Boutell v. Scott's Royal Tire Co.

365 S.W.2d 765, 1963 Mo. App. LEXIS 586
CourtMissouri Court of Appeals
DecidedFebruary 4, 1963
DocketNo. 23746
StatusPublished
Cited by1 cases

This text of 365 S.W.2d 765 (Boutell v. Scott's Royal Tire Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boutell v. Scott's Royal Tire Co., 365 S.W.2d 765, 1963 Mo. App. LEXIS 586 (Mo. Ct. App. 1963).

Opinion

MAUGHMER, Commissioner.

This is a suit for damages arising out of alleged negligence and poor workmanship in the repair of an automobile.

On February 10, 1959, Earl N. Boutell, took his 1955 Chrysler Sedan, which was then three and one-half years old and had been driven about 25,000 miles, to defendant Scott’s Royal Tire Co., Inc., Kansas City, Missouri, with instructions to realign the front wheels, the front end, and rotate three of the tires. It is conceded that defendant’s employees did all of these things and that plaintiff paid for it.

Plaintiff testified that he thereafter took the automobile to his farm home near West Line, Missouri, and about 60 miles from Kansas City. He said they used a station wagon at the farm and except for a few trips to Kansas City, the Chrysler was used very little during the next 52 days. On April 3, 1959, plaintiff, being about to go on a trip to New Britain, Connecticut, decided to equip it with two new tires. He again took it to defendant’s place of business, purchased two new tires and defendant installed them on the front wheels. Mr. Boutell stated that he was not a mechanic and that neither he nor any one else, except defendant, had “worked on” the car since April 3rd.

On April 20, 1959, plaintiff, driving the Chrysler, started for New Britain by way of St. Louis. He had proceeded about 60 miles to near Carrollton in a hard rain storm when the accident occurred. As [767]*767plaintiff described it, he was going about 60 miles per hour when "a tire blew out and I ended up in the ditch”, “after the blowout it turned to my right, the right front wheel, there’s a concrete curb”, “I’d say a foot high — I hit that center and ended up off the road”. Mr. Boutell stated that the Chrysler was equipped with power steering and he had noticed “nothing unusual” in the operation of the vehicle — steering or otherwise — prior to the accident. He said he had not noticed any excessive wear on the front tires, either on the new ones or the old ones. Plaintiff said it took two weeks to repair the car and “by hitting this culvert I tore all the underneath structure out of it”. Speaking of the front tires after the accident, he said: “When I saw them here in Kansas City they were just shreds, both tires, both front tires were just shreds, no rubber on them at all”.

The wrecked automobile was taken to the shop of Allied Motors, Kansas City, Missouri, for repairs. Mr. Paul J. Christ-man, Jr., manager of Allied Motors body repair department, testified. He described his occupation as a “Metal finisher, body man, painter”. He said he had also worked as a body and fender man and had been manager of six different shops in Kansas City. He examined the Chrysler after the accident and described its condition as follows : “The undercarriage or running gear of the car was tore loose from the frame, the frame was bent and distorted, threw the cowl back, the windshield was broken, part of a sign laying in the car where it had gone through the window, the hood was distorted, motor mounts were broken, radiator, of course, was collapsed, the air conditioning, we had to work on it, the right front fender was badly damaged and the left front fender was, of course, out of shape. Everything on the front end was demolished”. Testifying specifically as to the condition of the front tires, Mr. Christ-man said: “Well, the tread was showing, the rubber leaving the casing, it looked like a rag. One tire (right) was completely collapsed”.

This witness said he was familiar with the customs, practices and procedure of the industry in the process of aligning the front wheels and front end of an automobile. He said that first the wheels are adjusted both forward and backward and in and out. The vehicle is put on a machine which automatically lines the front wheels with the rear — “so they will track”. Once the “setting” is made “the wheels are locked into position on the tie-rod” and “you lock it in position by torqueing your nuts down”. This locking “tube is adjustable through a worm type tube, it is threaded on both sides”. “You have squeeze clamps on the end.” Mr. Christman said he examined the tie-rod and squeeze clamps after the accident and found “the locking device on this tie-rod was loose”, “the nut was ready to come off. You could just turn it with your fingers”. He was then asked to keep in mind the condition of the car as he had found and described it, and to assume further that 17 days after new tires had been installed on the front wheels, the right front tire blew out while driving about 60 miles per hour, and then express his opinion as to the cause of the blowout and accident. His opinion was that the blowout caused' the accident and the blowout was caused by “the tie-rod being loose and causing excessive wear. There was a malfunctioning there of the front end alignment”. He stated that if the squeeze clamp nuts were properly tightened it was improbable that they would work loose, but if they were only partially tightened, they were likely to work loose. He said further that power steering lessened the likelihood of the driver noticing defective steering.

The only other witness called by plaintiff gave testimony concerning the rental costs of automobiles. The defendant called just one witness, its manager, Harry D. Schmidt, who inspected the Chrysler after the accident. He said both front tires were “worn completely smooth”.

This cause was submitted to the jury and it returned a verdict for plaintiff in the sum of $1125. The court reduced the ver-[768]*768diet to $1099.68, the amount prayed for in plaintiff’s petition, and entered judgment for that amount. Thereafter the trial court sustained defendant’s motion for new trial based upon error as to Instruction 2 on measure of damages, and ordered a new trial on the issue of damages only. Neither party has appealed from that particular ruling of the trial court. Therefore, even if the judgment as entered is affirmed, the damage issue will have to he retried.

On its appeal defendant assigns error in the giving of plaintiff’s main instruction numbered One. Three complaints are leveled at the instruction. Defendant says it authorized a plaintiff verdict when there was no substantial evidence to support plaintiff’s theory of negligence and causation. This feature will be considered in reviewing the denial of defendant’s motion for a directed verdict. Defendant asserts further that the instruction did not require the jury to “find facts constituting negligence” nor “the finding of proximate cause.” We believe the instruction is not reversibly erroneous. It required these findings as prerequisites to a plaintiff’s recovery: Ownership of the car by plaintiff, alignment of the front wheels and front end by defendant company, failure to tighten and secure the tie-rod bolts, finding that such failure was contrary to custom, was negligent and not in the exercise of reasonable care, and that it was the direct and proximate cause of the blowout and accident. Although the instruction is not sprinkled with the phrases “if so”, “if you so find”, and “if you further find and believe” (and defendant complains about this) we think it is not misleading and rule the point against defendant. Kelly v. Kansas City, Mo., 335 S.W.2d 159, 163.

We now consider defendant’s other assignment, namely, that the court should have sustained its motion for a directed verdict. Since defendant put on evidence after plaintiff had concluded, we consider only the motion as submitted at the close of all of the evidence.

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Bluebook (online)
365 S.W.2d 765, 1963 Mo. App. LEXIS 586, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boutell-v-scotts-royal-tire-co-moctapp-1963.