Eagleburger v. Emerson Electric Co.

210 course, the defendant made such Of

suppress the state use of that evidence arresting in re officer statements right him to effec- denied his constitutional questions, failure to sponse to the officer’s tive counsel. suppress would move to those statements any claim of judging “The for benchmark part ineffectiveness on constitute counsel’s ineffectiveness must be whether primar counsel. Mr. Walton relies defense function- proper conduct so undermined the involving such ily on cases circumstances. ing the trial process adversarial (Mo. State, v. 765 In Bonner S.W.2d 286 having produced a cannot be relied on as example, for App.1988), reversed Washington, v. just result.” Strickland whose truck the conviction of defendant 2064, 2052, 686, 80 668, S.Ct. 466 U.S. police probable without had searched Strickland, (1984). In L.Ed.2d Bonner, In a warrant. cause and without two-prong test deter- Court established instant illegally, but police acted of counsel ex- mine ineffectiveness whether voluntarily responded defendant case the First, must show defendant ists. police, not but inquiries fell representation below ob- “counsel’s Therefore, third-parties. correct the court light of reasonableness” jective standard ly introduction in evidence allowed the professional norms.” Id. “prevailing responses prop the defendant’s and could Second, 688, 104 S.Ct. at 2065. 466 U.S. coun erly denied a motion defense deficiency that counsel’s he must show them. suppress sel to 687, Id. 104 S.Ct. prejudice. caused him Walton suffered Consequently, Mr. at 2064. counsel’s fail- by reason of trial prejudice adopted that test. Missouri has that evidence. suppress to move to ure State, (Mo.1987) v. Sanders Thus, of coun- claim of ineffectiveness his (en banc), prevail the court held that sel fails. counsel claim of ineffective assistance of court’s Accordingly, affirm the trial we attorney must show that his a defendant motion. Rule 29.15 Mr. Walton’s denial of customary skill failed to exercise the diligence reasonably competent at- All concur. similar torney have exercised under attorney’s and that the fail- circumstances prejudiced the defendant. Id. at 857.

ure satisfy defendant fails to either

If a test, claim of his prong of Strickland EAGLEBURGER, al., et Diane of counsel fails. We ad- ineffectiveness Respondents, first, prong of test dress the second v. and, has failed to satis- Mr. Walton because CO., that his entire fy requirement, Appellant. we hold ELECTRIC EMERSON claim fails. No. 16042. apply to not Miranda “does v. Arizona Appeals, Court of Missouri personnel non-police statements made to District, Southern amounting to cus

under circumstances En Banc. interrogation by todial officers.” police 29, June 1990. Stevens, 20-21 State Rehearing Transfer Motion (Mo.1971), denied, cert. 404 U.S. Supreme Denied Court 531, 30 L.Ed.2d 546. S.Ct. Aug. 1990. arresting officer did not interrogate Denied to Transfer Application Walton, Mr. nor did Walton Mr. direct his Sept. Instead, the to the officer. evi- statements voluntarily that Mr. Walton dence shows inquiries

responded to made Harri-

sons. Whiteaker, Fisher,

Raymond E. Brad J. Miller, Fisher, Woolsey, Lee Ann Whiteak- McDonald, er Springfield, appellant. & for Bates, Strong, Jeffrey Thomas W. Associates, P.C., Strong & and John Wood- dell, Wooddell, P.C., Springfield, Bruer & respondents. for CROW, Judge. (“Emer- Electric

Defendant Emerson Co. son”) $1,060,650 appeals judgment from a against alleged it an action for the wrongful Eagleburger.1 death of Gene $64,350 Georger, shortly discharged, 1. Reimann & Inc. was also a defendant before trial and was against in the until action it settled with returned a verdict for (Gene’s brother, younger Danny Eagleburger Plaintiffs are: Diane Gene and his widow); Tracy Henry Eagleburger, Eagleburger, partners in John Eldon their Eagle- Eagleburger Henry Diane and Gene roofing own business. Brown subcontract- burger, (Gene's children); Evelyn Jr. job to ed the church them. Because (Gene’s mother). Eagleburger roof, height Eagleburgers bor- platform hoist rowed the track from Gene, trade, by roofer electrocuted They Brown. commenced work around Au- 16, 1985, August replacing roof while Gene, gust 1985. The crew consisted of Springfield. on a church in Plaintiffs Jack, Danny, their brother and Gene’s son against claim Emerson on the based their John. theory by a that Gene’s death was caused product Emer- defective sold Emerson. They started on the south side of the plat- product son refers to the as a “track church the roof was 31 feet above where hoist”; plaintiffs form call it a “ladder.” ground. They track in a assembled the It was manufactured Louisville Ladder length lift 36-foot and used the hoist to (“Louisville”), a Emer- Company division of shingles ground to the roof new from son. shingles the roof and to lower the old Danny they ground. According to assigned product, “code number” by having one man hold raised the track Louisville, LH444 of three com- consists lifted far end while two others base track, platform- ponents: an aluminum up.” Danny recounted that and “walked and-pulley assembly, gasoline-operat- and a using a in the device as hoist addition “power ed unit.” like a ladder.” they “just the track climbed The in four a 16- track comes sections: completed By August section, foot a second 16-foot section base everything side the except the west where section, an can be bolted base ground. the roof was 35 to 36 feet above either 8-foot section that can be bolted to Brown, visited the site between Gene who sections, the and a 4-foot other two morning, 8:30 and 9:00 that observed that can to either of the section be bolted like “some electric that looked naked wires pur- may A other three sections. customer some feet from wires” above the curb chase or all of the track sections. the were the church. He estimated wires Bolting 44- together produces four a all ground. 25 feet off the foot track. pointed he the wires testified out Brown platform up the The rolls and down Brown, According to “said Gene

track, Gene. designed carry a and is maximum worry, near not to he wouldn’t be where pounds. platform The is raised load of 400 those wires.” top at through pulley a the cable supplied by power Power the track. reach the roof the To enable the track to unit. 4-foot section and added crew removed the section,-making the track 40 feet the 8-foot the track At the time of Gene’s death looking long. along the curb length (the Gene walked in 40-foot two assembled a was section). nearby a up at wires and tree. John and the 8-foot 16-foot sections saying there sections, disassembled, Eagleburger recalled Gene are Those three “V-shape” in tree and “the lad- a photograph the end of this was shown in the at go up through that.” der would opinion. A told Gene the priest the church that culminated Gene’s events electricity. Danny priest could shut off the began May, when Gene death Brown, contractor, the remark and announced overheard roofing a awarded good do no because wires replace the roof on a contract going running hot into the bought the “still to be A month later Brown church. platform church.” track hoist described above. defendant, judgment

Emerson, in favor of remaining for and entered only settlement $1,060,650. $64,- $1,125,000. against for court deducted the trial positioned adequately failed to users of the risk Jack himself the base warn proximity to hold John went to track it. Gene and involved when it used walking began far end and the track power lines. electrical “any felt kind up. John he never testified III, Monohan, M. John Louisville’s vice wobble, or as if the track of a a shakiness” administration engineer- president getting off balance. ing, R testified that around 1959or & John and some feet When Gene were making G conceived the idea of a loader to from the base of the track John felt elec- using a ladder fit standard Louisville a turning tricity my body “like it was inside up motor to raise the loader the ladder. At roof, Danny, heard out.” who was on first, purchased R & G Louisville ladders pops” a “flash some “loud and saw distributors, from dealers or added the Danny top see the light.” could not unit, assembly hoist and market- going but he did see the flash track product. the finished The initial load ed top the tree.” the wire “into the capacity pounds. was 200 and Jack were killed. Gene both began supplying Louisville ladders di- captain Depart- Fire Springfield A lengths rectly to R & G in the the latter investigated ment who the incident testi- specified. eventually developed R & G he “there fied arrived was a capacity pound loader with a 400 that re- tree,” up top ladder that was stronger deeper quired a ladder with a rail being “just “ladder” situated below the rungs. developed Louisville and offset ground. The other wires.” end was ladder with those characteristics. Danny Eagleburger confirmed at began marketing In 1965 Louisville its after top the electrocution the units. At own ladder-and-loader that time up track “stuck tree.” length. ladder did not exceed 28 feet in engineer An utility for the electric testi- began making “forty- In 1969 Louisville “voltage potential” fied that the of the line four foot unit.” 7,620 the church volts. March, 1979, according Monohan, R Plaintiffs this action commenced March “joint a & G and Louisville made decision” 14, 1986, by suing City Springfield the of Up call to the ladder a “track.” until then (owner operator and utility). of the electric it had ladder. been called a 27, 1987, May On filed an amend- years Two a “task earlier force” had petition adding ed and Emerson Reimann & industry created in the ladder to write (“R G”) Georger, Inc.2 & as defendants. “design standards” for the American Na- Emerson, plaintiffs alleged As to Institute, (“ANSI”). Inc. tional Standards platform track hoist defective and was dan- president Louisville’sformer and one of its gerous put reasonably to a antici- use engineers drafting were on the committee. (a) pated designed in that the track was standards, published contained heights manufactured raised and to be to limiting length section of a ladders. unit, up single making feet as one Jr., George Greene, consulting a engi- unwieldy, (b) heavy track and the device plaintiffs, explained neer who testified for designed and manufactured to be used defined a that the ANSI standards section- lengths greater National Elec- than the self-supporting portable ladder al as “a non Safety heights tric Code standard for unin- ladder, adjustable length, consisting non sulated, conductors, high voltage electrical sections, two or more and so constructed of (c) the and designed track was manufac- aluminum, may that the sections combined to func- out highly tured of conductive single as (d) tion a ladder.” ANSI stan- designed the track and manufac- dards, Greene, length limited the of a said insulating tured without materials or links single heavy against heavy duty duty or extra lad- protect foreseeable conduction currents, (e) electric to 30 feet. and device der 1, supra. 2. Footnote had conceded that Greene testified he reviewed Exhibit

Louisville’s Monohan December, 1979, eight “pulled or nine months out” “where there some 54 and cases change name “lad- after the decision to contact alu- was an inadvertent between engineering “track,” der” Louisville’s power and line.” He iden- minum ladder a staff, product, study in a “summary” written 54-A as a tified Exhibit October, to it a “ladder.” referred as Plaintiffs offered Exhibit 54- those cases. design drawing 400-pound a evidence. Exhibit 54—in A—but not en- capacity prepared model Louisville’s objected that the exhibit listed it a gineers referred to “ladder.” Until aluminum lad- inadvertent contact between March, 1984, label attached to the track a listing any power ders a line without and “safety near shoe” called track argued that circumstances. Emerson climbing it. people “ladder” referred a short incidents could involve some July, every produced track Until stepladder. label that called the Louisville bore another replied purpose that Plaintiffs “price track a “ladder.” Louisville’s similarity product, of a to show but 1974, 1978, sheets” for mixing danger “the aluminum show A called the track a “ladder.” “bill goes to electricity, and this the reason- produced by Louisville’s com- materials” ..; danger of an ableness of aluminum to the de- puter January, referred electricity.” Plaintiffs stated ladder and as a “hoist ladder.” vice purpose of the offer.” the “sole may a user think Monohan admitted that objection The trial court overruled ladder, like of the track as a that it looks (alone) in 54-A evi- and received Exhibit ladder, it be handled and maneu- can dence. ladder, it is on like a and that built vered line. assembly during Louisville’s aluminum ladder pe- then testified that Greene agreed reasonably it is foreseea- Monohan printout there were riod covered track will be used ble Louisville injured or killed being reports people of 426 ladder, nothing like a on the track between an through contact inadvertent Monohan a user not to climb it. warns line. On ladder and aluminum acknowledged fact that the that but he was Greene admitted cross-examination climbed,” supposed to be track “wasn’t those size ladder unable to determine what lad- the ANSI definition of sectional fits using or people what work were der. all of doing. All he knew was were them outdoors. points relied

The first Emerson’s nine "A” components. Component has three prior asserts that evidence receiving in erred in avers the trial court only propo- if the accidents is admissible Exhibits 54 and 54-A. Plaintiffs’ evidence that the acci- of the evidence shows nent circumstances sub- occurred under dents insofar as Emerson misstates the record in issue. Emer- stantially similar to those is Exhibit 54 concerned. support of its conten- cases in son cites five plaintiffs’ by 54 identified Exhibit was should have been tion that Exhibit 54-A (mentioned earlier) as a expert Greene rejected. by furnished the “computer printout sheet Taylor of the five is v. Kan- re- The earliest Safety Products Commission Consumer 109, 112 562 City, in- Mo. sas 342 lating injuries where ladders were she (1937). plaintiff the claimed was period from There during 10-year a volved” a in a fell of defect hurt she because through ’77 some time when “some time in presented ev- objection she explained Com- Over that the sidewalk. in ’87.” Greene fell days she an- eight before agency goal is idence that is a whose mission federal at fallen the same had develop injury for causation other individual “to statistics before that incident place, and two weeks try suggestions and even man- to offer had at the same another fallen design changes products in to make individual date Missouri, Supreme of place. Court The them safer.” noting plaintiff rejected that the contended she had The evidence slope fallen a in because of a verdict the contrac- sidewalk returned cover, a appellate east side of manhole fur- tor. court held evidence The noting ther evidence of the two from of other instances of similar result a earlier falls not indicate did that either logically only is relevant common cause condition, by particular been caused when the essential circumstances are suffi- held that the earlier evidence the two ciently to exclude like- similar a reasonable probative falls was of no value. being produced same lihood of the result S.W.2d at 566-67. by a different cause in the instances. two is, thing’s That ca- Id. at when a 526[2]. by Another case cited No Emerson is pacity tendency produce effect of a or Salem, City thaus v. given sort is to be evidenced instances (Mo.App.1979). plaintiffs sought There the attending effect found the same enjoin operation the construction and elsewhere, thing same these other instanc- a sanitary They in County. landfill Dent es such a probative value to show offered evidence about the of a condition tendency capacity only if conditions landfill in Phelps County, arguing would in are or circumstances the other instances proposed show that the landfill would be a similar to those the case in hand. Id. at Upholding rejec nuisance. the trial court’s “pretty other sur- As the houses well evidence, tion of the this Court held Poston, rounded” the house improper operation of Phelps County appellate court held that evidence that proof landfill could not be that the landfill blasting question damaged those oth- County Dent improperly oper would be logically er houses relevant the sole ated after its construction. Id. at 246- blasting issue of whether suffi- 47[4]. damage cient to cause the force third case cited is plaintiffs’ house. Id. 527-28. Schultz v. Presbyterian Webster Groves sup- case The final cited Church, 726 (Mo.App.1987). S.W.2d 491 port component “A” first is of its There plaintiff entering fell after a Co., Hale Tire v. Firestone & Rubber church. Her evidence showed that (8th Cir.1987). F.2d 928 We have studied floor was wet from snow tracked in from nothing pertinent that case find outside. She per- offered from component may “A.” The case Emerson son through who had entered the church have intended to cite is Hale Firestone different entrance 45 minutes earlier. Co., (8th Tire & Rubber 756 F.2d person That would have testified Cir.1985). plaintiff There the injured floor at the entrance she also used was part assembly truck wheel rejected saturated. The trial court the evi- separated pressure rim under and struck appeal by dence. On plaintiff court, objection, him. The trial re- over judgment in church, ruling favor ceived evidence of 210 other in- accidents ground affirmed on the that it volving separation explosive of similar rims permissible, purpose establishing for the with no restriction as to the circumstances place danger- whether a condition at one appel- or the dates of the accidents. ous, places to show conditions other than prior late court held that acci- evidence of in question. one Id. at 495[6]. only if proponent dents is admissible the of The by fourth case cited Emerso n —Po the evidence shows that the accidents oc- Co., ston v. Clarkson Construction substantially curred under circumstances (Mo.App.1966) S.W.2d 522 an action — was similar those at issue in case to the at bar. by damage homeowners for to their house Id. at As there an insuffi- 1332[16]. allegedly by blasting caused a operation showing similarity, cient of evidence of by highway conducted a contractor. The the 210 other accidents was inadmissible. testimony by offered resi other neighborhood dents in the response that their houses component In to “A” of had been damaged blasting. point, plaintiffs same first cite Pierce Inc., finding satisfied that the trial first Platte-Clay Cooperative, Electric (Mo. 1989), to an 769 S.W.2d 769 banc a case itself that the evidence relevant analyzed Corrigan, Evi- in McCarter and that occurrences issue of the case and injury- dence and Non- Similar Occurrences to the sufficient resemblance bore of Jour, Occurrences, 46 of The Missouri Bar incident, weighing possi- causing while (Mar.1990). farmer, In Pierce while a or confusion of prejudice of undue bility driving pulling spreader a tractor a a Id. issues. field, snagged guy supporting wire expert point out their Plaintiffs pole,” “stub in turn secured a cable which 7,000 or carrying lines testified that Greene pole supporting utility pole. The stub generally electricity are unin- volts of more broke, drop allowing the cable to the to sulated, effectively being way there farmer, highway. surface of observ- The of carrying a line that amount insulate ing high- approaching an on the automobile reason, Greene, the voltage. For said way, ran about the to warn motorist Safety edition the National Electric did cable. The motorist not see the farmer. carrying lines requires that Code cable, The hit the became automobile which voltage suspended at least be amount caught legs. taut one the farmer’s ground. Greene added feet above the cooperative placed pole the stub (a carrying electricity line drop” a “service guy the midst of some trees with the wire building) is insulat- pole always from a to a extending edge at of the into brush ed, “up about as insulation is effective cooperative, field. The farmer sued the 600 volts.” alleging known that it knew or should have Plaintiffs maintain that reason machinery farm faced an persons operating evidence, in Ex- the accidents listed above injury risk of and that unreasonable long involved ladders 54-A must have hibit negligent failing cooperative get power 15 feet enough to into lines guy place a on the wire to colored marker his ground. Greene based more above the years presence. In the four warn its premise. on that prior to accident had been nine there cooperative concerning con- reports to the direct our attention Plaintiffs also machinery guy tact farm between testimony of following from the excerpt farmer The trial court allowed the wires. Monohan: Louisville’s executive present reports to evidence of two such you “Q you me that I think told And cooperative’s notice that demonstrate accidents statistics consider those guy machinery had struck unmarked farm products safe- gathered by the consumer argued appeal cooperative wires. On studying relevant ty commission substantially similar the incidents were products. your industrial Affirming a and therefore irrelevant. of alu- A Insofar as electrocution farmer, Supreme judgment for the lines, yes.” minum ladder held evidence that when Court Missouri 54-A was Plaintiffs assert Exhibit to show other introduced accidents sum- as the inasmuch accidents admissible similarity in the cir- danger, notice sufficiently similar marized therein were need not be cumstances of the accidents to show foreseea- electrocution Gene’s completely symmetrical. Id. 774[5]. here and product use involved ble reports of opinion explained that the its danger posed by magnitude of the relevant to the two incidents were earlier use. foreseeable cooperative aware show that the the four Missouri machinery contacting appears It to us that un- risk of farm (Taylor, No- relied an event cases on guy and that such marked wires Poston) thaus, not involve Schultz and do foreseeably result in unreasonable could presented by 54-A. issue Exhibit Trial courts injury. risk of Id. plaintiff of falls used evidence Taylor admission wide issues of discretion proof fall as that her by persons two other similar occurrences. Id. at of evidence of slope in sidewalk. by caused the the limited to a was Appellate review is 774[6]. Poston plaintiffs In the attempted places use We have scrutinized those the by plaintiffs damaged evidence that other record cited homes were where 54-A, use the by blasting made statistics Exhibit proof as that their house plaintiffs employ and it is clear that did not damaged by the same blasting. In No- for the purpose establishing the data thaus plaintiffs the sought to use evidence electrocution, met his by that Gene death about the condition of an existing landfill instead demonstrate but that proof as that they the landfill to which danger realized the inherent in should have objected would Schultz a nuisance. using pow- ladders near electric aluminum plaintiff the attempted to use evidence Indeed, Louisville’s er Monohan ac- lines. part floor in one condition of the of the possible per- knowledged awareness church that the as evidence floor in the il: she area the church where fell was slick. “[Q]: you to surprise it know Would case not In the instant did that in last have been years ten there purpose for the con use 54-A some injuries Exhibit 450 serious or deaths oc- curring by vincing jury inasmuch that as 426 other aluminum or track as- ladder [A]:—No, people injured had been or killed alu that wouldn’t sur- semblies— prise me. [Q]: becoming energized. using minum ladders were contacted — That would surprise lines, me. [A]: electric should find that elec your tricity agency [Q]: was the that As killed Gene and answer alluded to a mo- ago, ment the Consumer electricity that the from Safety transmitted Product reports power basically him Commission data on by line to the aluminum products opposed consumer as Had indus- track. used 54-A Exhibit products, true. That’s correct. purpose for that [A]: its admissibility would governed line, have been by [Q]: And Louisville Ladder’s four Missouri large majority, cases relied least in industrial by Here, on Emerson. how ever, opposed as to consumer. That’s it was undisputed [A]: that elec Gene was [Q]: An industrial aluminum trocuted, correct. electricity the source of the just as a consum- ladder is as conductive power tree, line near the Absolutely. er one. [A]: electricity by was conducted the track. presents same [Q]: And risk of There question was a as to whether the injury ladder electrical that the consumer track touched the line or track whether the [Q]: you agree does. Yes. Would [A]: limb, touched a tree which in turn touched then, that the data collected consumer the line and electricity conducted ladders quality and size aluminum line to the expert track. Plaintiffs’ Greene significance to the manufacturer expressed opinion that there quality aluminum ladders. industrial contact between the track and line. far as electrocution cases are So [A]: Danny Eagleburger testified he saw never concerned, certainly.” Eaglebur- the track touch the line and John liability against theory of Em- Plaintiffs’ ger testified the track did not touch the erson, Greene, expressed by expert as their utility line. A line for the electric foreman using track was that the Gene was when he after removed the line some five months was electrocuted was defective and unrea- death; foreman observed Gene’s dangerous sonably designed. Greene line had three “holes” with “aluminum emphasized that “highly the track is con- into flakes metal melted the holes.” electricity, used ductive” of it is around appeared testified it line foreman lines, length its reason of something had been contact with made unwieldy. In arriving opinion his of aluminum. the magnitude Greene considered may, parties agreed Be that as it all danger user encountered and the electricity Gene was killed when from the frequency injury with which death oc- power line down the into traveled track and curs. The statistics 54-A Exhibit body. his analysis. utilized Greene in He

220 danger inherent purpose magnitude of the ized the recounted one ANSI limit single using of 30 feet on a ladder electric is in aluminum ladders near beyond length gets lines, a ladder “it’s power as statistical information and just dangerous try too to erect them.” determining in upon which Greene relied Greene, According to too “They’re unwiel- defective and unreason that the track was dy to handle.” dangerous deter ably designed, as we have is admissibility 54-A mined the of Exhibit Greene testified that the risks endemic in Pierce, 769, and governed by 769 S.W.2d significantly track could minimized 935, Siebern, by the Mis feet, by limiting it by changing to 30 or Applying by Emerson. souri cases cited top to an extension track where the section trial that the we hold Pierce Siebern telescoped section, up from the or base in receiv did its discretion by not abuse making fiberglass, by track Component in retaining ing Exhibit 54-A put- aluminum construction but evidence. ting point denied. in “A” of first pre- “insulated links” the track Emerson’s electricity coming vent down the Component “B” of first if track it touches a line. receiving the trial court erred avers In Siebern v. Missouri-Illinois Tractor 55 55-A Plaintiffs’ evidence Exhibits (Mo. Co., 711 Equipment & 935 concerning involving Louis- 13 accidents App.1986), operator of a “coal loader” platform in that ville’s model LH444 hoist ledge was killed when he it off a backed showing no that the circum- made down, crushing and it landed him. upside surrounding any stances of those accidents sued, His claiming survivors the loader had any similarity to the accident which defectively designed been in that it lacked a was killed. Gene protective “rollover structure” and seat averring record in Emerson misstates the appeal by belts. On the survivors from an 13 accidents. concerned exhibits judgment adverse the Eastern District of some 55 stack of documents Exhibit is a this Court reversed for of the trial failure The evi- inches thick. documents were two expert court to allow certain ten dently by plaintiffs from obtained dered the survivors. The Eastern Dis 55-A during discovery. and R & G Exhibit did, however, trict approve the trial court’s transparency identified is a allowing ruling experts the defendants’ summary of “acci- expert as a six Greene testify regarding independent con studies involving documented Exhibit dents” authority ducted under the of the Bu U.S. the same model track used Gene. involving reau Mines rollover tests of the shown on Exhibit dates six accidents equipment of heavy different sizes and 1976, 9, May December 55-A are: weights. opinion stated that the stud 17, 1978, 1982, August September April ies admitted as a properly basis for (the out of incident which expert opinion. Id. 940[6]. arose), 10, 1986. and March instant case admissibility of case the instant “victims,” in the The exhibit listed pretrial 54-A Exhibit debated six aggregate, in the accidents.3 by the carefully conference and considered argu- judge. trial same Essentially the hearing presence outside the of the In a presented ments were as there admissibility regarding the of Exhibits presented ruled judge here. The trial 55-A, Emerson conceded it made 55 and against pretrial Emerson at conference in the 1976 and 1982 the “ladder” involved and, seen, ruling repeated as we have occurrences, in the as well as the track when the exhibit was offered at trial. did, however, object instant case. 1975,1978 any reference purpose Given which ground that there was occurrences on offered Exhibit 54-A and uses received, showing made tracks i.e., Emerson had of it it was made after occurrences. The that Emerson should have real- involved those evidence injuries the instant accident. were attributed to 3. Two fatalities one court received 55 and 55-A in is in appeal Exhibits evi- limited to that advanced the dence. motion for new trial and we do not consider ground objection. a different Lott v. paragraph 1 of motion Emerson’s for 480, Kjar, (Mo.1964). 378 S.W.2d 485[4] trial the new Emerson averred trial court objection Inasmuch as trial that allowing plaintiffs in erred delve into it not shown to the manufacturer of be injuries “14 deaths or and 7 other lawsuits 1975, the tracks in the involved 1978 and variously the use associated with of [Emer- 1986 occurrences was not carried forward product.” The for new trial son’s] motion trial, in the motion for it has new not been alleged permitted such evidence was “de- preserved appellate for being review. That spite absolutely linking testimony no or so, component “B” of point or Emerson’s first evidence foundation that these other al- presents nothing leged any way accidents in for our were substan- consideration. tially similar to the facts instrumentali- Component point “C” of Emerson’s first ties involved the case before Court.” reads: allegations the in the While motion for erroneously “The court admitted testi- trial do not identify new Exhibits 55 or mony regarding Hotstik, the Pitman an 55-A, assume, we shall without deciding, aerial bucket lift manufactured allegations that sufficient to in- A.B. Company, formerly Chance a sub- form the trial court that Emerson was com- sidiary Emerson, and regarding altera- plaining about those exhibits. We find design product, tions of that made nothing else in the motion for new trial although only similarity between arguably referring to Exhibits 55 and 55- platform Hotstik and the hoist was that A. each entity was manufactured an that scope The of the for motion new trial Emerson, subsidiary was once and scope exceeds the objection at trial. showing made no other objection, The trial read we the tran- similarity.” script, was limited to the occurrences 84.04(d), Rule Rules Missouri of Civil 1975, 1986, 1978 and and was on the 1989) (20th provides: Procedure ed. ground showing that there no that points “The on briefly relied shall state Emerson had made the tracks involved in concisely and rulings what actions or those three The occurrences. motion for sought court are to be reviewed and trial, however, complain new endeavored to why they wherein and are claimed to be all six about occurrences listed Exhibit ” erroneous.... 55-A. requirement first of the above rule is only objections evidence that can identify on ruling relied appeal those be considered are that are trial sought. court on which review in the trial made court. ex rel. State State 679, Thummel 570 King, v. S.W.2d 685 Commission v. Northeast Build- Highway (Mo. 1978). banc Co., 297, (Mo.1967). 421 S.W.2d ing 301[4] Consequently, only complaint Ex- about Component “C,” quoted above, iden preserved 55 and 55-A hibits ruling supplies tifies no and no clue as to showing no at trial was there was particular testimony about which Emer made the tracks in the involved complains. allegation A son bare that the and 1986 occurrences. permitting court erred in trial certain testi mony inadequate, only because it that, however,

Even has not identify offending ruling fails to preserved appellate but espy review. We also because it to indicate nothing in fails Emerson’s motion for new complaining timely party adequately and assigning error in the admission of Exhib opposed Thummel, trial. ruling ground its 55 55-A on the that Emer 685; Hemphill v. son was not shown to the manufacturer S.W.2d Albers Con .1975,1978 Co., Inc., tracting tracks S.W.2d involved in the 662[1] (Mo.App.1987). 1986 occurrences. A claim error on respond We nonetheless resorted to the ar Plaintiffs inasmuch as the gument portion platform con- track hoist consisted of three Emerson’s brief (the track, platform-and- parts effort stituent rulings discover attack, unit) pulley assembly, obliged seeks to a task we are not anything oth- Aronowitz, made claim that Draper undertake. v. defective, er than the track was it was (Mo.App.1985);Tripp 924[3] identify (Mo. within the trial court’s discretion Harryman, 950[11] part for the that was in issue. App.1981). as During the referred to trial track was The first by instance mentioned Em employed man by a “ladder” a maintenance testimony by plaintiffs’ erson is witness church, department cap- by by the the fire eight Greene that he had worked on or nine occurrence, investigated by a tain who the involving people seriously cases who were investigated police corporal who the occur- injured in the registered Hotstik. Emerson rence, by purchased Brown the Gene who no objection Only answer. device, Danny by the by Eagleburger, Greene mentioned that the manufacturer priest off elec- who volunteered to shut the of Hotstik the was a division of tricity, Eagleburger, a com- John did Emerson The object. objection was: presented mercial roofer as a witness getting “We seem to off into other be seen, Additionally, Emerson. as we have products again, this is irrelevant and imma nothing the track was called a ladder— ground That is the terial.” not advanced 1979, by Louisville until and even else— appeal component “C.” after it referred to as a ladder that was the We have considered other instances from time time. Louisville’s documents complained byof Emerson and have deter- jury consequently The was aware that mined that do not relief warrant as individuals, of number and indeed some of error, 84.13(c), plain Rule manifest staff, had referred to the track Louisville’s injustice miscarriage justice of resulted as a ladder. Component therefrom. “C” of Emerson’s Furthermore, did define instruction point first is denied. In- “ladder.” product” term “the as a the point product” “the Emerson’s second has two defined the term struction 5 components, designat “ladder-type sold to Brown the first of as the track” which compound The ed assigns giving “A.” It error in of and used at the church. nothing more than an “ladder-type” is instruction read: word which The describing noun “track.” adjective product’ “The term ‘the as used in scarcely accuracy can description ladder-type these instructions means the challenged. track sold to Brown ... and used job.” photo- ... Church in numerous shown track was evidence, including the graphs received Emerson maintains instruction 5 er- opinion. jury appended one platform in defining roneous hoist as a fa- opportunity to become ample thus had “ladder-type track,” in that instruction its appearance and observe its miliar with jury directed the to find that hoist was characteristics. product ladder when the nature of the in considering language a material factual issue. Emerson primarily throughout plain- we should be concerned complains that struction ordinarily meaning jury its lawyers repeatedly with tiffs’ characterized the crediting intelligent laymen, them with product as a ladder order to make it understanding average safety appli- common sense and to various standards amenable language. Kli English us is of Samuels v. cable to ladders. reminds (Mo.1964). mowicz, error instruction to 380 S.W.2d reversible for 421[3] intelligence jurors here through- It a fact issue controverted insults the assume may instruc say they have understood Curry out the trial. Charles F. and Co. v. Hedrick, (Mo.1964). 5 as find that the track tion a command to 532[7] (describe product) Component is a ladder. “A” existed when point second is denied. was sold.” compares paragraph one “Fifth” When Component “B” of Emerson’s sec paragraph instruction 7 with final ond instruction which read: attacks 25.04, MAI one observes that the former “Your verdict must be hypothesizes defective condition of against you defendant Emerson ... if product directly or directly caused believe: death, contributed to cause Gene’s while First, plaintiff Eagleburger Diane hypothesizes the latter that the victim John, wife, Tracy Eagle- and Gene damaged as a direct result such defec- children, burger, Jr., and Eve- tive condition. Eagleburger lyn was the mother Paragraph “Fifth” of instruction Eagleburger, Gene on MAI based 19.01 It is [1986 Revision]. Second, defendant Emerson ... sold below, entirety, set forth in its including its product course said defen- footnotes: business, dant’s “In involving a case two or more Third, product in was then a defec- damage, of causes lan- ‘direct result’ unreasonably dangerous tive condition guage of paragraph Third of di- verdict put reasonably to a anticipated when recting instructions such as 17.01 and use, and might misleading. 17.02 In such Fourth, product was used a man- plaintiff, option, may cases at his substi- reasonably anticipated, ner following: tute one of the Fifth, such defective condition as exist- Third, negligence directly such caused when product ed was sold said directly or to cause contributed dam directly directly defendant caused age plaintiff.1 contributed to cause the death of Gene Third, negligence directly such either Eagleburger, damage plaintiff caused or com you unless believe are not enti- (here bined with the of describe [acts tled to recover reason of Instruction causing damage)] another [condition No. 8.” (here product) of describe di to]2 rectly damage plaintiff. cause Paragraph “First” of instruction is7 paragraph based on of “First” MAI 20.01 (1986 Revision) Notes on Use Emerson makes no com- [1981 Revision]. plaint about paragraph “First.” 29, 1986; (Approved July Effective 1, 1987) January

Paragraphs “Second,” “Third” “Fourth” of instruction 7 are on MAI longer prohibition based 1. There is a Revision], 25.04 That is pattern against using [1978 the first alternate where instruction use a liability strict light adoption case plaintiff is at fault involving product alleged a to have pure comparative fault Gustafson defectively designed. Benda, 1983). Committee’s (Mo. Com- banc Revision), (1978 (3d 1981), p. ment MAI ed. appropriate 2. Select bracketed 345. complaint Emerson makes no about phrase. paragraphs. those may These modifications be used causing damage whether or not another paragraph It is “Fifth” of instruction 7 party.” is a the subject is of component “B” of point. second Paragraph complaints makes about Emerson two “Fifth” instruction 7 parrot does not paragraph “Fifth” instruction paragraph final of MAI 25.04. The latter paragraph first is that “Fifth” was taken reads: which, Emerson, says is a from MAI 19.01 plaintiff damaged “... as “negligence points a direct instruction.” result such as a defective condition out that inasmuch as this case involved involving product alleged to defectively- liability case product alleged to have been applicable defectively designed. designed, 25.04 was the MAI have been verdict-directing Emerson as- instruction. Compare: paragraph serts that “Fifth” of instruction 17.01 MAI Revision]: [1980 should have therefore conformed negli- such “as direct result of paragraph (quoted final of MAI earli- 25.04 damage.” gence plaintiff sustained er) by hypothesizing that killed Gene was MAI 17.02 Revision]: [1980 allegedly aas direct result of the defective negli- result of such “... as a direct condition of the track. damage.” gence, plaintiff sustained Paragraph “Fifth” of as instruction we MAI 25.04 Revision]: [1978 seen, was instead taken from the first direct plaintiff damaged as a “... paragraphs of MAI two “Third” condition result of such defective (quoted earlier), hypothesized 19.01 (describe product) existed the defective condition of the track sold.” directly directly caused or contributed to Second, cause its use Gene’s death. does not MAI 19.01 state It allows negligence limited to cases. points out an MAI that when paragraphs plaintiff to two use one applicable instruction its use is mandato or more “involving two “Third” cases ry, City, Bueche v. Kansas Damage can be damage.” causes (Mo. 1973), banc and that modifica 840[4] product, just by caused defective tion an MAI instruction constitutes er negligence. ror, prejudicial judicially-determined, its effect to be Inc., S.O.R., Venable v. Third, the “Third” of paragraph second (Mo.App.1986). hy- negligence that the MAI 19.01 submits verdict-directing pothesized instruc- in the respond using Plaintiffs that the first the damage to directly tion caused either paragraph “Third” of MAI 19.01 instead of of plaintiff or the condition combined with the_final-paragraph of MAI 25.04 the directly product to allegedly the defective paragraph for model “Fifth” of instruction damage plaintiff. cause That lan- specifically by MAI 7 was authorized 19.01. guage unmistakably demonstrates that pomtNo "passage the from MAI Plaintiffs negligence 19.01 limited to MAI is not sub- involving a case 19.01 which states missions. damage the “direct two or more causes misleading, language might result” be Moreover, “directly the or direct- caused option has plaintiff therefore a the sub- ly language para- contributed to cause” stituting paragraphs the one two correct graph “Fifth” of instruction 7 is a Consequently, say “Third” of MAI 19.01. the causation element statement of no MAI plaintiffs, there was deviation. allegedly liability strict case based on an understanding plaintiffs’ hold product. We v. Execu- defective Nesselrode disagree (Mo. 19.01 correct. with Inc., MAI is We 707 S.W.2d 371 Beechcraft, tive Emerson’s characterization of MAI 19.01 1986), alleged air- plaintiffs an banc the “negligence as a instruction.” the trim tab plane crashed because elevator defectively designed actuators had been First, is not in MAI 19.01 a section the manufacturer manufacturer. (3d 1981) containing negligence MAI ed. proximate the sole cause maintained that (19.- is in its section instructions. It own negligent crash installation the was 00), captioned Directing “Verdict Modifica- employed by the by mechanics actuators tion—Joint Tort-Feasors.” MAI 19.- While judgment airplane’s Affirming a owner. 01 does refer to the “direct result” lan- manufacturer, Supreme against guage verdict-directing instructions such said: of Missouri Court (negligence instruc- as MAI 17.01 and 17.02 though tions), argument, language of the same “direct result” manufacturer’s] “[The distance, appealing 25.04, admittedly appears those in MAI instructions shy upon inspec- closer pattern for in a strict falls of the mark instruction use third-party peti- file a principles of motion for leave to tion. Under established causation, proximate City. cause of an against That motion was tion substantial, injury only or need 1,1988, event be day granted August before agent.” factor or efficient causal Id. at petition commenced. 381[2]. negli- against City City averred the plaintiffs gent respects pled by same Paragraph “Fifth” of instruction 7 told against City and that Gene died as a jury order to return a verdict City’s negligence result of jury had to find that the direct “directly defective condition of the track “and/or” his own actions. directly

caused or contributed to cause” sought indemnity City from the allegedly Gene’s If the death. defective pay plain- amount Emerson was forced to directly condition of the track caused or against City tiffs. Emerson’s claim directly death, contributed cause Gene’s pending,4 hence Emerson can remains obviously such condition was a “substantial scarcely deny this case involves two factor or agent” efficient causal of Gene’s damage. Emerson’s first more causes of meaning death within of Nesselrode. complaint paragraph “Fifth” of in- about Although the issue not squarely struction is merit. 7 without presented in Earll v. Consolidated Alu complaint Emerson’s second about Corp.,

minum (Mo.App. S.W.2d 932 1986), paragraph “Fifth” of is instruction 7 that case should be noted. There a applicable only man MAI there injured allegedly because of 19.01 is an defective ladder. The joint points was instructed are tort-feasors. Emerson out (per 19.01) MAI to return a for him only remaining verdict it was the defendant when jury believed, and his if the among wife complaint the case was tried. Emerson’s things, other allegedly defective fully by the final answered sentence of directly condition either directly caused or (quoted “Notes on Use” for MAI 19.01 contributed to cause the dam earlier), that the modifications which states ages. court, lost in the trial “may MAI 19.01 used authorized appeal thus the them and their causing damage or not another whether verdict-directing instructions were not chal party.” following The Notes Use lenged. The Eastern District of this Court in MAI dictate the circum instruction nonetheless stated that the instructions may under the stances which instruction be properly submitted the elements essential City used. v. National Bank and Vest plaintiffs’ to the recovery. 714 S.W.2d at Co., 518, (Mo. Trust 520[1] 937[4], 1971). Component “B” of Emerson’s sec As to whether instant case was one point ond is denied. involving or damage two more causes of —a requirement using para- one point of the two Emerson’s third has com two graphs “Third” of MAI 19.01—we noted ponents. Component “A” asserts the trial plaintiffs earlier that sued defen- three allowing plaintiffs’ lawyer court erred in to Emerson, G, City dants: R & and the during closing argument comment Springfield. pled City Plaintiffs competitors Emerson had failed to call to negligent sundry respects including fail- testify concerning “viability” of Emer line, ure to isolate the failure to trim product. (a) son’s Emerson maintains that trees, maintaining the line too to close any equally such witnesses were available the trees and other derelictions. (b) plaintiffs, plaintiffs previous to had 16, 1988, ly On June obtained an order from the trial court dismissed against City preju- precluding presenting their claim Emerson from without such 20, July dice. On Emerson filed testimony. a explained against supra, Only

4. As in footnote claim the lat- Emerson. ruling subject settled with R & G before trial. The trial court ter was tried. This is the against City point, severed Emerson’s claim from Emerson’s sixth discussed infra. Component apply present- “A” of Emerson’s third to the track. Emerson also dialogue: following is based testimony by on engineering ed the dean of lawyer]: University, professor Did it im- New Mexico State ... ever “[Plaintiffs’ me, press it you, engineering University as has no one civil competitors Wisconsin, here testi- engi- consulting safety and a no, really this fying comply doesn’t Virginia. agreed neer from Each of them And we don’t with the standards. have with Monohan. any complaint that— rebuttal, plaintiffs In called an associate me, lawyer]: —Excuse [Emerson’s professor engineering of electrical at the

your object I im- Honor. to that as an University of Oklahoma. He testified that proper competitor, if comment for some “thirty-foot length rule” ANSI [plaintiffs’ lawyer] to have wanted would applied standards for metal ladders they equally call would have been avail- track. to anyone able to him as else. begins argument compo- its Objection

THE COURT: overruled. point by nent “A” of third acknowl- its lawyer]: impress Doesn’t [Plaintiffs’ edging the rule that fail- well-established you one that no from Warner Ladder party having of a call a ure to witness Company Company Ladder Keller knowledge of and circumstances vital facts no, really came in and said: does generally presumption to raises the case comply really right and this is all to unfavorable really complaint there about this failing proffer Leehy party to it. product. pay very Emerson doesn’t Co., Express Supreme to & safety much attention the ladder stan- Transfer (Mo. 1983). banc Emer- They dards. don’t to S.W.2d pay much attention 790[8] however, us, improp- competitors doing. what are But son reminds that it is their your party argue negative will listen to er infer- verdict....” for a resulting opponent’s his ence failure determining propriety argu- if produce such a the witness is witness challenged in- ment the must be comment parties. equally available to both Id. at terpreted light of the entire record rath- objection Failure to sustain an 790[9]. Bucyrus- er than in isolation. Lewis v. argument improper such an constitutes (Mo. Erie, Inc., banc 926[8] error. Id. at prejudicial 790[10]. 1981). In the case was an instant there issue adverse Emerson asserts that before to whether the ANSI standards for a sec- failure can be drawn from the inference applicable subject witness, tional ladder were attempt party party to call a question hinged on track. That whether ing argue such inference must show that meaning the track was ladder within knowledge per missing witness of the standards. qualified testify facts tinent and was concerning the in Arie v. facts issue. In question pretrial at a The was debated tertherm, Inc., S.W.2d 648 155[19] argued the conference. Plaintiffs that plain Emerson maintains (Mo.App.1983). argued applied; Emerson that standards showing any made no that witness tiffs didn’t, they they hence were inadmissible. testify concerning the available to was The ruled the track trial court that whether Additionally, says Em safety of the track. a issue. was a ladder was fact erson, competitors clearly as avail its that expert Plaintiffs’ testified Greene Indeed, plaintiffs to as to Emerson. able limiting length the of a the ANSI standards Emerson, competitor could ex argues a be heavy duty heavy duty or extra sectional Emerson pected testify unfavorably a definition of sectional ladder—the ANSI competition. of because business opinion ap- appears earlier in this ladder — track. plied component is that Our first observation point pre- not “A” third is of Emerson’s Monohan testified Louisville’s executive only paragraph for The of for ladders did not served review. the ANSI standards pertaining body companies, bring- Emerson’s motion for from one of these new jury argument paragraph ing bringing is 5. That of them in? one How about complains paragraph showing you that the trial court one of them in and folks— allowing plaintiffs’ lawyer erred in point, plaintiffs’ objection to com- was [at during closing argument ment that Emer- jury, Members of the I overruled].... son competitor testify proof “did call a saying not started out burden of is concerning product viability plaintiffs plaintiffs of if modifi- on the cation, specifically insulating link.” wanted to call one of these manufactur- you just ers to come in and tell how gist segment argu- The of the product they new wonderful their by ment plaintiffs’ lawyer identified could have done that.... didn’t but brief, its comprehend Emerson in we as They do it. didn't do it.” at 926. Id. argument, such presented that Emerson competitor from a that appeal judgment On from an adverse track in complied involved the instant case operator crane his wife asserted with the presumably the argument impermissibly implied testi- that “standards” — ANSI in Nothing segment standards. mony of uncalled witnesses would have of argument the “viability mentioned of unfavorable, potential when wit- product “insulating modification” or an equally par- nesses were available to each link.” ty. Supreme reject- of The Court Missouri contention, holding ed the that the thrust argument Earlier in his jury, plain- argument plaintiffs that the had was lawyer tiffs’ stated competitors Emerson’s proving in failed their burden the crane agree the track is defective was defective absent a load indicator de- because all of them make insulated ladders Id. vice. any do not make single ladders over long. feet If that is the comment to which argument in lawyer in paragraph intended to refer case, earlier, quoted instant was of the trial, of its motion new we note that tenor, i.e., presented same no tes- lawyer registered Emerson’s no objection timony anyone other ladder to that comment at trial. track in manufacturer involved complied instant case with the “ladder safe- As component the claim of error “A” in ty Compliance, standards.” or lack there- third Emerson’s not was set forth of, import an was issue the case. The Emerson’s motion for new trial it cannot Lewis, argument, one in like the was Lott, asserted here. S.W.2d present per- that Emerson failed could, if it had Even it would be una- 485[4]. vailing. complied. suasive evidence the track argument plaintiffs’ lawyer As to Emerson’s contention that the ar- quot- gument ed earlier was improper a comment on because particular person failure to call obtained an order from the trial court Instead, argument precluding witness. presenting Emerson from such type Lewis, presented testimony, support we find no therefor operator There a crane injured grant the record. The trial court did toppled. He crane and his request wife limine that Emer- manufacturer, claiming sued the the crane son be directed to make no reference to the defectively designed in that it lacked fact its competitors manufacture and device to warn overload and imminent type sell same ladder “the out of the same danger tipping. The manufacturer’s approach- aluminum material” first without lawyer argument the following made to ing ruling bench. not That did bar jury: presenting testimony by Emerson they bring

“Did person, per- industry in one one someone in the ladder son, say things to complied safety these track indica- with “ladder [load tor were Not per- Component reliable? one standards.” “A” of Emerson’s devices] son came into court. How is about some- third merit. without

228 (Mo. en, 583 S.W.2d 179, 1979); banc Emerson’s third Component “B” of 186[6] Miller, 771, v. refer Glasscock alleged 720 S.W.2d eight point complains about 777[7] (Mo.1986). corporation” by “large to ences it as a dire. An ex plaintiffs’ lawyer during voir Moreover, inquiries plaintiffs’ voir dire reveals that Emer amination of the record subjects which concerned about of the com son overstates the essence A to ask. venireman who is were entitled ments. against personal injury actions prejudiced against large may properly be by corporations inquiry an The first comment was suing for a a challenged cause widow any mem- plaintiffs’ lawyer to whether wrongful corporation alleged “large corpora- large for the of the venire believed ber Vessels v. Kansas her spouse. just make mistakes.” The sec- death tions don’t Co., Light & Power City any 219 S.W. believed ond was whether venireman 1920). McCormick v. (Mo. likely 85-86 banc large less to make corporations are Smith, (Mo.1970), a farm corporations 459 S.W.2d 272 than small products defective suing injuries sustained when family companies. The third was wheth- worker or caught in a chal- combine corpora- tend excuse a his hand became anyone er to nine each owned lenged non-de- veniremen because if it manufactured a thousand tion by the or a combine made same products maybe just one defec- had owned fective but granted trial court any- manufacturer. The product. The fourth was whether tive ruling upheld ap- on Emerson, large challenges; is one believed because Id. at 277. any peal. differ- corporation, should be treated The fifth was ently any than other citizen. Monohan, Finally, Louisville’s executive anyone pur- had inquiry an as to whether lawyer Emerson’s questioning under produced by any products chased examination, Louis- direct testified that its The sixth was a state- or subsidiaries. employ- “just five hundred ville has under aby ment was made the “ladder” ees,” “subsidiary” of is a that Louisville Louisville Lad- division of Emerson called Emerson, Louisville, most of like and that is a “[j]ust der like Chevrolet Company, divisions, operates autonomous- Emerson’s Motors, division of Louisville ... General testimony unquestionably demon- ly. That a division of Emerson.” The seventh was large corporation, is a strated Emerson (or inquiry many how veniremen an as to anything by jurors told thus the families) members of their were then during plaintiffs’ lawyer voir dire large cor- employee had ever an from Emerson’s evidence. not learn did eighth poration. The instance in sup three cases cited preceding responded to the venireman point— component “B” of third port of its asking defined a question by how counsel Co., Green v. Ralston Purina the venireman large corporation. When Sheley, v. 443 (Mo.1964), S.W.2d Welch 119 family is a pointed out that “Sam Walton’s Merritt, Hawley v. (Mo.1969), 452 110 lawyer responded corporation,” plaintiffs’ not involve (Mo.App.1970) S.W.2d — did employees.” say “over 200 he would inquiries comparable to those in voir dire any objection Emerson voiced instant case. paragraph. preceding in the the comments broad dis The trial court is vested with transcript, in the pages Over 30 later of counsel’s conduct in the control cretion recess, Emerson moved during the lunch ruling its thereon will during voir dire and of the references for a mistrial because indicate a unless facts not be disturbed corporation. The “large” it as a v. abuse of discretion. Anderson manifest denied the motion. Co., Railroad Burlington Northern (Mo.App.1985), cert. de object Generally, 473[2] failure nied, 1116, 106 S.Ct. 476 U.S. at the time it argument or statement Kwan, (1986); Missey v. L.Ed.2d in a waiver made results Even (Mo.App.1980). argument or S.W.2d right complain 462[2] about com- complaint about Storbakk- Mueller appeal. statement on plaintiffs’ during company Id. lawyer pany, big mente voir dire a insurance —.” timely, point objection been the trial court not have made was At that in guilty abusing de requested. its discretion trial was The and a mistrial nying Emerson’s motion for mistrial. objection court but declined sustained ruling, Upholding grant mistrial. a Component point “B” of third Emerson’s court held that a com appellate while plain- one identifies other instance where size, power parison or wealth between lawyer allegedly tiffs’ Emerson referred to litigants wholly extraneous of the "‘large corporation.” during as a This was counsel, objection should not made opening plaintiffs’ lawyer statement when The immediately and sustained. was made said: appellate court found no abuse of discre they say this isn’t But "... a ladder. failing tion in to declare a mistrial. Id. at every you try you time to—and do know they 81[16]. They what called it before 1979? 480— called it a ladder. instant case ten Trial in the consumed they From 1959when manufac- started days. lawyer opening made the Plaintiffs’ turing height, through this at a lesser day. statement the second on they forty- when manufactured it objected and immediately the trial court feet, they four called it a ladder. granted requested by all relief Emer- safety passed standard mistrial. The except son comment going calling said we’re to start it a lawyer was not so much a com- hard, But you’re hoist. it’s a cor- size, parison between or wealth poration the size of Ladder or Louisville litigants as it was a remark about any change size to everything erase— inability get personnel Louisville’s its me, lawyer]: your Excuse [Emerson’s begin Recogniz- the ladder a track. calling May approach Honor. we the bench.” ing trial court in a better objected

At sidebar Emerson moved us position preju- than to determine the for comment, a mistrial. trial court sustained effect, any, if we dicial objection but denied motion for the trial cannot court of an abuse convict At request, mistrial. Emerson’s the trial denying the motion mis- of discretion for disregard admonished court “B” Component trial. of Emerson’s third plaintiffs’ lawyer. “the statement” of last point is denied. position A trial court inis a better fourth avers the trial reviewing judge preju than court to admitting court Plaintiffs’ Exhibit erred effect, any, if allegedly improp dicial of an design for the ANSI standards ladders. statement, in opening er comment and of specifi- the standards maintains necessity is vested with considerable discre cally “hoisting equipment” exclude such determining tion what corrective action platform the track hoist the instant case. Sloan, required. Martin v. 377 S.W.2d Emerson, According to the standards were (Mo.1964). court’s A trial 60[9] 259 — foundation admitted without denying a decision motion for mistrial be any indicating produce failed to evidence improper during opening cause of remarks any violation the standards caused appeal statement will not be disturbed Gene’s death. the trial clearly unless court abused its Prior to trial Emerson filed a motion Highway discretion. State ex rel. State items, sundry regarding limine one Drisko, Commission design ANSI which was the standards 648[2, (Mo.App.1976). 3] Emerson asked the ladders. County R-1 v. North School District mentioning bar the stan- Fidelity Deposit Mary & Company of presenting dards or evidence about land, (Mo.App.1976), 539 S.W.2d 469 them. lawyer discussing per plaintiff’s argument; argued conference Emerson during closing pretrial bond At a formance hoist, part platform of a something he stated: where com that the track “[I]t’s limiting length ap- that the do the ANSI standards for ladders not section of ladders hoists, apply platform any “Yes, and that ref- responded, plied. Greene it does.” erence to the ANSI standards for ladders provision Greene identified the as 6.2.3. § inject jury. would false issue before the a objection Emerson to the voiced above Emerson trial directed the court’s attention testimony. standards, passage page to a 9 of on the thereupon 82 in Plaintiffs offered Exhibit footnoted below.5 lawyer said, “Subject evidence. Emerson’s replied Plaintiffs that the time of discussions, prior prior objections.” being Gene’s death track was used as ladder, power equipment was "not The trial court received Exhibit shed,” plaintiffs’ of even out and that evidence. length experts say that the 30-foot following Emerson relies on evidence “single apply restriction on ladders” should support of its contention that the ANSI Additionally, plain- argued to the track. apply track. standards do not to the tiffs, required certain “safe standards First, acknowledged on put use on ladders. Greene cross-ex- instructions” amination that the standards themselves occupies pages The debate some 18 they apply “hoisting do not provide that Nowhere do we transcript. therein “special purpose equipment” or ladders any find on objection general requirements” not that do meet ground that the standards were immaterial not, did of the standards.6 Greene how- because Gene’s death did not result from ever, testify came within track any violation of them. exceptions other either those paragraph court denied the concede, exception. He did on cross-exami- regarding Emerson’s motion limine nation, deposition his was taken standards. problem. he had said: “This is not a code expert At trial Greene was criticizing the I’m not manufacturer be- examination there asked direct whether necessarily meet all the cause don’t long “that deal how were standards with requirements.” Greene also admitted code “Yes, replied, ladders should Greene be.” whether deposition asked on he length.” then maximum Greene was longer than 30 track the fact that the it as the shown Exhibit 82 identified death, to do Gene’s anything feet had with “Safety Requirements for Portable ANSI (Greene) had answered: and that he “No. lawyer Plaintiffs’ then Metal Ladders.” no loss of control Because there was opinion if he had an asked Greene ladder.” the in- whether “ladder” involved Second, points to the “gov- the kind ladder stant case was executive Monohan who of Louisville's it answered was erned ANSI.” Greene porta- for that the ANSI standards avowed portions ANSI do opinion “the his apply do aluminum ladders not directly this ladder.” Plaintiffs’ ble deal with not ladder.” Mono- because “it is the ANSI track lawyer asked Greene whether general require- meet ders do not titled Plaintiffs’ Exhibit document 5. ments of this standard.... Safety Require- “American National Standard prescribes also rules and min- Ladders,” This standard provides: for Metal ments Portable labeling requirements for com- imum Scope. prescribes rules “1.1 This standard ladders, types portable mon extension ... construction, design, governing safe ... ladders, safety single in order to ensure portable metal of various and use of ladders usage. It does under normal conditions of to, porta- types including, but not limited ... ladders, platform trestle not cover ... ders, lad- combination, sectional, extension, sin- ... ble ladders, trestle and combina- extension ladders, excluding platform gle, lad- but ladders, training, apply tion nor does it where mines, services, the fire mobile ders and on safety procedures supervision, or established plat- hoisting equipment, equipment, work lieu of are in with or serve in conflict towers, forms, antenna communications standard.” towers, utility poles, and chim- transmission 5, supra. special-purpose Footnote neys. It cover lad- does not Finally, there was evidence that like a ladder asserted: “I know looks han hoisting separately from the ladder, track is sold bed-way it’s it is but equipment. maintain that sold Plaintiffs purpose platform, special it’s a the hoist of separately, principal the use the track solely product. designed And it was nothing could be but a ladder. The associ- platform.” hoist the engineering at professor of ate electrical Third, the testimo- Emerson directs us to Oklahoma, a University of called as the ny engineering the dean of at New Mexi- of rebuttal, testified, by plaintiffs in witness University on cross- co State who testified is separately sold “If the ladder without he did not think the ANSI examination that mechanism, lad- hoisting it looks like a the it “is applied to the track because not code ladder, can as a der, it like it be used acts a ladder.” rung ladder, spacing, same it has has the it Fourth, us that the Emerson reminds basically it is a rungs, ladder.” the same engineering the Univ- professor civil at the “thirty-foot that professor testified (who on ersity of serves Wisconsin standards for length in the ANSI rule” steering deals ANSI committee that with applied the track. metal to ladders wood, steel, fiberglass lad- aluminum and industry customs or stan While ders) did not “come testified that track legal standard dards do not establish profes- under ANSI standards.” care, gen industry standards evidence that even if the track did sor also testified erally proof of whether or admissible standards, not violate under the it did come Pierce, duty not a of care was breached. “spirit” of the stan- the standards or case at 772. In the instant dards. by plaintiffs there was substantial evidence by pointing out that in respond Plaintiffs applied to the that ANSI standards presented by to testimony addition by Emerson track and substantial evidence just before Exhibit 82 was received Greene circumstances that did not. such evidence, track was referred to as a admissibility of was a the standards by “ladder” witnesses at trial. We several by the trial court determination to be made noted discretion, that our discussion in the and on exercise its component “A” of Emerson’s second record we cannot convict the trial here Additionally, plaintiffs emphasize point. abusing receiving its court of discretion nothing that the track but a was called in evidence. Dixon v. Inter standards 1979, 573, until Co., ladder Louisville even 754 F.2d national Harvester that it as a (5th Cir.1985). after was referred to ladder from time time in to Louisville’s doc- that As to Emerson’s contention uments. That evidence is forth earlier set immaterial the standards were because opinion. in this prove Gene’s death was failed

Plaintiffs remind the dean of them, also us that men caused a violation of we engineering at New Mexico State Universi- are to find tioned earlier we unable ty experts of Emerson’s ground on any objection —one —called conducting in the track ladder course receipt prior of the standards on it. not, tests appellate will An evidence. review, an court of error on convict lower Furthermore, say plaintiffs, Louisville’s it put before to decide. issue which was that but for executive Monohan admitted Peach, Co. v. Lincoln Credit supposed fact that the track was not 1982), (Mo. dis appeal banc 36[12] climbed, of a it fits ANSI definition be missed, 459 U.S. S.Ct. conceded it sectional ladder. Monohan also ASARCO, (1983); Inc. v. L.Ed.2d 942 reasonably Louisville that foreseeable to (Mo.App. McNeill, 750 S.W.2d 129[4] ladder, track will used like a 1988). nothing track a user not on the warns However, an objection such it. noted earlier even had to climb That evidence is futile. it have been opinion. been made plaintiffs’ expert 21, 1988, While G, Greene testified on R response On June & in deposition that the fact the track interrogatory propounded by plain- to it longer nothing than 30 feet had to do with asking R identify person tiffs & G to each death in Gene’s “no there was loss of expected expert call as an witness ladder,” presented control trial, Westley answered: “William C. will evidence that complied had the track with corporate representative act as for &[R G] length requirement the 30-foot Gene would Westley may and also Mr. as an be called not have been That electrocuted. evidence expert Westley’s witness. Mr. of ex- field came from the professor associate of elec- pertise background and educational and the engineering trical University subject matter on ex- which he would be Oklahoma. He testified he found a num- pected testify in his is all set forth within ber “burn marks” “about three deposition_” a half and inches of the of the end ladder.” 12, 1988, July On still a while R & G was The witness concluded those were the defendant, plaintiffs, response in an in- places energized where the track became terrogatory propounded by ask- testified, electricity. they with He “[I]f ing plaintiffs to identify person they each raising were a in ladder with base expected to expert call as an at witness place, they raising same a thirty were trial, supplemental stating: filed a answer ladder, foot since the marks are burn out addition, plaintiffs right “In reserve the ladder, here on the end of forty-foot a testimony by any designat- offer witnesses thirty foot ladder missed would have experts parties.” ed as other location the burns least ten at feet.” 22, 1988, July plaintiffs On a doc- filed earlier, Additionally, reported a line styled ument “Plaintiffs’ Offers from utility, testifying foreman for the electric Deposition Westley” identify- of William C. Emerson, found flakes aluminum metal deposi- ing portions Westley’s some 70 melted into three holes in the line. tion. paragraph evidence set forth in this present sufficient to was issue on a 1, 1988, August day On before causation element. Emerson’s fourth commenced, trial the trial filed an court point is without merit. approving plaintiffs’ order settlement of against pretrial claim R & At a confer- G.7 point Emerson’s fifth has com two day lawyer, referring ence Emerson’s that ponents, complains each of which about the plaintiffs’ present portions intention to receipt in testimony evidence of from ex Westley’s deposition, they stated: “... pert witnesses. Emerson such testi avers many expert type opinions from have asked mony “was outside the scope dis Westley. They’ve him designated Mr. not covery by plaintiffs, previously propounded longer in expert as an their case. He’s no that this such evidence was without foun this case.” party dation, surprise, pre constituted unfair effectively respond cluded Emerson from pointed they When out that had ing testimony.” Component to such “A” of previously right reserved the to offer testi- fifth pertains to witness William mony by any designated witnesses as ex- Westley. parties, Westley perts by other and that designated expert by as an R & G been presented Westley’s testimony Plaintiffs defendant, still a Emerson’s while it was reading excerpts deposition giv- from a lawyer party, “He is not a he has by him in asserted: February, en At that time designated expert. not as an In addi- Westley president plant was vice man- tion, training experience not G, of R his does ager & which then a defendant qualify expert. long him as an As as he along in this action Emerson and the with City anything held Springfield. party and all three was a he said could Plaintiffs represented by against defendants were counsel & I certainly but don’t be- [R G] deposition. binding lieve it’s on Louisville Ladder 1, supra. 7. Footnote assertion

any way.... no reference here We first address Emerson’s There’s rejected court should ago trying to within a week were testimony plain- Westley’s toto because expert somebody longer that’s no call as expert him wit- tiffs to name as an failed party, and that’s last their announcement interrogatories. ness their answers on it.” identi- true that never While responded their Plaintiffs offers answers, it is Westley by name such fied Westley’s deposition were on file be- G, R & it was equally true that while R & fore settlement with G was designated Westley as an party, only approved, hence Emerson “well knew we expert but also stated that witness offering Westley.” all set subject of his matter ruling The trial made no on the thus deposition. forth in his Emerson was 1, 1988). day (August issue Westley possibility notified addition, and, be a witness trial, During hearing outside the testi- subject of his informed of the matter jury, the trial court asked Emerson’s law- evidently no ne- mony. perceived yer if he wanted to make a record his cessity that time. deposing Westley objections “anything Westley.” from Mr. defendant, Later, while R & G still lawyer reiterated the earlier ar- to Emer- plaintiffs’ supplemental answer guments and added that had Emerson notice interrogatory put Emerson on son’s plaintiffs present known intended to West- right offer plaintiffs that reserved the to ley’s deposition testimony Emerson would as testimony any designated by witnesses Westley’s deposition. have taken Emer- in- Westley experts parties. by other lawyer son’s stated Westley’s that when designated an ex- as disputably a witness deposition Westley was taken was not list- pert by party, R In these another & G. expert, consequently ed as an Emerson’s it Emerson’s claim that was circumstances him lawyer questions. asked plaintiffs, July unfairly surprised when lawyer again Plaintiffs’ reminded Emer- 1988, 22, portions Westley’s identified lawyer plaintiffs son’s previously had deposition plaintiffs intended to offer plaintiffs informed Emerson that reserved trial, rings hollow. right by to testimony any offer wit- Why unnecessary for Emerson to it was designated experts by par- nesses as other depose Westley if he as an was to be called ties. expert by G, suddenly R & witness but court The trial overruled Emerson’s ob- depose to him if became essential jection objection by and also an overruled portions deposi- intended read of his to Emerson that there was “insufficient foun- some six months before trial— tion—taken deposition” qualify Westley in the to dation unexplained. is “in expert that they as an all areas are support of by cited cases offering opinions his on.” The trial court court should its assertion that trial objections up spe- Emerson to then took Westley’s deposition testi- have excluded Westley’s deposition, portions cific sus- mony present do as those facts such taining overruling some and others. however, do, them here. learn from We Westley’s deposition portion give appellate great courts deference revealed, by plaintiffs among presented re- of trial court discretion to the exercise things, components that R & G sells arising pre- other garding rulings on issues Louisville, platform to for track hoists and the determination of discovery trial platform generally are sold to hoists of action in the event appropriate course in- roofing in the and construction Ellis people noncompliance discovery with a rule. 71, Co., R dustry, that & G knew lines were v. Union Electric S.W.2d 74[2] feet, only suspended heights (Mo.App.1987). Appellate than 40 courts look lower gets longer discretion which and that as ladder becomes for an abuse of broad being surprise. Id. prejudice to raised results in unfair more difficult control when authority impose sane- A trial court has and lowered. against party tions comply objections who fails to specific portions Emerson to discovery, prior imposing with but sanc of Westley’s deposition, sustaining some tions on the party errant the trial overruling others, the record reveals whether, must first determine in particu grounds neither the objec- overruled situation, opposing lar party has segments tions nor the of Westley’s deposi- prejudiced. ex High State rel. Missouri tion to they which were directed. way Transportation Commission v. testimony brief refers us to Pully, (Mo.App. 245[5] by Westley being about the track difficult 1987). to control under certain circumstances and

We find no abuse of discretion “warnings about and instructions.” Emer- trial fails, court here. however, son to direct our attention anyplace in the record objection where First, pressed hard to claim any was made to particular question or surprise. Westley’s identity and the con- regarding answer subjects those on the deposition tent of his became known to ground Westley qualified was not deposition Emerson when the was taken express opinion thereon. some six months before trial. Emerson Westley might appear expert knew as an objection Where is made to all of the witness, specifically designat- as R & G had witness, of a some of which is ed him as Additionally, plaintiffs competent, such. objection properly over put Emerson on ruled. Dolan, notice that Albert 27 S.W.2d reserving right (Mo.App.1930). to offer testimony by Accord: Lach v. 441[6] Buckner, designated Mo.App. witnesses experts by (1935). parties. other It was not on the incumbent 960[6] court, motion, go on its own Second, plaintiffs present did not West- through portions Westley’s deposi ley person and adduce testimony from tion offered by “attempt beyond him appeared that which dep- his separate the wheat from the chaff.” re presented osition. Plaintiffs only excerpts Pate, 11, Mo.App. 119 S.W.2d from deposition. the six-month-old Emer- (1938). Hence no error in there was admit son cannot claim it was unaware of that ting excerpts objections over testimony. Pate, made. 119 S.W.2d at 13. Allen Cf. Third, identify Emerson did not Co., v. St. Louis Public 365 Mo. Service any aspect trial Westley’s testimo- (1956). 667-68[8] ny about which depose Emerson needed to Component “A” of Emerson’s fifth him. denied. Emerson’s assertion that the trial court Component “B” of Emerson’s fifth rejected should have Westley’s deposition point complains plaintiffs’ expert that testimony in entirety its is without merit. “concerning Greene testified prototype complains Emerson also Westley’s link, insulating although testimony such testimony was received without foundation scope previous was outside the of Greene’s qualify expert. to him an as. ly deposition, taken failed to notify counsel for Emerson of Greene’s excerpts Westley’s deposition testing opinions additional prior to tri presented by plaintiffs occupy pages al, despite agreement by an counsel to do transcript. While most of the testimo- so.” ny pertains opinion, to facts instead of arguably there are some answers that During con- direct Greene’s examination at “expert” fail, testimony. stitute by plaintiffs’ lawyer We how- trial he was asked ever, to find anyplace any objection where whether he had considered he how specific to a ground put insulating answer on the link in the in- “ladder” “expert” constituted testimony was made volved the instant re- case. Greene by Emerson to the sponded gone trial court and over- through he had not all ruled. While the trial development, court did consider the research and but had assertion makes the bald Emerson’s brief prove concept. Ac- prototype to built beyond far testimony “went Greene, starting that Greene’s cording to that was previ- in his to had testified what Greene by way done point for what could be does not Emerson deposition.” ously taken insulating building an link. deposition identify any part Greene’s hearing jury Emer- Outside has support proclamation and this lawyer the trial court’s atten- son’s directed us. deposition with to file the failed lawyer Emerson’s tion to a letter from sup- Emerson concedes (13 plaintiffs’ lawyer July dated interroga- Emerson’s plemental answers scheduled to com- days before may experts stated their tories mence), asking plaintiffs’ lawyer to advise discussed any subjects testify about lawyer if “formed Emerson’s Greene had any regard depositions and with their issues, any opinions regarding any other work or other inspections, examinations tests, any performed any or fabricated depositions. in their discussed If prototypes deposition.” track since his Plaintiffs, brief, assert their so, letter, requested cop- said the Greene, deposition, stated it was in his ies of this “additional work” and “a sum- produce an insulated completely feasible mary opinions.” new ladder, where link for the described lawyer Plaintiffs’ told the trial court that ladder, and located in the link would be lawyer surprised should not be location. diagram to illustrate its drew a concept insulating link. about the dis- Additionally, say plaintiffs, Greene only lawyer Plaintiffs’ continued: “The appropriate materials cussed some of thing looking that’s them at this new is might link be made and from which the object deposi- he described in his because that if Emer- lawyer informed Emerson’s exactly designed, tion how it would be pro- feasibility experts son’s denied it would made of and the various what insulating link ducing incorporating an And so there’s alternative materials.... design, produce intended to into the Greene nothing of con- certainly new in terms bring trial. Plaintiffs prototype it to cept_ exactly Mr. Greene told them deposition identify pages of Greene’s going he to do and he did it.” what allegedly appears. where deposition as the has Inasmuch permitted The trial court Greene’s testi- us, that testi- supplied we cannot examine mony continue. mony. identified Plaintiffs’ Exhibit 70 as Greene ordinarily has the appellant An designed separate link an “insulated to establishing prejudicial error on of burden provide protection ladder and to workmen respondent does not have the appeal; a handling explained the ladder.” Greene he establishing of of the correctness burden designed the link and a machinist had ruling. Nash v. Plaza the trial court’s micarder, “a made three of them out of (Mo. 637, Electric, Inc., 363 S.W.2d 641[2] making purpose of type of resin.” 1962). duty appellant of an It is the put to have in a ladder. three was two containing information record furnish a 70-A identified Plaintiffs’ Exhibit Greene appellate court to deter sufficient for the inserted. Exhib- as a ladder with the links appeal. on v. questions mine the Welch in and 70-A were received evidence its 70 (Mo.App. Welch, 633 S.W.2d 450[4] objection. over Emerson’s 1982); Mutual Insur Lewis v. Columbia (Mo.App. Co., 588 S.W.2d ance 162[2] the links Greene then described how 1979). in the ladder and how that were inserted appellant stronger Welch, than the part the ladder was In 633 S.W.2d of study report” was favor original added that claimed a “home aluminum. Greene 50,- into have been taken against link insulated to her and should each inch of the able appellant court. The by the trial electricity, thus a three-inch account 000 volts however, report in the 150,000 failed, include the against link insulate volts. appeal. appellate engineering University on court held of Oklahoma record at plaintiffs. The that where are omitted from the testified in exhibits who rebuttal transcript appel and are not filed with offer: court, late the intendment and content of Doctor, lawyer]: this “[Emerson’s as such exhibits will be taken favorable proof. what an offer of You we call ruling and trial court’s unfavorable previously depositions in testified appellant. Godsy at 450. Accord: Id. you re- looked at this case as with (Mo.App. Godsy, 553[9] spect City Springfield Utilities of 1975). assume We shall therefore Greene’s being fault, in accident. Have deposition bears out the averments deposition you your not discussed that in plaintiffs’ brief. previously? cited We have studied the four cases Yes, I A did. support component

Emerson in “B” of sir, Q then, your testimony It was point. factually its fifth None of them are oath, I you were under and assume when similar to the situation here. not, testimony, is it your it is still discussing component “A” question: part We noted did fault on the asked the point appellate your opinion of Emerson’s fifth cause City Utilities give great yes. courts deference to the exercise this accident. Your Is answer regarding rulings your of trial court discretion that still answer? discovery. arising pretrial from issues A That’s true. . Assuming deposition contained Greene’s fact, sir, Q your testimony previ- In plaintiffs, testimony described we is, they ously, I assume it still was that respect in the find no abuse of discretion these didn’t isolate or insulate charged component “B” of Emerson’s lines, is that correct? is, point. accordingly, fifth It denied. A Yes. the tri Emerson’s sixth avers that, Q And so can clear on we severing al court erred in Emerson’s third- doctor, by isolating could combine either Springfield party against City claim moving higher distance or the lines at against claim Emerson for removing the tree where limbs trial,8 precluding purpose and pow- could not come into contact with presenting Emerson from evidence that the lines. Is that a fair statement? er City cause” of Gene’s death. “was the sole Yes, A sir. rulings were errone Emerson claims such today? Q your Is that here (1) plaintiffs’, expert ous in that one of Yes, A sir. proof in an offer of witnesses testified fact, doctor, of, Q regardless City the acts and omissions were negligent opinion, they your death and Emerson

sole cause Gene’s appropriate duties from their deviated present argue such was entitled to their duties to the under the codes and evidence, (2) considera failure to allow things, doing those is that public in not against City tion of Emerson’s claim correct? against the same time as claim exposed Emerson “to multi Emerson has A Yes. potentially inconsistent ver

ple actions and true, doctor, Q that re- And is it not dicts.” insulating link gardless of whether discussing about regard- have been first address the issue that we We shall work, had those lines work or not ing the “sole cause” evidence. would exclusion of isolated, effectively by the tree only description identi- been The evidence of being no one could in removed so by appears Emerson in its brief limbs fied them, or the lawyer in contact with proof by elicited Emerson’s come offer of no one could come lines isolated where professor of electrical from the associate 4, supra. 8. Footnote

237 appeal. them, rarely is disturbed into contact with this accident discretion occurred; Wessar, S.W.2d not have correct? 623 would A correct.” That’s case there was evidence In the instant time Gene track at the length of the to the rejected court The trial the offer. electrocuted, electric height the of the acknowledges “impermissi- it is from the line, of line distance the the give ble to a sole cause in Mis- instruction line car- church, voltage the the amount souri,” but asserts it been should have re- ried, position the tree with the argue allowed “to facts demonstrate which need jurors The did not line. spect to the solely an accident was an- caused profes- testimony from an associate opinion negligence.” Lippard other’s See: in engineering to aid them of electrical sor Industries, Inc., Houdaille 715 S.W.2d have would determining whether Gene (Mo. 1986). prop- banc While insulat- had the line been been electrocuted correct may osition as an state- abstract re- isolated, or had the limbs been ed or law, it does that the ment of not establish expertise does need moved. One not rejection trial court’s of the “offer concept engineering grasp the electrical proof” here was erroneous. long will track 40 feet that an aluminum testimony the The thrust of the tendered electric line 25 feet above reach an professor’s opinion, that in the fault on ground. (the City opera- the part the owner and reject- ruling Nothing in the trial court’s utility) electric the acci- tor of the caused ing proof the offer barred testify, if professor, The dent. allowed the (a) presenting regarding from evidence City that in opinion have said his the would tree, line, the of the height position negligent failing the to insulate limbs, length of its the standards power line, failing moving it isolate isolating power and trim- insulating lines or greater height, failing it to a them, or other ming near limbs fact the tree limbs remove near the line. (b) electrocution, arguing or to the relevant professor opinion expressed have would City in one that the was derelict jury to the measures taken the that had those respects and such derelic- or more those accident would have occurred. the cause of death. The tion was Gene’s ruling rejecting offer of trial court’s principles governing only to proof pertained specific testimo- opinion and exclusion testimo admission offered, nothing Emerson’s con- ny else. experts appear ny by v. John Wessar ruling precluded it from tention that Motors, Inc., (Mo. Chezik S.W.2d City’s negli- evidence that the presenting subject If the App.1981). is one with which the sole death gence cause Gene’s conversant, jurors are not lay likely to be theory is arguing and from expert’s opinion one where merit. without jury, objec be of value it is valid complaint in Emerson’s sixth The other expert’s opinion upon is tion that erred in sever- that the jury, ultimate issue be decided against ing third-party claim province jury. Id. invades against Emerson City plaintiffs’ claim also: See Eickmann v. St. 602[1]. purpose for the of trial. Co., Mo. Louis Public Service (a) the-City (1952). already 129-30 other learned that On the We first 14 hand, subject everyday if defendant for the is one of was the lone suit, (b) R & G jurors competent are Emerson and experience, where months of this issues, 27,1987, (c) May opinion then added as defendants to decide rejected. Wessar, against claim properly dismissed their 16, 1988, and 602[1], City prejudice The June admission or exclusion without (d) to file opinion testimony Emerson filed motion for leave expert is a matter within petition City July third-party against discretion trial court. the sound 20, filing of Eickmann, Simultaneously That 253 S.W.2d at 1988. with 130[11]. City against claim will the latter motion Emerson filed a motion of Emerson’s ground money expended for a continuance of the trial on the and increase the time third-party peti- that its motion to file the litigation expose Emer and will against City granted tion should be and verdicts. potentially son to inconsistent pleadings discovery additional and would con Emerson maintains severance consequently required. be Emerson’s mo- forth in “public policy” set trary to the tion for continuance in- averred there was Motors, Interna Heshion Inc. v. Western accomplish sufficient time to all this before 526, (Mo. Hotels, tional 1, 1988). (August the scheduled trial date i.e., purpose of third- App.1980), that the multiplicity 1, 1988, party practice is to avoid August On the trial court took expense of up actions, minimize time and Emerson’s motion for leave to file the third-party petition motion utilization litigation, Emerson’s to achieve maximum continuance, granting capacity, the former and judicial of court facilities and denying the Trial commenced the latter. justice. render ultimate day. against next As Emerson’s claim per- more argument be City was not at issue the trial court sev- commence its if had seen fit to suasive it ered the third-party only claim and tried against City earlier third-party action plaintiffs’ against claim Emerson. the trial was scheduled days before than Emerson asserts the trial court’s refusal brought into the begin. Emerson was try against to allow Emerson to its claim 1987, filed a and could have May case City concurrently plaintiffs’ with claim City anytime after against the cross-claim against prejudicial Emerson constituted er- 16, 1988, plain- until June that date City ror in that “the was that the against City. claim tiffs dismissed their plaintiffs’ was the sole injury cause Emerson fail to assert only Not did failure to allow the to consider Emer- during 13- against City claim against son’s City claim at the same interval, more than a month waited plaintiffs’ against time as claim seeking leave month thereafter before exposed has multiple Emerson to actions against third-party petition file the potentially inconsistent verdicts.” City. A careful reader will observe that this the issue as Emerson characterizes While appears contention to conflict Emer- with sever, ques- a decision on whether to son’s earlier assertion that the trial court reality tion before the trial court was precluded presenting Emerson from evi- begin scheduled. whether the trial would City the sole cause of dence that However, glean Gene’s death. we from the trial The trial court had established argument subsequent Emerson’s brief August date of three and a half complaint gist of its is that the earlier, April months on such evidence but that trial court barred need to fix the date for a trial of this admissible such evidence would been magnitude that far in advance obvious. against City Emerson’s claim Expert from distant locations witnesses simultaneously with claim tried presented Arranging both sides. against Emerson. appearances obviously required their ade- specious. have ear- argument We quate parties for the notice. Counsel need- rejec- the trial court’s lier determined that Additionally, ed clear their schedules. proof offer of from the tion of Emerson’s busy expected trial courts cannot be engineer- professor of electrical associate of this conduct a trial duration short presenting ing did not. Emerson from bar Summoning notice. a venire of sufficient City’s negligence was the evidence that the ju- adequate size to ensure an number arguing sole cause of Gene’s death or uninterrupted spend rors who can two theory jury. no small task. weeks at the courthouse is its A to control complaint trial court must be able aspect

The other of Emerson’s reasonably expected separate trial docket and cannot the severance is that a about schedule, major to and reschedule the track hoist when it was deliv- platform cancel man- litigants. trials at the whim of one of the ered to him he never saw such a ual. grant The decision on to whether Danny Eagleburger never testified he largely continuance rests in the discretion saw instruction manual. court, every of the trial intendment ruling. in favor of the trial court’s Hall v. lawyer, during Emerson’s cross-examina- Williams, 330 Mo. plaintiffs’ expert Greene, tion of elicited 139[1, (1932); Krieber, 420 Krieber v. 2] using the person concession if the that (Mo.App.1967). 379[3] read, track was instruc- unable to written meaningless. tions would be Emerson had the instant case against a claim over 14 months assert to Danny Eagleburger ob- testified without April 11,1988, City. knew on Plain- jection not read. that Gene could August for that trial was set lawyer tiffs’ Gene Danny then asked what days Emerson waited until before trial instruc- would if he had seen an have done begin to objection file its motion for was to leave to tion Emerson’s manual. Over third-party petition against speculation, Dan- file the that the inquiry called obviously realizing ny gotten have some- City, waiting testified Gene would Danny to him. until then claim would not be one to read the instructions at issue the scheduled incident where he and Gene exactly on trial date. That is described an bought had someone matters some tools and Gene how turned out. Given cir these him. to read the about them cumstances we instructions find no abuse of discretion in the trial proceed court’s decision to dayA widow later in the Gene’s trial as scheduled on claim read. confirmed Gene was unable (cid:127) against point Emerson. sixth Emerson’s him had her read that Gene She recounted denied. tools, per- documents instructions about work, religious literature. taining to his seventh avers the trial Then, this: in permitting plaintiffs erred present “Q you, Gene the let me ask testimony concerning ... what Gene anyone given him if person have done kind if an instruction manual would ladder manual for this some instruction platform had been attached to the track Church, he’d have out there at the ... hoist. Emerson asserts Gene was illit- you to to him? brought home to read erate, consequently testimony as to what might sir, he it to speculative, inject- Yes, have he would first take done was A case, house, ed to him Danny’s a false issue it would be read into the and confused go through it jury. misled there and then bring it home. And and then he would Plaintiffs contended at trial that one of through any evening go we would respects in track was defec- which the guarantees anything that came with tive was the instructions how any anything. of their tools or use it to it or otherwise were affixed Q any your Is mind there doubt communicated to the user. that if been made avail- ... this had ever According executive Mono- Louisville’s he Eagleburger, able to that would Gene han, printed Louisville instruc- supplied him? have had it read platform tion manual hoist with each track brought A it home for He would telling user and lower the how to raise me to read.” methods, There track. each two objection registered no required that tied to the rope which be testimony. above top of the track person and that a on the rope roof use to control the track as it complaining party cannot A being raised and lowered. allegedly prejudiced by the admission of challenged if the evi Gene Brown testified there was no in- inadmissible evidence evi- part merely manual attached to of dence is cumulative to other struction 240

dence objection. performing work,” admitted without Drin prop- “failure to use ing Clinic, Inc., safety er equipment,” v. Missouri Bone vaguely & Joint other S.W.2d 293, evidence, transcript 730 described (Mo.App.1987). referenc- See 295[3] supplied. es duty are It is not the also: of an Dunn v. St. Louis-San Francisco appellate court to seine the record in Co., 245, (Mo. order Railway 621 S.W.2d 252[7] discover, possible, to if error the trial 1981), denied, 1145, banc cert. 454 U.S. court; duty it appellant is the of an 1007, (1982); S.Ct. L.Ed.2d 298 Stanz distinctly point alleged out the errors and Musick, (Mo. iale 268[9] where can be found in the record. 1963). Pahler, Schoenhals v. 272 S.W.2d testimony the instant case the (Mo.1954). 230[6] of Gene’s widow as to what he would have argument reply Emerson’s brief done had there instruction manual place makes reference to one in the tran- platform with the track hoist was received where, Emerson, script according it objection. without being so, That “specific made objection” to the trial cannot prejudiced claim it was by the testi court’s exclusion of the “alternative meth- mony Danny Eagleburger on the same ods” evidence. We have examined that subject. We therefore need not—and do passage; getting on the roof refers receipt not—decide whether Danny’s “by only means of a scaffold.” The evi- testimony objection over Emerson’s er “Eugene dence mentioned is Newman’s ror. point Emerson’s seventh is denied. deposition.” presented At trial Emerson eighth point is: excerpts deposition part from of its “The trial prohibiting court erred in presentation case. That consumed 33 presenting ... Emerson from evidence of deposition, pages transcript. of the alternative performing methods of however, filed us. Addi- has not been with work done decedent at the time of the identify any tionally, Emerson has failed to question accident in because such evi- portion deposition that the trial court permissible dence was to show that dece- Consequently, allegedly excluded. whatev- dent voluntarily and unreasonably ex- may er evidence Emerson wanted posed himself danger, to a known and present deposition regarding from “al- contributory fault is a defense a strict consigned specula- ternative methods” product liability action.”9 point presents eighth tion. Emerson’s nothing for review. Plaintiffs point presents assert that the nothing for review in that it does not iden- last) (and point Emerson’s ninth tify any specific evidence that was exclud- permitting the trial court erred in avers any particular ruling ed or of the trial Gene’s to elicit from excluding court point it. A relied on that stepson concerning he re guidance fails to identify challenged ruling Gene, Missouri ceived that under presents nothing Thummel, for review. stepson could not be a law the was not and 685; Albers, 570 S.W.2d at 740 S.W.2d at not claim dam party to the suit and could 662[1], ages for Emerson maintains Gene’s death. stepson’s testimony was irrelevant and gratuitously We have nonetheless scruti- prejudicial. argument portion nized the of Emerson’s identify rulings brief in stepson an effort had no Plaintiffs concede death, about which Emerson endeavors to com- but claim for Gene’s remind us plain. argument action, wrongful While the refers to evi- death in a evidence health, earning dence concerning age, capacity “alternative methods of and habits request gave appre- At point Emerson's nent “B" of Emerson's the trial in- second —and (2) danger, voluntarily struction 8 which ciated such [1978 tracked MAI 32.23 Revi- Gene danger, jury unreasonably exposed Instruction its sion]. 8 told the verdict himself to such (1) (3) jury directly directly must be for Emerson if the believed such conduct caused or danger damage Gene knew of the sus- as submitted in in- contributed to cause quoted compo- struction tained. our discussion of 7— prove decedent is admissible to the was thus made clear to the that the damages resulting nature and extent of the stepson had no claim for death. Gene’s from his death. Grothe v. St. Louis-San Emerson’s ninth is denied. Co., Railway Francisco Judgment affirmed. (Mo.1970); Morton v. Southwestern Telegraph Telephone Co., & 280 Mo. 36[9, (1920).

217 S.W. J., SHRUM, Emer M. 10] SOLBERT 835 — son holding testimony cites no case WASSERSTROM, Special Judge, concur. regarding subjects presented those can be HOGAN, C.J., concurs, and concurs in by only persons those entitled to sue for concurring PARRISH, opinion of J. the decedent’s death. PARRISH, J., lawyer, statement,

Plaintiffs’ in opening concurs and files concurring informed jurors opinion. stepchil- Gene’s standing dren had “no closing to sue.” In MAUS, J., dissenting dissents and files argument plaintiffs’ lawyer specifically opinion. persons seeking identified the five dam- ages: widow, children, Gene’s his three FLANIGAN, J., dissents, files his mother. Those five—alone—were dissenting opinion, and concurs in paragraph named in “First” of instruction dissenting opinion MAUS, J. 7, quoted earlier in our discussion of com- ponent “B” PREWITT, point. J., Emerson’s second It recused.

APPENDIX PARRISH, Judge, concurring. involving aluminum ladders as were sum- 54-A; (2) by plaintiffs’ marized Exhibit I concur in the majority opinion. In so sufficiency modification of however, doing, I following offer the obser- regarding (1) vations MAI 25.04 as to effect it had on the relating issue “prior occurrences” of given electrical accidents contributory fault instruction on be- defendant; (3) submission,

half of are accorded all adduced, objection, over defendant’s re- springing inferences from the reasonable garding decedent, the actions which the their evidence so viewed which aid theories took, Eagleburger, customarily Gene due Hicks, of submission. Wallander illiteracy, to his he had written mate- (Mo.App.1975). relating job. rials to his permitted presented Evidence more substantially to find that of Prior Occurrences Issue physical strength necessary to extend There was no issue this case as to the ladder, hoist, beyond 30 feet Eagleburger’s cause of death. The Gene plaintiffs’ expert suggested which as a limi- case, simplicity my of the facts in length tation on necessary than was opinion, showing unnecessary makes up men, extend the device to 30 feet. Two greater similarities between the occurrence according adduced, to the evidence could produced which Eagle- the death of Gene device, significant extend the with control burger prior and the occurrences evi- feet, it, 40-plus over for 30 not for the but dence by plain- which were summarized question device in could feet to which the tiffs’ Exhibit 54-A. extension, Beyond foot be raised. a 30 Eaglebur- The force that caused Gene unwieldy and difficult for device became ger’s death was electrical current which two men to handle. flowed from a line aluminum ladder, hoist, by or which had been sold ladder, potential unwieldiness defendant Emerson Electric Co. which hoist, my opinion, appropriate or anwas being Eagleburger was raised Gene upon jury could find that the basis which a with the Eagleburger assistance of Jack unreasonably dangerous, as device was (who was also killed the accident which sold, elec- to use around manufactured produced litigation) Eagle- and John reason, my For it is belief trical lines. burger. acknowledges Defendant that the that the fact will conduct that aluminum ladder, electricity through that flowed electricity proper in this case was issue hoist, dispute or caused death. The Gene’s plaintiffs’ that the admission Exhibit question parties is over the between proper 54-A was to demonstrate the dan- ladder, hoist, whether the or was an unrea- ladder, hoist, gerousness of a or which sonably dangerous product, not over length would extend to the of the one in Eagleburger whether Gene died as a result basis, question. I believe that the On of electrocution. plaintiffs’ 54-A into admission of Exhibit expert Plaintiffs’ witness contended that evidence not an was abuse ladder, hoist, or unreasonably dan- court’s discretion. gerous as and sold manufactured because (1) unwieldy it was reason that it of MAI 25.04 Modification permit was constructed so as to it to be height single raised to a of 44 feet as a plaintiffs’ modifica- I do not believe that unit; (2) length it exceeded the that the 25.04 had the effect of virtual- tion of MAI Safety National Electric Code recom- eliminating contributory the defense of ly mended for such in the devices utilized in this case. fault vicinity high voltage electrical conduc- verdict-director, Instruction tors; (3) insulating device had no mate- hypothesizing should after guard against rials or links to foreseeable alleged if the condition of recover defective currents; (4) conduction of electrical ladder, hoist, (the “directly product) or appropriate the device contained no warn- to cause the directly caused or contributed ings dangers produced by of the inherent on to Eagleburger,” death of went Gene high voltage its use near electrical conduc- plaintiffs are not say you “unless believe tors. The must in the evidence be viewed light reason of Instruction most to those theories of entitled recover favorable hypothesized Liability certain Defect funda- No. 8.” Instruction 8 Strict —Product Eagleburger As mentally prejudicial.’ conduct of Gene and told erroneous and if jury para- its verdict must be for Emerson majority opinion, noted in the jury directly “such conduct caused submitting believed graph of MAI 25.04 causation directly contributed to cause dam- reads as follows. age plaintiffs may sustained.” “Fourth, plaintiff damaged di- of such defective condition rect result

Reading together, the two instructions (describe product) as existed when my opinion, all the would have had to added.) (Emphasis was sold.” find in order to return for defen- a verdict Eagleburger’s dant was that Gene conduct (In- directing instruction Plaintiffs’ verdict directly directly caused or contributed to 7) paragraph to struction No. modified that any damage cause sustained. read as follows. “Fifth, exist- such defective condition as Illiteracy Regarding Effect of' Decedent’s product ed sold said Warnings Written Directions or directly directly defendant caused or contributed to cause the death The evidence adduced infers that Gene Eagleburger,”. (Emphasis add- Gene habit, Eagleburger had a due to his illitera ed.) taking relating cy, of written instructions job to his to his for her to read to him. wife The effect this modification must be apparently general This was a habit. considering the defendant’s sub- evaluated presented go any evidence did not direct Eagleburger’s mission of contrib- Gene in culpability issue related to this Gene’s patterned utory fault an instruction case, attempt but was used to to rebut upon MAI 32.23 Affirma- [1978 Revision] that, defendant’s assertion had there been Liability Li- tive Defenses—Product —Strict operating written instructions for the lad ability Contributory Fault. Instruction — der, hoist, those instructions would have No. 8 read as follows. of no use to Gene. Evidence of “hab “Your must for defendant Em- verdict be it” can be admissible. Hawkins v. Whit you if erson Electric Co. believe: 358, tenberg, (Mo.App. 363 First, used, product when the Gene 1979), citing other cases. The authorities Eagleburger danger as knew judge cited in con Hawkins afford a trial ap- in Instruction No. 7 and submitted regarding discretion siderable the admissi use, preciated danger of its and bility of such un evidence. It is also not that, if usual for courts determine erro Second, voluntarily Eagleburger Gene admitted, prej neously such evidence is not exposed unreasonably himself Hill, Id.; Hodges Mo.App. udicial. v. 175 danger, such (1913). case, 633 In this 161 S.W. Third, directly caused or such conduct was, my opin of this evidence in admission directly contributed to cause dam- ion, the sound discretion of the trial within age plaintiffs may sustained.” believe, judge. considering I further of Missouri “Under the substantive law record, if, instance, entire that even in this A, supra, contrib- and Section 402 while discretion, judge the trial abused his it did negligence recovery, utory does not bar prejudice jury. not defense contributory fault is an affirmative opinion. I majority concur in the liability.” to strict McGowne Chal- Bros., Inc., F.2d 662

lenge-Cook MAUS, Judge, dissenting. (8th Cir.1982) original.) in (emphasis position is that if the “The Restatement respectfully I I be- must dissent because the defect and is aware of user ‘discovers plaintiffs’ of MAI lieve the modification danger, proceeds Directing— the and nevertheless 25.04 Verdict [1978 Revision] unreasonably product contributory to make use of the volve the defense of fault it, injured by part he has remained a is barred from which of the law of Restatement, recovery.’ supra, product liability until the Tort Reform Act 402A, Restatement, p. contributory of 1987. The defense of 356. In 3 Law fault § Torts, First, to the defendant in was available this ac- this defense is § ” tion. ‘contributory referred to as fault.’ Dayton Keener v. Electric Manufactur MAI 25.04 and MAI 32.23 were drafted (Mo. ing Company, 445 S.W.2d properly prod- in submit that defense 1969). liability concept uct action. The of contrib- utory upon the fault is based fact Lippard Industries, Inc., v. Houdaille product known to the actor to be unreason- (Mo. 1986), 715 S.W.2d 491 banc held that ably dangerous inju- has contributed to an comparative upon negligence fault based ry. every upon In action an unrea- based did apply upon not to actions based sonably dangerous product, product liability doctrine of strict which was inju- will be involved or contribute to an But, adopted Lippard not Keener. does Yet, plain- ry resulting from its use. if a fault, contributory hold doctrine of voluntarily unreasonably exposes tiff distinguished comparative fault, danger exposure himself to such and that adopted set forth the Restatement and directly inju- causes or contributes to cause applicable Keener is not to such actions. ry, contributory recovery. In fault bars fact, Lippard holds: circumstances, plaintiff such will “Contrary Judge to what is said injured of such “as a direct result defec- dissent, Donnelly’s opinion does not added.) (Emphasis tive condition”. giving MAI 32.23 in eliminate the an appropriate Lippard, case.” at 493. of MAI 25.04 modification virtually the defense of eliminates contrib- viability contributory of the defense of utory prejudicial fault. The effect of the acknowledged fault was also in Barnes v. by the modification is established fact Gene Builders, Inc., Machinery Tools & Eagleburger experienced roofer (Mo. 1986). S.W.2d 518 The continued banc specifically warned of the recog- existence of defense also worry, replied line. He “not to he wouldn’t nized in the Tort Reform Act of 1987. He also be no where near those wires.” fault, “Contributory complete as a bar the Priest to cause the declined the offer of plaintiff’s recovery products liability in a power off. Instruction be turned Under claim, pure is abolished. The doctrine of 7 and Instruction No. could No. comparative apply products fault shall Eagleburger “knew of the dan- find Gene liability provided claims as in this sec- ger in 7 as submitted Instruction No. tion.” 537.765.1. § use, danger appreciated the of its and ... July voluntarily unreasonably exposed him- That act was effective danger, conduct self to such such ... plaintiffs’ sup- The modification is not directly directly caused or contributed to ported approved by v. Execu- Nesselrode death, yet find cause” his also the unrea- Inc., (Mo. 371 Beechcraft, tive 707 S.W.2d sonably dangerous ladder contributed to 1986). case, In the defendant banc that death and return a verdict for the escape sought manufacturer strict liabili- plaintiffs. modification de- by asserting negli- ty the mechanics were proper nied the defendant cqnsideration gent improperly installing unreasonably in contributory of the defense of fault. dangerous interchangeable parts. It was denying appro- erroneously that contention the court I ad- also believe the court concerning ex- priately made the statement mitted Plaintiffs’ Exhibit 54-A. This summary in- that read as follows. proximate cause. Nesselrode did not hibit was a

245 “C.P.S.C. STATISTICS SUMMARIZED INADVERTENT CONTACT BETWEEN AN ALUMINUM LADDER LINE, AND A POWER 1977-87: Injuries Deaths Total Victims ‘Death Certificate’ File 238 (M COOO ‘Accident 24 File r-1 OO^ ‘Reported File 86 Incidents’ CO LO^ t-H

^ <MCO majority opinion, As noted in the appraising “In relevancy Exhibit of similar 54-A prepared by expert Greene. He product cases, liability incidents courts print-out reviewed a of electrical accident required the other incidents to be reports from the Consumer Products Safe- ‘substantially similar’ to the case at bar. ty (C.P.S.C.) Commission which was de- See, e.g., v. Consolidated Rail Edwards rived from the sources indicated on Exhibit Corp., F.Supp. 1105-07 print-out, 54-A. From that extract- Greene (D.D.C.1983). similarity How substantial reports ed of incidents he found to involve part must is in a function of the contacting an aluminum ladder an electric proponent’s theory proof. danger ‘If line outside. Greene testified that Exhibit issue, ousness is high degree summary 54-A was a of those incidents. similarity will be essential. On the other legal background for consideration hand, if prove the accident is offered to of Exhibit 54-A is set forth in the excellent notice, similarity a lack of exact of condi majority opinion. article cited provided tions will not cause exclusion Evidence Corrigan, McCarter and Sim- the accident of a kind which should Non-Occurrences, ilar Occurrences and have served to warn the defendant.’ Jour, (Mar. of The Missouri Bar 126 Berger, Weinstein & Weinstein’s Evi 1990). A relevant federal case cited at 401-66-67.” Exum 401[10], dence § article is Hale v. Firestone Tire & Rubber Co., v. General Elec. F.2d Co., (8th Cir.1985). 756 F.2d 1322 In that (D.C.Cir.1987). 1162-1163 case, plaintiffs sought recovery upon the basis of a defective RH5° truck wheel A applied similar limitation has rim. objection per- “The district court over Platte-Clay actions. Pierce v. negligence appellees present mitted evidence of ac- Inc., Co-Op., (Mo. Elec. involving cidents explosive separation of case, 1989). plaintiff pred banc rims, RH5° with no restriction as to the recovery upon negli icated basis circumstances or the dates of the acci- gence maintaining in un of the defendant Hale, dents.” at 1332. This was held to guy agricultural in marked wires an field. following be error and the basic standard plaintiff The offered nine “trouble tickets” was enunciated. concerning farm machin contact between prior “Evidence of accidents is admissible ery guy wires that occurred within the only proponent if the of the evidence years prior question. four to the accident in that the shows accidents occurred under The trial admitted of those tick court two substantially circumstances similar supreme approved ets. The court Id. those at issue in the case at bar.” admission of those tickets. two recognized That in test state. of other accidents is “When evidence Inc., Lifts, McJunkins v. Windham Power danger, introduced to show notice (Mo.App.1989). 767 S.W.2d 95 Other cases similarity in the circumstances of the ac- dependent establish a more refined test completely symmetri- cidents need not be upon purpose for which the evidence is Evidence, p. used. cal. 200 McCormick § (3rd 1984). Martin, tricity regarded ed. See also Ba- cannot be in an issue Evidence, 10.04(3) p. sic this case. Problems § case, (6th 1988). ed. In this both product question The in was a hoist us- inci- trouble tickets introduced described ing heavy an aluminum track to raise loads accident dents similar to the Pierce projects roofing. such as It was obvi- machinery appel- where farm contacted ously designed a device and intended to be resulting support in guy lant’s wires by professionals hoisting used in materials Pierce, (Em- poles breaking.” at 774. appreciable heights. equally It is obvi- phasis added.) often, ous that if always, such a device not emphasized by

The the limitation longer must be than 15 feet. following observation. The issue this case is not whether attorneys’ questions strictly “The not an aluminum track will conduct elec- target to the of notice.” limited issue Id. tricity. acknowledged It is the hoist track only by circumstance of the manufactured do

The incidents defendant would so. Nor is the issue whether or not that reflected the statistics of Exhibit 54-A given hoist on occasion was that could considered as similar to involved be injury by electricity. an or death The issue circumstances of this case is the fact that posed is whether or not the hoist an “un- an aluminum ladder contacted wires danger”. important reasonable An consid- case, charged electricity. with In this determining eration in whether or not a hoisting equipment aluminum track for product unreasonably dangerous is the power contacted line. Witness Greene involving frequency severity injuries acknowledged this to be true. Greene bol- product. the use of that To be relevant meager stered these facts and his reliance upon this case statistics should be based upon by citing those statistics a section of profes- the use of a commercial hoist Safety National Electric Code. That sional workmen. prescribes section that uninsulated wires carrying electricity shall be least 15 feet plaintiffs’ The use of the number of vic ground. from the He assumed the con- comparable tims 54-A is shown Exhibit tacts referred to in Exhibit 54-A were be- attempted to the use of 570 incidents of a tween an uninsulated line 15 feet above given gun accidentally firing. model of ground ig- and an aluminum ladder. He Strum, Co., Ruger 864 F.2d Shields & possibilities nored other such as the fact (5th Cir.1989). approving rejec might uninsulated lines be maintained at a incidents, prove tion of such even feet, height of less than 15 or that an defect, alleged notice of an court ob might aluminum ladder used a house- apparently served: “The Shields believe temporarily holder to restore a downed that the district court should have allowed ignored line. He his admission own argue jury them to in those referring reports that in included in reports why gun that did state 54-A, fired, Exhibit “There was a few of those assume accidentally should drop lines.” involved the that the accident was caused the defect alleged plaintiffs. argument That by the only circumstance of the incidents clearly improper.” would have been reflected in 54-A common to the Exhibit Shields, question incident in is the fact that an arising prejudice aluminum ladder and the aluminum track from the electricity. generally clearly conduct of 54-A is demonstrated That ac- use Exhibit Co., knowledged import in to be true. That is the Hale v. Firestone Tire & Rubber Hale, supra. of Monohan in he In the contended it which - prior acknowledged gathered by proper present evidence of 210 the statistics they given Safety the Consumer Products Commission accidents involved a because rejecting In be relevant so far as electrocution model of a wheel rim. “[i]n contention, powerlines, yes”. succinctly of aluminum held the ladder and following. The fact that aluminum will conduct elec- happened. wouldn’t have admitting long the accident

“The district court erred separation statistics explosive of RH5° of the C.P.S.C. evidence all The combination shifting provid- to Firestone and accidents and standards for ladders and the ANSI showing dissimilarity- Budd the burden of argument the virtually unanswerable ed a after the evidence was admitted. length [Plain- 40 feet in hoist track aluminum of admit that the circumstances dangerous. tiffs] unreasonably differ; circum- only accidents similar in- uniformly been held has “It indicated in the record is the ex- stance issue is material on a competent evidence plosive separation rim. wheel Holmes v. prejudicial, presumed to be showing This is of similar- an insufficient Louis, 363 Ass’n St. Terminal R.R. Hale, ity.” at 1332. 927; 922, 1178, Schears 257 S.W.2d Mo. case, only similarity In this is the con- Company, Missouri Railroad Pacific tact of ladder an aluminum with 318, clearly Mo., 314, unless showing line. This is an insufficient otherwise, Zarisky v. Kan- to be shown similarity. Co., Mo.App. City sas Public Service persuasive use of the The made burden S.W.2d 54-A number of victims shown Exhibit respondent. showing so is on notice, product not to establish but that the Railroad Schears v. Missouri Pacific unreasonably dangerous. Counsel supra.” v. Mis- Company, Hamilton dire, used the number victims voir Co., 438 souri Petroleum Products opening statement and cross-examination. (Mo.1969). 197, 201 S.W.2d Greene, care, painstaking ex- Expert with incompetent 54-A was evidence Exhibit plained jury analyze one how should affirmatively a material issue. The record product danger- unreasonably whether a prejudicial to Emerson demonstrates it was prepared ous. He a chart to visualize and its admission constitutes reversible er- steps or factors involved ror. Cf. Hale v. Firestone Tire & Rubber you He said should first evaluation. Co., supra. As I would reverse and re- severity look at the of the hazard. Then he upon the case each of the above two mand testified, you “And then also consider the accepted rejected Em- points, I have not frequency of the occurrence”. Greene points. erson’s other used the statistics to establish and bolster FLANIGAN, dissenting. Judge, opinion unreasonably his the hoist dan- gerous. emphasized importance He respectfully I dissent and I concur permitted, those statistics when he was Judge Maus. dissenting opinion of objection, speculate over Emerson’s 2B, which rejecting In of such no more than half of the instances “Fifth” of Instruction paragraph attacks reported inadvertent contact were “Paragraph principal opinion says: C.P.S.C. parrot not ‘Fifth’ of Instruction 7 does prejudice to Emerson from the ad- princi- MAI 25.04.” The paragraph final mission of those statistics was enhanced claim says: also “Emerson’s pal opinion admission, objection, over of Plaintiffs’ pending, hence against City remains American Exhibit 82. Exhibit 82 was the in- scarcely deny this case Emerson can Institute, (ANSI) Inc. National Standards damage.” two or more causes volves portable metal lad- safety requirements for it, I holds principal opinion, as construe testified that one of those ders. Greene 7 is “Fifth” of Instruction paragraph single metal prescribed standards that a 19.01. by MAI authorized length. 30 feet in ladder should not exceed Inc., Industries, Fahy v. Dresser expressly declare are Those standards (Mo. 1987), our 637-638 banc hoisting equipment. applicable Supreme said: Court Nonetheless, concluded that Greene plaintiff to recover “In order for a This violated that standard. hoist track liability theory for an products under a emphasized when Greene standard was allegedly defective injury 30 feet caused if the hoist track had been said that original find the with a product, he must establish each of the will not be able to divining rod.” following: ed„ p. MAI 3rd XL. (1) product in the defendant sold the business; course of its party The fact that Emerson has a third petition pending against city has noth- (2) product then in a defective was ing inquiry. to do So far as this with unreasonably dangerous condition concerned, city riot a jury was use; put reasonably anticipated to a mentioning city party, no instruction (3) product in a was used manner given, no issue concern- and there was reasonably anticipated; ing presence negligence or lack of (4) damaged plaintiff was as a direct part city. of the result such condition as of defective agree 19.01 authori- I do not that MAI product existed when the was sold. ty paragraph “Fifth” of Instruction 7. MAI 3d also v. 25.04. See Nesselrode MAI 19.01 reads: Inc., Beechcraft, Executive 707 S.W.2d “19.01. Verdict Direct- [1986 Revision] (Mo. 1986); 375-76 banc Keener ing Multiple Causes of Modification— Co., Dayton Mfg. Elec. Damage added.) (Mo.1969).” (Emphasis involving In or more a case two causes (4) plaintiff requires proof Element language damage, the ‘direct result’ damaged of the directing as a direct result paragraph Third of verdict (4) product. required Element defective such as 17.01 and 17.02 instructions misleading. might MAI 25.04. be such cases plaintiff, option, may at his substitute ap- When MAI “contains an instruction following: one of the particular ap- plicable in a case which the Third, directly negligence such caused propriate party requests or the court de- directly to cause dam- contributed submit, shall cides to such instruction be age plaintiff. given to the exclusion of other on the Third, negligence directly either such 70.02(b). giving subject.” same Rule “The damage plaintiff or com- caused provi- of an instruction in violation of the (here bined with the describe [acts error, sions of this Rule shall constitute its damage)] causing another [condition prejudicial judicially effect deter- (here product)] to di- of the describe 70.02(c). mined.” Rule damage plaintiff.” rectly cause paragraph “Fifth” of In- The fact that added.) (Emphasis language departs from the struction paragraph “Third” in MAI 19.- The first swept and MAI 25.04 should not be Fahy “negligence.” The 01 contains the word comply- rug by under the the comment that in MAI 19.01 paragraph second “Third” parrot? ing those authorities is mere with “negligence.” Para- also uses the word ing. 7 does not. graph “Fifth” of Instruction Court, Supreme Moreover, city Report negligence In its 1963 if the wording purported the MAI committee said: reason for sec- paragraph “Fifth” of Instruction currently ac- “There are hundreds paragraph “Third” of MAI 19.01 re- ond ceptable language use instructions which which, description city quires a the other more to one side or favorable least, naming very require the If proposed instructions. coun- than the city. Instruction 7 does not do so. ‘improve’ ap- permitted sel are instructions, the con- in- proved even within liability issue before specific precedents, the value of decedent fines of volved the conduct product. will be lost. Each the condition of Emerson’s these instructions directly contributed ‘improvement’ by such one counsel will The words—“or “Fifth” of paragraph offsetting ‘improvement’ cause”—contained prompt an subject to the construe- the court Instruction 7 are opponent and after a while his injuries sus- tion that refer to the conduct of dece- stances under which the only knowledge dent. Indeed that is the that alu- reasonable tained. It common construction, electricity, and drafter of Instruction a fact minum is a conductor of 7 so intended. to the decedent. Exhibit also known proof only of that fact. Since obvious construed, paragraph In- So “Fifth” of no evidence that the accidents contained struction 7 reads: substantially under circumstances occurred “Fifth, exist- such defective condition as bar, at issue in similar to those the case product ed when the was sold said it was inadmissible. or, directly defendant caused combined Eagleburger, with the conduct of Gene I would reverse and remand.

directly contributed to cause the death Eagleburger”

of Gene

That construction served to weaken or given

neutralize Instruction 8 which was

behalf of Emerson and which followed MAI

32.23.

Instruction reads: EDWARDS, Terry Appellant, Lee “Instruction No. 8 Your verdict must be for defendant Em- you

erson Electric if Missouri, Co. believe: Respondent. STATE First, used, product Gene No. WD 42437. Eagleburger danger knew of the Appeals, Missouri Court ap- submitted Instruction No. 7 and District. Western use, preciated danger of its Second, Eagleburger voluntarily Gene July 1990. unreasonably exposed himself to Rehearing Transfer Motion for and/or danger, such Aug Supreme Denied Court Third, directly such conduct caused or

directly contributed to cause dam-

age plaintiffs may have sustained.”

Paragraph “Fifth” of Instruction was

calculated device to reduce the im- burden

posed upon plaintiffs by paragraph “Fifth”

of MAI 25.04 and to dilute Instruction 8.

It is no say answer to that Instruction 7

refers to Instruction 8. Such reference is requirement

an additional of MAI 25.04.

This court should not condone a clear and

deliberate of MAI 25.04. Instruc- violation deprived

tion 7 Emerson of a fair trial. prejudicial

The trial court error committed giving Instruction 7. agree

I also Judge with Maus Exhib- improperly

it 54-A was admitted.

foundation Exhibit 54-A was All

Exhibit 54. Exhibit 54 contained were

incidents, outdoors, happening involving

persons injured by reason of a contact be- an aluminum ladder

tween

line. Exhibit 54 did not contain the circum-

Case Details

Case Name: Eagleburger v. Emerson Electric Co.

Court Name: Missouri Court of Appeals

Date Published: Jun 29, 1990

Citation: 794 S.W.2d 210

Docket Number: 16042

Court Abbreviation: Mo. Ct. App.