*1 and, compound offense conviction on the jeopardy protections,
because of double charge. either
precludes a retrial on holds, correctly fol- and Watson
Adams lows, acquit jury’s power to that the —for reason at all—can- reason or no
whatever by refusing to ac- simply
not be thwarted acquittal, tendered
cept a verdict of form, it “doesn’t make
proper whenever
sense.” Cline, teachings Lashley, Col- Watson,
lins, and Staten seem Adams the si- compared to compelling
me when supporting the precedent of relevant
lence Moreover, these cases position.
majority’s honoring the virtue of
have the additional under which
constitutional restraints appears grow restless
majority discomfort, however, an in-
chafe. Our limita- casting off the
sufficient basis organic docu- imposed by the state’s
tions all, are, of law. after a court
ment. We
Or so we claim.
VI. above, I be- the reasons discussed
For state and that the trial court violated
lieve protections by re- jeopardy
federal double verdict of ac-
jecting jury’s unanimous
quittal. I reverse the convictions would discharged. the defendant
and order CITY, Municipal A
KANSAS Appellant-
Corporation,
Respondent, CORPORATION, Respondent-
KEENE
Appellant.
No. 75332. Missouri,
Supreme Court
En Banc.
May 1993.
Rehearing 1993. Denied June *5 damage was reduced
pensatory award City in a settle- paid to Kansas the amount against claim the Johns- ment of a similar bankruptcy fund. Corporation Manville cross-appealed. City Kansas opinion by the Missouri Court of Following District, this Court Appeals, Western judg- granted transfer. Rule 83.03. ment is affirmed. A, buildings B and were terminal C
KCI 1969 and 1972. constructed between upper levels. The lev- structures have two passenger The lower el is for services. level, level, apron referred to as the is used baggage han- for airline maintenance and ceiling apron of the dling. The level Eckstrom, Runyan, C. Alan David C. poured metal with con- corrugated made of SC, McClain, Hampton, Kenneth B. Steven it, as the floor of crete above which serves Callahan, Independence, P. and Nordahl passenger ceiling level. Beneath this Ward, City, Holte and Richard Kansas for support. are steel beams for Keene or its appellant. subsidiary manufactured and sold a sub- Wood, Kraft, C. Brooks Kristine K. Kan- Pyrospray, stance called an asbestos-con- City; Philip Vogler, sas Philadelphia, W. material, fireproof ap- taining which was PA; Brown, Spencer Carey; J. Keith A. plied ceiling and the beams Drill, Carley; Elizabeth M. Leland H. apron Following a determination in level. Jr., Altergratt, City, John H. Kansas *6 asbestos-containing 1985 that all material respondent. removed, should this action was com- be Fresno, Wright, E. Robert CA and Ste- tried, only menced. When the case was L. Wright, ven Missouri School Boards remained, Keene and an- two defendants Ass’n, Columbia, curiae, for amicus Nat’l party. other Keene defendant was the sole Class, School Asbestos et al. against whom a verdict was returned. Douglas King, Thomas C. Walsh and W. Louis, curiae,
St.
for amicus
W.R. Grace &
I.
Co.
appeal
Keene’s first claim on
is that the
failing
trial court erred in
a
direct
ver-
PER CURIAM.
undisputed
dict
its favor because the
appeal1
This is the second
from a suit
evidence
the statute of limitations
shows
City
City, Missouri,
filed
of Kansas
expired
plaintiff’s
claims
based on
against
Corporation
and others.
liability,
strict
fraud and breach of warran-
city
damages arising
claims
out of a
12,
ty
August
this action was filed on
when
fireproofing spray containing
asbestos
precise
1986. These
issues were addressed
used in the
construction of the Kansas
appeal
in the
earlier
this ease.
City
(KCI).
Airport
International
A verdict
punitive damages
for actual and
was re-
In
trial
Grace the
court had entered sum-
against
turned
Keene. The trial court en- mary judgment in favor of Keene and other
judgment
tered
for the
on the
award
defendants based on the statutes of limita-
judgment
actual
but entered
not-
appeals
tion. The court of
reviewed
withstanding the verdict in
of Keene
gen-
favor
record and determined that there were
punitive damages
on the
com-
award. The
uine issues of fact as to when the statutes
appeal
City
1. The first
is Kansas
v. W.R. Grace &
herein as Grace.
Co.,
(Mo.App.1989),
264
referred to
the claims
minimum
limitation on
for strict liabili- below the
detectable level inside
ty,
warranty
exposure
fraud and breach оf
had be-
the terminals. Potential
to em-
gun
summary judgment
ployees
pose
to run. The
did not
an immediate hazard.
reversed and the
remanded to
report
cause
the The
cautioned that asbestos should
proceedings.
trial court for further
replaced
technically
be
“where
feasible.”
addition,
reviewing
In
In
summary judgment
a trial court’s denial of
both the
judgment notwithstanding
a
jury
motion for
court and the
had before them the
verdict,
light
the evidence is examined in a
testimony
manager
of the Environ-
party against
most favorable to the
whom mental Hazard Section of the
City
Kansas
judgment
sought.
Burnett v.
Department
Public Health
that he believed
Grif
780,
(Mo.
fith,
1989).
769 S.W.2d
banc
asbestos-containing products posed a seri-
reviewing ruling
on a motion for sum
problem
building
ous health
occupants,
mary judgment, the
record is viewed
and he advocated the removal of all asbes-
light
party against
most favorable to the
buildings.
tos from the
The record also
judgment
whom the
is rendered.
ITT
samplings began
reflects that air
in the
Corp.
Commercial Finance
v. Mid-Amer mid-1970’s at the instance of OSHA after
Supply Corp.,
ica Marine
sistant to air testimony of Dr. Michael Pierce ted the application, of the determined to be a that showed Keene along with memoranda promise performance of future Grace. during surreptitiously tamped Pyrospray warranty A cause of action of for breach pass the tests. fire tests in order to U.L. performance for future accrues when incompetent the evidence was Keene claims is or should have been discovered. breach pеrsonal knowledge Pierce lacked because 400.2-725(2). Thus, genuine there awas § the facts and Pierce’s assertions of because representa- of issue fact as to whether an admission of Keene. The rec- were not safety tion of the of the asbestos however, ord, per- shows that Pierce had prior capable of ascertainment to 1981. knowledge of sonal of the facts as director at 272. engi- vice-president later as research and argues that Pierce’s prevail neering. on its statutes of limita Keene also To here, tion claim Keene must establish a cheating testing memoranda about on U.L. change in the evidence from that before the were not an admission of Keene. Never- appeals court of This has Grace. Court theless, interest made against admissions lengthy transcript examined the and Keene by employee against are admissible Corporation’s appeal. fail brief on We employer if the are made in the admissions any significant find difference the evi scope employee’s of the duties and the em dence here and that considered the court capacity. ployee has some executive War appeals in Grace. Because Grace estab Center, Campus v. Shopping renton Inc. case, may lishes the law the it not be Adolphus, (Mo.App. disturbed. 1990). disputed that Pierce had an It is not reaching conclusion, this this Court is capacity. vice-president As executive upon not called to decide whether Grace commenting product test engineering, properly essentially decided. Under ing scope of his duties. is well within consideration, the same facts now under appeals the court of held that the date of Keene claims the evidence was plaintiffs’ disputed accrual of claims was a immaterial, that it lacked irrelevant and must, Accepting, fact. as we that decision unfairly prejudi probative value and was case, as the ques- law the factual given deference is a deci cial. Substantial necessarily tions were left in the hands of court as the admissibili sion of the trial jury. evidence, ty of which will not be disturbed аbsent an abuse of discretion. Oldaker argues Keene further this (Mo. Peters, 817 S.W.2d banc requirement Court should reconsider the 1991). relevancy is whether The test that the statutes Grace of limitation prove disprove a an offered fact tends to running commence when there is actual *8 evi- fact in issue or corroborates other fiber release. addition to the law of the Here, above, trial court found the evi- principles case dence. enunciated Keene jury submitted its defense to the fraudulent intent under dence relevant to show instructions consistent with the Grace deci a neces- and to show whether asbestos was any sion. No effort was made to offer sary part product. According of the to a theory instruction consistent with the now prepared by document Pierce at time Having advanced. failed to raise its alter test, doing primary its “the dif- U.L. was court, theory native before the trial ference between an asbestos and an asbes- preserved issue is not for review. product tampability.” tos-free is their As elsewhere, put “al-
Pierce it asbеstos II. gain approval to to lows us cheat” order fireproofing. The trial of the as next Keene asserts that the trial admitting court did not discretion in admitting abuse court erred evidence of Under (U.L.) testing writers fire Laboratories’ this evidence.
III. IV. urges that fraud was im Keene, According to the trial court properly submitted in No. Instruction by failing erred to direct a verdict for representations because the claimed were plaintiff Keene on the fraud claim because beyond scope pleadings. of the In following failed to show the essential ele following repre stated the struction No. 13 reliance, falsity, ments of the claim: intent sentations: however, Reliance, and causation. Pyrospray was “unaffected vibra- by testimony project manager shown expansion tion or and contraction of base upon Walter Giese that he had relied bro material;” and approving prod chures from Keene in fireproofing applications “In most does uct installation. require tamping;” not and falsity representation Pyrospray “Resistance to Air Erosion-— also shown. Keene stated in its brochure: erosion, fireproofing effective resists dusting, flaking high velocity due to air light weight monolithic blanket of movement,” and fiber, ex- is unaffected vibration or pansion “Safety Versatility Pyrospray and material. and contraction base — permits ceiling Fireproofing unrestricted design partitions. and location of Re- Laboratory prove Pyrospray ... tests modeling accomplished can be without erosion, Fireproofing effectively resists fireproofing, damage or removal of the velocity dusting flaking high or due to safety always of the structure is and air movement.... assured.” allegations the third amend-
Plaintiffs Remodeling petition following: ... of area can be accom- ed included the damage plished without or removal of to That in the course of their efforts fireproofing, safety Plaintiff, and of the struc- including persuade public, always ture is assured. purchase products, Defendant their or caused to be Manufacturers made ample There was evidence that the sub- promises representations that made and stancе did not meet these standards and safe, products suitable for their were representations was unsafe. These were use, tested, easy to maintain. fully false, knowledge upon, relied done with the representations promises and Said Pierce, damage when the caused agents by its plaintiff made to required replace Pyrospray through their advertise- Defendants material. ments, publications, brochures and trade overwhelming, While not some evidence including published in Sweet’s brochures offered at trial. of intent causation was upon by Plaintiff Catalogue and relied reports Intent was shown from numerous selecting Defendant agents and its when prior to indicat- Keene received which Products. Manufacturer’s applying ed that workers the material were
exposed prod- and that the representations made ... Defendants atmosphere uct could be released into the through ar- through literature sales during remodeling or renovation. Keene’s that their publications trade chitectural laboratory favorably plain- tests viewed tested, they fully products had been *9 regarding Pyros- tiff were inconclusive safe, for they that were suitable dusting vibration, pray’s resistance to from buildings, they that would public use in expansion, construction or air movement. building normally life of the last for the - Viewing light all this evidence in a most very that little or no maintenance verdict, favorable to the the trial court did required keep to the asbestos would be refusing in direct a verdict for in The Air- products not err in suitable condition port Buildings. Keene on the fraud claim. evidence, only significant light
The in a most difference between That considered issue, plaintiffs peti- jury’s Instruction No. 13 and the to the verdict on the favorable supports tion is that Instruction No. 13 includes di- a conclusion that the notice was quotes rect from Keene’s The brochures. sufficient to make Keene aware pleadings instructions and the are substan- must be materials were “troublesome and tially prejudiced the same. Keene not watched.”
by any dissimilarities inasmuch as the bro- properly
chure was admitted in evidence. VI. Verdict-directing Instructions V. claim, warranty No. of breach argues Keene that for the reasons stated claim, by No. thе fraud are attacked III, prove point plaintiff under failed to mul Keene the basis that each contains warranty the essential elements of the by the con tiple representations connected claim, and for the reasons stated under junction argues Keene that such is “and.” IV, point beyond scope the claim was 1.02, prohibited by MAI 4th which forbids the issues and irrelevant. These claims fail multiple in “submitting dual or theories” for the reasons set forth above under argument overlooks conjunctive. points III and IV. the committee comment to MAI 4th 1.02. addition, argues plaintiff points In Keene It out that “some instructions will must be give failed to notice of the breach under still have several elements which 400.2-607(3)(a), buyer, conjunctive, in these will requires which submitted but § support single theory “within a reasonable time after he discov be in of a recov any (Emphasis original.) ers or should ery have discovered breach or defense.” warranty] notify single theory the seller of Here the of breach of war [of [the] by repre any remedy.” ranty supported breach or be barred from a series of purрose requirement pro single dis this is to sentations found brochure opportunity by vide the seller The same is true of the with to cor tributed Keene. defects, any previously rect not prepare litigation, single theory of fraud. As ed, evidence, prevent stale and there claims. the brochure was prohibiting was no violation of the rule contemplated by The notice conjunctive theories of recov submission require any particular U.C.C. does not for ery. mality or detail as to the nature of the buyer’s complaint. “The content of VII. merely notification need be sufficient let argues “by the seller the fraud know that the transaction is still troublesome and must claim should not have submit be watched.” silence” been (U.L.A.) (1989). U.C.C. 2-607 Comment 4 there was no evidence to estab ted because § addition, (1) (2) buyer pur duty under a lish an omission to induce seller, (3) (4) notify of material facts not within the immediate not the man chase Mills, plaintiff. reach of As Ragland ufacturer. Inc. v. fair and reasonable General (Mo. noted, Corp., previously there was evidence that Motors potential dangers App.1989). The rеcord here reflects that Keene was informed of representative applying the materi Keene’s sales was notified of asbestos to workers Much of early City early as as 1972 the Kansas Natu al as as 1969. that informa Company, ral which sold the tion was the of studies tests Slate organization the trade and installed the materials commissioned KCI, manufacturers and problems developed sprayed with the mineral fiber However, Pyrospray sticking public domain. not the beams. Also was not pass any of that information representative City of Kansas Keene did not advertising along Natural made to its customers its Slate was aware OSHA by placing warnings on the officials had become concerned over the brochure or *10 asbestos-containing packaging purpose the material. The use of materials. brochure the sale of the unreasonable risk of harm from the was induce release Pyrospray. light of the toxic asbestos fibers. 778 Viewed in a most favor- S.W.2d at verdict, in 268. The issue Grace was directed to able to the there was sufficient question of when the statute of limita- evidence to indicate the hazards of the run, begins product tion not the elements of were not within the fair and rea- plaintiff. plaintiffs’ liability. cause of action for strict sonable reach of different, argu- the issue
Because VIII. ment that controls the Grace elements of the cause of action must fail. Instruction eighth point Keene’s asserts that 10 and 11 were unmodified MAI in- Nos. 14, Instruction Nos. 13 and the fraud ver properly structions and submitted strict lia- instructions, dict-directing hypoth failed to Owens-Illinois, Inc., bility. See Elmore v. plaintiffs ordinary that in esize used care 434, (Mo. 1984). 437-38 banc relying representations. on the These preserved objection claims were not Objec
trial nor in the motion new trial. for XI. tions to instructions will not be considered regard In to the failure to warn appeal. when raised for the first time on claim, argues Keene that the trial court Rule 78.07. failing erred to direct a verdict for plaintiff argued Pyrospray Keene because
IX. safely, could not be used even with the 1979, city settled a lawsuit warning sought. failure claim The to warn against general contractor and the de аnd the defective claim can both be sign engineer airport for deficiencies support made if there is evidence to each buildings. city agreement executed an theory theory requires and if neither August 7, which released not proof of facts would neces state that parties suppliers all lawsuit but necessary sarily disprove a state of facts liability present from for and future liabili theory. the other Lewis v. Envirotech ties for claims asserted lawsuit. Corp., (Mo.App.1984). None of those claims included asbestos con Here, jury plaintiff find that could argues tamination. Keene now the releas if a would not have installed es complete should be a defense to this proper warning given concerning the was action. regarding The same issue release jury could also find health hazard. The Grace, presented in and the court of danger unreasonably Pyrospray appeals determined the release did not reasonably ous when used in a manner relating future bar claims to asbestos con failing anticipated. The did not err court tamination. Under the law of the case the claim to direct a verdict for Keene on doctrine, binding that decision is here. of failure to warn.
X. XII. argues Keene that the verdict-di it was enti argues recting liability instructions on strict for liabil tled to a directed verdict on the strict warn, faulty design and failure to Instruc ity prove failed to claims because the tion hypothesize Nos. 10 and fail to (1) unreasonably dan Pyrospray actual fiber release and risk unreasonable (2) property” gerous, damage to “other of harm. Keene claims those events were (3) Pyrospray, from causation of dam plaintiffs’ critical to cause of action under First, Hy- ages Pyrospray. from Grace. gienetics Report indicated extensive fire level, precise holding proofing damage apron that a with of Grace was pieces fireproofing many cause of action asbestos contamination small of fallen Second, upon plaintiffs apron accrues the release of toxic areas of the level. asbestos together experts fibers into the environment with called testified that who ability separat- to ascertain a sprayed fireproofing substantial and material was *11 por- in the downstairs Pyrospray stacked of all three ing from the beams walls during construction. area, terminals tion of the buildings. In at least one terminal upstairs in the used product Another was hanging the was from the beams material During the con- level. passenger the service fallen to the floor. One of and had struction, representative option by Keene sent experts that the testified material when fireproofing the of the asbestos. look at time was removal apron level. fallen off on the an immediate threat some of it had This condition created samples product the the of fibers and indicated Some of of release asbestos apron the level for by Keene from earlier release of the asbestos fibers. taken the Keene denied that light analysis. While Viewed in a most favorable apron was defec- verdict, product unreason used on the level this situation created an tive, product the dangerous suggested The “other it аbly health hazard. never witness, Pryospray. One who property” damaged was the terminals. was not defendant in this that the terminal was an officer of the other The evidence shows because, case, the fire- damaged make the that he observed order to testified usable, during construc- reasonably proofing apron safe and in the level terminals tion, replaced. appeared product it to be the Pyrospray had to be removed and This evidence Independence competitor, Pyrospray. Dist. v. U.S. his See School Co., question as (Mo.App. to create a fact Gypsum 750 S.W.2d was sufficient 1988). clearly ceiling on the The evidence showed to whether the substance damaged by product. Keene’s apron the cost attribut level was replacement able to the removal and
asbestos-containing product XV. from its termi nals. court argues that the trial giving
erred in Instruction No. 15 because XIII. plaintiff all of required jury it to award costs, jury depriving thus its removal Keene asserts the trial court erred damages. of its discretion to determine refusing testimony El admit оf Dr. Keene, According jury could have compare liott Hinkes to of illness risk removal of the found that exposure from to asbestos with the risk of 15 stated: unnecessary. Instruction No. illness from other substances and activities. proof The offer of shows that Dr. Hinkes B, you if find in favor of In Verdict concerning would have testified relative plaintiff plaintiff, you then must award everyday cancer risk from encounters in you may find from the such sums as life, steak, eating such as charcoal broiled repairing the cost of evidence to be flying airplane living in a brick house. including building, damage plaintiffs The trial court has discretion to refuse to maintaining, removing, and the cost of designed admit evidence to sidetrack Keene’s asbestos- replacing defendant danger jury considering from inherent product Pyros- containing fireproofing under consideration. Destin pray. Roebuck & Sears overwhelming was that be- evidence Here, (Mo.App.1990). there was no flaking and renovation which cause of the abuse of discretion. 1985, the asbestos materi- had occurred necessarily removed. Instruc- al must be
XIV. stаting not erroneous for tion No. was Keene claims the evidence failed to damages included removal costs.3 apron prove that all the XVI. Pryospray. level were attributable to Wil court Keene claims the trial Stephan, superintendent liam for Kan Slate, admitting plaintiff’s exhibit City bags Natural observed erred in sas See MAI4th 4.02 Note that the instruction “cost” in the instruction. 3. Keene makes no claim 2. omitted the word “reasonable” before the word on Use *12 report 17, 1966, August dated Penn prej- from a for 1972because it was irrelevant and sylvania regarding X-rays plan health official udicial. The stated Keene intended to taken employees manufacturing of at a Pyrospray fa sell in areas it was where still cility Pyrospray showing allowed, numerous including City, Kansas while de- report, cases of asbestosis. The offered veloping marketing an asbestos-free purpose notice, for the showing was fireproofing, KeeneKote. At trial Keene previously length depo referenced at objection offered no to the admission of Bailey, sition of Glen which was read to the point this document. The is denied. jury. testimony Where or other evidence establishes, has been admitted es XIX. sence, the same facts as those established disputes Keene likewise the admis document, in a the admission of the docu sion of internal memoranda from an adver prejudicial ment is not error. Husar In tising agency working for Keene. The Son, Inc., dustries v. A.L. Huber & 674 publicity memoranda address and advertis (Mo.App.1984). preju S.W.2d 575 No ing concerns from health hazards in asbes dicial error resulted from the admission of tos insulation. The documents were admit exhibit 185. intent, ted to show notice and fraudulent Also, argues Keene the court erred and there no was abuse of discretion.
in excluding Keene’s exhibit intended to plaintiff’s rebut At exhibit 185. issue was XX. dangers whether Keene had notice of the erred, The trial court Keene product. The rebuttal evidence con complains, refusing grant now to a new reports employ sisted of on the health plaintiff’s grounds closing trial on the ees surveys X-rays and results of dust argument misstated facts and was calculat plants Pyrospray where manu not jury. ed to arouse and inflame the Once factured. truly These were collateral is again, question for this Court is wheth sues properly and were excluded. er the trial court has abused discretion Cox, denying relief. Cook v. 478 S.W.2d XVII. (Mo.1972). New trial is available Keene claims a 1982letter from only upon showing that trial error or mis regarding Keene to U.L. licensing Pyros- prevailing party prej conduct of the incited pray should not have been admitted be jury. udice in the Washington, Larabee v. cause it was unfairly preju irrelevant and (Mo.App.1990). Keene dicial. The letter stated that Keene had points following portions plain technology transferred the and manufac closing tiff’s statement: turing rights along rights with the U.L. to Laboratory] test was [Underwriter’s firm argues a in Mexico. Plaintiff that the tamped. They they cheated. If were plan letter is to admissible show a or de cheating suppose on a fire test that is sign involving fraudulent intent. In a heat, help building to a withstand [sic] case, fraud party other transactions of a well, they wouldn’t leave asbestos having tendency explain the motives product? present, if not conjectural, too remote and may properly be Pinger admitted.
Guaranty Investment Volger you ... Mr. told that Keene— (Mo.App.1957). While the letter basically really that Dr. Pearce didn’t questionable relevance, it cannot be said he saying they know what when the trial court abused talking discretion in about the Underwriter’s admitting the letter. Laboratory cheating. test You look at exhibit,
the documents. You look at that XVIII. you decide.
Next, argues Keene the trial court going What was on there was the admitting erred in marketing plan thing going same in the sale of this on XXI. product, they that is wanted with be to avoid cost associated able a new trial Keene contends that having steps take the retest their evidence granted because have been should product. They had tested their punitive improperly admitted on tamping it. before dam finding actual jury’s tainted says that the He UL test documents damages was ages. The verdict for actual *13 It that. it doesn’t. don’t show Of course does not by the evidence. Keene supported passed They have if it did. would never support of in identify the evidence offered They they fool- were fooled. knew were unrе damages that was punitive claim ing. recov grounds for one of the other lated to reason, the claim is denied.
ery. For company the kind of that decid- That’s ed, they after had nonasbestos even this XXII. market,
product Pyrospray on to sell erred, ar trial The court in it was still Kan- areas where allowed. refusing admis in to deem certain gues, City. sas of evi- judicial as admissions instead sions complaint dentiary admissions. Keene’s get They enough just didn’t care to rid plaintiff’s two assertions in the addresses They it of this material. tried to unload (1) in the medical brief in Grace: the 1970’s basis, export the asbestos-contain- community generally believed and scientific ing product. building products asbestos-containing they selling ended up And then in 1982 exposure presented “safe” to level rights Pyrospray to to a Mexican fiber, (2) manu fireproofing asbestos company. de by both Keene and the other factured fendant, Asbestospray, was installed plaintiff, you The Kansas to City, asks apron level of KCI. damages; for our return a verdict actual filed in stated in a Facts brief and for the tell this will in consti prior appellate proceeding a case company again. not to do that interest, ordinary against tute admissions Damages Bailey that will tell Mr. Glen subsequent are admissible in trials which City, you Wall Street in New York hearings. Engineering Co. v. Mitchell engage shouldn’t in this kind of conduct. Co., Inc., 647 S.W.2d Realty Summit You shouldn’t continue sell a to (Mo.App.1982). statements 140-42 Such have, you you when have a binding judicial are not and conclusive fact containing, that’s nonasbestos Kansas Here, in the statements admissions. Id. areas City, and other it is still where made discov at a time when the brief were just plain wrong. allowed. That’s of limitations ery was limited statute you. Thank correctly judge trial ruled that issue. The testing, selling The rights U.L. to a not conclu previous statements were firm, continuing Pyros- Mexican to sell judicial sive as admissions. pray it prohibited in areas where was not properly were all matters admitted into evi- XXIII. argument objection dence. The no drew Similarly, single Finally, from the defendant. Keene attacks the admis reg asking punitive damages testimony concerning for NESHAP statement “to sion Bailey regulations promul tell Mr. of Wall in New These werе Glen Street ulations. Air Act City, you in this EPA under engage gated York shouldn’t the Clean CFR objection. April, no effective 1973. conduct” drew Where became permitted The evi objection seq. defendant failed to make an trial court 61 et § trial, the NESHAP argument at trial court did not of later amendment to dence addressing a new the renovation of refusing grant regulations abuse discretion buildings trial. asbestos materials. tes- with timony regulations provided Valley was that the Forge, Pennsylvania, plant where for any asbestos-containing products removal of asbestos material if man- project developed renovation ufactured disturbing involves more asbestosis. 160 square asbestos-containing than feet of Sprayed B.E.H. became a member of the material. NESHAP rules are relevant Mineral Fiber Manufacturers Association damages, the issue of testimony and the (SMFMA) mid-1960’s. concerning the rules was relevant to show through membership organization, in that requirements removing the costs and study B.E.H. learned of a Dr. the asbestos in with connection renovation Selikoff, Irving which indicated that those projects аt err KCI. trial court did not working exposed in asbestos were to a admitting testimony concerning the greater chance of carcino- asbestosis and regulations pro- NESHAP on renovation hypothesized expo- He ma. that “asbestos jects. industry sure will not be limited to the *14 particular that material craft utilizes the
XXIV. undoubtedly ... workers share insulation City’s cross-appeal In Kansas it exposure their with their in workmates oth- first claims that the trial court erred in er trades.” granting judgment Keene’s motion for not report The moved SMFMA to commence withstanding punitive the verdict its testing program relating job a site to in claim connection with the strict spraying and erosion tests of the material liability claim. place. varying in these tests had While success, degrees of conclusion ultimate question now to be decided operators spray was that should wear res- is whether there sufficient evidence to piratory protection applying the ma- while in sell establish that defendant’s conduct contrast, re- By terials. the erosion test ing outrageous its of because “very good.” sults were as described an evil motive or indifference to reckless rights Griffith, of others. Burnett v. B.E.H., purchased In after Keene (Mo. 1989). 769 789 Puni S.W.2d banc privy advertising pro- Keene became to an damages may tive be awarded where “dusting” posal that reference to the made the defendant knew of defect dan and during application asbestos-containing of ger product and, prod by selling the creating “suspected a hazard.” products, uct, complete showed to or indifference advertising proposals suggested disregard safety conscious for the of oth and B.E.H. reduce or eliminate the Keene Angotti Corp., ers. v. Celotex product completely. of asbestos content its 742, 746 (Mo.App.1991). The evidence here public report in A confidential relations light is in a most to Corporation considered favorable con- January, to Keene plaintiff, and evidence favorable to the de cluded: disregarded.
fendant School Dist. possibility There is a real that asbestos of Independence Co., Gypsum U.S. may more health hazard be a far serious (Mo.App.1988). S.W.2d The record previously suspected, and that it than evidence, following includes which the peo- a far of larger could affect number supports claims punitive submission of research, ple.... of same Some damages: however, to has tended cast doubt on and dust.... other fibers industrial B.E.H., employees Officers and of may of absence asbestos not auto- [T]he predecessor, Keene’s became aware matically suspicion. free of a personnel pre- operating every should take added). (Emphasis spray pre- applying caution wool to very “flying publication quoted vent its the air since it is industry An in 1970 operating dangerous person- to health of saying, “[Ajfter Dr. Selikoff as the materi- added). (emphasis dries, particles nel” In 1966 B.E.H. was are thor- al loose free to Pennsylvania oughly large state of informed contaminate areas both persons surrounding building various who had worked at their thus treated. I a patrons. plan injure employees industry to KCI urge manufacturers to view knowledge that generalized seriously this find immediate of a threat Evidence danger a narrow class controlling poses meаns to mil- a to for the hazards asbestos exposed persons lions of no who are unprotected innocent citizens.” There was of any representative evidence that Keene or of asbes during application of removal present buildings his tos-containing when Dr. Selikoff made will materials statements or that was otherwise a not, requirements under the strict case, specifically informed the contents of his support punitive damages submissible addition, knowledge statements. statements had plaintiffs inference that an any made no reference scientific studies danger much class of a broader indicating or cancer rate increas- asbestosis merely persons present such who were occupying building a among persons es buildings at times. Dist. other School fireproofing where asbestos has been Independence Gypsum v. U.S. sprayed. The no than statement was more knowledge at 447. The evidence of hypothesis. an unsubstantiated danger unprotected construction is insufficient to establish that workers In a mailed Keene in letter or complеte indifference Keene exhibited president report of SMFMAnoted a safety KCI disregard conscious Rutgers sprayed ceiling asbestos Univer- using the terminals. employees patrons sity given coat properly not been seal *15 prevent flaking of to erosion and the asbes- XXV. flaking
tos. The letter that and indicated dusting coating from an unsealed of asbes- argues the trial court Plaintiff spray tos “contributes hazardous materials judgment notwithstand granting erred in a to the air.” The evidence in this ambient jury pre the was ing the verdict because Pyrospray case does not indicate that the the sufficient evidence to sustain sented buildings proper the terminal lacked a seal damages award under the fraud punitive addition, showing coat. there is no that submissions. ceiling the the Rutgers material on Uni- every misrepresentation Not versity the same similar Keene’s was or to justifies punitive dam fact submission of product. Otherwise, statement, a no ages. false Finally, points the plaintiff to admission based, reasonably or how innocent matter from the witness stand one of Keene’s subject punitive a defendant to dam would employees fireproofing that he the knew Machinery ages. McDonald v. Ozark would be disturbed in the event of renova- The (Mo.App.1986). tion or demolition. This evidence did not claims, liability to the strict fraud similar knowledge product establish that the was claims, and on the were tried submitted dangerous persons unprotect- to than other theory Keene’s brochure that statements during ed workers construction. regarding Pyrospray’s resis false thereby theory upon plaintiff dusting flaking, its to and creat The which tried tance employees hazard to KCI liability Pyrospray ing strict claim was that an asbestos dusting patrons requiring to removal of the subject flaking to and due and and thereby punitive remodeling, exposing product. The associated erosion or required and to an not that defendant employees patrons such claim KCI intentionally regard false statements danger or can- make of asbestosis unreasonable dusting ing product’s re- resistance to and product that of the cer removal representa flaking, as of but also that when The evidence shows thаt quired. had the defendant knowl- knowledge no tions were made had danger edge of the that resulted dangerous persons to other product was . Again, damages. the evidence regularly plaintiff’s ex- workers unprotected than unpro Pyrospray dangerous during its manufac- posed product routinely ex ture, or, construction workers perhaps, removal. tected application during removal of the application posed Keene had an evil There is evidence that no danger ascertaining was not of the purpose evidence “For the the time Hygienetics later appeal taken, identified the 1985 within may re- which be port requiring complete as judgment removal of That becomes final....” rule from buildings. jurisdiction the terminal was not intended address the trial court enter satisfaction of Only by superimposing twenty-twen- judgment but rather was intended to ad- ty law, hindsight of regulatory medical sci- dress for the finality purposes appeal. arising ence technology and after 1972 can knowledge danger one infer of any provides to KCI Rule 74.06 that on motion and emplоyees patrons require just that would are may terms that the trial court product. The judgment removal of evidence order where a relief has been again is insufficient to show defendant satisfied. The motion shall made within be knowledge time, danger had of the defect and and notice must reasonable be employees patrons KCI pursuant 7^.06(c). which in turn served to rule 54. Rule plaintiffs damages. Although provid- formed the basis of in this case notice was not rule, correctly plaintiff trial court ed contemplated sustained mo- as under the judgment notwithstanding tion for the ver- was not prejudiced because the issue was regarding punitive damages early dict argued claim. as the as motion limine. city’s point on this claim denied.
XXVI. XXVII. Next, City Kansas asserts that ac tual damages should not have been reduced finally argues Plaintiff the amount the received from the bankruptcy payments Manville fund were a bankruptcy Manville fund because the collateral Plaintiff noncreditable source. jurisdiction court lacked that a final agreed to set off nevertheless at trial judgment entered, previоusly been payments, Manville and the trial fund 74.06(b) requirements of Rule were not agreement. court’s order reflected this *16 met. trial The court ruled on Keene’s mo city, having position The taken that the the judgment notwithstanding tion for the ver proper Manville a setoff payments were 25, dict or for new trial July on 1991. The court, argue before the trial cannot a dif ruling did not of points address one the position appeal. ferent on argued the suggestions in motion in and support, sought which to reduce the dam CONCLUSION ages by the amount of the Manville bank judgment The is affirmed. ruptcy payments. fund filed its 29, appeal July notice of from this on order COVINGTON, THOMAS, PRICE and 1, August 1991, 1991. On Keene moved to JJ., LIMBAUGH, concur. damages by reduce the the Manville bank J., HOLSTEIN, separate in concurs hearing ruptcy payments. The was held on opinion filed. 2, August granted. 1991. The motion was $223,568.38. judgment by was reduced ROBERTSON, C.J., BENTON, J., and The appeal from that order was consolidat HOLSTEIN, J. opinion of concur cross-appeal. ed City’s with Kansas concurring. HOLSTEIN, Judge, argues although ruling Plaintiff the opinion. fully majority I concur pass on the for did not motion new trial on However, obser- I some additional believe suggestion judgment Keene’s that the be appropriate. vations are by payments the the reduced from Manville damages bankruptcy, sugges- punitive under Rule 81.05 the On a count is occasion ruling tion ordinary was deemed overruled on added to an action in contract or 1991, 25, July judgment which final justification was a tort where there is no other jurisdiction perceived the court then lost over the than that a to have defendant is cases, judgment. misapprehends “deep pocket.” only Plaintiff a In such purpose begins, Rule rule as evil may 81.05. That conduct which be characterized
377 con- adopting a “clear and for should consider is that the defendant is business regarding puni- vincing” evidence standard profit operations and does not cease all legislature epi- damages. tive Because when confronted with an inconclusive subject, Chief Justice demiological study involving product. spoken never on its case, issue. reluctant to force the In this had the been an Robertson was defendant (Robertson, C.J.) I am 799 at 76 individual who had donated the asbestоs S.W.2d material, wrong Me- containing likely jury persuaded it no now that we were is Missouri, punitive damages naugh ver- and that as to common would ever return a that, punitive damages, should dict.1 The of the “evil” law actions for crux higher profit. adopt evidentiary are for As a standard. defendants in business a result, damages occasionally punitive have Contrary holding Menaugh, by becoming been abused a method for requiring there are diverse classes of cases redistributing carrying than wealth rather higher proof preponder than a standard punitive dam- out the functions which Examples include ance of evidence. ages designed. equitable impose actions to reform deeds or Fix, reason, I S.W.2d
For that
believe it is time for
constructive trusts. Fix v.
847
762,
(Mo.
1993);
placing
Bollinger
764-65
banc
v.
courts
start
reasonable re-
773,
(Mo.App.
punitive
Sigman,
dam-
775
strictions
when
how
1979).
ages
Proceedings to
ill
may
sought
be
A com-
establish mental
and obtained.
paternity after
death
pelling argument
punitive
can be made that
ness or establish
require
higher
damages
permitted
should not be
where
of the father
statute
414-060.2(2)
persоnal injury
proof.
there is no
standard of
illness
§§
solely
parental rights,
the claim arises
a latent
Termination of
because of
632.350.2.
promises
pay
debts
defect in a
or out of
breach of
enforcement of oral
another,
At
warranty.
gift
least one
held that
claims of
and termination
state has
incompe
products liability
life-sustaining
treatment of an
cases where the
exceeding
person
require proof
are
tent
all
property,
there can be no
punitive
In re
damages.
Greenberg
preponderance
evidence.
Eisert
J.D.K.,
(Mo.App.1984);
Roofing
314
685
879
& Sheet Metal
N.W.2d
S.W.2d
(Minn.1982).
Associ
Autoquip Corp.
v. Nicholson and
ates, Inc.,
(Mo.App.
S.W.2d
suggested
Another
restriction on such
1987);
Passman,
re
Estate of
evidentiary
claims would be to increase the
(Mo.
1976);
banc
Cruzan
case,
punitive
standard.
In this
dam
*17
408,
(Mo.
Harmon,
425
banc
v.
760 S.W.2d
ages
pursuant
claim was submitted
261,
2841,
1988),
110
497 U.S.
S.Ct.
aff'd,
proof
same burden of
instruction as was
(1990).
damages
111
Punitive
L.Ed.2d 224
liability
the strict
claim. See
3.01.
MAI4th
may
constitutionally
awarded
def-
not
be
Without
or
extensive discussion
citation to
“prepon-
or slander cases under a
amation
precedent,
recently
this Court
declined to
Gertz
derance of the evidence” standard.
apply
convincing”
a “clear and
evidence
350,
Inc.,
323,
Welch,
94
v.
418 U.S.
Robert
punitive damages
standard to
claims. Me
(1974).
2997, 3011,
The fundamental difference between civil question secondary law criminal of There is a as to law is that the role persons former is to higher proof pro- make those whole who whether a of standard wronged injured by have been the con- legislative hibited because of enactment party. purpose duct of of another 537.675, Supp. of 510.263 and RSMo §§ criminal protect law is to vindicate (providing for a bifurcated trial where public whole, punish interests of the as a damages sought, punitive actual and are Prosser, the offender and deter others. W. damages punitive remittitur and additur of Handbook Law Torts at 7 § of of awards, requiring that half such award (4th 1971). damages ed. Punitive serve a paid compensation be into the tort victims’ normаlly function attributed to criminal fund). Menaugh, See imposes law. Because the criminal law (Robertson, J., concurring). These statuto- harsh punishment, sanctions as a it re- ry provisions make no mention of the stan- quires beyond evidence a reasonable doubt. puni- proof dard required to establish penal punitive nature dam- damages Menaugh tive claim. Prior to ages remedy growing has led a number of stan- spoken this had never on what Court jurisdictions exemplary to conclude applicable punitive in a proof dard damages be must established the middle Menaugh case. decided proof, level standard clear and convinc- years 510.- three after enactment §§ ing evidence. Acosta v. Honda Motor Thus, be im- 263 and it cannot 537.675. Ltd., (3d Cir.1983); 717 F.2d Ro plied their legislature that the intended Inc., ginsky Richardson-Merrell, particular silence to enact a standard *18 832, (2d Cir.1967); Raynor F.2d 850 v. proof. prod- damages entirely Punitive a Inc., Richardson-Merrell, 238, F.Supp. 643 developed by the uct of the law as common (D.D.C.1986); 245 Linthicum v. Nation To the extent the courts this state. Co., 332, 326, wide 150 Ariz. Ins. 723 Life damages punitive law doctrine is commоn 675, (1986); P.2d 681 Travelers Indemnity defined, leg- by not limited modified 349, Armstrong, 442 Co. v. N.E.2d 362-63 islature, may articulate the stan- this Court (Ind.1982); Raymond, Tuttle v. 494 A.2d mea- dards which the doctrine will be 1353, (Me.1985); Owens-Illinois, 1363 Inc. applied. sured and Zenobia, 420, 633, Md. 601 v. A.2d 657 (1992); Wangen v. Ford Motor reasons, fully in For I concur these 260, 437, (1980). Wis.2d 294 N.W.2d opinion, majority but add these comments hope up pick
Punitive will on are not that someone favored They carry stigma civil law. a and have on appeal cue and raise such issues C.J., LOWENSTEIN, and direct- Before the near future. Neither issue was KENNEDY, and JJ. ly addressed this case. TURNAGE TURNAGE, Judge. harass-
Todd Cottrill convicted 565.090, 1986, A ment, RSMo Class § misdemeanor, a term and sentenced to jail. this days county in the On of 90 the court appeal, Cottrill contends finding of facts not guilt its on based Missouri, Respondent, STATE of Reversed remanded. and evidence. tried the court without Cottrill Wyrick that he jury. Richard P. testified COTTRILL, Appellant. Todd and that Cottrill knew the voice Cottrill No. WD 46451. Wyrick home seven times be- called the January tween 1:57 a.m. 2:20 a.m. of Appeals, Missouri Court time Wyrick that the first 1992. stated Western District. Wy- speak called he asked to with Cottrill April 1993. Andrea, in- daughter, Wyrick rick’s there. Cottrill that Andrea was not formed Rehearing Denied June 1993. he not to Wyrick stated further told Cottrill just any call more because his wife he did not hospital returned from the Wyrick testified want her to be disturbed. despite request his Cottrill not anymore, call Cottrill made a total of seven January early morning calls in the hours Wyrick admitted he had a tremen- 14. he animosity toward dous Cottrill relationship strongly any disapproved of Wyrick between Cottrill and Andrea. knowledge of any not have claimed to married. Cottrill and Andrea were whether married to testified that he was Cottrill Andrea, that on Wyrick’s daughter, but apart. living January they telephone calls making any Cottrill denied morning early Wyrick home in the to the denied January 14. also Cottrill hours Wyrick any telephone making calls early morning on hours of the home day. any other testimony of rested after the Both sides Thereafter, the court Wyrick and Cottrill. course of its decision. announced *19 announcing its the court stated: decision Bunch, Cash, Willard B. John Edward presented upon Based the evidence City, appellant. for Kansas today, the finds the Defen- here Court reasonable Scroggins, Jr., Atty., guilty beyond Dwight K. Pros. J. dant Nelson, A Atty., Buchan- of the Class misdemeanor Morton Asst. Pros. doubt why: Joseph, here is County, respondent. harassment. And St.