*1 оnly. sion to for their parties use We BUFF, Defendant/Appellant, I. John judgment pursuant affirm the to Missouri 84.16(b). Rule of Civil Procedure Missouri,
STATE
Plaintiff/Respondent.
No. ED 80529. Appeals,
Missouri Court of District,
Eastern
Division Four. 10, Sept. 2002. BUATTE, Plaintiff/Appellant, Diane Rehearing Motion for Transfer and/or 20, Supreme Denied Court Feb. 2003. MARKETS, INC., SCHNUCK Application for Transfert Denied Defendant/Respondent. 1, April 2003.
No. ED 78788. Appeals, Missouri Court of District, Eastern Schottel, James W. Law Firm Schottel En Banc. P.C., Louis, MO, & Associates. St. appellant. Nov. 2002. Nixon, (Jay) Jeremiah Attorney W. Gen- Applicatiоn Supreme for Transfer to eral, Morrell, Stephanie Assistant Attor- Court Denied Feb. 2003. General,
ney MO, City, Jefferson for re- Application for Transfer Denied spondent. April CRANDALL, Before H. WILLIAM
JR., P.J., SULLIVAN, J., B. SHERRI NORTON,
GLENN A. J.
ORDER
PER CURIAM. (Appellant)
John I. Buff appeals from
the trial court’s denying his Rule Vacate, Aside,
29.151 Pro Se Motion to Set (here- Judgment Correct Sentence and motion)
inafter Rule 29.15 without hear-
ing. We have reviewed the briefs of the
parties and the record on appeal and find clearly
that the trial court’s decision is 29.15(k).
erroneous. Rule An extended
opinion precedential would have no value. have, however, provided
We a memoran-
dum forth setting the reasons for our deci- P.2002,
1. All rule are references to Mo. R.Crim. unless otherwise indicated. *2 jury concerning the time of their deliberations; court and that the trial submitting comparative erred instruction to the because no substan- *3 supported tial evidence such instruction. affirm. We fight the evidence in the most We view jury’s Hemeyer verdict. favorable Wilson, 574, (Mo.App. 1993, evening July On walking Buatte entered Schnucks and was slipped on a through the store when puddle liquid of clear and fell. There were puddle. no cones or barricades around the that she at testified did look floor through as she walked the aisle and carrying pushing she was not a basket or a cart at the time. As she walked into the fell, area a em where she she saw store ployee mop with a a bucket. Buatte fall, testified that after her when she floor, looked down at the she could see the puddle liquid. Buatte then with a spoke employee, store as well as the store man ager. provided manager She with her and phone name number and information injury. about her manager Buatte and the returned to the area where she fell and the liquid being mopped up was and cones Cervantes, Leonard P. Jennifer L. Sutt- surrounded the area. When she finished moeller, Louis, MO, St. for appellant. speaking manager, with the Buatte con shopping cluded her and went home. Maguire, Ward, Michael B. T. Michael Louis, MO, respondent. St. fall, days Two after her Buatte went to emergency Mary’s room at St. Health AHRENS, H. Judge.
CLIFFORD An complaints pain. Center knee (“Buatte”) knee, Diane Buattе x-ray performed sued Schnuck was on her and she (“Schnucks”) Markets, Inc. for negligence diagnosed was with a contusion. Buatte as a slip result of her and fall at one of complaints pain did not make of back grocery Schnucks’ Following stores. The re- at this time. her visit to the $12,500 room, turned a in damages emergency verdict of Buatte did not seek med- fifty percent September assessed fault to Buatte and ical attention until when she present appеal Schnucks. The complained follows. visited Dr. Jacob Sosna. She knee, pain asserts error of of in her arm and and Dr. Sosna a jury containing orthopedic surgeon medical record referred her to an insurance; reference to Blue Dr. physical therapist. Choice Buatte saw Tes- sier, the trial court erred in a comment making orthopedic surgeon; but did not until complain pain played to Dr. Tessier of back the exhibit February expressed objection by After Buatte argument with no pain, Dr. re- page Tessier complaints back counsel for Buatte. The same was Hollocher, an orthopedic ferred her Dr. playing displayed also injuries. in back surgeon specialized who Peeples, video of Dr. David performed In March an MRI expert, again, with no Schnucks’ that she had herniated Buatte showed objection by top On the Buatte’s counsel. subsequently disc. Buatte under- lumbar name, page, left corner of the surgery May went and November phone apparent address and number improved prob- of which neither back top page, light listed. Across the in the lems. corner, pre- line with “Insurance” *4 it, the words “Blue Choice” printed and experience
Buatte continued to back hand-written on the line next to the word Strickland, who pain, and she saw Dr. parties stipulated that “Insurance.” The her that the problems advised stemmed to the medical records would not be taken being overweight. sought from addi- She In during the room deliberations. from opinions physicians tional at limine, which was her motion filed to St. Mayo Clinic. Buatte then returned July request- Buatte court on Hanaway, Joseph Louis and consulted Dr. prevented pre- from ed that Schnucks be Dr. neurologist, a who referred her to comment, senting: “[a]ny all and testimo- Cole, neurosurgeon. a After a second may ny, or [Buatte] evidence disc, Buatte MRI showed herniation of from medical insurers payments received surgery a third of underwent December sources, her or collateral or that Buatte other Following surgery, the third paid by medical An MRI of her bills were developed problems. neck disc, whether she has received or receive neck showed a herniated and she or ... be- surgery disability for as well. insurance benefits underwent this receipt pay- cause the of such collateral trial, presented At Buatte evidence irrelevant, and preju- ments immateriаl $49,059.88, her medical bills totaled which that it agreed dicial.” Schnucks concedes for special equipment did not include costs to not such evidence. for required, special such as a chair office, her a TENS unit. She testified $12,500 of jury returned verdict constant experiences pain that she fifty to damages percent and assessed pain narcotic medication. which she takes mo- both Buatte Schnucks. for new or for additur and tion Schnucks, to her fall at Buatte was Prior denied, of amendment treat- in a car accident. She was involved present appeal followed. Fitelson, Dr. in 1992 by chiropractor, ed resulting neck from pain her and back first Buatte her release, Dr. Fitel- Upon accident. it error for counsel plain claims that was might predis- son noted that Buatte be to Exhibit M to the display for Schnucks changes or other posed degenerative closing argument. as of the accident. problems a result “Blue display of Choice” claims that pre-printed word trial, hand-written next rec- During page source “Insurance” violated collateral Tessier, Exhibit kept by Dr. marked ords her. prejudiced M, subsequently rule and by used both counsel for is not enti- argues that Buatte Both from Schnucks parties and for Schnucks. read the use M, review because dis- tled error Exhibit and counsel for Schnucks wrongdoer “a is not entitled to Specifically, of Exhibit M did not result a miscar- conten- to which he is liable riage justice. support As for its have the miscar- has by proving [the] tion that a manifest or reduced riage justice compensation did not result from the received or will receive or exhibit, a collateral indemnity Schnucks contends for the loss from 1) or, source, him, object wholly independent that: not stat- did Buatte fail to during succinctly, wrongdoer may the use of the exhibit the video ed more Peeples payments of Dr. David be benefited collateral made at closing argument, person wronged.” but also Buatte used he has Id. 2) herself; Exhibit M Schnucks did not use 647-48.
the exhibit to demonstrate that Buatte’s
Carter,
upon
Buatte relies
Kickham v.
medical bills had been
another
paid by
(Mo.1960)
proposi
for the
Buatte’s counsel did not paid hospital that Blue Cross had his bills displayed when Exhibit M was to the However, prejudicial. was Kickham is during playing deposition video distinguishable from the instant case. Peeples, object of Dr. nor did her counsel There, here, had unlike the claim error when it displayed was to the in preserved been the trial court. Kick result, closing argument. Schnucks’ As a ham, present at 89. In the 335 S.W.2d we point plain review this error. “Re case, attorneys portions both read of Ex lief under error standard of review is jury, hibit M to the and to that extent the granted sparingly and is reserved for hatred, those in exhibit was admitted into evidence without passion situations which or objection. page The from Dr. Tessier’s engendered, resulting has been records, in jus enlarged manifest which was miscarriage of M, tice.” v. Exhibit Moore Missouri-Nebraska Ex constitute was shown Inc., 696, press, objection, during 892 710 (Mo.App. jury, playing S.W.2d without 1994). This standard of rarely review is of the video of Dr. David Pee- extended to civil except prevent ples preserve any cases at trial. Buatte failed to Gorden, injustice. such Chilton v. 952 claim of error. 773, (Mo.App.1997).
S.W.2d 781 payments evidence re Although
“The collateral source rule is an ceived from a collateral source is inadmis exception general objection, rule proper sible over a the error is compensatory only.” tort should be waived in the of a proper absence Troester, Reed, 641, timely objection. Duckett v. 996 647 494 S.W.2d Crabtree (Mo.1973). Crabtree, (Mo.App.1999)(quoting rel. Washington ex 44-45 Washington plaintiff Hosp., during Barnes 897 S.W.2d cross-examination of (Mo. 1995)). Generally, 619 banc specifically the defendant’s counsel asked purpose of the plaintiff collateral source rule is to whether the had insurance of medical bills. prevent wrongdoer mitigating actually paid from dam had some ages by proving payments plaintiff part were made The admitted of the bills had person paid by to a from a collateral source. Id. been insurance. Defendant’s for the assured plaintiff mony and counsel director counsel then asked whether recovery. plain- seeking opposing double the court and сounsel that “No, replied tiff On the Mis- in- sir.” been advised not to discuss client had Supreme agreed that the de- souri Court Regardless of the admonish- surance. not have been allowed to fendant should the di- ment not discuss evidence, but denied relief on adduce this have insurance as replied: rector “We objected had not appeal because Duckett, at 647. provided —.” on the collateral source doctrine at based no The court determined that because Id.; testimony the time the was adduced. coverage of insurance mention was made Co., Meyer v. Clark Oil incurred ex- for which the student herself (Mo.App.1984). indemnify and which would her pense injuries, the collateral source rule was case, plaintiffs Likewise this Id. at 648.1 applicable. objection counsel made no to Schnucks’ it him use of Exhibit M and made use of case, Duckett, as in no Moreover, in her during self the trial. testimony showing was elicited only аlleges error in point relied in- obtaining expense herself incurred during use of Exhibit M Schnucks’ Here, Duckett coverage. surance as argument. relied Nowhere evidence, case, nor other testimony, no in the display does Buatte assert error indicate that admitted at during playing Exhibit of Dr. Pee- M insurance, nor that such Buatte in fact had ples’ deposition, where the same informa any of her medical ex- insurance covered complains clearly of was visible. tion to decide penses. But we do not need Exhibit Because the M impli- source rule is the collateral whether *6 closing merely cumulative argument was the issues cated in the instant case because during the Exhibit Dr. display of M resulting prejudice potential plain of and not Peeples’ deposition, which Buatte does dispositive. error are on, mention in her point relied Schnucks merely of M was cumulative use Exhibit observed, As the trial court aрpeal. no on provides and basis relief upon prejudice claim of was based Co., Ry. Dunn St. Louis-San Francisco juror in an hearsay the statements of a (Mo. 245, 252 banc im prohibits Public the policy affidavit. verdicts, and the testi jury of peachment do find a clear violation of Nor we mony juror impeach of a is inadmissible source rule reason of the collateral Wolfson, 926 Neighbors the verdict. jury. Exhibit M to the display mere of Therefore, (Mo.App.1996). Duckett, filed a a student cheerleader upon to es the affidavit cannot be relied injury against the athletic personal suit There is no other evi prejudice. tablish During direct ex director of her school. prejudice. in the record to show trial, dence the athletic amination at counsel for is thus based prejudice Buatte’s claim of arrangements director asked her what speculation that pure speculation: injured students. were availаble coun experienced two objection jurors noticed what the student made an Counsel for not; jurors speculation that collateral source sel did to the admission of testi- City v. Riverside holding authoritative. St. Louis Although Buatte dismisses this in of dicta, L.L.C., Management, it is well established Duckett as Waste appellate court bases its decision on when an (Mo.App.2002). 806 n. 5 grounds each deemed or more two distinct of regardless presumed it meant that Buatte’s medical substantial for; paid. bills had been paid paid bills were insurance she whether her medical However, speculation jury jury that the reduced its chose to award $12,500in The record damages. verdict as a result. total re- any presumption rebuts of Moreover, the record case sulting from the admission of evidence of support finding prejudice. does not any payments from a collateral source. any specific The did not make ref- exhibit insurance, erence to whether Buatte had Exhibit M to the displaying insurance whether such covered jury closing argument as well as during or expenses, Buatte’s medical whether during playing deposition of the video any expense obtaining Buatte incurred Peeples, of Dr. and the from David indemnify insurance which would her for exhibit, objection all without injuries sustained the accident. no reference whatsoever to did Here, M, it parties both read from Exhibit not result in a manifеst or miscar was shown to the the video riage justice. There was no error. Dr. Peeples, David and coun- Point denied. objection sel for Buatte made no to the use her second at trial nor during depo- exhibit argues the trial court erred advis- Peeples. sition of Dr. Exhibit M ing closing argument after passed jury, nor was it allowed to be you’re before deliberations that “when taken to the room delibera- you ready again, to see us let us know. tions. Defense no counsel made reference control, you all the you This time at all to insurance when he Ex- displayed you keep waiting long can us as as want hibit the jury during M to his you get quick out of here as as want.” objection and no argument, was made to Buatte claims that as a result of the court’s Furthermore, of the exhibit. comment, a mistrial should have been order denying its Buatte’s motion for new granted because the statement an im- trial or for additur and amendment of instruction, whiсh permissible implied judgment, specifically the trial court found important. Buatte Buatte’s case was not no surprise resulted from the use of *7 argues further that this statement was so the exhibit. prejudicial that it could not be corrected addition, argued that she by subsequent the trial court’s damages pain suffering entitled to for by curative drafted counsel for instruction for her conditions as well as future lost Buatte. injuries. income as a result of her She remedy. that a exрeriences pain testified she constant A mistrial is drastic Sea Farms, Inc., 816 required pain baugh and is to take narcotic medi- v. Milde S.W.2d (Mo. 1991). cation as a result. Buatte also stated that 208 banc The decision work, difficulty doing largely she she a rests within the grant has her mistrial early. Id. review have to retire These trial court’s discretion. We only a for abuse of discre approximately were addition to the such decision $50,000 claimed for medical bills. Had the tion. Callahаn v. Cardinal Glennon (Mo. jury Hosp., that the 867 banc believed evidence 1993). fall at In order to establish manifest Schnucks was the cause of discretion, be an error disabling prob- severe and abuse of there must potentially back lems, clearly she would have entitled that cannot other grievous been so
576 the trial given little deference Sedbaugh, 816 S.W.2d with wise be removed. Parkway court’s decision.” Rudin at 208. Dist., (Mo.App. 30 841 School S.W.3d judge that a trial must Initially, we note the evidenсe the We review Callahan, impartial act an attitude. the submission of light most favorable to improper at 867. “It is for S.W.2d Additionally, Id. we will the instruction. act, color judge by conduct or remark to comparative concerning errors reverse Elam the neutral status that role entails.” instructions where there sub fault (Mo. Alcolac, Inc., 42, 212 Id. potential prejudice. stantial for case, however, App.1988). that trial court stated on the record which a “If there is еvidence from was not intended to bias the plaintiffs the comment that conduct was could find as a humor jury, but rather was intended damages, parties of her contributing cause that explained The court ous statement. action are entitled negligence to a “juries juries spend my experience, under case submitted to the their and the waiting a lot of time Court an comparative principles, fault absent Rudin, they get very aggravated, lawyers, contrary.” аgreement a little of try and what I and do is diffuse fault comparative at If the ” anger up.... that builds by that substantial evi- supported instruction is remedy dence, the statement and court offered to Id. evidence is proper. it is Such by drafted counsel a curative comment was Id. dependent upon presented. the facts stating, by for Buatte and read court Here, introduced at trial evidence was at the “[a]ny might remarks I have made the floor at that Buatte did nоt look at concerning closing argument end of the through grocery walking time while you spend that can on length of time shown that she did store aisle. It was also deliberations, you spend or that could a cart that carry any push basket or delibera long your time or a short time on her view. Buatte would have obstructed tions, intended as a comment on were not liquid could see the testified she should not suggest you the case or to down after her the floor when shе looked seriously either side.” take the case fall, walked to the area and that as she nothing in the record to indicate We find fell, employee a store where she she saw by the court that the statement made mop and bucket. Even after she with a as to not be cured prejudicial so bucket, Buatte testified mop saw for Buatte. comment drafted counsel the floor never considered its discretion The trial court did not abuse There was substantial evidence was wet. Buatte’s motion for mistrial. denying comparative of a support the submission Point denied. Therefore, the trial instruction. In her final submitting the issue of court did not err *8 submit- that the trial court erred in claims Point de- jury. fault to the comparative to the comparative ting instruction nied. was no argues there
jury. court is af- of the trial The keep failed to substantial evidence that she firmed. or that she could a careful lookout in to on the floor advance liquid seen SIMON, KATHIANNE J. PAUL slipping avoid on it. CRANE, G. LAWRENCE KNAUP RUSSELL, CRAHAN, R. MARY MARY jury was of whether “The issue SULLIVAN, HOFF, B. and SHERRI K. law question is a of instructed properly JJ., concur. the record determined on and is be
577 MOONEY, C.J., top right record. E. of a medical On LAWRENCE name and address plaintiffs across from concurs result. word “Insurance” fol was a line with the DOWD, JR., J., G. dissents ROBERT trial, Before lowed “Blue Choice.” separate opinion. any filed a motion in limine to bar plaintiff CRANDALL, JR., source, H. defen WILLIAM reference to a collateral dant, III, acknowledging prejudice, agreed its DRAPER GEORGE W. GLENN any. Again, before NORTON, JJ., not to A. dissent and concur they agreed defendant argument, dissenting opinion Judge of DOWD. records in offering not the medical were SR., J., GARY M. GAERTNER not entirety, portions but read their participating. that the medical records jury to the DOWD, JR., passed jury. Despite not Judge, ROBERT G. would be dis agreements, these defendant twice dissenting. x exhibit in played the 30-inch 40-inch A respectfully finding plain I dissent. redact plain view to the and failed tо appropriate error is this case where an ex the insurance information. When defendant, trial, prior agree made an jury, they to a we assume hibit shown ment not introduce reference saw it. There is no doubt the reference to plaintiffs medical insurance aas collateral coverage Blue insurance was dis Choice then source and twice showed an exhibit it, played jury, they they saw and containing agree insurance information. I capable understanding import. were its majority plain spar with the error is result, As a was left with the However, ingly granted in civil cases. this impression trying to recover plaintiff plain does not mean error never be paid, that insurance had for medical bills granted. This court is to consider impression an that was left without further affecting rights error substantial even con explanation. resulting The verdict is though the error preserved had not been jury taking sistent with the into account review, when the court that mani finds coverage.1 Plaintiff was plaintiffs medical justice or miscarriage fest only prejudiced specifically with re 84.13(c). has resulted therefrom. Rule gard concerning to the information Plain error is reserved for situations very “may but well complained engen where the error of has generally eyes in the prejudiced have been hatred, passion, prejudice. dered Rob jury,” affecting of the their view of her Co., ertson v. Mutuаl Cameron Ins. 855 credibility overall and the entire case. See W.D.1993). (Mo.App. I (Mo. Carter, 83, 90 Kickham v. believe case rises to that this level. admitting pay Errors evidence of majority presumption states from a collateral ments benefits source because both was rebutted Duckett v. presumed prejudicial. are made reference to the exhibit. defendant Troester, (Mo.App. make use of exhibit at Plaintiff did W.D.1999). Moreover, the presumption portiоn relevant record, prejudice was not rebutted. The exhibit in that plain- but there is no evidence x jury. the exhibit to the question was a 30-inch 40-inch tiff ever showed blowup *9 agree prejudiced majority 1. We with the that the affidavit order to show exposure impeach jury’s improper to the collateral not be used to verdict. affidavit, however, rely We do on the source evidence. mere from the exhibit was not an acquiescence to show the the ex- containing
hibit a reference to insurance. surprised by
Plaintiff was not the use of portions
the relevant of the exhibit. The however,
surprise, came when defendant containing
showed the the refer- exhibit plaintiffs
ence to medical insurance on two agree-
occasions at trial after there anwas
ment that no such evidence would be intro- Here, plaintiffs
duced at trial. failure to
object directly justifiable due agreement.
reliance defendant’s As
result of this was enti- agreement, plaintiff expect
tled to that all such evidence of
insurance as collateral source would not jury.
be shown allowing
The error the collateral presented
source information to be
jury engendered prejudice, affected which detriment, plaintiffs verdict injustice.
thereby resulted manifest
Plaintiff is entitled to a new trial. Accord-
ingly, I would reverse the
remand for a new trial. RAMSEY, Appellant,
Richard G. Missouri, Respondent.
STATE of ED
No. 80714. Appeals,
Missouri Court of District,
Eastern
Division Five.
Dec. 2002. Rehearing for Transfer to
Motion and/or Denied Feb.
Supreme Court Transfer Denied
Application 1, 2003.
April Robinson, State R. Assistant
Gwenda Louis, MO, Defender, appel- Public St. lant.