the admissions of plaintiff's counsel

upon the defendant's motion. The facts were thereby fully established

for all purposes before the trial and appellate courts.

The basic circumstances of the lunch meeting were further estab-

lished, if any more support were needed, by a fresh admission of the

incident by plaintiff's counsel in the “Statement, Brief and Argu-

ment” filed in the Court of Appeals In Point V, at page 53, plaintiff's

counsel concede that the trial judge was “eating lunch and having

brief social conversation with counsel for plaintiff in the snack bar of

52a

the courthouse during the third day of the trial,” but argue that this

conduct was “not improper.” Therefore, far from the point not being

before the Court of Appeals, the relevant facts were admitted and

undisputed.

The lunch meeting raises issues of constitutional dimensions, as

well. The defendant was denied its constitutional right to due process

of law and to a fair trial pursuant to the Fifth, Seventh and Fourteenth

Amendments to the Constitution of the United States if the trial judge

was biased against the defendant. The lunch meeting is only one

indication of bias on the part of the trial judge. Another manifestation

of bias against the defendant was the trial court’s denial that the

defendant had made a request for a remittitur (Tr. p. 564), when in

fact the defendant had made that request (Tr. p.p. 559-560). There-

fore, the defendant and the bar are entitled to a ruling as to the

propriety and constitutionality of the meeting, as established by the

admissions of plaintiff's counsel.

It would seem appropriate to state these questions of general

interest and importance as follows:

Whether or not, during a jury trial, a trial judge is acting with

propriety and in conformity with the Canons of Judicial Con-

duct, in having lunch with counsel to a party in the courthouse’s

public snack bar while the members of the jury have been

released for lunch and are free to observe the meeting. Assuming

the lunch meeting did occur, were defendant’s rights under the

Fifth, Seventh and Fourteenth Amendments to the Constitution

of the United States violated so as to require a new trial?

3. The following exhibits are attached and made a part of this

application:

(a) The Missouri Court of Appeals, Southern District Division

Two, filed its Opinion on August 13, 1981, attached hereto as Exhibit

1.

(b) Defendant-Appellant filed its Motion for Rehearing or

Transfer to this Court on August 27, 1981, attached hereto as Exhibit

2.

(c) The Court of Appeals issued its order on September 22,

1981, “Opinion heretofore filed on August 13, 1981, withdrawn.

53a

Cause ordered resubmitted to the full panel which heard arguments on

briefs and argument presented on September 11, 1980,” attached

hereto as Exhibit 3.

(d) The Court of Appeals adopted its Opinion of August 13,

1981, as the Opinion of the Court on October 6, 1981, and entered its

ruling on the Motion for Rehearing and Transfer to this Court by

denying the Motion to Transfer on the same day, attached hereto as

Exhibit 4.

(e) Defendant-Appellant’s Brief, attached hereto as Exhibit 5.

(f) Transcript pages 564 and 559-560, attached hereto as Ex-

hibit 6.

(g) Plaintiff's Suggestions in Opposition to Defendant's Mo-

tion, pages 10-11, attached hereto as Exhibit 7.

(h) Plaintiff-Respondent’s Brief page 53, attached hereto as

Exhibit 8.

WHEREFORE, Defendant-Appellant respectfully makes this ap-

plication to the Supreme Court for an order granting transfer of this

cause for a determination by the Supreme Court.

/s/) By JoHN M. KENNEY

John M. Kenney

3000 Marcus Avenue

Lake Success, New York 11042

NEALE, NEWMAN, BRADSHAW & FREEMAN

/s/ By Fravius B. FREEMAN

Flavius B. Freeman #10575

One Corporate Square

P.O. Box 4203 G.S.

Springfield, Missouri 65808

Attorneys for Defendant-Appellant

uonIsodd¢

wae - -upreme Court, U.S.

81-1450 | FILED

MAR @ 1982

No.

i

In THE

Supreme Court of the United States

OcToBER TERM, 1981

MICHELIN TIRE CORPORATION,

Petitioner,

vs.

NATHAN L. COULTER,

Respondent.

RESPONDENT’S BRIEF IN OPPOSITION

TO PETITIONER’S APPLICATION

FOR A WRIT OF CERTIORARI

TO THE MISSOURI COURT

OF APPEALS,

SOUTHERN DISTRICT

BENJAMIN J. FRANCKA

726 Woodruff Building

Springfield, Missouri 65806

(417) 869-9162

RAYMOND E. WHITEAKER

JOHN E. Price

300 South Jefferson, Suite 600

Springfield, Missouri 65806

(417) 869-0581

Counsel for Respondent

March 3, 1982

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477

QUESTION PRESENTED

Whether a party to a civil action has properly preserved a

claimed violation of its due process right to a fair trial where the

allegedly improper incident is not raised by a motion for mistrial

or otherwise brought to the attention of the court during trial,

but is first presented after the rendition of judgment in a motion

for new trial.

LIST OF PARTIES

Respondent Nathan L. Coulter has at all times material to

this action been an individual citizen and resident of Greene

County, Missouri. Petitioner, Michelin Tire Corporation is a

New York Corporation.

SND co ccceccccscnccesccssevecscccees

Rec cccsccesicvetessvccescsesoseoscesa

pf PPPRTTTTTT TET

SGT IGID ccc ccccccccacescecccevesceses

IGE FE 0. ccc ccc ccccccsccscesescceces

PI occ ctccccccccccessescvccdicavcovcssccens

oe ede daa ech epenebbeeaseeuns

TABLE OF AUTHORITIES

Cardinale v. State of Louisiana, 394 U.S. 437 (1969) ...

City of Olivett v. Grader, 369 S.W.2d 85 (Mo. 1963) ...

Edelman v. State of California, 344 U.S. 357 (1952) ....

Gaut v. Oklahoma City, 289 U.S. 98 (1933) ...........

May Furnace Co. v. Conaway, 352 S.W.2d 40 (Mo.

Dt céuceveddegastendeewndadkvaneseunenees

Missouri, K. & T. Ry. Co. v. Sealy, 248 U.S. 361 (1919).

Oliver v. City of Higginsville, 527 S.W.2d 690 (Mo.

GE SU b cnnsunctansacécussosocccuscseioss

88 C.J.S. Trial, Section 51, Page 138................4.

vr A he OS

No.

In THE

Supreme Court of the United States

OcTOBER TERM, 1981

MICHELIN TIRE CORPORATION,

Petitioner,

vs.

NATHAN L. CouLtTeR,

Respondent.

RESPONDENT’S BRIEF IN OPPOSITION

TO PETITIONER’S APPLICATION

FOR A WRIT OF CERTIORARI

TO THE MISSOURI COURT

OF APPEALS,

SOUTHERN DISTRICT

STATEMENT OF THE CASE

This is a products liability case in which the respondent,

Nathan Coulter, after a four-day trial in the Circuit Court of

Greene County, Missouri, was awarded a judgment for One

Hundred Forty Thousand ($140,000.00) Dollars against peti-

tioner, Michelin Tire Corporation (Petitioner’s Appendix

25(a)). Petitioner, Michelin Tire Corporation, duly appealed to

the Missouri Court of Appeals and after due consideration the

Missouri Court of Appeals affirmed the decision (Petitioner’s

Appendix 1(a)). The Missouri Court of Appeals thereafter

granted a motion for re-hearing and after re-consideration again

affirmed the decision of the jury (Petitioner’s Appendix 24(a)).

Petitioner attempts to raise an issue at this time claiming denial

ota

of due process under the Fourteenth Amendment by virtue of

an alleged incident in the courthouse snack bar during a noon

recess in which the trial judge sat at a table with one of respon-

dent’s attorneys. Apparently Petitioner’s counsel and represen-

tatives were also present (Petitioner’s Appendix 32(a)). The

alleged incident occurred during the third day of the four day

trial. Petitioner did not refer to or raise any issue concerning the

incident during the remaining portion of the trial.

The first complaint about the incident raised by the petitioner

was in its Motion for a New Trial (Petitioner’s Appendix 31(a)).

In its Suggestions in Support of Motion for New Trial and in its

argument and brief to the Missouri Court of Appeals, petitioner

speculates that it may have been prejudiced because a juror may

have seen the judge and respondent’s counsel together (Peti-

tioner’s Appendix 35(a), 41(a)). After the decision of the

Missouri Court of Appeals the Petitioner sought a transfer to

the Supreme Court of Missouri (Petitioner’s Appendix 50(a)).

For the first time, in addition to arguing that a juror may have

witnessed the trial judge and respondent’s counsel together,

petitioner suggested that even if this were not true, it never-

theless was denied due process because the incident indicated a

bias upon the part of the trial judge. The motion for transfer

was denied by the Missouri Supreme Court by its memorandum

order.

—

SUMMARY OF ARGUMENT

The petition for certiorari should be refused for the reason

that petitioner did not raise the issues it seeks to have this court

rule in a timely fashion. Petitioner made absolutely no reference

to the alleged incident during the trial. The matter was raised for

the first time in petitioner’s after trial motion.

Petitioner’s application should be denied for the reason that

petitioner had a fair trial; all the issues were thoroughly, fairly

and ably litigated. The entire record of the lengthy trial has been

thoroughly reviewed by the Missouri Court of Appeals and

found to be without error. Petitioner has never alleged that any

actual prejudice resulted from the incident; its entire argument

is based upon speculation. None of petitioner’s constitutional

rights have been violated.

—_

ARGUMENT

Petitioner contends that it was denied a fair trial, in violation

of the Due Process Clause of the Fourteenth Amendment, Jy

the allegedly improper conduct of the trial judge. The claim of

impropriety is based solely on the allegation that the trial judge

and one of counsel for respondent were observed sitting at the

same table in the small courthouse snack bar during the noon

recess of the third day of trial in this cause.

The petitioner for certiorari should be denied due to peti-

tioner’s failure to raise and preserve the issue in a timely man-

ner. No reference was made to the incident during the trial; it

was only in petitioner’s after trial motion that the issue was

presented to the trial court. Given the very small physical

dimensions of the snack bar and the presence of petitioner’s

counsel and representatives, respondent suggests that there was

nothing inappropriate concerning the alleged incident or the

petitioner would have raised the issue immediately. By virtue of

its silence the petitioner prevented the trial court from undertak-

ing to determine if any juror had in fact witnessed the alleged in-

cident and if so, what effect it might have had upon the jury. In

view of the petitioner’s knowledge of the alleged incident when

it occurred, it appears that petitioner in effect ‘‘sandbagged’’

the trial judge until the conclusion of the trial and the rendition

of an adverse verdict. It then belatedly attempted to raise a

claim of denial of due process. Under Missouri law, a constitu-

tional issue must be raised at the earliest opportunity. City of

Olivett v. Grader, 369 S.W.2d 85 (Mo. 1963); May Furnace Co.

v. Conaway, 352 S.W.2d 40 (Mo. 1962). “‘If a constitutional

issue is not properly raised at the trial level, nothing in the

nature of a constitutional issue exists to be preserved for ap-

pellate review.’’ Oliver v. City of Higginsville, $27 S.W.2d 690

(Mo. App. 1975). Any constitutional issue which may have ex-

isted was waived by petitioner and is not properly before the

Court at this juncture.

=P

Furthermore, it was not until the petitioner filed its applica-

tion for transfer in the Missouri Supreme Court that petitioner,

for the first time, alleged that there the mere presence of the

judge and respondent’s counsel at lunch together constituted a

denial of due process (Petitioner’s Appendix 50(a)). Respondent

again suggests that the issue is raised too late and that there is

nothing in the record to indicate bias or prejudice upon the part

of the trial judge, or that the petitioner was denied a fair trial or

due process of law. Missouri, Kansas & Texas Railway Co. v.

Sealy, 248 U.S. 361, 63 LEd. 363 (1919); Edelman v. People of

the State of California, 344 U.S. 357, 97 LEd. 387 (1952); Gant

v. Oklahoma City, 289 U.S. 98, 77 LEd. 1058 (1933); Cardinale

v. State of Louisiana, 394 U.S. 437, 22 LEd. 2d 398 (1969).

However, even if the Court were to consider the issues framed

by petitioner, it is evident that the factual record is insufficient

to demonstrate any special or important reason for granting cer-

tiorari. Petitioner, when presenting the issue to the trial court

and to the Missouri Court of Appeals, alleged a denial of due

process without any supporting documentation or evidence. It

did not seek or present to the appellate court any support for its

claim of denial of due process other than the incidental lunching

at the snack bar while petitioner’s counsel and representatives

were present. Indeed, petitioner has never alleged that any juror

witnessed the incident; that the incident in any way affected the

jury’s deliberations; that any discussion of the pending trial oc-

curred; or that the trial judge was actually biased against it in

any way. The Court of Appeals was correct in its reasoning that

it needed more than a bare allegation that a luncheon discussion

had occurred to enable it to rule on the propriety of the trial

judge’s conduct.

After the matter was presented to the appellate court, that

court granted a motion for re-hearing. On rehearing, the court

noted in its order that the petitioner had not accompanied its

motion by any request to file new briefs or to raise or argue

_~

points not briefed when the appeal was originally submitted

(Petitioner’s Appendix 24(a)). Thus, petitioner has failed not

once, but twice, to specify any facts which would support its

claim of bias or prejudice on the part of the judge or jury.

The reason for this failure suggests itself; the incident was, by

petitioner’s admission, brief and purely ‘‘sociable’’ in nature

(Petitioner’s Appendix 42(a)). The only factual background for

this encounter was advanced by respondent in his suggestions in

opposition to petitioner’s after-trial motion:

It should be specifically noted that the aforementioned en-

counter between the Honorable Judge Crown and At-

torney Whiteaker was very brief, that there were no jurors

present, that the case was in no manner discussed and that

defendant voiced no objection to the conduct which it now

complains of, made no record regarding this alleged inap-

propriate conduct, and furthermore did not request a

mistrial.

The court can take judicial notice of the fact that the

public snack bar referred to by defendant is of course quite

small and as a result necessitates persons being in close

proximity to one another. Under these circumstances it is

hard to imagine how such conduct could be construed as

conveying the impression that plaintiff’s counsel was in a

special position to influence the judge.

(Petitioner’s Appendix 40(a)). Respondent submits that, absent

any allegation of prejudice or resulting bias to petitioner, the

conduct of the trial judge was not improper and certainly did

not constitute a denial of due process.

It is also noteworthy that none of the authorities cited by peti-

tioner purport to deal with the issue presented herein. Peti-

tioner’s authorities all involve improper courtroom conduct,

out-of-court business relationship, or interest in the subject

matter of the litigation by or between the trial judge and a party.

owl an

Respondent has found no case law reaching the instant issue but

for the reference in 88 C.J.S. Trials, Section $1, Page 138, that

‘*private communications or conferences between the judge and

one of counsel ...while not commendable, ordinarily are not

prejudicial where the principle of judicial integrity is not, in

fact, infringed.’’ Respondent submits that no such showing has

been made, and the petition for certiorari should be denied.

CONCLUSION

Petitioner has alleged only that a brief encounter and discus-

sion occurred between the trial judge and counsel for respon-

dent during the trial of this cause. Never has petitioner alleged a

single fact which indicates that any juror witnessed the incident

or that any prejudice or actual bias existed on the part of the

trial judge. Petitioner received a fair trial in all respects, and the

petition for writ of certiorari should be denied.

Respectfully submitted,

BENJAMIN J. FRANCKA

726 Woodruff Building

Springfield, Missouri 65806

(417) 869-9162

RAYMOND E. WHITEAKER

JOHN E. PRICE

300 South Jefferson, Suite 600

Springfield, Missouri 65806

(417) 869-0581

Counsel for Respondent

March 3, 1982