Saveway Oil Co. v. Sears

560 S.W.2d 325, 1977 Mo. App. LEXIS 2425
CourtMissouri Court of Appeals
DecidedDecember 19, 1977
DocketNo. 10569
StatusPublished
Cited by7 cases

This text of 560 S.W.2d 325 (Saveway Oil Co. v. Sears) 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
Saveway Oil Co. v. Sears, 560 S.W.2d 325, 1977 Mo. App. LEXIS 2425 (Mo. Ct. App. 1977).

Opinion

FLANIGAN, Judge.

This products liability action arose out of a fire which occurred on February 11, 1974, at Wyatt, Missouri. The plaintiffs are Saveway Oil Company, a Missouri corporation, and Edgar Barnhill and his wife Nadine. Saveway, the owner of the premises on which the fire occurred, sought recovery for damages to a building and loss of rentals. The Barnhills, tenants of Saveway, operate a service station, a tire store, a restaurant and a motel on the leased premises. They sought recovery for loss of personal property located on the premises and for loss of business profits.

The Barnhills sublet a portion of the premises to Louise Moreton. Louise owned a space heater which she had purchased from defendant Sears, Roebuck and Company and which had been manufactured by defendant Arvin Industries, Inc. Plaintiffs’ trial theory was that the fire resulted from Louise’s use of a “common household extension cord” in connecting the heater to an electrical outlet. Such use allegedly caused the extension cord and the heater cord to overheat and to ignite papers on a desk across which a portion of the heater cord was lying. Each defendant was charged with negligence in failing to warn of the danger of such use.

The jury found the issues in favor of both defendants and against the three plaintiffs. Neither defendant contends that any plaintiff failed to make a submissible case against it.

■ [1] One of the grounds contained in plaintiffs’ motion for new trial was that the trial court erred “in giving instructions numbered 3, 5, 7 and 9 in that the giving thereof violated the MAI prohibitions against the giving of multiple converse instructions, to the prejudice of plaintiffs.” The trial court granted the new trial and its order specified that it was granted on the quoted ground and on a second ground. If either ground was a valid basis for the order, the latter must be affirmed. State v. Klipsch, 414 S.W.2d 783, 786[4] (Mo.1967); Bertram v. Wunning, 417 S.W.2d 120, 124[1] (Mo.App.1967). This court holds that the quoted ground was not a valid one. The second ground will receive discussion later.

Four verdict-directing instructions were submitted to the jury, two at the instance of plaintiff Saveway (Instruction No. 2 against defendant Sears and Instruction No. 4 against defendant Arvin) and two at the instance of the plaintiffs Barnhill (Instruction No. 6 against defendant Sears and Instruction No. 8 against defendant Arvin).

Defendant Sears gave two converse instructions, one (Instruction No. 3) directed against Instruction No. 2 and the other (Instruction No. 7) directed against Instruction No. 6.

The two verdict-directing instructions against defendant Sears, and the latter’s two converse instructions respectively directed thereto, read as follows:

Instruction No. 2
Your verdict must be for Plaintiff Saveway against Defendant Sears if you believe:
First, Defendant Sears sold the heater to the public as its own product, and
Second, the heater if used with a common household extension cord was likely to cause the extension cord and the heater cord to overheat and the heater if so used was thereby dangerous to property in the vicinity of its probable use while it was being used in the manner and for the purpose intended, and
Third, Defendant Sears knew or by using ordinary care could have known of this danger, and
Fourth, Defendant Sears knew or by using ordinary care could have known that some persons were likely to use the heater with a common household extension cord unless warned of this danger, and
Fifth, Defendant Sears failed to give an adequate warning of this danger to users of the heater, and
Sixth, Defendant Sears was thereby negligent, and
[327]*327Seventh, while the heater was being used in the manner and for the purpose intended with a common household extension cord, Plaintiff Saveway was damaged as a direct result of such dangerous use.
Instruction No. 3
Your verdict must be for defendant Sears, Roebuck and Co., on plaintiff Saveway Oil Co’s, claim for damages unless you believe that defendant Sears, Roebuck and Co., was negligent as submitted in Instruction No. 2 and that plaintiff, Saveway Oil Co. sustained damage as a direct result thereof.
Instruction No. 6
Your verdict must be for plaintiff, Edgar Barnhill and Nadine Barnhill against defendant Sears if you believe:
First, defendant Sears sold the heater to the public as its own product, and
Second, the heater if used with a common household extension cord was likely to cause the extension cord and the heater cord to overheat and the heater if so used was thereby dangerous to property in the vicinity of its probable use while it was being used in the manner and for the purpose intended, and
Third, defendant Sears knew or by using ordinary care could have known of this danger, and
Fourth, defendant Sears knew or by using ordinary care could have known that some persons were likely to use the heater with a common household extension cord unless warned of this danger, and
Fifth, Defendant Sears failed to give an adequate warning of this danger to users of the heater, and
Sixth, defendant Sears was thereby negligent, and
Seventh, while the heater was being used in the manner and for the purpose intended with a common household extension cord, plaintiffs, Edgar Barnhill and Nadine Barnhill, were damaged as a direct result of such dangerous use.
Instruction No. 7
Your verdict must be for defendant Sears, Roebuck and Co., on plaintiffs Edgar Barnhill and Nadine Barnhill’s claim for damages unless you believe that defendant Sears, Roebuck and Co. was negligent as submitted in Instruction No. 6 and that plaintiffs Edgar Barnhill and Nadine Barnhill sustained damage as a direct result thereof.

Paragraphs First, Second, Third, Fourth, Fifth and Sixth of Instruction No. 6 are identical with the similarly numbered paragraphs of Instruction No. 2. The two instructions differ only in that Instruction No. 2 names plaintiff Saveway in its introductory clause and in paragraph Seventh while Instruction No. 6 names plaintiffs Edgar Barnhill and Nadine Barnhill in its introductory clause and paragraph Seventh.

Plaintiffs contend that the giving of Instruction Nos. 3 and 7, at the instance of defendant Sears, was error because Save-way and the Barnhills submitted the same theory of recovery against Sears and, that being the situation, say plaintiffs, Sears was entitled to only one converse instruction even though Saveway and the Barn-hills submitted separate verdict-directing instructions against Sears.

Instruction No. 3 and Instruction No.

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Bluebook (online)
560 S.W.2d 325, 1977 Mo. App. LEXIS 2425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saveway-oil-co-v-sears-moctapp-1977.