*1 any supreme court should event move to make clear what the law is 55.33(c)and the eastern
relation lack. Rule say thing,
district the Miller an Laux progeny say
cases and their another. judgment only as to that is reversed II, para-
portion relates to which Count 2, Troxell
graph and is remanded to allow any trespass plead try her action for 10,1976 through
occurring May on or after excluding any damages
October release. retrial she
covered On $10,192.72 limited to in actual dam-
shall be
ages Kenneth Welch. She shall to amend her Count IV on
also be allowed
punitive damages to commensurate with tried, in no trespass claims to be to ask for more
event shall she be allowed $500,000, punitive damages, than she In all other allowed at the first
respects judgment of the trial court
affirmed.
All concur. BRICKNER,
Cynthia and Candace J. J.
Brickner, minor, By her mother and friend, Brickner, Cynthia Plain- J.
next
tiffs-Respondents, HOSPI- OSTEOPATHIC
NORMANDY
TAL, INC., Defendant-Appellant.
No. 47217. Appeals,
Missouri Court District,
Eastern
En Banc. 22, 1985.
Jan. Feb. 1985.
Order Denied
Application to Transfer
April *2 Bronson, Louis, plaintiffs-
Mark I. St. for respondents. Keaney, Calkins,
Robert E. Judson W. Caruthers, Lashly, Hamel, Baer & St. Louis, defendant-appellant. SIMON, Judge.
Plaintiffs, daughter the widow and Brickner, deceased, brought James present wrongful death Nor- action mandy Osteopathic Hospital, (Hospi- Inc. tal); Bean, D.O., practi- family David K. tioner, Smith, D.O., J.P. who was resident general surgery Hospital, and John C. Olson, D.O., urologist surgeon. an alleged Plaintiffs doctors three malpractice failing committed medical diagnose the cancer deceased’s testicular Hospital vicariously and that liable for alleged negligence of Dr. Smith. plaintiffs Olson and settled their case be- $200,000. fore trial for Dr. Smith was dismissed from lawsuit before the case to the jury. was submitted re- turned a against Dr. and a favor Hospital. granted plain- trial Hospital. tiffs’ motion for a new trial as to appealed adverse judgment, he and settled dispute their the case after points to our court his on need relied appeals be considered. grant trial court’s of a trial. Division of this Two Court affirmed grant of a court’s new trial pre- modified the order relitigation plain- clude amount tiffs’ case and remanded the for a granted Hospital’s new trial. thenWe mo- rehearing. reconsidering tion for After en on, instruc- again Hospital admits that Hospital’s points banc relied di- tion does not follow part and remand part, affirm in reverse contends, however, rector. for a . proper because the ver- the converse was the trial court erred in: Hospital contends directing itself was errone- dict (1) instruc- ruling Hospital’s converse *3 ously given in Dr. Bean and (2) failing to re- tion was erroneous and Smith, joint tort- through Dr. were strict the trial to a determination two The issue is thus whether the feasors. liability.1 joint tort- could considered doctors be plaintiffs a new granted court The trial feasors. alleged error Hospital because of trial as jury instruction giving of a converse joint The term tortfeasors embraces directing (1) instruction to the verdict concert types distinct of conduct: four directing (3) Hospital. action; (2) duty; vicarious common 20.01, by option first (4) single, MAI modified harm liability; and indivisible by alleged independent, separate, in MAI for acts committed but con by 19.01 persons. or more See joint curring tortfeasors: torts of two Fn. 4 662 525 Ellfeldt, v. S.W.2d Sall INSTRUCTION NO._6 Here, Dr. Bean and the verdict must be Your Smith, not act Hospital, through Dr. Normandy Osteo- defendant duty common ing in or under a concert Hospital you if pathic believe: Hospital is vicari plaintiffs’ decedent. Nor First, spouse and plaintiffs were negligence. Bean’s ously liable for Dr. Brickner, and child of James L. Hospital committed Only if Dr. Bean Second, diagnose tes- failed to Dr. Smith concurring torts independent separate, but cancer, ticular may harm single, indivisible caused a which Third, thereby negligent, Dr. Smith was That joint tortfeasors. considered be de- death only one harm—the dispute. That beyond cedent—occurred Fourth, directly caused such independently could physician each to cause the directly contributed or failing diag- negligence in charged with James L. Brickner. death of has testicular cancer the decedent’s nose the last instruction conversed The converse contested. not been director; how- elements of the verdict two ever, of the fourth element the converse recognizes law Missouri language of the verdict from the deviated negli independent persons whose where retained the the converse director single indivis to cause a gent coalesce acts 20.01 rath- language of MAI result” “direct jointly and person may be injury, each ible MAI 19.01 modification: than the er harm caused. for all the severally liable Thornhill, Barlow
INSTRUCTION NO._7 1976). practi care (Mo.banc Health 418[1] tortfeasors may joint Defendant must be for become Your verdict tioners malpractice com acts of Hospital independent unless Normandy Osteopathic their single injury. See Sall negligent as to cause a bine J.P. Smith you believe fn. 4. No rea S.W.2d at 525 Ellfeldt, No. in Instruction against applying advanced has been negligence plain- son of such a direct result joint and several liabili- general concepts of damage. tiffs sustained fore, the issue. we did not consider the issue of has not contested There- Smith’s acts. for Dr. vicarious ty clearly of medicine. Dr. Bean and informed field fault verdict form tortfeasors, arguably joint are de recover both therefore, fendants, dispelling any by plaintiffs’ verdict director was thus intimation modified MAI 19.01. “A true correctly erroneous converse re instruction that converse, covery according against only could be had de precepts MAI supra. See Sall fendant. 33.01 must proposition submit Here, however, given ap no director the same portionment fault instructions language of that instruction.” Sall v. Ell preju forms which have removed the feldt, 524[3-5], In the in dice caused erroneous converse case, present failure the converse struction. instruction to mirror the verdict director error. Deviation the dictates of MAI Ellfeldt, supra, In Sall held *4 presumptively prejudicial error unless in that the defendant’s erroneous converse proponent the the can of estab struction, which, here, departed from prejudice lish that no could have resulted by failing the verdict director to take into Chicago, Snyder v. from the deviation. modification, account the MAI 19.01 was Co., Rock Island & Railroad Pacific prejudicial instructions, not because other S.W.2d Hos 164[4 8]— particularly relating ap the instructions pital has failed to show how the converse portionment joint of fault the tort- between nonprejudicial. was feasor, sufficiently submitted the theory joint of dispelled any tortfeasor and wide Trial courts are vested with intimation of cause. 662 at passing upon discretion in motions for 526. We all have examined the instruc Turner, Union Electric Co. v. new given case, tions the the jury present in 430, 433[4,5] (Mo.App.1969). 446 S.W.2d unlike Sall the court in Reviewing in courts will be more liberal find are unable to other instructions which upholding grant a trial court’s of a motion sufficiently jury instruct regarding the for new trial than its of the denial motion. joint liability dispel and which the notion of Id. say at the We cannot 433-434[6]. apportionment sole cause. No in of fault granting its in trial abused discretion given. structions were Given the errone ground a new trial on the that the errone given ous converse which was prejudicial ous converse instruction form identical to the ver plaintiffs. against Bean, dict director the Next, Hospital have led if argues been to believe that that even of, against grant could return a verdict of properly the trial court acted its both, trial, the defendants. it limited the new a new should have Hospital’s trial to a determination of the rehearing present The en banc of the liability agree. only. We by appeal accompanied the simulta- Harms, rehearing of Abshire v. Nordson (Mo. neous Wolfe (Mo.App. 688 S.W.2d Corporation, 1967) where a verdict had been returned E.D., 47561). defendants, present against No. case and all four but a trial new Abshire were reheard defendants, of granted had been as to two East, similarity presented the properly the of issues and a Harms and the trial court perceived conflict between the two divi- the held in abeyance ordered verdict “... is, Abshire opinions. however, disposed sions’ dis- the finally until cause was of as to tinguishable present liability only East, facts from the of Harms There, appor- case. instruction on judgment then enter for the amount of apportionment of abeyance tionment fault and an of against the verdict in all defend- finally exemplified ants held liable.” 413 S.W.2d which is their covenant not- Holmes, Lemonds 219[80,31]; also see ap- already to-sue and which has been (Mo. 360 Mo. 694[8] proved by judge, this court rules 1950). in Yarrington banc The court granting as follows: trial court’s order (Mo.1959), Lininger, 327 S.W.2d or- trial as a new affirmed of the dered retrial issue of part part; judgment and reversed granted where a trial was as to the against plaintiffs Dr. Bean is favor liability of three who two of co-defendants vacated; and causes are remanded to verdict; had been held liable the first plaintiffs' with claim dismiss however, liabili- the two defendants whose pursuant the trial ty com- be redetermined had also 12, 1984, judge’s July order of to conduct plained excessive. the verdict was liability only Hospital, trial as to Here, plaintiffs nor have neither abeyance and to hold amount of questioned propriety the amount finally disposed until the cause is the verdict. Hospital, liability only as to the held the The trial court thus should have judgment to enter amount against Dr. Bean ($1,000,000) against in abeyance finally dis- abeyance until the cause was liable, Hospital, finally held less the posed as to present value of the settlements between judgment than rather enter plaintiffs and Doctors Olson and Bean. Dr. Bean. Since *5 for the only could have one satisfaction part, Judgment affirmed in in reversed death, wrongful entry of the decedent's part, and remanded with directions. judgment on verdict as to Dr. granting a new trial as to while REINHARD, C.J., and PUDLOWSKI poses possibility that could be DOWD, JJ., concur. discharged liability by from satisfaction plaintiffs’ judgment against Bean. See CRIST, P.J., STEWART, J., concur Bertman, Payne 224 27 Mo.App. in result. (1930). may argue that vacation of
One with the KAROHL, J., dissents. judgment against Dr. Bean and his GAERTNER, JJ., dissent lawsuit, necessity of SMITH dismissal opinions. separate Hospi- limiting trial to the issue of rea- tal’s has vanished. For two SMITH, dissenting. Judge, sons, the better we nevertheless consider is to the issue the new trial. course limit respectfully I dissent. First, to practicable, we desire insofar as very pronouncement the Su- In a recent parties position they in the would put the said: of this state preme Court trial court have been had no uncorrected There has “Retrials are burdensome. correct- error not error occurred. away a trend years recent been hold its failure to the trial court was unless for error reversal Second, see no abeyance. the verdict preju- indication of to there is substantial why should allowed reason be damages. appears Plaintiffs’ both in civil and relitigate the issue of This trend dice. liabili- Hospital’s to very adoption are unrelated in criminal cases. complain addition, ty. In do MAI, indeed, confidence demonstrates inadequate. that presented ju- the issues prolix through argument and that ries In order to allow a new trial of necessary are neither factual instructions a set- against Hospital permit and to claim is consist- desirable. Our conclusion nor plaintiffs and tlement between (Foot- prove. ent with Snyder Chicago, this observed trend.” Island & Rock omitted) *6 language in an FELA case. The for basis against hospital only the if was sole it the finding this was that “direct re result” cause the From is rea- of death. this it quires proof proximate of common law jury soned that the been led to have cause rather than the less restrictive FELA it could return a believe part.” [11,12] “cause in whole of, both, against one but not the defend- supra, Ellfeldt, Sall v. the court dealt with implies If ants. the converse sole cause very nearly question present the identical jury it led the to was what believe the ease before The us. court there against that it could not return a verdict found the utilization of the “direct result” either defendant unless he or it was the language “was not erroneous aas matter Exactly sole cause of the death. the same law, plain of caused no unfairness the to verdict-directing and converse tiff, materially and did not affect the mer jury as Dr. to Bean. The [11], its of the action.” returned a verdict Dr. Bean. Ei- plaintiffs’ I really implication note that not attack is ther the of sole cause was not phrase conveyed jury by to the entire “direct The in- result.” the the converse “directly” word was used the verdict-di- or it concluded that fact Dr. structions death, rector so “direct” was the Bean the was the cause of wording. same thereby freeing hospital liability. “Result” as a noun means the “something consequence, accepted is there results as a Whichever alternative is effect, plaintiffs. issue or conclusion.” Websters no I am unable to Dictionary. “Di- accept majority premise jury Third New International that the the proximate hospital interpreted rect result” is the converse as to the common law interpreted and cause which it was burden to to submit sole cause the identical converse as to Dr. to submit when the read with contributory verdict-director, fault. especially for- the since the latter, “in- expressly mer refers to the it The liability hospital here is based was to a forms Sail entitled upon alleged negligence employ- the of its only if the alone Hunt misconduct ee, Dr. charge upon Smith. based injury, negligence mere- the but also that diagnose Dr. Smith’s failure to the cancer ly the acts to cause combined with Ellfeldt upon and this in turn was his failure based injury.” However, the Id. at 526. the during surgery remove the testicle found unnecessary court it to decide wheth- pathological Dr. examination. Smith was synthesis er or not “the the two instruc- hospital performed the resident at the palliates any error” tions because of the surgery supervision Dr. under direct relating appor- additional instructions negligence hospital Olson whose tionment fault between co-defendants. was not liable. There was substantial evi- dence, uncontested, virtually Dr. majority I am unable to fathom how the discretionary authority Smith no dur- had read cause” “di- can “sole into words ing surgery, he he did what are, effect, They interpret- rect result.” directed to do Dr. Olson. Because ing “indepen- the word “direct” as possible negli- the settlement Olson’s synonymous dent.” words are neither gence jury. was never submitted concepts. The nor connotative of similar Bean’s his failure relationship and result is no between cause operation after discover the contin- direct the cause is a less combina- presence ued or at cancer testicle producing In MAI tion of result factors. possibility least aware of that the words “direct” as a modifier of “re- posture warn the decedent. In this “directly” sult” modifier jury quite verdict of the rational and “caused” are used to submit to keeping it. with the evidence submitted to proximate opposed to issue of cause as intervening It seems to or remote cause.
I would reverse the order of the reasoning to be to conclude an me tortuous granting plaintiffs a new trial “di- ordinarily intelligent jury would read would reinstate excluding result” as the combination verdict. rect single If producing a result. of two causes GAERTNER, Judge, dissenting. language of the converse constituted language of the departure from the verdict- join Judge dissenting opinion I Smith’s director, departure, it was not a substantial with additional comments. these especially since the former refers to (Mo.App. Sall v. *7 together with latter. must be read 1983), authority finding preju is not deviation, any, Additionally, the warranting dicial error trial because for, interpretation if the prejudicial of the converse even majority places upon converse construc- regard absence of additional instructions correct, negli- found the tion ing apportionment of relative fault. Bean to have been gence defendant prin that “the settled Sail the court noted cause the death of dece- ciple requires that the verdict-director completely this case dent. facts be read the converse instruction misinterpretation any possible dispel such to a yield to determine jury. The acts of Dr. Smith by ordinarily intelligent laymen: if the jury surgery totally performing the under by that legally sufficient submission Olson,1 control Dr. standard, the direction and who prejudice.” there is no Id. plaintiffs before trial. settled with pointed out had 524-25. The Normandy Osteopathic from vicarious evidence insulates liability. defendant 1. Because Supply Co. v. Tractor-Trailer Wilbur the issue submissi- has not asserted etc., Waggoner, bility, whether not this we do not decide Plaintiffs voluntarily preju- dismissed with
dice as to Dr. Smith before submission. circumstances,
Under these the verdict of
the jury in favor of the hospital cannot
even inferentially based upon miscon-
ception plaintiffs’ damage
directly result from the negligence of a
single party.
ORDER opinion en banc issued in this cause 22,1985 supersedes
on January opinion 4,
of September 1984. EUREKA,
CITY OF
Plaintiff-Respondent, HALL, al., Defendants,
Travis et County, Missouri,
St. Louis
Intervenor-Defendant.
No. 48245.
Missouri Appeals, Court of District,
Eastern
Division Two.
Jan. 1985.
Motion Rehearing For and/or Transfer to
Supreme Court Denied March 1985.
Application to Transfer Denied
April notes Corpora- Co., Fowler v. Park use supra. The Railroad Pacific tion, (Mo.banc 1984) placed phrase way any greater in no [14]. on plaintiffs changed or their theo- burden ap- I must assume that this admonition ry phrase was, recovery. The identical plies equally to trial courts confronted with fact, damage used in their instructions. appellate motions for trial and directly If defendant’s actions caused or reviewing rulings courts on those made damage directly contributed to cause motions. Our deference therefore to the plaintiffs, damage was the direct ruling granting of the trial court a new result of defendant’s actions. The words play only trial comes into is error there synonymous used converse were in the instruction and indication substantial with those used the verdict-director. I prejudice. I find neither here. find do not the converse erroneous vio- requires MAI 33.01 the true con lating “substantially require- the same” verse be in the same lan ment. guage used in the verdict-director. That precaution is intended to avoid the distor I also am unable conclude that legitimate proof tion of the burden of reasonably could have converse confused Snyder Chicago, the issue submitted. intelligent laymen. I find it incon- Co., Rock Island & Railroad gruous to a reasonably Pacific believe that intelli- (Mo.App.1973)[9-12]; S.W.2d 161 Sall v. gent jury instructed that it could find (Mo.App.1983) [3- against if its “di- The verdict-director and the converse 5]. rectly directly contributed to read together must be determine cause the death” of Brickner inter- a jury ordinarily intelligent pret the “direct result” allow laymen. Ellfeldt, supra, Sall v. [6]. recovery only hospital’s negligence if the Snyder Chicago, Rock Island & Pacific majority was the cause of death. The Co., supra, prej Railroad the court found opinion finds the con- udicial error the use of “direct result” implies verse that verdict can be returned