Elmore v. Owens-Illinois, Inc.

673 S.W.2d 434

• Court: Supreme Court of Missouri
• Decided: July 17, 1984
• Docket: 65374
• Status: Published

Opinions

HIGGINS, Justice.

Arthur Elmore and his wife Mary sued Owens-Illinois, Inc., for damages alleged to have resulted from Mr. Elmore’s prolonged exposure to asbestos dust; Owens-Illinois manufactured Kaylo, an insulating material that contained asbestos. The jury returned verdicts of $117,250 for Mr. Elmore and of $43,750 for Mrs. Elmore. The trial court reduced the verdicts to $17,250 and $7,750, respectively, on the ground that the jurors had misunderstood the court’s instructions on the computation of total damages and entered judgment for plaintiffs accordingly. All parties appealed, and the Court of Appeals, Western District, affirmed liability of Owens-Illinois and reversed the reduction of plaintiffs’ damages. This Court granted transfer to examine the admissibility of a state of the art defense in a products liability action and reaches the same result as did the Court of Appeals.

Owens-Illinois asserts that the plaintiffs’ claims were barred by the two-year statute of limitations of the State of Kansas; that the substantive law of Kansas should apply; that the plaintiffs’ case should have been submitted upon an instruction reflecting a “failure to warn” theory of products liability, rather than an instruction reflecting a “product defect” theory; that such an instruction would have afforded Owens-Illinois the opportunity to assert a state of the art defense; and that modification of the jury’s verdicts was proper. Plaintiffs counter that Missouri’s five-year statute of limitations was properly applied; that the trial court properly applied Missouri law; that the evidence was sufficient to support a “product defect” instruction; that a state of the art defense is irrelevant in a design defect case; and that the trial court erred in reducing the jury’s verdicts.

This Court draws freely from the opinion written by the Honorable Don W. Kennedy for the Court of Appeals.

Arthur Elmore followed the asbestos workers’ trade from 1943 until his retirement in 1976. Between 1948 and 1958 he often worked with a material known by the trade name of “Kaylo,” manufactured and distributed by defendant Owens-Illinois. This product was a solid material two and a half to three inches thick, used to insulate pipes, boilers, turbines and the like. It came in blocks of various shapes and sizes. Its installation required pounding and sawing, often in enclosed places, which raised considerable dust. Workers, such as Mr. Elmore, were exposed to and breathed the dust. Kaylo was composed of several materials, including 15% asbestos.

Mr. Elmore learned through union publications in the late 1960’s of the danger of working with asbestos; it could cause asbestosis. At about the same time asbestos products began to carry warnings, and beginning about 1970 asbestos was removed from many of the products. Elmore began to be short of breath, a symptom of asbestosis, in 1973; his asbestosis was not diagnosed until May 13, 1976.

Asbestosis may result from breathing asbestos dust; it is not argued that the evidence was insufficient to establish causation. Asbestosis is detectable from as early as four years to as long as twenty years after the exposure, with the 15-to-20 year latency period being more common.

The case was submitted on a strict liability theory, MAI 25.04.

Under its assertion that plaintiffs’ claims were barred by Kansas’ two-year statute of limitations, defendant maintains that the Kansas statute of limitations is applicable because the cause of action “originated” in Kansas. Missouri’s borrowing statute, section 516.190, RSMo 1978, provides: “Whenever a cause of action has been fully barred by the laws of the state, territory or country in which it originated, said bar shall be a complete defense to any action thereon, brought in any of the courts of this state.”

Plaintiffs respond that the cause of action “accrued” in Missouri at the time of the diagnosis of asbestosis on May 13, 1976. Suit was filed May 10, 1979, well within the five-year limitations period of section 516.120, RSMo 1978, the Missouri statute of limitations.

Within the context of section 516.-190, “originated” has been accorded the meaning “accrued.” Schnabel v. Taft Broadcasting Co., Inc., 525 S.W.2d 819, 826 (Mo.App.1975). A cause of action accrues when and originates where damages are sustained and are capable of ascertainment. Renfroe v. Eli Lilly & Co., 686 F.2d 642 (8th Cir.1982).

Although Mr. Elmore knew as early as 1973 that he had shortness of breath, and knew also, from reading publications of his union, that long-term breathing of asbestos dust caused asbestosis, he did not know that his condition was asbestosis until it was diagnosed by his physician on May 13, 1976. It was not until such diagnosis was made that the character of the condition (asbestosis) and its cause (breathing asbestos dust) first “came together” for the plaintiff. Thus, plaintiffs’ cause of action accrued on May 13, 1976, the date of the diagnosis made by his doctor at her office in Kansas City and was not barred by Missouri’s five-year statute, the appropriate statute of limitations.

Defendant asserts that the substantive law of Kansas should have been applied; and that under Kansas law plaintiffs must prove that at the time defendant sold Kaylo it knew or could have known that the product was unreasonably dangerous, and that an alternative safe design was technically feasible. Plaintiffs respond that Missouri law was properly applied, and that, alternatively, Kansas law is the same as Missouri’s on this point.

In Kennedy v. Dixon, 439 S.W.2d 173, 184 (Mo. banc 1969), this Court adopted the rule of Restatement (Second) of Conflict of Laws section 145 (1971) for determining the substantive law to be applied in tort cases. Section 145 provides: .

(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.

(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:

(a) the place where the injury occurred,

(b) the place where the conduct causing the injury occurred,

(c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and

(d) the place where the relationship, if any, between the parties is centered.

These contacts are to be evaluated according to their relative importance with respect to the particular issue.

Defendant emphasizes plaintiffs’ domicile in Kansas in its nomination of Kansas as the state whose law is to be applied, and likens this case to a defamation case where there is widespread publication, in which case residence is the most important consideration. Restatement (Second) of Conflict of Laws § 150(2) (1971). But defamation produces a special kind of injury that has its principal effect among one’s friends, acquaintances, neighbors and business associates in the place of one’s residence. An injury from defamation, therefore, does have a center in one’s place of domicile. A disease, however, has no significant relationship to the place of one’s residence; it goes with the victim wherever he goes. Thus, there is no overriding significance to Mr. Elmore’s place of residence.

Mr. Elmore’s employment during the 1948-58 period, the 10-year period during which defendant manufactured Kaylo, was principally for Missouri-based employers. Although he was from time to time employed by employers based in several different states, the ratio between social security wages paid to him by Missouri employers and those paid to him by Kansas employers was 17 to 1. Four of his main employers during those years were Kansas City Insulation Company, Williams Insulation Company, Inc., Kelley Asbestos Products Company, Inc., and Standard Asbestos Manufacturing and Insulating Company, all with headquarters in Kansas City, Missouri. During the entire period of his employment he was a member of Asbestos Workers Local No. 27 in Kansas City, Missouri, which assigned him to the various jobs.

Of the contacts listed under subsection 2 of section 145, “the place where the relationship, if any, between the parties is centered” has the greatest relative importance with respect to the particular issue. That place was Kansas City, Missouri. Mr. El-more’s injury was intimately and inextricably involved with his employment. That his employment was chiefly for Kansas City-based employers, out of his Kansas City union, makes Kansas City the place where plaintiff Arthur Elmore and defendant Owens-Illinois came in contact through the product Kaylo. The trial court properly applied Missouri law.

Defendant argues that the plaintiffs’ case should have been submitted upon MAI 25.05, Strict Liability-Failure to Warn, instead of MAI 25.04, Strict Liability-Product Defect. It asserts that under a failure-to-warn theory it would have been entitled to present a “state of the art” defense: that defendant could not reasonably have been expected before 1958, the date it ceased to manufacture Kaylo, to know of Kaylo’s danger to workers, and could not have warned anyone of that danger; therefore, it should not be held liable. It argues that the trial court’s failure to instruct on MAI 25.05 was error.

It is a plaintiff’s prerogative to choose the theory upon which he will submit his case, so long as that theory is supported by the pleadings and the evidence. Robinson v. St. John’s Medical Center, Joplin, 508 S.W.2d 7, 12 (Mo.App.1974); 88 C.J.S. Trial § 301(b) (1955). Plaintiffs chose to allege that Kaylo suffered from a design defect. Defendant’s ultimate contention, however, is that there was insufficient evidence to show that Kaylo was “defective”; it asserts that there can be no product “defect,” as plaintiffs claim, if it can be shown that under the state of the art during the time of manufacture defendant could not have known of the product’s unreasonable danger. Thus, defendant’s claim that the trial court erred in submitting the case by MAI 25.04 reflects its more fundamental assertion: that a state of the art defense should have been permitted by the trial court even under the design defect theory that plaintiffs pleaded, because there can be no defect without an indication that defendant knew or could have known that Kaylo could have been designed in a way that rendered it safer than it was.

This Court, in Keener v. Dayton Electric Manufacturing Company, 445 S.W.2d 362 (Mo.1969), adopted as the law of products liability in Missouri, Restatement (Second) of Torts § 402A:

“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

This rule was adopted for the reason, among others, “ ‘... to insure that the costs of injuries resulting from defective products are borne by the manufacturers [and sellers] that put such products on the market rather than by the injured persons who are powerless to protect themselves.’ Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, 901, 13 A.L.R.2d 1049.” Keener, supra, at 364.

This Court, in Blevins v. Cushman Motors, 551 S.W.2d 602 (Mo. banc 1977), then applied this concept of liability for injuries caused by a product unreasonably dangerous as manufactured to liability for injuries caused by a product unreasonably dangerous as designed because,

“ ‘[T]here is no rational distinction between design and manufacture in this context, since a product may be equally defective and dangerous if its design subjects protected persons to unreasonable risks as if its manufacture does so.’ Pike v. Frank G. Hough Co., 2 Cal.3d 465, 85 Cal.Rptr. 629, 636, 467 P.2d 229, 236 (banc 1970).”

Blevins, supra, at 607.

Although jurisdictions differ on admission of state of the art evidence in design defect cases, Robb, a Practical Approach to Use of State of the Art Evidence in Strict Products Liability Cases, 77 Nw.U.L.Rev. 1, 3-19 (1982), the law in Missouri holds that state of the art evidence has no bearing on the outcome of a strict liability claim; the sole subject of inquiry is the defective condition of the product and not the manufacturer’s knowledge, negligence or fault. Cryts v. Ford Motor Co., 571 S.W.2d 683 (Mo.App.1978). The manufacturer’s standard of care is irrelevant because it relates to the reasonableness of the manufacturer’s design choice; fault is an irrelevant consideration on the issue of liability in the strict liability context. Thus, plaintiffs established that Kaylo was “defective” when they proved that it was unreasonably dangerous as designed; they were not required to show additionally that the manufacturer or designer was “at fault,” as that concept is employed in the negligence context. See Ferren v. Richards Manufacturing Co., 733 F.2d 526 (8th Cir.1984); Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir.1973); Aronson’s Men’s Stores, Inc. v. Potter Electric Signal Co., Inc., 632 S.W.2d 472 (Mo. banc 1982); Blevins, supra; Cryts, supra. The trial court properly denied the proffered state of the art argument, and there is no constitutional impediment to the retroactive application of Keener v. Dayton Electric, supra. See Roth v. Roth, 571 S.W.2d 659, 672 (Mo.App.1978).

Mr. and Mrs. Elmore assert that the order of the trial court which reduced Arthur’s verdict for $117,250 to $17,250 and reduced Mary’s verdict from $43,750 to $7,750 was erroneous.

The trial court determined, on the basis of affidavits from the members of the jury, that it was their intent to award $17,250 in addition to the $100,000 Mr. Elmore had received from the other defendants in settlement; they believed that the court would subtract the $100,000, and therefore they added the $100,000 to the amount that they intended to award to Arthur. Similarly in Mary’s case they added $36,000 to the $7,750 that they intended to award to her against the defendant, with the intention that the court would reduce the figure by that sum.

The jury was instructed to determine the total of each plaintiffs damages, and then to deduct from that amount the amount received by him or her in settlement, and to bring in the verdicts for the balance. When the original verdicts were returned, the jury was polled in open court and agreed to them. The trial court, nevertheless, granted defendant’s motion to modify the verdicts and reduced the verdicts as described.

The defendant defends the action of the trial court in reducing the verdicts in accordance with its motion and in accordance with the affidavits of the members of the jury. Alternatively, the defendant appeals from the trial court’s overruling its motion for a new trial based upon the jury’s mistake in the amount of its verdict. Plaintiffs argue that the trial court directly impeached the jury’s verdict, in violation of the holding in Baumle v. Smith, 420 S.W.2d 341, 348 (Mo.1967):

No one is competent to impeach a verdict by the making of an affidavit as to matters inherent in the verdict, such as that the juror did not understand the law as contained in the court’s instructions, or that he did not join in the verdict, or that he voted a certain way due to a misconception of the evidence, or misunderstood the statements of a witness, or was mistaken in his calculations, or other matters “resting alone in the juror’s breast.”

Each of the cases cited by defendant in support of its position involved a verdict which on its face, considered on the record, without the aid of the jurors’ testimony, did not reflect the true pronouncement upon the case or was ambiguous. In none of the cases was there a direct impeachment of the verdict. Federal Cold Storage Co. v. Pupillo, 346 Mo. 136, 139 S.W.2d 996 (1940); Keyes v. Chicago, B. & Q.R. Co., 326 Mo. 236, 31 S.W.2d 50 (1930); Hays v. Hogan, 273 Mo. 1, 200 S.W. 286 (1917).

In this case, there is no ambiguity in the verdict and nothing in the record, aside from the affidavits, that casts any suspicion on these verdicts. The effect of the verdicts as originally returned will be to award Arthur and Mary Elmore $217,-250 and $79,750 respectively. The evidence suggests that such awards are not excessive, and the trial court should not have reduced them.

Accordingly, the judgment is reversed and the cause is remanded with directions to reinstate the verdicts of the jury and to enter judgment thereon for $117,250 for Arthur Elmore and for $43,750 for Mary Elmore. In all other respects, including defendant’s liability, the judgment is affirmed.

RENDLEN, C.J., and GUNN, BILLINGS, and BLACKMAR, JJ., concur. WELLIVER and DONNELLY, JJ., dissent in separate opinions filed.