*1 HIGGINS, RENDLEN, C.J., GUNN JJ., SEILER,
DONNELLY, LEEHY, Plaintiff-Respondent, Senior Nolan D. Judge, concur. EXPRESS & TRANSFER SUPREME WELLIVER, J., separate opin- dissents in COMPANY, Defendant-Appellant.
ion filed. No. 63498. BLACKMAR, J., be- participating not Missouri, Supreme Court not a member of the Court when cause En Banc. cause was submitted. Feb. 1983. WELLIVER, Judge, dissenting. March Rehearing Denied 1983. totally The respectfully dissent. ac- inappropriate for Court construe injury, 287.020(2), see RSMo
cidental § injury. any “job to mean related” coverage by judicial expansion
Such insur- only already oppressive raise
fiat can result, and, as a increase the premiums
ance this state. doing
cost of business in continuing expenditures of time exec- legislative
resources made jobs and business
utive branches to attract degree
to the state reflect the Missouri’s among states in the “war
involvement Schellhardt, jobs business.” See For Jobs and Busi- Among
War the States Fiercer, St.J., Ever Wall Feb.
ness Becomes only
14, 1983, Today’s col. 6. decision attempt growth
frustrates the to stimulate improve the economic condition
state. re- longer ignore can no economic
Courts conditions
ality. present economic judicial responsibility.
mandate economic Co., Nooney
See Bass v. 1983) J., (Welliver, dissent- bane
ing), today. decided *2 Teasdale,
Kenneth F. Justin C. Cordonni- er, Louis, Weaver, B. Thomas St. fendant-appellant. Mogab, Gregory,
Charles A. Thomas J. Louis, for plaintiff-respondent. PER CURIAM.
This case was transferred to this Court under Mis- opinion by Rule 83.06 after Appeals, souri Eastern Court District. single upon which issue transfer granted for plain- whether was closing tiff to comment defendant’s failure to call as a employees. That issue opinion, in Part IV which addressed of this liberally opinion Judge borrows Gunn for court appeals. The remain- der of sets Judge opinion, Gunn’s which forth the facts the case addresses contentions, appellant’s remaining is incor- porated part opinion into and made a I, II, quota- Parts and III without use of tion marks. were to look to determine if trail- operators were chocked. Plaintiff testified er wheels an action Plaintiff-respondent to see if glance that he did trailer against theory ipsa loquitur under of res place were in but that his vision was chocks Supreme defendant-appellant Express & and he could not see wheels. blocked (Supreme) personal Transfer Company *3 he had been directed He contends that injuries incurred when the forklift truck he he fill rush order which considered a operating Supreme’s fell as trailer taking step time to off him from prevented away loading rolled from the dock. Su- point a walk to where his forklift and preme jury favor of appeals verdict in place. whether chocks were could see $13,000, plaintiff raising following argues that violation Defendant
points: plaintiff contributorily (1) that contributorily plaintiff work rule rendered law; (2) negligent plain- a of as matter law; hence, of negligent as a matter loquitur res ipsa tiff’s instruction failed appeal. first on point theory embrace all elements under case; (3) objec- of plaintiff, over true, asserts, as tion, prejudicial made erroneous comment be de contributory negligence can a a witness on defendant's failure to call ipsa loqui- under res fense in a case parties. available to both On this Wissman, v. 575 tur fashion. Wissman latter we merit and are contention find 239, (Mo.App.1978). 242 But S.W.2d a new compelled to reverse remand for contributory negligence is ordinari issue of trial. question, becoming a matter ly oper- employed Plaintiff was as a forklift minds cannot only law where reasonable Corporation ator Purex Louis. St. negligence. differ as to the a.m. midnight Somewhere between 8:00 Buchheit, 528, 530 v. 559 S.W.2d Mitchell resulting to the occurrence (Mo. 1977); Groppel v. United bane Co. spotted tiff’s driver had injury, defendant’s 49, Co., (Mo. 62 Gypsum States loading dock. The trailer at Purex Jordan, v. 593 App.1981); Jenkins S.W.2d prevent driver testified that to the trailer’s 236, ev although And (Mo.App.1979). 239 movement, he the air brakes for the set ordinary to make use eryone required wheels, landing its gear trailer lowered danger, his facilities to observe and avoid Xa 4 4 blocked one of the dual wheels with has not been exer ordinary whether care block. He then disengaged wooden neg contributory to raise the issue of cised approximately tractor from the trailer. At facts of ligence depends particular on the driving as morning, 9:30 in the Wissman, v. 575 each case. Wissman load, onto the trailer with his forklift 240-41; Sabinske, 322 Miller S.W.2d away loading trailer from the dock. slipped The partic dropped with plaintiff The forklift aboard to a lend themselves ular facts this case landing Plain- ground, its wheels. as was con- jury issue to whether back a result injury tiff sustained his in at tributorily negligent actions post-accident investi- the accident. the trailer’s tempting to determine whether wheel gation disclosed that there had been blocked—an issue resolved wheels placed to the trailer prevent chock against defendant. rolling. Ill
II ver- alleges that the Defendant in effect safety A Purex work rule failing is erroneous for that forklift dict director1 provided of the accident First, parked empty driver provides: 1. Plaintiff’s verdict director dock, trailer, loading at a No. plaintiff if be for Your verdict must Second, driving his forklift believe: trailer, suddenly and into truck said include the required finding House, Inc., that it exerted in Niman v. structions Plaza control over the parking and 207, 212 stabilization of 1971), light banc the trailer. evidence, undisputed the instruction’s right failure to refer to An appli essential element to the prejudicial.3 control was not cation of res ipsa loquitur is that the de management fendant has and control of the IV
instrumentality involved at the time the negligence occurs. Joseph Light & remaining question is whether it was Power Valley Co. v. Kaw Tunneling, clos- to comment 1979); Wag ing call argument on defendant’s failure to City staff v. of Maplewood, 615 S.W.2d as a employees, witness one of defendant’s (Mo.App.1981); Jackson, Davis v. Clyde Riggs. ar- truck driver Defendant 612 n. 2 (Mo.App.1980). MAI gues improper the comment was be- 31.02(3), after which plaintiff’s verdict di *4 cause to equally the witness was modeled, rector was states: parties. both the argument Plaintiff claims Your verdict must plaintiff you be for if was proper because it was made in retalia- believe: tion an argument by to earlier made First, (here defendant describe defend- fendant. control, right control, ant’s or manage- to Caldwell, Defendant’s driver Norman involved) ment the instrumentality parked who had the trailer at the Purex Corporation loading dock before his shift Inserted within the parenthetical phrase re accident, morning ended at 8 a.m. the lating to control was the “De following: that positive” testified he was “most that parked fendant’s driver an empty trailer properly chocked the trailer wheels with ” No. at a loading dock It was .... a square wooden block four inches before he undisputed at trial that defendant’s driver unhitched the tractor from the trailer. duty park had the to the trailer and immo defendant, From who this conceded bilize undisputed it. was also summation that the trailer wheels were not person defendant’s driver was the who only accident, argued at the time of the chocked attempted rolling. to secure the trailer from might that the block have been removed for There nowas evidence that either the brake use to argu- on another trailer. It is lines, landing gear or chocks tampered argument ment that claims his re- with by anyone after the parked trailer was taliated. previous or that defendant problems argument question is as follows: with anyone tampering its vehicles on Though They Purex’s lot.2 the instruction could [PLAINTIFF’S ATTORNEY]: more properly refer to to tell fair expressly you They the de want how are. control, right see, e.g., fendant’s in you, Leehy, go want to “Mr. tell home. and, hence, unexpectedly away loquitur ipsa said trailer rolled from issue res control causing plaintiffs said point dock truck to forklift sustained. no is made of this factor But ground, fall appeal. on Third, from the facts evidence and the therefrom, you reasonable inferences find City given 3. is similar to that in instruction such occurrence was the direct result of de- Akers, of Kennett v. negligence, fendant’s 1978), plaintiffs banc in which verdict director Fourth, negligence, as a direct result of such for if stated: “Your verdict must be damage. sustained First, you allowed an- believe: believe, Unless not entitled to power fall tennae tower to into the electric line recover reason of ” Instruction No. 5. express .. .. Plaintiffs instruction made attempted bring to defendant’s control. There was no 2. Defendant reference out cross-ex- dray upon companies for rea- that drivers other direct attack the instruction amination son, would remove blocks other trailers but was noted that exclusive control Objection their own use. such relevant tes- defendant. Id. 46. timony conceivably which could remove the the ar contention mind Defendant’s your your Never mind back. Never because gument improper problem.” par a witness to both available as Where out driver? He’s there. ties is meritorious. He’s the guy that the tractor blame, of a call party there. is that The failure Try throw cir knowledge of facts and having being you people? fair with raises generally vital to the case cumstances two, Number the driver who was on be would presumption four, out eight there between proffer failing party unfavorable Riggs. Riggs put Mr. the stand? Was Rackers, Block v. it. working still He’s out there. You want however, (Mo.1953). improper, It is being Leehy to talk about fair? Mr. re negative inference argue changing testimony? You know what pro sulting opponent’s from his failure trying you? he’s to do in this don’t is equally witness if the witness duce such a ATTORNEY]: [DEFENDANT’S Boles, parties. Hill v. available to both Honor, Again, [object Your I want to to] 1979). The trial took Mr. characterization. objection an failure to sustain court’s Riggs’ deposition and the witness constitutes improper him. equally available to error. Id. prejudicial objection THE is over- COURT: Your is to considered Whether a witness be ruled. parties on both equally available to *5 depends upon of a lawsuit several You sides [PLAINTIFF’S ATTORNEY]: among factors are factors. Included those know, get a I think this let’s few facts. of (1) party’s superior “one means knowl- this case. jury going knows what’s on in identity edge of the existence and of know, thinking you You start about witness”; (2) “the of the nature it, know, you bring you in this expected give that the witness would be to got opposite in that. He’s two con- bring his statements or light previous in the of have Somebody tradictions: must stole declarations, any, if the facts of the about know, You trailer could the block. that case”; (3) relationship “the borne have rolled. party to a as the particular the witness argument proper was not Plaintiff’s af- reasonably expected be to same would plaintiff’s argu- The tenor of retaliation. outcome of personal fect his interest deliberately at- ment is that defendant that he litigation and make natural concealing jury by tempted deceive testify expected in favor of would be laying blame material evidence other.” Id. at 145—46. party against real sense argument elsewhere. The hold, needlessly be it would broad While argument. Earlier responds was urges, Riggs equally that as defendant plaintiff had made argument his simply plain- because plaintiff available to that the that no evidence” aware of Riggs’ deposition, application took “[t]here’s tiff stolen. The further block was borrowed or of this factors to the facts foregoing unnecessary issue was was indeed argument Riggs here makes it clear that case to con- defend- plaintiff that and cannot be said available to point equally make ant.4 stitute retaliation. employee em more available balancing Boles fore- makes the test
4. The enunciated Stores, See, Drug e.g., Zipp ployer. holding v. Gasen’s em- an either that an closes extreme 1970); Inc., (Mo. Wehr necessarily 449 620 ployee available his em- more Lines, Inc., kamp ployer v. Watkins Motor simply his as an em- because of status 1969); Railway Ex- Duboise v. ployee with one or that a witness associated Agency, necessarily press equally Desioge 1966). pre- v. Firmin deposed See also Goodman has him. Some other if the other Hosp., suggest of Boles cases that existence suggest Similarly, pre-Boles automatically that cases employer-employee relationship other on points equal duty The first factor toward the incident. He was at the time availability. accident, The fact that of the but he learned about posed Riggs fully demonstrates that a dock after he accident from tiff knew both and the existence making delivery. Any returned from tes- identity this potential Although witness. timony might relating given have directs Riggs assigned Corpo- was not to the Purex ly hearsay. would accident have been loading basis, ration a regular dock on he Neither he have whether the could testified worked there as a replacement week trailer wheels were chocked when trail- the accident occurred and had worked there parked dock, er at the because loading during the entire winter of 1975—all he was not on at the time the trailer the time period was employed short, parked. Riggs’ testimony Moreover, operator. Purex as forklift virtually meaningless.5 would have been even if did Riggs person- not know amply The record demonstrates ally, defendant’s business records indicate plaintiff’s argument improper because Riggs assigned to the Purex Cor- Riggs available as a poration accident, site at the time plaintiff. be cannot sus- and those records could have been obtained ground tained it constituted easily through discovery procedures. normal proper retaliation. It therefore should have said, therefore, cannot be that defendant been excluded. The trial court committed “superior of knowledge means by overruling prejudicial error existence and identity” Riggs. objection allowing proceed The second and third factors are related. Id. at 145. The argument. judg- with the It might reasonably expected be reversed, ment the trial court is and the testify defendant, would in favor of case is remanded for a new trial. employer. Riggs’ deposition transcript, however, demonstrates Nothing otherwise. WELLIVER, HIGGINS and DONNEL- any Riggs’ answers to ques- LY, JJ., SEILER, Justice, Senior con- tions indicates that Riggs any was in way cur. evasive or uncooperative. The fact is that *6 Riggs RENDLEN, could not testify persuasively C.J., for ei- separate in dissents ther side because he very knew opinion little about filed. party deposition operate when solidify dispel one takes the pre- of a wit- either to or the to opposing party, ness sumption. associated with the the automatically equally becomes availa- See, parties. Riddle, e.g., ble to both Bean v. argues Riggs 5. Thedissent did indeed tes (Mo.1968); 423 S.W.2d Midwest Li- tify a of to number material issues. The dis Serv., brary Inc., Syss., v. sent, however, Inc. Structural the nature of misconceives v. Cf. Lix Riggs’ testimony. testimony about wheth Gastian, (Mo.App.1956) er the trailer involved if in case would roll (availability transcript of from first trial made the brakes did not work and the wheels were equally witness who testified response hypothetical at first trial avail- not chocked was in ato trial). philosophies able at question posed plaintiff. second by under- The claimed ad lying these two lines of cases clash in this mission that “sometimes do [the brakes] question in which the witness in is an not work” because “the air leak off’ was could deposed response by question relating of Riggs’ one and has been the to a to impracti- experience general highlights other. This case thus with trailers in the not cality response question regarding of inflexible rules. would be better to a the trailer say that, party-physician as with the involved here. relation- Boles, ship, 146, presump- see at Oddly enough, the dissent’s characterization regarding availability tion arises of the wit- testimony Riggs’ supports of the conclusion presump- ness and that “in a case this Riggs as witness may inapplicable by tion be held reason of the plaintiff. testimony If the tenor of the were as evidence,” circumstances shown in id. Com- it, the dissent characterizes
pare Bucyrus-Erie, Lewis doubtless would have favored rather 1981). Application 927 n. 6 of defendant, than and it would seem that balancing by test Boles would mandated Riggs as a would have called witness. MORGAN, Justice, Though called injured. tiff was Senior dissents and sketchy memory left much dissenting (whose concurs in of separate opinion Caldwell RENDLEN, it not call to testi- conjecture) did C.J. sub- Biggs failure to call fy. This GUNN, BLACKMAR, BILLINGS and argu- in final by plaintiff of comment ject JJ., participating not because not members ment, majori- it is on that comment of the Court when cause was submitted. judgment. ty mistakenly reverses RENDLEN, Justice, dissenting. Chief morning, as At 9:30 that approximately I respectfully dissent. The awarded driving his loaded forklift plaintiff was plaintiff damages personal injuries sus- slipped away onto trailer # the trailer operating tained as the forklift fell he The forklift with loading from the dock. away empty defendant's trailer rolled ground dropped to the plaintiff aboard loading from the dock where had been to his back for injury sustained the placed by one of defendant’s truck drivers. in- damages which were awarded. was employed opera- Plaintiff as a forklift no chocks vestigation following accident Corporation tor Louis. Purex place the trailer’s were found block companies Trucks various delivered wheels. Company loading trailers to Purex A effect safety Purex work rule in at its docks in the hours early morning provided time that forklift of accident 9, 1977, of of November to the time operators were look to determine if trail- injury 9:30 a.m. defendant’s er wheels were chocked. Plaintiff testified driver, Caldwell, (Caldwell didn’t Norman glance at the trailer see if that he did it”) “spot- know the “correct time of had sight line place chocks were in but his loading ted” a trailer at the Purex dock. partially and he could not see blocked prevent subse- Caldwell claimed the wheels and that he been directed trailer, quent unintended movement him from wheels, prevented fill a rush order which he set the air brakes for the trailer taking from the forklift and step gear, its blocked landing lowered one he see point walk to a where could whether dual wheels a 4 X 4 wood block place. then chocks were (truck). the tractor From disengaged a.m. until he went off at about 8:00 agree with that violation majority paid or atten- apparently Caldwell little rule not work in this case did render tion to the testified he was trailer. contributorily as a mat- negligent last “to trailer” handle the but ter law that failure couldn’t remember which “door” of directing require verdict instruction “spotted” the trailer or loading dock he had finding right that defendant had *7 the hour. The best he remem- approximate and parking control over stabilization the spotted was that he the trailer in bered error. prejudicial trailer not constitute did morning.” His revealed “early However, disagree majority’s I with the condition, concerning the trailer’s nothing determination that the trial court’s failure or if whether its wheels remained blocked objection to the com- sustain system permit- the the air in brake leaked by coun- argument plaintiff’s ment in final the ting the brakes to loosen and trailer to call its concerning sel defendant’s failure he roll the the After at time of accident. reversal. employee-driver Riggs requires away, pulled the tractor and it disengaged counsel Prior to the comment leaving simply ignored the trailer until his in defendant’s counsel discussed 8:00 at that work at a.m. was relieved argument this version of portion closing employees, time another of defendant’s certain evidence. person one who became Clyde Riggs, Now, you analyze if defend- premises responsible Purex [Defense Counsel]: things, all go through these ant’s control of trailer # they were set plain- working time were period 8:00 a.m. until the when brakes available,” when we left. The trailer was blocked hence the comment was not im- So, and everything Further, was in order. when viewed in proper. light of only thing that leaves in what argument, terms of evidence the com- might have happened is for the air to leak ment, if Riggs “equally even availa- off the somebody brakes and ble,” borrow permissible retaliation. I constituted those blocks for I another trailer. position submit is correct don’t think any dispute there is about the and no reversible error resulted from fact that trailer was not blocked comment closing argument. tiff’s brief in occurred, this accident Mr. it is for a Although improper party to Leehy said that to company. negative resulting inference argue the portion The above of defense counsel’s produce his failure to a witness opponent’s closing argument retal- prompted plaintiff’s if the is available” “equally witness to both iatory which, pertinent rebuttal comment in Boles, parties, Hill v. part, is as follows: 1979), employee banc is They to tell want Counsel]: [Plaintiff’s “equally not an available” witness for the how fair are. you They want to tell action, plaintiff in a tort Duboise v. Rail- go you, Leehy, ‘Mr. home. mind Never way Agency, Express back. Never mind your your problem.’ Duboise, (Mo.1966). In Court elabo- Where was the driver? He’s out there. rated: guy He’s the the tractor rule, general ... has become a [I]t Try blame, there. throw is twenty more than Missouri eases are not- being fair you people? in 68 A.L.R.2d ‘it ed l.c. two, Number the driver was on who case, in a civil permissible counsel in four, out eight there between jury, his comment on Riggs. Was Riggs put Mr. on the stand? the failure or omission of the adverse He’s still out there. want working You produce or as a party examine talk being Leehy about fair? Mr. behalf an of such employee on his changing testimony? You what know apparently qualified testify who is trying you? he’s to do in this don’t question regard matter or issue.’ Again, your Hon- [Defendant’s Counsel]: added.) (Emphasis or, I want [object that characteriza- to] Discussing the factors enumerated in Hill Riggs’ tion. He took Mr. deposition Boles, 145-46 the witness is him. equally available to 1979), majority nevertheless concludes objection THE over- COURT: Your that, despite general clearly rule enun- ruled. ciated in Duboise defendant’s driver know, get You let’s Counsel]: [Plaintiff’s available to the in this a few facts. I think this knows case. While some cases as Hill v. know, going what’s on in this case. You Boles, in which may there be circumstances it, you thinking you start about is not more to his know, you bring bring respectful- than the other employer party, got opposite that. He’s two contradic- here, majority misapplies ly submit tions: must Somebody have stole reasoning of Hill. Hill was a medical know, block. You that trailer have could action in which a doctor and malpractice *8 rolled. negligently were hospital charged with ad- permitting Defendant that contends infant, ministering causing oxygen to an plaintiff’s counsel to comment on defend- Summary judgment blindness. almost total as a employee Riggs ant’s failure to call its hospital in favor of defendant was entered witness constituted reversible error because returned a verdict in favor of and the parties. available to both Riggs equally the Appealing judgment doctor. defendant doctor, argued suc- plaintiff that because for defendant Riggs
Plaintiff counters “equally he that it was reversible error for the employee cessfully defendant’s was not 794 to permit
trial court
would
be
closing
reasonably
expected to affect his
plaintiffs
that
failure to call the
personal interest in the outcome of the liti-
performed
doctor who
surgery
(plain-
on his
gation on
Riggs
behalf.
de-
tiff’s) eyes
give
negative
should
rise to a
employee
fendant’s
and remained
so
After setting
perti-
inference.
forth the
throughout.
had no
connection with
noted,
nent factors the Court
Missouri
plaintiff (there
to
nothing
they
“[i]n
is
indicate
generally
the cases have
held
a party’s
that
another)
even knew one
which would cause
treating
injury
in a
physician
personal
ac-
to
plaintiff. Accordingly
favor
the
is presumptively
tion
more available to that
general
employee
rule that a defendant’s
is
employed the
We be-
plaintiff
[who
to
equally
doctor].
not
in a
lieve, however,
proper
that
case this
apply.
tort action should
Duboise v. Rail-
presumption may
inapplicable by
be held
Express
way
Agency,
reason of the circumstances
in evi-
shown
(Mo.1966).
(Emphasis added.)
dence.”
Id. at 146.
However the fact
that defendant’s em-
The circumstances in Hill which demon-
ployee Riggs was more available to defend-
strated that
treating
non-called
doctor
plaintiff,
absolutely
ant
than to
does not
was not “more
to
plaintiff
available”
an
Riggs’
entitle
to
inference that
law,
(1)
under the
follows:
as
if he
as a
testimony,
had been called
wit-
thought
absent
he
doctor-witness
treated
ness,
would have been unfavorable
plaintiff was associated with the defendant
principles
The governing
defendant.
are
(2)
hospital group,
doctor in the same
Stores,
well stated
Adam Hat
Inc. v.
absent doctor
on the staff
City,
(Mo.App.1957):
Kansas
hospital,
by plain-
fendant
was not selected
rule
general
It is well established
that
parents independently,
tiff’s
but was re-
testimony
employee
of an
of one of
by
by
ferred
a doctor referred
the defend-
parties
may
expected
who
be
have
(3)
ant doctor and
absent doctor
relevant
on the issue
(and
listed
the defendant
not the
equally
oppos-
case is not
available to the
tiff)
expert
might
as
call.
ing party,
and that
is
coun-
that,
typical
The Court concluded
unlike the
of the
sel
comment on the failure
personal injury action in which the interest
employer-party
produce
employee,
treating
lies
physician
particularly
suggest
and to
an inference that
testi-
“totality
the cir-
patient,
unfavorable to
mony would have been
cumstances
in this record” dem-
portrayed
However,
employer....
onstrated sufficient
of relation-
closeness
possible
required
produce every
not
doctor and the
ship between the defendant
witness, and
inference
an unfavorable
potential
“as would reason-
witness-doctor
be
where it
may
appears
not
drawn
be
to affect
ably
expected
[the witness’]
have
produced
the evidence not
would
personal
of the liti-
interest
outcome
unimportant
relatively
been
was,
therefore,
gation,”
and he
realized,
or else
either as inferior
at 146-47.
available to
defendant.1 Id.
of, or cumulative
merely
corroborative
Hence,
per-
defendant should not have been
to such evidence.
Unlike
mitted to comment on his absence.
Denmon,
accord,
v.
Boles,
Id. at 41. In
State
this record dis-
the record in Hill v.
(Mo.1971); Gridley
745-46
relationship
closes
between the
Johnson,
(Mo.1972);
employee Riggs remotely
and defendant’s
Desloge Hospital, 540
in Hill
v. Firmin
resembling that described
Goodman
hospital.
the defendant
“Unfavorable testi
court
noted that
the situation
1.
Hill
also
mony
holding
treatment
analogous
an em
relative
there was
cases
physician
employ
associated
ployee
or to another
witness more available to an
hospital
though
adverse
would have
same
er
even
the absent doctor was
with the
because
doctor,
might
employee
consequences
befall an
did
not an
of defendant
contrary
rendering
of his
to the interests
medical
services
who testified
collaborate
closely
employer.”
146-47.
583 S.W.2d at
doctor was
tied
*9
absent
913-14 (Mo.App.1976).
ty”
Thus
but if it
not blocked
if the
the
here
issue
is not whether defendant’s
“brakes
work” the
“have
don’t
trailer would
employee Riggs
“equally
was
available” to
good
chance to” roll when a forklift was
the
majority
opine,
as the
seems
it.
driven into
He also
admitted
(for
Riggs
indeed under the case law
was
they
“sometimes
do not work”
[the brakes]
available”)
not “equally
but whether there
added,
you
“that’s when
take them to
support
evidence in the record to
get
garage
they
them fixed when
implicit
trial court’s
finding
Riggs
had
don’t
This question
hold.”
was then asked:
knowledge important
in the
Clearly
case.
Q.
problems
they
What
have
had
supports
finding.
evidence
such a
the brakes?
Testimony
type
as to the
of wheel chocks
Well,
A.
the air could leak off. That’s
near
#
trailer
93 and whether the
just
you push
like
down a car brake
blocked,
conflicting.
wheels were
De-
push
down and the fluid is
fendant’s driver
“spotted”
Caldwell who
gone
something.
or
bay
trailer at
prior
testified that
to 8:00
parties
a.m.
Thus
he blocked one side of
dual
counsel
both
knew the
back
trailer
4 X
wheels with a
absent
(employee Riggs),
wooden block.
had
He also testified there were
knowledge
important
no rubber
of matters
blocks attached to
bay
the dock near
25 at
ease. Clearly defendant had reason not to
that time. Two warehouse
tes-
supervisors
want
Riggs present
taking
tified that after plaintiff’s
they
accident
did Riggs deposition
developed
with the facts
any
not observe
path
chocks in the wheel
there,
provided
reasonable basis for
trailer;
the trailer nor in
vicinity
tiff’s
the jury. They
final
however, contrary to
Caldwell’s
provided
negative
the basis for the
infer-
they stated there were two rubber non-skid
resulting
ence
defendant’s failure
approved
OSHA
wheel chocks attached to
call Riggs.
sup-
It was these facts which
the building at that place but
were not
port
overruling
the trial court’s
under the trailer.
In final argument, de- objection
argument.
to the
fense counsel conceded the wheels were not
Our
of a trial
ruling requires
review
court
chocked
the accident but
finding
be sustained
there
unless
asked the
to infer that someone “bor-
support
is no substantial evidence to
it or it
block,
Caldwell,
rowed” the
placed there by
against
weight
is
of the evidence. Del-
for another trailer.
Gibson,
(Mo. banc
aney v.
further reason earlier comment. ation to defendant’s failure call wit- plaintiff’s reference they bring person, in one nesses: “Did plaintiff’s It should be remark was noted person, say things that these [load express brief and contained no reference as were reliable? Not one indicator devices] might might or testify, to what not into court. How about person came regard only the innuendo. In this companies, one of these retort, somebody from comment fair tiff’s counsel’s of them in? How about bringing one pattern it followed the set argument comparable showing you in which innu- of in and prior bringing one them injected permit endo was conclusion point, plaintiffs’ objection this [at folks — had failed to come forward was overruled.... case. To the proof to establish his at Id. 926. prior argument defendant had extent the argument Holding permissible this value, it permitted plaintiff’s re- persuasive stated: Court in rebuttal. taliation argu propriety on the ruling ... In Inc., In 622 Bucyrus-Erie, Lewis v. ment, must be challenged comment 1981), Court 920 this S.W.2d record, light entire interpreted in of the concerning counsel’s questions faced several Phillips v. Vroo rather than in isolation. closing There argument. comments man, 626, (Mo.1952). 630 The 251 S.W.2d personal injury action was not exceed the bounds comment did and the against oper- a crane manufacturer argument plaintiffs had toppled causing which ator of crane proving their burden of failed in injuries. settled their ac- Having without such a device. crane defective plaintiffs pro- tion with the crane operator See, Motors, Inc. v. Western In Heshion against the manufacturer on the ceeded Hotels, 526, 533 600 ternational S.W.2d theory liability product in tort for strict Co. (Mo.App.1980); Colonial Construction defect. 551, Industries, 421 S.W.2d Sharp v. Addressing propriety the issue of the v. (Mo.App.1967); Johnson 554-55 925-26, closing arguments, Court 308, Co., 256 S.W.2d Louis Public Service principles: iterated familiar (Mo.App.1953). 312 possessed . . . The trial court is of broad Id. 926. closing argu discretion in area of ments, lightly ap not to be disturbed another com- also addressed Court Railway Co. v. peal. Norfolk & Western closing argument: concerning the plaint (Mo.1970); 273 Greening, the fol- complaint concerns The next Nowak, v. 465 Payne & Co. “ S.G. argument: ‘Was lowing [the oiler] v. Robi (Mo.App.1971); Lineberry 20 T That was the there?’ don’t know.’ nett, (Mo.App.1969); for operating man was responsible Keller, Arroyo in? Did Did the oiler come that crane. Further, counsel ac deny that he they bring the oiler facts and arguing corded wide latitude ‘Folks, they’re say, was not there and evidence, id., drawing inferences from standing light of I was making me. indulges liberal attitude and the law question, that oiler There’s no there.’ where the particularly argument, toward point, why wasn’t there and that’s [at or complained of is fair retort comment objection was plaintiffs’ overruled.] opposing argument responds Louis-San Francisco Doyle counsel. v. St. at 926. Id. Co., (Mo.App. Ry. Robinett,
1978); Lineberry v. id. error oc- finding prejudicial that no objec- rulings the trial as curred in coun- then discussed defense Court Court arguments, either of the tions to concerning the failure sel’s reasoned follows: to call certain witnesses. plaintiffs *11 Finally, both plaintiff’s references to leaked off the brakes or that someone bor- potential failure to call witnesses were in blocks, rowed the retaliatory. Plaintiffs, sense argu- charge defendant’s trailer ment, stated that defendant had not involved, the critical presented its employees deny any de- Riggs. driver retaliatory Such comments crane, fect in the though plaintiffs had permissible have often been deemed in clos- available and in fact depositions utilized ing arguments. Baptist See Graeff v. Tem- of various employees. Additionally, ple 291, Springfield, S.W.2d 305-307 plaintiffs’ counsel argued that had the 1978); Hopkins bane v. North Ameri- union considered it improper for workers Insurance, can Co. Life and Health load, to ride the certainly 310, 316-317 would have elicited this fact from a union sum, In it is clear “equal that the doctrine official Hence, plaintiffs who testified. availability” is not applicable bar the having injected allegations that defend- plaintiff’s jury argument because defend- ant failed to evidence, refute their de- ant’s employee, Riggs, “equally was not justified fendant was in its fair retort. (under law) available” plaintiff. Baptist Graeff v. Temple Springfield, Further, developed the facts in Riggs’ depo- 1978); St. sition competent demonstrated he was Louis County v. Szombathy, 497 S.W.2d testify to matters which if before (Mo.1973); Doyle v. Louis- the jury, pertinent to the issues and Co., San Francisco Ry. could have harmed defendant’s case. De- 725-26 (Mo.App.1978); Mize, Clark v. fendant could ill-afford to call Riggs and 637 (Mo.App.1975); Hartford have him exposed cross-examination dur- Accident List, & Indemnity Co. v. ing which admissions of the developed sort 766 (Mo.App.1968). deposition in the would be presented to the Id. at 926-27. jury. yet, And the majority somehow con- The issue and factual context of Lewis is Riggs’ cludes testimony would not have similar to the case at bar. There plaintiffs’ been potentially harmful to defendant. counsel, argument, had stated that de- However, deposition demonstrates oth- fendant had not called employees certain as deposition erwise and the provided a firm witnesses, though plaintiffs depositions plaintiff’s basis for counsel in rebuttal ar- of various employees. Plaintiffs also com- gument to comment on defendant’s failure mented that had the union considered it call as a witness. improper for workers load, to ride the plaintiff’s Finally, legiti- fendant would have elicited this fact from a mate prior argument retaliation to the union official who testified. To meet these defense counsel. Each of propositions these comments, counsel, defense above, as noted support the overruling trial court’s defend- argued that there were certain witnesses ant’s objection comment and that plaintiffs had not to testify called defendant has failed in its burden of show- this Court held justified defendant was ing the ruling trial court’s sup- was not its retaliatory argument. Id. at 926-27. ported by substantial evidence. bar, in the Similarly, case defense For these reasons I majority submit the speculated counsel regarding possible expla- opinion contrary runs to settled law. nations to why rolled, the truck such as finds the trial court abused its broad discre- leaking air brake lines and some- tion where no abuse occurred mandates borrowing one of the blocks from an- reversal from brief somewhat ambiguous other trailer. There was no direct evidence argument, justified comment in a comment supporting adduced at trial either these under the facts. rebuttal, suppositions. coun- argued sel that the might witness who shed judgment I would affirm the of the trial light on matters, i.e. whether air court.