*1 cross- of Baum is considered examination
examination, proper for Love to it was criminal convictions
bring out Baum’s
this case. Costs of judgment affirmed. against appeal are assessed Love
Love appeal assessed
costs of the Baum
against Baum.
All concur. Burnett,
Tom KILMER and Sharon
Plaintiffs-Respondents, BROWNING,
Bonnie
Defendant-Appellant, Company, Service
Defendant-Appellant.
Nos. 16381. Appeals,
Missouri Court District,
Southern
Division One.
March *3 Holcomb, Collins,
Jerry L. Webster & P.C., Rouse, Joplin, plaintiff-respondent for Burnett. Sharon Rhoades, Paul, Rhoades, C.R. Abe R. Neosho, Paul, plaintiff-respon- for Paul & Tom Kilmer. dent Blanchard, Ohler, Dermott, Jon Theresa Dermott, Fleet, Martin, Robertson & Van Joplin, defendant-appellant proving necessary for Bonnie elements con section, tained and were entitled to Browning. might plaintiff the interest. Whether a be McCanse, Flanigan, Thad C. McCanse & entitled to it cannot determined until the be Lasley, Carthage, defendant-appellant for damages trier of fact has determined Service Co. judgment and the court indicated that a has including be that amount. entered PREWITT, Judge. occurred, prejudgment this inter When has 30, 1990, this July On district filed an determined, est, any, and if should be opinion affirming judgment. There- granted judgment. included 21, 1990, after, opin- August on written damages wrongful death actions the should ion, appellants’ district denied motions provided apportioned also rehearing Supreme or to transfer to the 537.095.3, RSMo 1986. See § Schaefer filed Appellants applications then Court. Inc., 788 Freight Systems, Yellow Supreme with the Court. transfer (Mo.App.1990);Bragg v. Missouri Pa applications October sustained *4 R.R., 756 S.W.2d cific Supreme March the 1990. On here, belatedly.1 That occurred if somewhat following entered the order: “Cause Court undisputed. Other Certain facts are evi- retransferred to the Missouri ordered discussing de- dence will be referred to Appeals, Southern District.” Court of son fendants’ contentions. Plaintiffs’ Ri- paragraph of this our With the addition chie Kilmer found dead December was opinion the on motion opinion initial the 30, 1987, Joplin. apartment duplex his readopted. rehearing or transfer are sample of his years He was old. hereafter. They are set out upon that he analysis showed had blood brought an the Plaintiffs action poisoning. died from monoxide He carbon They wrongful death of their son. re- He apartment. alone in moved lived the in their for three jury ceived a verdict favor apartment days the four before his into appor- thousand dollars with fault hundred body was Defendant Bonnie discovered. Both against each defendant. tioned 50% Browning story of the one the owner appeals and their have appeal defendants building Company KPL Gas been consolidated. gas appliances in by the furnished used building, furnace in Richie verdict, including the plaintiffs filed a Following the apartment. Kilmer’s requesting prejudgment interest as motion 408.040.2, provided Supp.1989. RSMo § a duplex previously single been The judge rule the Initially the trial declined to fifty more than family dwelling. It was re- pending appeal. This court motion by heated old. units were The two quested parties to include in their the The floor fur- separate floor furnaces. judgment there was a be- briefs whether system con- naces were a vent vented directly not ruled. cause this motion was space in a crawl under nected and located court was issued the trial After that order building. the point Although motion. no sustained the space was small Access to the crawl challenges directly the allow- of defendants southeast in the cor- hole foundation interest, point regard- in their of the ance During building. the winter ner of the “judgment” initial ing finality of the closed with a space months crawl the trial court question whether defendants Browning testified that board. interest correctly handled the properly and premis- space part of the the crawl issue. she would not es rented a tenant the house. She go them under expect proper proce Plaintiffs followed had owned the previous husband and her after filing a motion the verdict dure (Mo. Wood, disposing See Wood Although is no one document there issues, separate App.1986). entries result in a can of all the appeal "judgment" which an can be taken. Although Browning as defendant since 1969 and since their divorce premises individually. her is not an insurer of suggests, she To a landlord owned system knowledge premises, Thompson the vent had never been v. Paseo Manor South, (Mo.App.1959), no inspected and she had maintenance nor the condition of the inspection plan for defects ac strictly for latent absent liable functioning duplex. anything knowledge If was not de tual or constructive upon her tenants to properly she relied fect, Realty Haas Henderson v. W.C. made, repairs (Mo. her and she had inform Management, are not usually by others. Certain facts duty has a to make App.1977), she disputed. As defendant Gas Service building portions apartment leased Company stated in its safe, brief: reasonably Niman under her control (Mo. House, 471 overwhelming v. Plaza
Here the is 1971). Browning avoided caused the death was banc the condition which premises its duty by ignoring the collapse venting system. The particularly those which could appliances, Kil- uncontested that Richie evidence was asphyxiation by an pose danger such as poisoning, monoxide mer died carbon gas. gases such as would odorless that heated exhaust through normally go a vent will could, apparently did con- rise, by-prod- monoxide is the that carbon Browning negli- that defendant clude burning gas, uct of natural and that having gent inspecting or in not pipes carry purpose of the vent venting system inspected. of the furnace fumes to the outside air. exhaust [omit- of that pipes Parts of the ting transcript page citations] *5 rust and other in evidence and show were the tri Each defendant asserts that of deterioration. There was tes- indications denying al court erred in its motion for a had taken timony that this deterioration plaintiffs failed to directed verdict because looking place years. Anyone five at over reviewing In make a submissible case. pipes in such a condition would be these contentions must consider that a we potential for harm that there was aware motion for directed verdict is a drastic ac measures have to and that corrective only tion which should be sustained when system to make the safe. Sub- be made and reasonable inferences evidence No. 3 have no merit. points No. favorably plain thereof taken most jury Subpoint tiff no room for the to find the No. likewise fails. leave it necessary plaintiffs recovery. venting apartments, for system facts both Thornton, tenants in an area not rented to the Mercer v. S.W.2d go. Webb, expected to Even (Mo.App.1983); Ogle they v. 623 S.W.2d nor were where heating fix (Mo.App.1981). plumbing are 583-584 where there tenants, apartment in an leased to tures APPEAL DEFENDANT BROWNING’S usually by the landlord they are controlled and used they be maintained as must I building. the entire Ordi conjunction with Browning’s contention that Defendant control of an en narily landlord retains case made there was not a submissible heating system. Niman v. Plaza tire See (1) there against parts: her is in three 210; House, Inc., at supra 471 S.W.2d known no evidence that she could have South, Inc., Thompson v. Paseo Manor prop- heat did not that the Compare also the supra at 4. from Richie erly monoxide vent carbon Luechtefeld, similar case of Marentette (2) no apartment; that there was Kilmer’s (Mo.App.1954). that she retained control evidence (Mo.1967), Jost, 412 (3) venting system; there was no Janis heat in- Browning, point. is not in ordinary cited that she failed to use family home single lease of a venting system the heat rea- volved care to make keep any control did not the landlord where sonably safe. premises. Obviously apart- in an care indicative of indifference to the conse- over the Service, quences. Flying ment house there must be common areas v. Festus Weast Inc., portion premises by and control of a
its owner.
submissible case was made
Damages
aggravating
circum
against
Browning.
defendant
punitive damages
stances are akin to
permissible only if
the decedent would
II
punitive damages
have been entitled to
Browning
contends
Blum,
he lived.
III
Browning
claims that
IV
*6
damage
erroneous because
instruction was
the trial court
Browning asserts that
“aggravat
the
to consider
it allowed
photographs
allowing
in
in evidence
erred
upon the fatal
ing circumstances attendant
writings of the decedent be-
personal
and
537.090,
1986, pro
injury.”
RSMo
Section
plain-
of
were evidence
cause these exhibits
“aggravating circumstances at
vides that
ex-
grief
specifically
tiffs’
and bereavement
by the
tending
may
the death
be considered
537.090,
recovery
under
cluded
§
trier of the facts”.2
1986.
RSMo
punitive in nature and
damages are
Such
537.090,provides that the trier of
Section
punish the defendant
purpose
their
is to
damages “having regard
may
fact
award
wrongdoing.
v.
future
Blum
and deter
by reason
losses suffered
pecuniary
the
to
Inc.,
Services,
762
Airport Terminal
the reasonable value
the death ... and
of
(Mo.App.1988);
73
Williams
consortium,
services,
companionship,
the
Co.,
Mo.
230
Excavating
Foundation
&
counsel,
instruction,
comfort,
guidance,
(1936).
App.
those on
training,
support
and
of which
brought have
may
suit
be
behalf
are
whose
Aggravating circumstances
such death”.
It
deprived by reason of
it re
been
negligence;
present if there is mere
grief
misconduct,
damages for
and
provides that
also
showing of willful
quires a
recklessness,
recoverable.
wantonness,
a want of bereavement
or
(1981).
Act,
J.
37 Mo.Bar
wrongful
damages,
Generally
death
see
Death
2.
Wrongful
Damages
Wright,
the Missouri
Under
Immunologist.
Mundy
to
was a Pediatric
factor
be considered
practices
hospital
He
at a
evaluating damages
Wrongful
under the
medicine
Los
by
Angeles.
potential
During
testimony, presented
is
the
his
Death Act
financial aid
decedent,
through
following
by
occurred:
deposition,
which can be shown
evi
the
health, character,
dence of
decedent’s
Q.
upon your
Based
review
talents, earning capacity,
expectancy,
life
test,
diagnostic
medical records and
age, and habits.
Louis-San
Grothe v. St.
you
any
at
conclusions
have
arrived
Co.,
Railway
Francisco
prognosis was at
about what Richie’s
(Mo.1970).
nonpecuniary
con
On
stage of
disease?
parent-child
siderations evidence of the
re
thing you
have
A. The main
would
to
lationship
Morrissey
relevant. See
nobody
quite
I
say is
knows. would be
Co.,
(8th
Welsh
F.2d
Cir.
encouraged by
I see
He
what
there.
1987); Wright, supra
Paintings
n.
at
acquired
old. He had
his infec-
daughter
held
a decedent’s
admis
wise,
time, age
he
tion in a
when
falls
Kelley,
sible in Hedrick v.
group.
blood-prod-
into a better
(Mo.App.1987),
daugh
as related to the
infection,
uct-acquired
opposed
any
to
talents.
ter’s interest and
other mechanism. We know
those
do better. He had a low T-cell account
complained
of was
occasion,
put
I
on one
too
but wouldn’t
Kilmer,
photographs of Richie
articles and
One,
stock
that.
don’t
much
we
know
him,
poems
re
written
and awards he
and,
handled,
two,
how
blood
relating
character,
ceived. Evidence
to
tal
infection,
I
was at the
and never
time
ents, habits, companionship
nonpecuni-
any clinical decisions on the basis
make
ary support may
grief
also indicate
I
just one
test.
want to
lab
would
bereavement. Much of the evidence re
trend,
want to
that know
garding
may incidentally
the former
relate
repeat that.
However,
to the latter.
that would not
patient
appeared
And he was a
to
prevent its
admission
it was otherwise
fighter
be
do well
chronic
with
to
admissible
show authorized losses.
illness.
Here, we find no abuse of
trial
court's
just
go
He was
about
to be evaluat-
admitting
discretion
the exhibits. This
protocol
begin
ed to
AZT. I’m
point
is denied.
Center, probably, had
sure that same
pentamydine
aerosolized
available
V
pentamydine spray.
eye
With a watchful
Browning
contends that
looking
opportunistic
infections in
admitting
court
trial
erred
certain
treatments
patients using proplylactic4
testimony
Mundy,
of Thomas
a medical
aggressively
pentamydine spray
like the
physician,
testimony
“because his
was in
may
any time some new treatment
opinions
competent
that his
were not
*7
perhaps
AZT
become available on
and
a
upon
degree
based
reasonable
of medical
I
XYZ
will be the next better
call it
certainty.”
Kilmer
Richie
was bom with a
I think
drug than AZT that we have.
he
hemophilia condition. For that condition he
for a number of
could have done well
injections
coagulation
received
to aid in the
until
have that
perhaps
and
we
of
a result
treatment
his blood. As
of this
the
for
drug that becomes
cure
AIDS.
in September
positive
of 1987 he tested
for
(HIV),
substantial
Immunodeficiency
the Human
The trial court is vested with
Virus
admitting expert testimony.
in
Acquired
Deficiency
which causes
Immune
discretion
(Mo.
Weber,
Syndrome (AIDS).3
688 S.W.2d
Miller v.
"proplylactic".
claim little medical knowl-
3.
series
on AIDS
We
For a
of informative articles
1990).
Judges'
(Spring
Mundy
suggest
The
Journal
edge
see 29
since Dr.
was re-
but
pneumocys-
ferring
preventive treatment of
to a
dictionaries, including
check of various
may have
pneumonia,
word he used
been
tic
the
Medical-Legal Dic-
Sloane-Dorland Annotated
tionary
"prophylactic”.
(1987),
any entry
failed to reveal
of discretion is found
submissible case.
Its contentions are set
App.1985). No abuse
by
relied on
here. The cases
forth in its brief as follows:
Browning
expert opinion on the
all relate to
there is no evidence that the condition
citations are set
issue of causation. Those
in existence
which caused the death was
forth below.5
any duty
at the time that defendant
admissibility of
The ultimate test of
ex
any type
inspection....
an
to make
help the
pert testimony is whether it will
alleged negligence
Where the
is a failure
jury. Hendricks v. Missouri-Kansas-Tex
inspect
system venting gases,
an
a
Co.,
(Mo.App.
as R.
indispensable
element
cause
1986). Here,
testimony may have been
the
proof
at the time of the
action is
helpful
possibili
because
inspection the condition which caused the
AIDS, and,
misconception regarding
ty of
in existence.
death was
us,
jury no one
as is obvious to the
may
place in the
knows what
have taken
argues
Defendant KPL
that there was
regarding
of AIDS had
future
the cure
inop-
the vent
no evidence that
developed it. There was no
Richie Kilmer
prior
1987. Its em-
erative
to October
admitting
in
the testi
abuse of discretion
Doyle
that he
in
ployee Keith
testified
mony.
pipes
the vent
space
where
crawl
inspect
Doyle
date.
was there to
on that
VI
furnace and its
before
Browning’s remain
turning
gas. Defendant KPL also
on the
is
the trial court erred
ing contention
asserts that
there was evidence that
mortali
admitting
into evidence standard
functioning”
intact and
system was “still
ty
decedent did not have
tables because
of 1987 because
November
December
expectancy;
hemophilia,
he had
normal life
virus,
building
the HIV
noticed no
exposed
persons present
had been
develop
As de
probably
“would
AIDS.”
furnace.
problem
or fumes or
with the
odor
Browning acknowledges, there is
fendant
monoxide
that carbon
There was evidence
“are admissible
authority that such tables
odorless,
if none were
but even
fumes are
notwithstanding
life ex
person
whose
question is not whether the
present,
inquiry
poor
subject of
pectancy is the
operating properly at
venting system was
disease,
health,
or addicted to
afflicted with
inspection,
Doyle’s
time of
but whether
Ready
Moore v.
Mixed
dissipated habits.”
had notice that the
he
or should have
knew
(Mo.
Co., 329
banc
Concrete
repair
that if it
in need of
system was
1959).
repaired
replaced
or
it would mal-
guides
sug-
Mortality
only
tables
function.
v.
gestions to the finder of fact. Guthrie
Jost, su
cites Janis
Hospital, 706 S.W.2d
Methodist
Missouri
Propane,
Home Service
pra;
probative
Their
Samnee
1981);
may
(Mo.App.
weakened
value
be
Raft
may
con-
these matters
Co., Mo.App.
ill-health and
City
ery v. Kansas
weighing
testimo-
jury in
sidered
(1943),
support
admitting
no error
ny.
There was
Id.
made
no case was
position that
their
mortality tables.
Although these cases involved
against it.
they are not
gas appliances,
problems with
KPL GAS
DEFENDANT
hot water heater
controlling.
Raftery,
APPEAL
COMPANY’S
gas company
after the
exploded two weeks
*8
rea
I
and there were
appliance
serviced the
pilot
clogged
why
flue
a
a
sons other than
mentioned,
KPL
earlier
As
Janis, there was a
In
go
could
out.
light
make a
failed to
plaintiffs
that
contends
Co.,
Telephone
Bell
368 S.W.2d
Kempker,
Southwestern
Ass’n v.
5. Missouri Farmers
Central
1963);
v. West
(Mo.
1987);
Galovich v.
(Mo.
Hertz
banc
S.W.2d 723
Shackelford
Co-op.,
Kinealy v.
(Mo. 1974);
Electric
Corp.,
v. 359 dition of the floor furnace when that was (Mo.1962); Morgan v. Too not pleaded. plead S.W.2d 768 KPL Plaintiffs mey, (Mo.App.1986). negligent 719 133 S.W.2d “was and careless the ... in spection premises question....” Although in to submit a lookout allegation sup Such an was sufficient to plaintiff struction the must show that port the instruction as it was “within the or should knew have known general scope pleadings.” Fisher v. danger potential and that the defendant McIlroy, 739 (Mo.App. S.W.2d pre had time thereafter to take effective 1987). action, cautionary necessary it not explicitly set forth the instruction a find KPL also contends that ing ability to take the means and effec paragraph third in the instruc submission Morgan, action. at 133. tive S.W.2d tion was erroneous because it not a “was pre The time and means to take effective gave submission of an ultimate fact and cautionary implicitly. action are submitted jury roving speculate a commission to Andrews, Id. See Allen v. also S.W.2d or determine on its own what was was (the (Mo.App.1980) lookout instruc adequate inspection.” not an “presupposes time and means to tion 70.02(e) requires Rule that an instruction action”). precautionary take effective require jury “shall not submit Here, required the instruction findings evidentiary of detailed facts.” jury Compa KPL to find that Gas Service The MAI Instructions created shift from ny negligent inspection in their and as was requiring jury evidentiary to find de- negligence Richie a direct result of that requirement finding only tails toward a necessarily required the Kilmer died. Zipp Drug v. Gasen’s ultimate facts. jury inspection to find that been Stores, Inc., (Mo.1970). adequate Doyle found and would have course, Of it is difficult to determine what danger. realized the evidentiary distinguished facts as has to ultimate facts and that decision in KPL further contends that the by made on a case case basis. Grindstaff misleading confusing struction Tygett, jury speculate refer and allowed ring to “the floor furnace” when there was Defendant KPL Gas Service Co. states regarding furnaces. evidence two floor “by that the instruction is violation sub- floor jury should have known what mitting evidentiary rather than ultimate they referred to but even if furnace was do not find the instruction defi- facts.” We prejudicially instruction not did not the question on that The ultimate cient basis. floor furnaces used the erroneous. Both inspected Doyle adequately was whether jury could have which, instance, necessarily in this would dangerous condition when found was venting adequate an look at the have been venting Doyle premises. on the If the system. dangerous collapsed, later system was Tygett, Glastris supra and Grindstaff dangerous created a condition both Co., (Mo. Electric v. Union Kilmer’s death apartments. After Richie KPL, support do not App.1976), cited open present monoxide was carbon involved an in argument. Grindstaff apartments. There was also air of both finding that a included a struction which apartment the tenant medically proper”. “procedure was headaches Richie Kilmer’s had adjoining possible theories of what There were two death. Kilmer’s near the time Richie were no stan proper and there was not venting away after the The headaches went deter guidelines for the dards or system was corrected. medically proper. Obvious mine what proper medically ly what is not Service Com jurors knowledge of most instruc be within the
pany asserts that the submission Here, procedures. simplest except for the unsafe con- negligence of an tion submitted *10 CONCLUSION could lead them common sense their evidence, whether, on the based determine in prejudicial finds no error This court in- adequate. inspection was Glastris complained byof either defen- respects evi- instruction that submitted volved an including the award judgment, The dant. fact the ultimate dentiary fact rather than apportion- interest and the prejudgment of that it is negligence. We see no basis damages, is affirmed. ment of adequately in- failing “to similar because was evidentiary not detail but spect” was PARRISH, J., CROW, P.J., and concur. issue. an ultimate REHEARING MOTIONS FOR
ON TRANSFER OR III PER CURIAM. point in next KPL asserts its Defendant mo filed a Both defendants have not instruction was the submission rehearing or in the alternative tion for there the evidence “in that supported by Supreme to the Missouri motion to transfer floor furnace in that either was no evidence should believe one contention Court. We or reasonably safe premises was clarification. Defendant- addressed for pipes and con- exposed metal flue that the Browning asserts: Bonnie Appellant not rea- to the floor furnace were nectors on October sonably safe and were defective from holding separate entries By in deter- 21, was said earlier 1987”. What (some court made before the trial case was made mining that a submissible Appeal after the Notice of some made conten- against answers this this defendant case) can result in a filed in this there, is not whether tion. As mentioned appeal an can be “judgment” which operating venting taken, permitted the trial this Court has 21, 1987, it was in a but whether October appellate court to exercise court and the repair dangerous condition which called for judgment simulta- jurisdiction over this replacement. point This is denied. or misapplication of the neously is a
law. after Browning contends that Defendant IV filed her notice May when she Company KPL Gas Defendant jurisdiction to court lacked appeal, the trial erred point final that the court states its prejudg- for rule on the motion thereafter aggravat allowing jury to consider that this court interest. She states ment damages. determining ing circumstances to “re- jurisdiction of this matter allowed submitting dam Requirements such appel- trial and the main in both the court discussion of ages are set forth our This conten- simultaneously.” late court Browning’s similar contention Browning’s has no merit. tion could well appeal, under her III. prematurely filed appeal notice 21, 1987, Doyle on October when find that jurisdiction the trial court did not divest dangerous condition present, that a jurisdiction here. nor confer recognized. he existed that should have judgment” no “final There was Company and its em KPL Gas court the trial until well after inspection this matter make such an ployees who That did prejudgment interest. dangers of carbon awarded be aware apportioned the trial court not occur until Failing adequately examine monoxide. plaintiffs pursuant recovery between condition the venting system ignoring its time, 537.095.3, 1986. Until RSMo the conse of indifference to is indicative § here, re lodged but was not allowing jurisdiction justify quences which would v. Yel trial court. mained damages aggravating jury to consider Schaefer Inc., 788 S.W.2d Systems, Blum, Freight low supra 762 Cf. circumstances. Missouri Pa Bragg v. (Mo.App.1990); Submitting instruc S.W.2d at Railroad, 667-668 error. tion was not cific Jurgens See also v. McKa (Fed.Cir.1990) sy, 905 F.2d 384-385
(holding prejudgment that a motion for in judgment entry
terest filed after a renders *11 appeal
of “no effect” notice of filed be ruling).
fore that Jurgens,
In dismissed ap- the court noting it
peal appeal could not consider an premature appeal.
under a notice of respect, is Missouri law different. 81.05(b) provides
Rule that if a notice prematurely
appeal has been filed “such
notice shall be considered as filed immedi-
ately judgment after the time the becomes purpose appeal.”
final for This rule any
applies case where the notice of
appeal precedes appealable time an appears.
judgment Meyer Supply v.Co.
Lane, entered, jurisdiction judgment
After a appellate court to decide the
vests appeal
substantive issues based appeal.
upon premature notice of Id. damages apportioned,
Until no final
judgment been entered the trial jurisdiction. retained only
court apportionment
after the occurred that this jurisdiction, upon the prema-
court obtained proceeded appeal.
ture notice of It then
dispose of the issues. rehearing
The motions of defendants for transfer the alternative Supreme are denied.
Missouri Court Missouri, Appellant,
STATE REGALADO,
Brandon Scott
Respondent.
No. WD Appeals,
Missouri Court
Western District. 19, 1991.
March