Hoover's Dairy, Inc. v. Mid-America Dairymen, Inc./Special Products, Inc.

DAIRY, INC., Respondent, HOOVER’S DAIRYMEN,

MID-AMERICA PRODUCTS,

INC./SPECIAL

INC., Appellant, International, Inc., Appellant.

No. 66468.

Supreme Missouri, Court of

En Banc.

Nov.

keting co-operative 11,000 owned over dairymen in thirteen states organized produced market milk by member dair- ies. Through one of wholly its owned sub- sidiaries, SPI, equipment it sells used Joseph Sherman, A. Bangert, Jack T. SPI, dairymen.1 being months before Sam L. Colville and Murphy, John P. Kan- by respondent, contacted contracted with City, sas appellant. appellant Dairy Equipment International, Foust, Max W. Steven D. Steinhilber and (DEC) Inc. to act as a distributor for DEC’s Frickleton, James P. City, Kansas for re- milking automatic system. DEC manufac- spondent. system tures the under the trade name of portions Bou-Matic. The relevant of the WELLIVER, Judge. contract between provid- Mid-Amand DEC Respondent, Inc., Dairy, Hoover’s ed that Mid-Am would maintain an ade- brought against this action appellants, quate competent number of trained service- Dairy Equipment International Inc. and men necessary provide reasonably Mid-America Dairymen, Inc./Special prompt service, Prod- and efficient that Mid-Am ucts, Inc., to negligent recover for the in- would make to its available servicemen stallation of milking system equipment a re- which to do a system -analysis, that spondent purchased appel- from one of the Mid-Am systems would conduct a analysis Judgment lants. upon jury shortly was entered a before and after the installation of verdict in respondent. and, favor of The milking system court Bou-Matic immedi- appeals judgment ately affirmed the condi- after the installation of Bou-Matic tioned pumps, detachers, a remittitur. This or- vacuum pulsators Court transfer, dered and we decide the case as if claw assemblies and record the results of Const, V, original appeal. analysis by Mo. art. such on forms furnished DEC. § part part. agreed We affirm in and reverse DEC to make available a em-

ployee assisting in initial sales solicita- I provided: tion. The contract also Special Respondent employ Products shall Dairy, Hoover’s Inc. least one operated responsi- owned and individual whose full time by family. the Hoover bility many years, promote For shall be to and sell family has maintained DECO products dairy dairymen throughout farm in the ter- County. Cedar ritory. milking employee This shall receive train- approximately 130 cows. proce- sales farm DECO and service had a machine that would time, training dures milk four attend DECO’s cows at a and the milk required reasonably schools as to main- pass through glass lines. These products. glass tain his of DECO’s high sys- lines—referred to as a line positioned tem—were above cows. Re- suggests testimony at trial that Mr. spondent purchase decided to a more mod- predisposed purchasing Hoover was toward system ern that would milk ten cows at a equipment of Mr. DEC’s because systems time. The use lines newer steel experience. prior Hoover’s Mr. Hoover systems, line are low with the lines farm, that, operating his he testified while positioned below the cow. Creamery for had worked for Producers twenty years, later became Mid-Am. Appellant Dairymen, Mid-America Inc. (hereinafter “Mid-Am”) partnership operating referred to as is an He then went into a organization equip- supply that sells automatic a farm store which sold farm ment, systems. Appellant including milk line. Mid-Amis a mar- the Bou-Matic Some- parties stipulated pur- entity. 1. The that for treated as same lawsuit, pose of this Mid-Am and SPI can be installation, sold, charge of the while supply the farm store was tíme after Armstrong couple Schlemeyer claims that he went to work for DEC for day, Armstrong job. charge. Mr. Hoo- On the second years until he took another he remain on changing testified that while wanted to ver contacted someone about job had to leave the farm at 2:30 in he was told that SPI he milking systems and meeting for DEC in Wis- the Bou-Matic line as a deal- order to attend had taken on job. The He did not return to the ership. consin. 18th, and completed installation was on the Hoover was then contacted Chuck respondent began milking cows on the new manager Armstrong, the area zone evening. Schlemeyer per- system that DEC, Schlemeyer, and David a salesman recording upon comple- formed a decto Schlemeyer only recently had for Mid-Am. installation, of the which checked the tion by Mid-Am to act as the sales- been hired milking system. Two vacuum level Missouri for the Bou- man Southwest later he went back to the farm and weeks Schlemeyer experi- system. Matic lacked performed other tests but did not do a installing milking sys- selling ence in or analysis. Schlemeyer complete systems tems, training but had attended a session system analysis finally testified that a their conducted DEC. After first visit July he performed in June or but Schlemey- respondent, Armstrong with and system analysis the actual never filled out system prepared er a sketch of how the However, system analysis check form. milking respondent’s could be installed for performed that he did not include a test subsequent In visits to the Hoover barn. “stray voltage.” farm, Armstrong Schlemeyer and were ac- generally Only recently least occasion has it become companied on at one Heins, industry that there is a regional manager Mark sales known within the stray voltage when Although parties disagree potential problem over with DEC. Stray voltage installing milking system. the substance of some of the conversations Hoover, any in in- may independent Arm- error with Mr. either Heins or exist wiring system itself. strong Mr. Mid-Amwould stallation and told Hoover that milking barn system may confi- be install the but that DEC had Current barn, among poor wiring in the dence in Mid-Am. The discussions because of Hoover, product equip- of other Armstrong, Schlemeyer may and Heins current be a way into the farm that makes its respondent signing purchase resulted in ment on any grounded neutral 7,1978. price through agreement May on The total the barn $9,706.51 wholly separate from volt- charge system. This is included an $800 rather, milking system: age by the purchase agreement created installation. merely acts as a conduit respon- system appellant between Mid-Am and voltage stray through pre-existing which dent.2 cow, may in may pass dairy to the which Mid-Am Together, representatives from receive an electrical turn cause the cow to blueprint for in- and DEC drafted a final consequences of such electrical shock. The stalling milking system. The installa- nervous the cows become shocks is Along began May with tion give milking may all during time day of Armstrong, present on the first If milk remains a cow’s their milk. Schlemey- was Mid-Am’screw: installation infection udder, may lead to a bacterial employees, Bill Thomas er and two other called mastitis. Worthington. Neither Thomas nor and A1 that, after installa- Armstrong testified Worthington any prior experience had system analysis milking system, a sys- tion of of Bou-Matic installation would, among other Schlemeyer required Armstrong claims that tems. agreement contract. as a agreement purchase treated the order not 2. While the was a Mid-Am, parties signed by appellant things, stray voltage. January Mid-Am, test for alleging liability, negligence strict president of DEC sent a memo to express implied warranty. It also dealers; accompanying all the memo was punitive damages. seeks Before evi- pioneer one of the articles on the effects of heard, respondent dence was informed the stray voltage cows. This same court that it would submit the case on article was then included in DEC’S service theory negligence. Appellant Mid- noted, might however, manual. It against DEC, Am appellant, cross-claimed at the time of this installation neither the appellant against DEC cross-claimed Manual, Bou-Matic Instruction No. Exhibit appellant Mid-Am. The for re- found jury System Analysis nor the Bou-Matic. $234,443.00 spondent and awarded in actual Sheet, Cheek Exhibit No. referred to a $1,000,000.00 punitive dam- voltage. stray check for The new instruc- ages. against Fault was assessed as 40% tion manual and check sheet that became against appel- Mid-Am and 60% expressly pro- effective December against lant DEC. The found each stray voltage (Exhibits vided test appellant on appeal cross-claims. No 49-c, j). There testimony suggest- 49— jury’s was taken from the verdict on the system analysis that on the old form cross-claims. the results of the supposed test were to be recorded under the “Recommendations” II section. note We outset that there is no installation, Several weeks after allegation system or installation milking time increased and the cows be- Instead, respondent itself was defective. upon entering came nervous the barn. against appellant its case each submitted There was an increase in an infection negligence theory. on a its brief and producing organisms mastitis. Mastitis argument, respondent argued ap- oral farm, every dairy are but pellant accepted responsibility Mid-Am for respondent’s only farm about 1% installing system and that prior herd affected to installation of failing stray voltage appellant to test for system. Ten Bou-Matic months after negligent in the installation. In oral installation, about of the herd was 40% brief, argument respondent and its av- Respondent infected. contacted its veteri- alia, inter ers, appellant DEC is liable problem narian was unable to curb the who having given respondent for “assurances respondent sought and assistance else- that it would see that the installation was success.

where but without competently it correctly done and and that Re- participate in the installation.”3

In March Mr. Hoover read an arti- is spondent also contends that DEC liable stray voltage cle in one of the trade about responsibility having for undertaken the journals, possi- and the article indicated the employ- training supervising and Mid-Am stray voltage connection and ble between voltmeter, exercising care purchased He tested ees and then not reasonable mastitis. training. Only this stray voltage supervision between the steel lines in that and and grate theory and the where the cows stood and latter was submitted to positive reading. He then in- may obtained a bond- considered. Verdict director be system together against pro- ed in order to elimi- appellant No. 8 struction voltage. Respondent finally stray nate the vides: brought problem mastitis under with plaintiff must Your verdict control, losing seventy-six after but International, against defendant DEC slaughter.

cows to you Inc. if believe: International, First, defendant DEC

Respondent commenced action supervise undertook to train and against appellant appellant DEC and Inc. both theory bearing theory, on the might important but it has no This claim have been to es- tion jury. warranty representa- as submitted to the tablish under a

431 Dairymen, Inc./Special Mid-America the defendant conform to certain Products, proper protect Inc. installation standard of conduct others risks; (2) the system, against and unreasonable a breach of duty; (3) proximate cause between International,

Second, defendant DEC resulting injury; the conduct and and permitted system Inc. installation of the (4) person to the claimant’s voltage, stray without a test for Keeton, property. W. Prosser & W. Third, International, defendant DEC (1984). Prosser and Keeton On Torts § thereby negligent, Inc. was E.g., Virginia Corp., D. v. Medesco Inv. Fourth, negligence directly such either (Mo. 1983). banc damage plaintiff caused or combined duty duty may to exercise care be a “[T]he with acts defendant Mid-America imposed by common law under the circum Products, Dairymen, Inc./Special Inc. to given stances of a case.” Zuber Clark directly damage plaintiff. Co., son Construction against Instruction No. Mid-Am (Mo.1952). generally 57 Am.Jur.2d provides: (1971). Negligence 36-53 “Where the §§ plaintiff Your verdict must be for established, however, existence of a against Dairy- defendant Mid-America protect against every possi one to men, Products, Inc./Special you if Inc. might ble Irby occur.” v. St. believe: Louis Cab County S.W.2d First, Mid-America, defendant Rather, generally 394 (Mo.App.1977). it is Products, Inc./Special Inc. failed test reasonably measured “whether or not a a stray voltage, prudent person anticipated would have dan Second, Dairy- defendant Mid-America ger provided against it.” Scheibel men, Inc./Special Products, Inc. was Hillis, 1976). S.W.2d thereby negligent, and Louis, v. Archbishop See also Smith St. Third, directly such either S.W.2d damage caused or combined question The initial is whether with acts defendant DEC Interna- knowledge every an part of essential tional, Inc. directly damage to to negligence generally action. It is stated plaintiff. foreseeability injury might that some Appellants challenge do not the submis- complained normally from result the act of sion on of case a cause of action in tort paramount serves as the factor deter negligence. They argue for that the ver- mining duty. the existence of a e.g., directing dict instructions were deficient Horvath, 625, Lowrey v. 627 689 S.W.2d because the instructions did not submit 1985); Nash, Joyce v. 630 S.W.2d knowledge neg- as an element of actionable 219, deciding 222-23 When ligence. Appellant alleges DEC further foreseeable, reasonably if injury some that the use of the word “undertook” expressly implicitly, courts whether ex 8 misleading preju- instruction no. was amine what the actor knew or should have Appellants argue respon- dicial. also generally v. known. See Robertson Le- prove any proximate dent failed to cause Master, (W.Va.1983)(for 301 a S.E.2d 563 alleged negligence between the and the good concept “duty”). of the discussion of resulting punitive injury, that the issue of Clark, Engineering Corp. v. See also Otis not have been submitted (Tex.1983). 307 668 S.W.2d jury, inflamatory to the statements person a to care and duty of use [T]he closing during argument made negligence depend upon for liability his been that there should have remittitur acts the cir- tendency of his under damages. the actual or should are known cumstances as The foundation of negligence A action be known to him. claimant (1) knowledge liability negligence is legal duty part on the for must establish —or 432 loss;

what is in law risk upon deemed to be the same of the economic burden thing: opportunity by of the actor and the community the exercise rea- oth- —the Law, 1 acquire knowledge— sonable ers. diligence Dooley, to Modern Tort Liabili- ty Litigation & peril (Supp.1981); results in 3.03 subsequently which § Alameda, Thompson injury. County v. 27 of 70, 741, Cal.Rptr. Cal.3d 167 614 P.2d (1971). Negligence 57 Am.Jur.2d 54§ 728, (bank 1980); 732 Donohue v. [7-9] often, therefore, Quite knowledge is an ele- District, Copiague Free U. School 64 negligence ment that must be included in a 29, 874, [3, A.D.2d N.Y.S.2d 4] impose instruction in order the existence (1978). cases, duty.4 In of the claimed some how- to, Columbia, Hyde City ever, duty itself is said arise out denied, (Mo.App.1982), cert. Tribune relationship parties: between Pub. Hyde, Co. v. U.S. S.Ct. duty When the of a to use existence due (1983). 75 L.Ed.2d 467 Actual or per- care rests on a between relationship constructive in these situations sons, the simply has the actor placed law may necessary duty. not be establish anoth- obligation under benefit of person plaintiff given er cir- bar, duty at the case each —the —in Or, more simply, appellant respondent cumstances. law out owed to arose relationship has determined that “the interest con appellants’ created which has suffered invasion duct and from actual or construc [is] agreement legal protection knowledge. tive The between entitled to hands Prosser, respondent appellant Law served of the defendant.” Mid-Amand as (4th 1971). p. creating Torts 206 and ed. the “inducement the state of § § Thus, things which furnishes the occasion of the essential to recognizes Negligence relationship is a tort.” Am.Jur.2d law § (1971). induced duty Appellant Mid-Am was the basis of a care between the person injured. undertake installation of the inflictor of and the respondent. it sold to Once system Zuber Clarkson Construction services, [6, it undertook render 363 Mo. 7] (Mo.1952). obligated to reason judicial determination of Mid-Am was exercise performing care in the service. “The the existence of a rests sound able imposes obligation everyone a calculus law an public policy as derived from gratui them, anything, do even among attempts social con- who of factors: another, some de worthy tously, exercise sensus that the interest gree performance skill in foreseeability of harm care and protection; pro- he 57 Am.Jur.2d certainty that the what has undertaken.” degree and the (1971). W. Pros- person Negligence 45 See also injury; suffered moral tected § 56, Keeton, conduct; supra, 92-93. ser & W. society attaches to the §§ blame 323, (Second) Torts harm; consider- The Restatement prevention § the of future respondent, provides:5 spread ability to relied ation of cost and 749, he or she e.g., render services to another which Corp., Park 673 S.W.2d 4. See Fowler v. 1984); protection necessary recognize Reed Const. 753 Co., v. Hercules should 280, (Mo.App.1985); 282 Asher person. principle 693 S.W.2d of the law set of a third Inc., Center, S.W.2d Broadway-Valentine 691 v. upon to establish is relied forth this section 478, (Mo.App.1985); v. Colson 483 Ridenhour against liability appellant type DEC. the same 938, (Mo.App. Corp., 687 S.W.2d 946 Caster argued should be Appellant that it DEC has 433, Jacobs, 1985); 435 Hanten v. differently in which than the manner treated Co. (Mo.App.1984); John & Trust v. St. Bank v. professionals. Westerhold the law treats Cf. (Mo. 399, John, City St. S.W.2d 402-03 679 Carroll, (Mo.1967). has Nor ei- S.W.2d 73 219, Nash, App.1984); Joyce ( 222-23 v. appellant argued principle that law ther 1982). Mo.App. applies espoused § 323 and 324A §in bodily harm. results when impos- (Second) of Torts 324A § 5. Restatement party duty a similar on a who undertakes es Negligent suggests Performance of Un- some evidence it was not § dertaking to Render Services industry then standard of the to con- undertakes, voltage, stray duct tests for gratuitously appellant One who DEC or for consideration, apparently was one in the to render leaders services to an- along he field and recognize other which as nec- conceded with Dr. Rollins essary for Mid-Am that protection stray voltage the other’s a test for person things, or should have been subject Appellant conducted. for physical resulting dispute stay other harm DEC does not that it failed to from, job his failure to supervise completion exercise reasonable perform undertaking, installation, care to his if including systems anal- ysis. (a) consequence It is of no that DEC his failure to exercise such care might thought harm, that the test increases the risk such had been or performed. jury question It was a whether (b) the harm is suffered because of the reasonable required appellant care undertaking. other’s reliance upon the job DEC remain on the and whether the Therefore, if one renders services for the test should have been conducted. No error another, benefit of impose courts will occurred omitting an element of knowl- apart exercise care from the de edge in directing the two verdict instruc- fendant’s knowledge. constructive tions. e.g., 558, Sipes, 447 S.W.2d Stanturf v. (Mo.1969); Wolfmeyer v. Eleva Otis III tor, Co., (Mo.1953); Berry S.W.2d 18 v. Emery, Bird, Thayer Co., Dry appellant Goods This Court has examined 808, (1948); Mo. 211 S.W.2d 35 challenge Schubiner DEC’s additional to instruction Oppenheimer Inc., Industries, 675 no. and we do not find that use S.W.2d (Mo.App.1984); 76-77 ambiguous v. word preju Brown “undertook” was Michigan Inc., given Millers Mut. Ins. 665 dicial the facts A Co. case. neces (Mo.App.1983); S.W.2d 630 predicate sary establishing liability Volume Servic es, Inc., Inc. v. Associates, against C.F. Murphy appellant & that DEC un 656 S.W.2d 785 (Mo.App.1983); appellant employ Howell v. dertook to train Mid-Am Services, Inc., Welders Products supervise & 627 ees and installation of the milk S.W.2d 311 system. undisputed See also Cheek record Co., Inc., Williams-McWilliams just DEC did that. (5th Cir.1983); F.2d Dy General Corp.

namics v. SELB Manuf., 481 F.2d IV 1204, 1216(8th Cir.1973)(applying Missouri Next, appellants claim that there both law), denied, cert. 414 U.S. 94 S.Ct. was insufficient evidence to establish that (1974); 39 L.Ed.2d 116 & Circle Land voltage stray the failure test for result- Corp. Cattle v. Amoco Oil 232 Kan. respondent. Appellants ed in (1983). P.2d or con Actual arguments. First, allege present four cases, structive in these how voltage stray that no evidence shows ever, may important defining become barn on the date scope of the standard of care owed. Second, stray if installation. even volt-

Thus, under unique age present, they facts and claim a lack of voltage of establishing circumstances this case the element of that the evidence not necessary ap by was to create would have detected a voltmeter been pellants’ Third, they stray to exercise if reasonable care test. aver that even detectable, installing, supervising voltage when and present the in was no evi- and of, voltage stallation system. the The de dence establishes that the reached fourth, question dairy terminative factual even assum- was whether the cows. And appellants stray voltage exercised reached reasonable care the detectable that cows, supervision argue respondent appellants installation and While that thereof. the prove dairy failed to that the stray voltage the harm to source of the was not stray voltage. herd caused was the grounded stray and they voltage detected up to 2.8 volts. These tests measured It that when well-established voltage the between lines the steel and the considering presented whether a grate where the cows stood.6 Under these proof sufficient we must view the evidence circumstances, this is evidence from which light give plaintiff, most favorable jury voltage could stray infer that was plaintiff the benefit of all favorable present during and detectable installa- disregard inferences and defendant’s evi the milking system. tion of Evidence de- plaintiff. dence unless it is favorable subsequent rived from may examinations Mallinckrodt, Inc., Hannah v. See help preceding condition. establish 723, (Mo. 1982). “Deter S.W.2d banc Breeding Repair, v. e.g., Dodson Trailer substantiality proximity mination of and 1984). 679 S.W.2d relationship the causal between dependent particular injury upon Other facts were introduced from facts of each case and is seldom that one jury stray which the could conclude that Metzger decision controls another.” v. voltage present was and caused the in Schermesser, (Mo.App. 687 S.W.2d of expert crease mastitis. A number 1985). proximate may Proof of publications witnesses numerous indi from established either direct or circum stray voltage cated that could cause masti stantial evidence. See v. Fruin- Curtis cows, virtually undisput tis a fact Co., Mo. Constructing Colnon commonly The symptoms ed at trial.7 ob (1952); Messing stray voltage served as incidents to Judge Dolph Drug 322 Mo. & respondent’s dairy on farm observed within (Mo.1929); Washing S.W.2d 408 Harris Additionally, weeks after the installation. ton, was a increase mastitis there dramatic Respondent presented substan there shortly after the installation voltage stray that tial evidence had the problem after elimi a amelioration immediately instal been detected after the issue, nating stray voltage. The there then the the herd would not lation fore, question. properly jury appeals cor have occurred. court of that, anomalously, appel rectly observed V argument respondent that failed to lants’ argues Appellant also that Mid-Am voltage produce stray direct on evidence ordering a court in not new the trial erred consequence the date installation is the allegedly inflammatory certain trial after very omission respondent’s statements were made turns —the failure to conduct a test for during closing argument. Deter therefore, counsel voltage. Respondent, stray argu of final mining prejudicial effect fact, possible, if required to establish the a matter the discretion of Respon ment is within through circumstantial evidence. court, judg court’s trial and the trial expert wit respondent’s and one of dent not be con ment on that matter will disturbed trial had nesses at testified there was of discretion. when the unless an abuse ducted a test with a voltmeter voltage may respondent’s dairy perceptible allege stray cows was Appellants 6. that while lines between the steel could caused the mastitis. have been to cows and not have grate voltage no stray there was evidence that the current has Most information system through part of the reached the cows respon- installation been obtained since the the teat The circum- connected to of the cow. milking system. reading of the A litera- dent’s jury evidence was sufficient to allow stantial disputed point suggests that it is still a ture passed that the current cows. to infer necessary voltage to effect cow. the extent argument subject before an issue This was presented Appellants have this Court with an publication changed by and is not suggests appeared after the trial article one article. allegedly passed that the amount current

435 Co., v. Handshy care, Nolte 421 Petroleum to exercise is the antithesis of will- 198, (Mo.1967); Kerr, S.W.2d 202 v. ful or intentional Raming conduct. v. Pfeffer Railroad, 477, 268; 296 This Mo. Court 157 57 S.W. has Mo.App. examined issue and finds no Railway, abuse Bindbeutal v. 43 463. omission, of But an properly discretion. act or though as negligent, may characterized manifest such reckless the rights indifference to VI of others imply that law will that an appellants Both presented also have chal- injury resulting intentionally from it was lenges punitive to the award of damages. Co., inflicted. McNamara v. Transit Instruction no. 10 the jury allowed 486; 182 Mo. 81 S.W. 66 L.R.A. punitive award damages against ap- each Arms, 489,] Railroad v. Otto 91 U.S. [1 pellant if the found that conduct may 23 L.Ed. 374. Or there be separate submitted under the verdict di- negligence conscious tantamount to in- rectors, instructions no. 7 and “showed wrongdoing, per- tentional as where the complete indifference to or conscious dis- doing son act or failing to act must regard consequences for the to others.” conduct, and, be conscious his Respondent submitted this instruction as a though having no specific intent to in- 10.02, provides modification of MAI jure, conscious, be must his from .part relevant that jury may award surrounding circum- punitive damages if it that believes conditions, existing stances and that conduct in the verdict director instruction his naturally conduct will probably or complete “showed to or indifference con- Louisville, etc., result in injury. Rail- scious disregard for the safety others” Anchors, road 114 22 Co. v. Ala. So. added). (emphasis Respondent substituted 279, Am.St.Rep. 116. “consequences to “safety others” for Robberson, Sharp supra, (quot- v. at others,” a allowing material alteration re- ing Reel v. Consolidated Inv. S.W. covery absent “safety” threat to the (Mo.1921)). This recognized Court that is, personal others —that injury. Appel- punitive damages when are based argue lants that this was prej- substitution complete such indifference or conscious dis- udicially erroneous. They also claim that regard, then because instructions no. 7 and 8 did not duty failure to do an act which his it is any knowledge include requirement such a do, having knowing other to rea- requirement puni- had included son to of facts which lead know tive damage Appellants instruction. reasonable man to realize that the actor’s the additional claim that no evi- conduct not creates an unreasonable punitive dence warranted submission other, bodily risk of harm to the but also damages. degree high probability involves a recognized This has Court a case will substantial harm result to him. where is established Robberson, Sharp supra, (quot negligent may conduct further rise to Bresnahan, Nichols S.W.2d puni- so level reckless as to warrant (1948)). Robberson, tive damages. Sharp v. 1973), S.W.2d 394 this Court held principle expressed in Reel and proper puni- that under the circumstances Sharp parallels reaffirmed in found in damages tive could be awarded where lia- (Second) Torts, The Restatement § bility There, upon negligence. was based clear The comments to makes it § quoted approved Court the follow- actor reason must either know have ing language previous opinion: from a substantially or her act to know that his Perhaps Ordinarily likely physical to cause harm. such are recover- firing negligence, example able actions for because / classic an individual There, moving negligence, passenger mere into a train. omission rifle the to Assuming, deciding, actor either knows or has reason without that the modification to the instruction was there an know that is unreasonable risk law, in proper punitive damages under the passenger that be hit. generally a will See only if the case could be awarded Keeton, 9-10, supra, W. & Prosser W. at (1) jury could have that the found 212-14. leaving knew or had reason know that to job complet the was the before installation subsequent Sharp to Decisions posed high ed an unreasonable risk with a damages punitive have made it that clear probability injury that a substantial would negligence can in but be awarded action occur; (2) knew had and that Mid-Am or had rea when defendant knew or failing reason to know that to test for degree son that was a high to know there creating stray voltage it was an unreason probability action result that the would injury highly able risk that substantial was injury. e.g., See v. Jordan General probable. There is no evidence in the Corp., Dev. 675 S.W.2d Growth suggest could even that either record that v. (Mo.App.1984); Sayles, Smith or had to appellants knew reason (Mo.App.1982); Joyce S.W.2d v. negligent claimed acts know that their Nash, (Mo.App.1982); 630 S.W.2d highly an risk that was posed unreasonable Counter, Smith v. 575 S.W.2d to probable to result substantial (Mo.App.1978); v. Laclede Gas Stenson Nothing respondent. indicates that Co., stray or had reason to know that knew workmanship pose Poor that does not an by failing voltage in the barn and that danger safety others immediate prob to conduct the test and alleviate the awarding punitive justify dam does not lem, by failing job on the remain ages. Dev. Jordan v. General Growth voltage stray ulti supervise, that the Corp., supra, at v. Lac Stenson mately risk involv create an unreasonable Co., example, lede for the defendant Gas high degree of that sub ing probability fill excava negligent failing in an analogy The stantial harm would result. tion, punitive held that dam but court to a who fails to can be drawn mechanic there ages could not be awarded because Assuming on a that test brakes car. knew defendant was no evidence that the examination have been conduct reason to know that the excavation had ed, negligent is but not liable mechanic noth properly filled and then damages was not did unless it can be punitive for she or had reason it. Gas shown that he or knew about Stenson Laclede faulty brakes were to know that the supra, 316. In & Coun Sledge Town existed that thus a likelihood Centers, (Mo. substantial Inc., try Tire great fail and result in the brakes would brought App.1983), personal bodily is critical difference harm. Such the premised upon defend injury action in order establish between properly the rear ant’s failure lubricate liability reckless which would conduct bearings of in which axle the automobile punitive damage award. justify riding. The court held plaintiff was be improper punitive cases, ex In strict evidence that defendant cause there no requires the defend ample, MAI 10.04 wrongful prob his act was and would knew (a) dangerous condi must know the ant observed ably injury. court result tion, complete indif (b) thereby show knowl or constructive actual disregard ference to or conscious “[h]is occur if he was edge injury could safety of The difference between others. an element of defendant’s negligent was MAI additional 10.02 and 10.04 MAI knowing knowledge vio lat supply required duty. It does not element knowledge including necessary support of that ter. reason lation damage instruction damages.” directly punitive punitive Sledge v. Town & Inc., liability is that Centers, for strict supra, at 182. Country Tire submitted an element liabili to establish have entered a remittitur on ty. important It in such to note that damages. might only ap- It be noted that dangerous knowledge cases actual of the pellant properly preserved DEC this issue is generally required. e.g., condition See in trial post its motion. Firestone Love Deere & Company, 684 S.W.2d Redevelopment Crown Corp., Center (Mo.App.1985);Sparks v. Consolidated 1985), S.W.2d 99 abol- Court (Mo. Aluminum ished the doctrine remittitur. There was Utterman, App.1984); Racer v. argument no trial error. The on 396-97 knowl Actual jury was and by made to then DEC condition, edge dangerous just of the as rejected. the trial court and was knowledge faulty of the in the brakes Judgment for actual damages is affirmed example, above furnishes the element judgment punitive damages and is re- justifying punitive reckless conduct dam versed. age award. Respondent justify pu seeks damage appellant

nitive award because HIGGINS, C.J., MAUS, Special and Mid-Am knew its was in installation crew Judge, concur. experienced and because DEC DONNELLY, J., inexperienced separate knew that the crew and in concurs completion. job failed to remain until opinion filed. necessary

This is not the type of knowl BLACKMAR,JJ., and concur BILLINGS edge amounts ex that to reckless conduct part part opin- in in in separate and dissent pressed Sharp in and in MAI embodied or 10.02. Whether not that the ions filed. DEC knew inexperienced crew was when left the RENDLEN, J., opin- separate concurs in

job, and whether or not Mid-Am knew its BILLINGS, J., concurring part ion of in inexperienced crew was and in need of su dissenting part. in pervision by might have otherwise independent an claiming served as basis for ROBERTSON, J., be- participating not Rather, negligence but not recklessness. cause not a member of Court when comprise those issues evidence much of the was submitted. solely fight at trial and relate be to the respec tween DEC Mid-Amover their DONNELLY, Judge, concurring. tive cross-claims. suspect I that Article the Court violates Having decided no that there evi- I, the Constitution of Missouri 10 of § justifying puni- dence the submission aof when, event, dam- punitive it allows in damage instruction, tive not ad- we need ages thereby pro- due “circumvent[s] appellant’s dress claimed er- instructional delegating punitive cess functions rors.8 Grass, private litigants and civil courts.” VII Dam- The Penal Dimensions of Punitive (1985). Hastings L.Q. error, ages, 12 Const. their assignment On last Wheeler, appellants argue Case that the trial court also Constitutional highly Ordinarily negligence jury, probable in a that substantial action which it was deciding punitive when whether to dam- be- award result. This is the difference harm would ages, already must has been instructed that foreseeability and reckless tween defendant knew or should find punitive damages. Because conduct for duty certain facts in order to create known case reasonable care in this to exercise reasonable or con- exercise care. This actual appellants’ independent from arose knowledge part defend- on the structive allege knowledge, appellants constructive jury whether ant is assessed to determine properly instructed knowledge degree that it was of such a degree nec- or constructive of actual knew or that his defendant had reason to know awarding damages. essary punitive risk out created an her conduct unreasonable Reforming Damages, 69 Va.L. production Punitive Ap- tributable to of calves. (1983). Rev. pellants $48,- contend the amounts of $13,300.00 981.00 and were included I concur. the valuation of the animals and should repeated damage not be computa- BILLINGS, Judge, concurring part tion. dissenting part. presented From the evidence on the I principal opinion except as concur subject, apparent it is the value of each part declares a matter processing cows sold for as law the evidence was insufficient individually computed taking meat was punitive damage submit a instruction and production into the milk account animal’s reversing punitive damages. the award of prospective record and the value of view, my In there substantial evidence calves. Those higher pro- animals with from the finder conclude which fact could great- duction valued potential were at a negligent that the conduct of the defend- er amount than those which had shown ants rose to the of level reckless indiffer- production ability. Necessarily, lower ence. replacement acquired animal at the value I affirm judgment. would the stock, price, assuming comparable provide purchaser the with the future BLACKMAR, Judge, concurring part production milk and calf on the dissenting part. price animal’s was based. concur, except I I as to Part VIL believe Bio-Lab, Inc., In Snyder v. 94 Misc.2d damages that the award of is not actual (N.Y.Sup.Ct.1978), 405 N.Y.S.2d 596 supported by the of evidence to the extent damages the loss of milk- recoverable for $92,212. Appeals correctly of Court was examined. The ob- cows court analyzed problem, following por- the the as served: Judge opinion tions of Clark’s demonstrate: personal property generally, “As with damages sus- proof Hoover’s of actual to, damages the measure of and the which awarded tained verdict of, the or destruction an animal is chal- the full claimed are Hoover amount compensate amount which the will lenged grounds duplication and un- of owner for the loss and thus return catego- certainty proof particular of him, monetarily, he was to the status Appellants’ points ries. have merit and * * * example, For before the loss. the dam- necessitate reduction of actual received the mar- when an owner has $92,212.00. age to the extent of award animal, an he ket value of will computation primary issue compensated use he been of damages of commences with an item might of the animal for have made loss, undisputed dairy value of cows * * * Also, the breeding purposes'. unproductive by rendered mastitis is an item produce loss of an animal of slaughter. Taking sold for into account determining market of consideration future potential these animals for separate value, than a item rather calves, production of milk and value pp. at Bio-Lab Snyder damages.” $117,641.00. cows was calculated 597-598. slaughter these Proceeds from the Here, Hoover for the compensation to $46,497.00leaving a amounted to animals method the 76 under a $70,479.00. value of cows Appellants do not net loss productive into which took account computation proof. contest this re- claimed, however, as cows loss of worth of the animals also Hoover position which ob- $48,981.00 cows, being plaintiff stores to the on the same The award the loss. production for tained before value of their milk milk calf damages on future succeeding period of 305 based next lactation animals is a from same $13,300.00 production at- days. Also claimed was duplication mortgage, owed, of that value and cannot the balance the interest and, paid primary importance, no evi- sustained. pellants contend there which to award claimed as interest point was, and no other detail unsupported by the evidence. There work load and sustained, claim, labor productive animals had to be used]. amount of immediately assert claim. of entitled Finally, [The Hoover also claimed as one-half of the ^[******] ****** as payment comparable replacements expense no Appellants challenge fact, court held that the presented. proof as to recover losses occasioned be- $11,862.00 one-half of little evidence to sustain this available and attributable being damages of extra amount, expense plaintiff $24,000.00 confirmatory incurred as added the extent of the time. made not help no younger, damages to allowance $5,981.00, amount incurred be- proven, ap- Appellants basis employed increased a farm of the less is ment Firestone v. Crown Center principal the portion the evidence or suffer of device, dated award for The 1985).1 pointed out to the trial court. sued award. one of There Because there bers was actually dence that guished correction is legal error, trial claim error. The defendants were Court short, plaintiff jointly, Corp., obliging explore of the Firestone It makes no difference that opinion level, is legal sustained from the Hoover of obligated defendants and the error was Appeals 693 S.W.2d 99 of damages not cannot stand. the now holds that his method the a personal injuries. dealt error in the available, by corporation verdict legal portion plaintiff means did not used properly preserved with newa loss. not error, mortgage of an of the supported by remittitur, family prove to remit the $234,443 Redevelop- Because trial. The correction. the Court remittitur reason of monetary properly unliqui- it had distin- mem- note. The at The exception debt. to this item is well holding certainly was not intended to have taken. the effect in the principal attributed it opinion abolishing legal The the rules allowing ostensible basis for the —that developed years over charge interest an the as measure damage as element of thereby damages, leaving damage the originated by with the retention Hoover entirely jury. damage to the When heifers, award explained above, of 40 as to fill business, furthermore, property is to complement herd when his traditionally the courts demanded a have 76 mature cows unavailable to be precise required is more calculation than purchased. According plaintiff, had personal injury cases. not been for the loss of cows original herd, these 40 heifers would actual claimed were set out generating sold been cash reduce plaintiff in discrete items. The mortgage obligation a and avoid interest everything plaintiff asked. awarded payments on debt. circumstances, simply I these would Under may be, analysis judgment fig- Tenuous as this reduce the the maximum by excluding an supported by claim was not includable as item evidence ure Dairy, damage improperly included items. duplicative recoverable Hoover ($142,231.00 computed by the proof Inc. was no as to Court because there 78.10, obliged appeal and so the 1. I was to recuse in I do not under Rule abolition Firestone. remittitur, essentially agree rule- an exercise of the with abolition of as de- remittitur making power, necessary to rather than the decision of creed in that case. decide It was not hand, holding operates point particular de- case. to rule the case be- majority prive courts of traditional useful device cause the entitled to reinstatement of her verdict in her found that the saving expense of retrial. no reason to burden Appeals.) There parties trial on

courts with new damages,

the amount of when it can be improp- legally

said as a matter law that

er items were included in the verdict.2 portion agree judgment

I

asserting punitive damages re- must be I also reverse

versed. would the award damages and remand with would judgment plain- to enter

directions $142,281. If the

tiff amount opinion

majority is of the reduc- prohibited remit-

tion constitute

titur, the remand should be a new trial damages only.

on the issue of actual Missouri, Respondent,

STATE FOSTER,

Emitt John a/k/a Lee, Appellant.

No. 66663. Missouri,

Supreme Court of

En Banc.

Nov. 1985.

Rehearing Denied Dec. 2. The case would be more difficult factor, suffering rather as a than if the the error claimed, Co. Grain new Hart-Bartlett-Sturtevant amount trial. had not awarded entire Cf. (Mo. Insurance v. Aetna it not be determined whether because could 1956). problem of not deal with a Firestone did legally had been included in erroneous items then, mechanically not be judgment, should kind verdict. The could applied which the Court plaintiffs be in situations consent. I reduced without case not have occasion option of decided that did lieve that the consenting consider. sufficient to exclude to a reduction

Case Details

Case Name: Hoover's Dairy, Inc. v. Mid-America Dairymen, Inc./Special Products, Inc.

Court Name: Supreme Court of Missouri

Date Published: Nov 21, 1985

Citation: 700 S.W.2d 426

Docket Number: 66468

Court Abbreviation: Mo.