Porter v. Erickson Transport Corp.

coverage limits are referred to American as as addition what characterized anti-stacking max- provision,” “the that the payable” “amounts in the text of Part 6. liability sum However, imum limit of was a of limits clause does not reduction liability that were “shown declara- say payable” which “amount is intend- person tion for each for uninsured motorist Having ed.... failed to make clear coverage.” language in appeared This intended, payable” which “amount was subpart Liability” “Limit óf of the “UNIN- the insurer must bear the burden MOTORISTS SURED/UNDERINSURED resulting confusion. This holds Court applicable It both COVERAGE.” was ambiguity that the must be construed in types coverage. coverage. Accordingly, favor of the re- duction will made produced be from the total dam- This two results. It created ages duplicity in that it by provided caused Bolin rather than from two different ways ascertaining policy for maximum lim- the limit coverage. coverage, its for underinsured motorist produced each of which different maximum plaintiffs The reduction clause in amounts, i.e., and, it ambiguity; created an coverage underinsured motorist refers to limits, identifying policy insofar as it treat- payable damages “amounts otherwise coverage though ed as underinsured coverage.” added.) (Emphasis under this coverage. policy were uninsured in coverage” plainly refers to the “[TJhis Rodriguez things. did not do those coverage uninsured/underinsured motorist Application Nolan also filed her for Re- plaintiff’s in policy. ambiguous. It not hearing and/or Transfer to the Missouri does damages It not refer to total caused Supreme presents in Court No. 18428. It in they Fletcher the event exceed the nothing new. Nоlan’s Motion for Rehear- coverage. amount of underinsured motorist ing and/or Transfer to the Missouri Su- The trial court correctly determined that preme Court No. 18428is Amer- denied. $50,000 underinsured motorist cover for Rehearing Applica- ican’s Motion and age required would be to be reduced the Supreme tion for Transfer to Court in (Fletcher’s) amount tortfeasor’s lia No. 18409 is denied. bility coverage. point is denied.

No. 18409 is affirmed. No. 18428 is af-

firmed.

CROW, P.J., SHRUM, J., concur. PORTER, Donald Plaintiff- ON MOTION FOR REHEARING Respondent-Appellant, PER CURIAM. v. In its motion rehearing, American CORP., ERICKSON TRANSPORT nothing adds that was not included Defendant-Appellant- previously brief and considered this Respondent, again court. Rodriguez American cites Co., General Accident Ins. 808 S.W.2d 379 1991), and, apparently based Maryland, U.S. Aluminate Co. — upon the fact this principal court’s Defendant. case, opinion did not refer to that deduces Nos. 18157. that it It considered. was consid- of Appeals, Missouri Court ered. It was not cited nor discussed be- District, Southern policy cause language Rodriguez Division One. duplicitous

was not so as to be indistinct uncertain, policy language April in this case. pointed principal opinion,

As out in the stated, policy in question insurance McLeod, Spezia,

Richard E. Grace L. Firm, McLeod Law City, Kansas James W. Schroff, Newberry, Newberry, Glass & Springfield, appellant/respondent Er- ickson. Garner, Strong,

Thomas Jeffrey Steve Bates, Associates, Strong Springfield, W. & respondent/appellant Porter. Hyde, Love, Kent 0. William C. Harri- son, Hyde, Tucker & Springfield, for defen- dant U.S. Alumínate Co.

PER CURIAM. By a Operating “Contractor and Lease Agreement” signed 6, 1989, October Nikki (“Nikki”) D. Porter leased a tractor owned by (“Erick- her to Transport Corp. Erickson son”). 24,1989, On November Nikki’s hus- band, (“Plaintiff”) Donald W. Porter tractor, driving the pulling a tank trailer. dispatched Erickson Plaintiff to U.S. Alu- (“U.S. Alumínate”) mínate Maryland Co.— Baltimore, Maryland, in liquid where sodi- um alumínate was loaded into the trailer for delivery municipal plant to a water in Delray Beach, Florida. Beach,

Plaintiff rig Delray drove the arriving evening of November 1989. While unloading he was the sodium alumí- nate, got eyes, injuring some of his them. Plaintiff sued Erickson and U.S. Alumínate, averring negligence their injury. caused the pled One of the defenses Erickson was that Plaintiff’s claim “is barred ... Chapter RSMo 287 because exclusive [his] remedy compensation is workers’ bene- pretrial order, fits.” In a the trial court separate ruled “there would be a trial of employee/workers’ compensation issue present after the trial.” 13-day jury A trial of all other issues produced assessing percent- a verdict these ages Erickson, 76; Plaintiff, 24; of fault: Alumínate, U.S. 0. The found Plain- damages, disregarding any tiff’s fault on part, $3,700,000. sum, his to be From that $100,000 the trial court subtracted received earlier Plaintiff in settlement with City Delray of Beach. The trial court fur- $864,000 ther subtracted per- for Plaintiff’s Tax, fault, Highway copy of Use and centage prejudgment of then Federal added $225,326.42 408.040.2, registration. per of title or title interest § $2,961,326.42. Supp.1987. RSMo Total: 2. ... This lease shall commence [§] Agreement and on the date of this shall judgment The trial court entered pro- until terminated as remain effect amount, against Erickson herein, January or until 31st of the vided against against and his claim on year. following Alumínate. U.S. proper per- 3. ... the full For and [§] Afterward, granted mo- the trial court trip by the of each made Con- formance summary judgment by Plaintiff for on tion Agree- with this tractor accordance compensation” de- Erickson’s “workers’ ment, agrees pay to Contrac- Carrier fense. The trial court found Plaintiff was gross percent tor of the Carrier’s rev- regular employee neither a enue earned. 287.120, meaning RSMo within of § statutory employee nor a of Erickson agrees use 5. ... Contractor [§] 287.040, meaning within the RSMo § Equipment (together with drivers labor) necessary to trans- all (a) brings appeal 18155 from port, load unload behalf Carri- verdict, judgment against it on the er, or on of such other certified behalf (b) granting the order Plaintiff’s motion may designate carriers as Carrier summary judgment. “trip through authorized lease” inter- petition Plaintiff’s contained a count change agreements, such commodities as seeking punitive damages from Erickson. may Carrier make available to Contrac- At the close of Plaintiff’s evidence tor. ... trial, jury trial a verdict court directed trip shall not 6. ... Contractor [§] against Plaintiff on that issue. Plaintiff equipment any to lease the listed herein rul- brings appeal challenging that carrier, person or without first hav- other ing. approval ing specific written to obtained appeals, but address We consolidated Carrier.... do so from opinion. in separately them this respon- be 7. ... Contractor shall [§] satisfying applica- all sible to Carrier for Appeal 18155 regulatory require- and Federal ble State presents points. Erickson’s brief six statutes, subject all at times ments and The pertain first trial. five to To dis- to verification Carrier. first, sixth, which we address avers responsibility Contractor charge such granted wrongly Plaintiff’s mo trial court following duties: perform shall summary judgment on Erickson’s tion for compensation” defense. “workers' hire those C. shall Contractor sup- contentions in Erickson makes two appli- all qualified under drivers who are “A” port point, designating them Contrac- and statutes. regulations cable trial “A” avers the and “B.” Contention screen, to test permit Carrier tor shall ma- erroneously there no court found is necessary paper work as and obtain fact as to whether terial issue of regulations required by applicable all or an inde- employee of Erickson was an persons operate to vehi- all who are injured. he pendent contractor when cle. to in the first agreement referred designates Erick- opinion sentence this specifically It understood 9. ... [§] as Contractor, and Nikki “Contrac- son as “Carrier” its drivers agreed and part: in provides, pertinent agents, employees It helpers tor.” and/or are Contractor of the Carrier. represents or servants 1. ... Contractor [§] parties by the agrees it is understood equipment. Con- and he is the owner such independent Con- that Contractor is receipt payment provide tractor shall taxes, registration fees, prorate tractor shall select his own license who drivers subject processing qualifica- fees, taxes, and personal property ad valorem tion requirements herein and established other permits any or levies or assess- ... the Contractor shall determine the man- operation upon based the use and ments ner in which those shall drivers be com- Equipment....

pensated. hereby agrees Contractor comply provisions with the of the Fair 17. ... Contractor shall maintain [§] Act, Labor Standard Workman’s Com- force full and effect Workmen’s Com- laws, pensation Security, Social Income pensation Insurance the Contractor Withholding

Tax Un- requirements and employees per- and Contractor’s while employment Compensation laws which forming proper lawful and duties under may applicable be himself em- and his agreement.... this ployees. respon- The Carrier shall not be wages expenses sible for the and of Con- party ... Either shall have [§] employees, agents tractor’s or servants. right Agreement any this cancel Contractor shall hold Carrier harmless party. on notice to Termi- time any liability from arising a relation- cases, in such nation unless otherwise ship any and between Contractor of Con- notice, specified in the shall be effective employees, agents tractor’s or servants (30) thirty days, unless ter- otherwise laws, whether under industrial accident provided. minated hereinafter compensation laws, workman or other or insolvency, receivership event bank- applicable state or federal em- laws Contractor, ruptcy of Carrier shall have ployers employees. Contractor shall right to cancel and terminate this compensation maintain workman cover- notice, Agreement Carrier without age for the Contractor and any employ- Agreement may terminate this with- ee, agent or servant whom Contractor (cid:127) any out notice the event of breach employs performance of this comply by failure to Contractor with agreement. In addition, Contractor shall Agreement.... term of this taxes, withhold state and federal income security, social unemployment insurance bulk, liquids Because Erickson hauls payroll upon and other wages taxes equipped tractors leased to it must be with paid by Contractor to Contractor’s em- pump. a When Erickson leases a tractor ployees. Contractor shall be re- and is lacking pump, the custom is Erick- that sponsible for selecting, fi- purchasing, buys son one and it to The sells the lessor. nancing maintaining and equipment. its option hiring lessor has the of Erick- one of responsible Contractor is selecting for all pump, son’s mechanics to install the on the routes, except for requiring loads state time, having pump latter’s own or in- the permits or local governmental where the stalled elsewhere. agency will the establish route over a pump. Nikki’s tractor lacked which he must travel. one, bought and it was installed on Nikki’s by an tractor Erickson mechanic. The cost agrees ... pay Contractor to [§] pay- was to be deducted from Erickson’s operating expenses way all in any ments to Nikki. relating or Equip- to connected with the valve, pump pressure The had a relief ment, including limitation, without ex- all safety prevents pres- device that excessive penses fuel, taxes, oil, of fuel mainte- building up sure from a hose becomes service, nance, and repairs, materials and clogged pump operating. while the is taxes, fees, pay privilege inspection to all any taxes, and unloading As Plaintiff was the sodium charges fees and by any Beach, taxing governmental Delray assessed or alumínate ‍​‌​​​​​‌​‌‌‌‌​‌​‌‌‌‌‌​‌‌‌​​​‌​‌‌‌​‌​​​​​‌​​‌‌​‌‌‍at the be- on authority Equipment, including gan stooped the to “whine.” to When to, tolls, ferries, it, but not limited up” road exаmine hose “blew and sodium taxes, mileage taxes, face, Federal use fuel entering alumínate struck him in the (1) carrier’s eyes. employee: this er’s control his Plaintiffs evidence showed work, (2) power relief the carrier’s pressure occurred valve because summarily discharge down.” the lessor. Id. at “upside had been installed then This Court considered 658[10]. are fact issues Erickson asserts there the lessor’s wife was the carrier’s whether it, which, favorably support if resolved noting paid sepa- employee, she was “statutory finding enlisted her as an rately when lessor employee by appointment.” fol- driver. This Court cited the assistant ap- hold a maintains Missouri cases driver passage Stegeman lowing v. St. pointed by a lessor of a truck fulfill Parish, 611 S.W.2d Francis Xavier statutory employee lease of the lessee is a 1981): (Mo. banc by appointment. Missouri, uncompensated an is worker cites to first case Erickson employee appointment if he is an Mo- this contention is Miller v. Hirschbach employer that em- the service Inc., Lines, (Mo.App. tor S.W.2d control, right or ployer exercises has 1986). There, driving a lessor’s wife was control, over the worker. tractor, cargo hauling for the the leased Miller, 714 S.W.2d at 659. occurred, lessee-carrier, when an accident awarded workers’ injuring her. She was the carrier had as This Court concluded compensation from the carrier benefits wife—when much control over the lessor’s and Industrial Relations Com- Labor driving had lessor. she over the —as argument that despite mission the carrier’s Furthermore, she could drive Id. at 660. employee. This Court af- she was not its approval. carrier with its Con- firmed, holding first husband-les- wife sequently, this Court held lessor’s employee carrier’s within the sor was the employee appointment was the carrier’s 287.020.1, meaning of RSMo § compensation her and affirmed workers’ every person in employee defined as: “... award. any any employer ... under service sup- Erickson cites to The second case hire, express implied, or contract of or oral point its sixth is port “A” of contention written, elec- appointment or under Lines, 236 Freight v. Brashear Ellegood tion....” (1942). 971, 162 Mo.App. This noted a in a Court comment text employed a There, a truck the owner of compensation that there is a workers’ it. The owner contracted driver to drive tendency classify growing owner-drivers to furnish truck with a carrier they employees perform of trucks as The owner continued to the carrier. driver integral part which is an continuous service wages. driver was pay the driver’s employer’s business. 714 S.W.2d at on the carrier’s injured operating the truck noted it 656. This Court further negligence filed a premises. The driver parties, not lan- actual conduct of the the pled The against the carrier. carrier suit contract, guage written which estab- of the remedy was workers’ the driver’s exclusive particular work- lishes the work status of workmen’s) (then Specifi- compensation. er. at 657. Id. that inasmuch as cally, the carrier asserted to the lease in Miller reveal

References premises in the the on its accident occurred in the provisions some of its resemble those business, the of its driver was usual course However, provision in the lease here. one statutory рer its RSMo employee § provided compensation for a Miller lease 1986), (now 287.040, RSMo § operation” higher at a rate “Double Driver read: An- single operation. than driver Id. for a (a) Any person has work done un- who the lessor to em- provision allowed premises der contract on or about his drivers, subject each was ploy assistant but the operation of usual busi- which is an approval by to the carrier. Id. at 659. be he carries on shall ness which there liable employer and shall be deemed an This Court found two circumstances contractor, chapter his to such the lessor was the carri- under this which established subcontractors, employees, to their embarkation destination. Erickson right “employee had such as to its injured or the drivers.” or killed on about premises employer doing while explained the Cavin customer the sets work which is in the usual course his delivery, long for as Plain- deadline business. tiff he could met the deadlines drive wanted, “assuming stayed

hours he he If guidelines.” within DOT Plaintiff appellate The court the held driver was stayed night, in a motel at Erickson was statutory employee not the carrier’s under obligated pay not to the bill. Under some statute the carrier did above because employees spend its circumstances when employ hauling not the lessor to do for the motel, night pays in a Erickson the bill. carrier; is, contracted no carrier if Cavin further admitted that Plaintiff lessor, hauling merely procured to the but “qualified carry wanted driver to under per- to additional facilities from the lessor regs” passenger, DOT as a he could do so form the carrier’s business. 162 S.W.2d at long comp рaid it.” “as as the work was on However, the court found the driver employees approval Erickson’s must obtain was a servant the fol- borrowed because carry passenger. Er- from Erickson to (a) lowing test met: consent right ickson no to tell Plaintiff had where carrier; (b) for driver to work actual gasoline. purchase to Erickson’s collective entry upon driver the work and bargaining agreement employees its with for pursuant express the carrier to an or to require stop them to authorizes (c) implied so; power contract to do gasoline at certain self-service stores. carrier control the details of the work agreement gives Erickson the also performed be and to determine it shall how right require employees to wear stop be done and whether it contin- shall agreement uniform. The between Erick- ue. at Inasmuch as [5]. 633— grant Nikki son and did scope the carrier came within right require Plaintiff a uni- to wear (then workmen’s) compensation workers’ form. law, remedy, any, the driver’s under Additionally, employee Erickson’s drivers it. Consequently, Id. at his 35[9]. 634— required specific in” are to “call times. negligence suit was barred. Nothing agreement Erick- between says undisputed Plaintiff here so. required facts son and Nikki Plaintiff to do distinguish this case from Miller and iVile- Plaintiff maintains the circumstances good. In motion sum- his preceding para- four enumerated mary judgment, presented tri- graphs right no establish Erickson had al including court documentation massive work, one of the control the details of his depositions Cavin, of Harlan Erickson’s on Ellegood which Miller and elements safety signed director agreement who finding hinged in thе driver was the carri- with Nikki on Erickson’s behalf. Cavin Thus, Plaintiff, says nei- employee. er’s compensation paid by confirmed the to be supports ther case Erickson’s “workers’ Nikki, payable Erickson was to. and her compensation” defense. name was the “1099 Form.” Erickson Ballinger Gascosage Co- Electric paid nothing. pay arrange- 1990), operative, 788 ment him and Nikki between was irrelevant a defendant claimed was immune from a to Erickson. negligence an by injured suit worker be- employee, cause he hence

Cavin conceded that if busi- was his reme- Erickson’s dy compensation. “slow,” was Su- agreement ness workers’ The nothing was preme driving (other Court of Missouri said: barred Plaintiff from a truck tractor) than Nikki’s employer, another Any rights plaintiff might which the long reported “logs.” as as he it on his supplanted have at common had law are acknowledged by Cavin also Erickson had no superseded compen- and the workers’ right act, to select the route applies. driven sation it not Whether or identifies no detail of Erickson’s main brief provision

the case comes within that Erickson controlled. Plaintiff’s An of work question of fact.... the act is point does out Plain- reply brief Erickson’s plaintiff may file an action injured required cargo tank to have the tiff was may assert The defendant common law. under- each haul. That is out after washed lacks that the court by motion or answer standable, types of as Erickson hauls all subject matter because jurisdiction of bulk, ranging from in liquid commodities injured. employee plaintiff was an grade prod- “benign food nonhazardous mat- may Rule The court hear 55.27. including to chemiсals ucts” hazardous 55.- permitted in Rule ter in manner flammables, corrosives. combustibles and finds jurisdiction 28. If the court If it finds exer- parties may proceed trial. control Erickson The may ap- deciding shipments it plaintiff jurisdiction, no cised was Hauling has employer-defendant make to Nikki. peal.... The would available drivers, her responsibility of the was the of establishing the bar them burden of Nikki’s by Erickson. an affir- without interference Compensation Act as Workers’ require agreement with Erickson did mative defense. of her furnish Plaintiff as the driver her to (A holding Ballinger Id. at 514-15. agreement (quot- 9 of the tractor. Section was overruled Zueck point an unrelated own her to select her supra) ed allowed Inc., Gateway Properties, Oppenheimer v. drivers, they required long so had the 1991).)1 (Mo. banc 809 S.W.2d 384 qualifications. injured Another where an worker case from undisputed The facts here differ brought suit the defen- negligence relies in each on which those case Erickson remedy sole was work- dant asserted the point. “A” of support contention its sixth N compensation Harryman v. L & ers’ is set forth the differences hereunder. We Inc., (Mo. Buick-Pontiac, 431 S.W.2d 193 652, Miller, pro- the lease In 714 S.W.2d 1968). opinion banc states: for a compensation, one vided two rates of law, Being derogation of the common for a operation driver and another double compensation] act must be [workers’ Here, Nikki re- single operation. driver strictly existing com- construed where gross percentage a constant ceived rights mon law and remedies are affect- hauls, regardless of revenue from the rights remedies ed. Common law Miller, the carrier number of drivers. employee taken from an should not be approve assistant right reserved they unless are abolished clear drivers; here, did Further- not. unambiguous terms. more, the lessor had hauled Miller 196[3], Id. at Elec years. agreement Accord: Union the carrier several Huff v. Co., 503, 510-11[6, signed tric Nikki and between 7] 6, App.1980), (quoted if there is a which adds that and section 2 of it October question, January be supra) provided close the decision should it would end weighted ter- following year of the com unless otherwise favor retention long-term relation- right mon law of action. minated. There was no holding injury arising There is out a line cases that where an resulted from an accident injured employee employer sues his and the employment. and in the of his Obvious- course question injury is resulted whether ly, question did. The whether Erickson arising accident of and out in the course employer Plaintiffs when the accident occurred. employment or from an act of the intentional divest the The cases cited in this footnote do not jurisdiction employer, lies decide such issue jurisdiction trial court of to decide that issue. exclusively the Labor Rela- with and Industrial upon To hold would force an accident otherwise Installers, tions Commission. Killian v. J & J filing victim the task of com- absurd a workers' Inc., 1991); 160-61(3] (Mo. pensation naming alleged claim tort-feasor Davis, (Mo.App.1993); Yount 846 S.W.2d 780 attempting employer, as the victim’s then International, Inc., Figgie Chambers v. judge convince an law administrative (Mo.App.1992). 170-71 The issue employer. tort-feasor was not the victim’s confronting is not us here whether Plaintiffs Nikki, by hired reject qualified to a driver ship Erickson and Nikki or Plain- between required nothing agrеement tiff. and during a to call in to Erickson lessor Ellegood, In the haul. the contracted with the carrier to furnish specific (Mo. driver. The carrier Patton, truck and a 308 S.W.2d 739 Patton v. complete the had control over the details of 1958), Erickson, by cited was a workers’ Furthermore, driver’s work. in addition to death of a driv- compensation claim for the carrier, suing filed a lessor, the the driver work- by a er. He a tractor owned drove compensation naming claim the carrier ers’ The carrier had under lease to a carrier. employer. as his None of those circum- drivers, specifically right approve to stances exist here. proved to be selected the driver for what route, journey, the fatal selected In Trans- Ballard v. Leonard Brothers places park rig during selected the Inc., (Mo.1974), Co., port 506 S.W.2d 346 journey. Supreme of Mis- Court by Erickson, company another case cited sup- souri held the evidence sufficient to employed several tractors and sev- owned against the carrier. port an award ‍​‌​​​​​‌​‌‌‌‌​‌​‌‌‌‌‌​‌‌‌​​​‌​‌‌‌​‌​​​​​‌​​‌‌​‌‌‍eral drivers. It hired out the tractors and companies to other to haul their drivers City Shinuald v. Mound Yellow Cab driver, trailers and merchandise. One Co., (Mo.App.1984), by cited 666 S.W.2d 846 years, period of some two went to the same Erickson, compensation was a workers’ morning reported carrier each to its involving a taxicab driven its owner case manager terminal for instructions concern- company agreement under an with a cab ing day’s five-day, his He worked a work. dispatched the whereby the latter cab week, overtime, forty-hour with all for the pick up passengers. Cabs had to be fueled negligence In same carrier. suit company’s pumps at the and had to await carrier, against driver the driver was designated calls at cabstands or locations held to be a servant of the carri- borrowed restaurants, transportation at hotels and Here, er. Plaintiff worked no fixed hours compensa- depots. An of workers’ award and, earlier, for Erickson as noted against tion benefits in favor of the driver virtually controlled no details of Plaintiff’s company was affirmed. cab work. sum, in In Erickson cites six cases Habco, Inc., Wright v. 419 S.W.2d 34 volving a driver and a common carrier. (Mo.1967), by Erickson, also cited did not compensation Four of the six are workers’ owner, involve a truck driver or carrier. appellate courts affirmed cases where Reece, Inc., Jerry Reichert v. or his Mil awards to the driver survivors: (Mo.App.1973), S.W.2d 182 cited Erick- ler, Reichert, Patton and Shinuald. son, brought the driver of a leased tractor Those four illustrate the well-established compensation against a workers’ claim purpose the fundamental principle that paid by lessee-carrier. driver was in compensation place upon is to workers’ lessor, right but the carrier had the by employees dustry the losses sustained approve drivers. The driver obtained resulting injuries arising out of and in physical re- examination delivered the employment. Wolfgeher the course of port to the carrier. The driver also filed an Service, Inc., Wagner Cartage application employment with the carri- 781, 1983). Where an in hauls, During reported er. the driver to jured employee compensa claims workers’ the сarrier let he it know was on sched- benefits, any right tion doubt about his ule. This Court affirmed a workers’ com- them should be resolved his favor. carrier, pensation against award hold- 783[2], ing the Industrial Commission could have However, reasonably found driver either made a the four cases identi preceding contract of hire with carrier or entered fied the second sentence of by appointment here, paragraph, into its services or election. while of some relevance Here, right controlling no is as- Id. at 186-87. Erickson had are not that Plaintiff Now, recitals of contrary to the solemn negligence claim— serting a common law (and agreement wholly inconsistent claim— compensation a not workers’ parties prior to the with the conduct Erickson, raises against and Erickson accident), unabashedly asserts compensation a defense. As as workers’ employee for its workers’ Plaintiff was seen, com- the workers’ we have because thereby insulating purposes, compensation pensation derogation act is in of the com- negligence lia- law Erickson from common law, strictly it must be construed mon bility. rights and remedies are common law where Harryman, 431 S.W.2d at affected. recognize generally, We Development Canady Crystal v. 196[3]; by settled point of law has been 607, Corp., 756 S.W.2d (Mo.App. 610-11[4] decision, precedent which is not it forms a close, 1988). question is When the from, departed but we afterwards to be weighted in favor of decision should be prior in mind that no decision is a also bear rights. Huff, retention of common law place it take its as precedent, nor does Furthermore, еach of the case, S.W.2d at 511. stare decisis pending in where the identified in the second sentence Indemnity four cases Globe inapplicable. facts are Louis, factual- in preceding paragraph differs First National Bank St. of Co. v. respects 1066, instant ly (Mo.App.1939). in or more from the one 133 S.W.2d 1069-70[2] case, applica explained general earlier. rule of law to have For a case, any given the facts and cir tion to two cases on which come within of such case must cumstances Ballard, relies, greater Ellegood have Wuelling, v. rule. the reason of the Wolf value, neg- stare decisis as each involved 671, 1144, Mo.App. 680[9] carrier, against a ligence by suit a driver (1939). com- successfully asserted workers’ who per Generally, party will not be already pensation as a defense. We have regard in to a position to take a mitted pointed out factual differences between to, directly contrary or matter which those cases and the instant case. While with, previously assumed inconsistent one may suffi- differences not alone be such Weller, 171 S.W.2d 617, v. by him. Seifner precedential to attenuate the value cient pains (Mo.1943). Because 623[13] here, other circum- cases there are those calculated Erickson made in a taking effort case, yet not dis- stances the instant from workers’ strategy to insulate itself cussed, that differentiate it those two. drivers, liability to Nikki’s compensation supplied the tri- From the documentation unpersuaded Ellegood, 162 S.W.2d we are his mo- court al Ballard, 346, 628, must be 506 S.W.2d summary judgment, we learn driv- tion for to now to allow Erickson blindly followed Erickson were not еrs of vehicles leased to escape liability common law in- compensation covered its workers’ for employee work proclaiming he was premiums This resulted in lower surance. compensation purposes. ers’ com- Nikki carried workers’ for Erickson. reviewing recognize that We naming as Plain- insurance her pensation grant summary judgment trial court’s 1991, 21, employer. As of March tiff’s “workers’ com Plaintiff on Erickson’s for $40,000 paid, exceeding had been benefits defense, must scrutinize pensation” we compensation claim and Plaintiff’s workers’ Erick light favorable record in the most pending. was still court son, the trial party against whom Kasser, 820 S.W.2d ruled. Cavin seen, agreement between As have we City Barnes v. (Mo.App.1991); explicitly states Nikki’s and Erickson Nikki 649[1] (Mo.App. Lawson, servants of employees 599[1] drivers are Architects, Board 1991); Missouri requires Nikki agreement Erickson. Survey Land Engineers and compensation cover- to maintain workers’ Professional Inc., Engineering, Resources ors v. Earth performing anyone employs age she (Mo.App.1991). did. agreement. She

737 However, ing (detailed paragraph in summary judgment supra if the is sus- the sixth any tainable as a matter of law under that Plaintiff not Erick- opinion) of this was theory, we must affirm it. v. Ford Ernst employee. son’s The trial court did not 910, Co., (Mo.App. Motor 813 S.W.2d 915[1] erroneously apply in the law that determi- 1991); Enoch, 156, Meyer v. 807 S.W.2d nation. (Mo.App.1991); Cargill, Kutz v. rejected we have contention “A” Because Inc., 622, (Mo.App.1990). 624 point, need not ad- of Erickson’s sixth we Summary judgment is authorized “B.” It attacks a conclu- dress contention 74.04,2 Rule the current version of which court that even if Plaintiff sion the trial 1, January effect 727-728 tоok 1988. Vol. the sale and in- employee, were Erickson’s Cases, pp. S.W.2d Missouri XXV-XXXV. part “sepa- was of a stallation of (c) reads, Paragraph pertinent of the rule Erickson and rate transaction” between part: Nikki, employment. unrelated to Plaintiff’s sought judgment shall be entered upheld finding As the trial we have court’s pleadings, depositions, forthwith if the employee that Plaintiff not Erickson’s was interrogatories, answers to and admis- purpose insulating for the Erickson from file, together affidavits, sions on with the negligence liability common Plain- law for any, if genuine show that there is no injury, tiff’s Erickson’s contention “B” is any issue as to material fact and granting moot. The trial court’s order moving party judgment is entitled to a summary judgment on Erickson’s a matter of law. compensation” defense is af- “workers’ Rule Under 74.04 as it now ex (cid:127) firmed. ists, summary judgment a motion for need not rest on proof. unassailable Martin v. assign turn to We now Erickson’s City Washington, 848 492 S.W.2d regarding jury ments of error trial.3 (Mo. 1993). party resisting banc A a mo point Erickson’s avers the trial court first summary judgment tion for must demon allowing jury erred in Plaintiff to show the strate a issue permit fact exists that would “videotape experiment illustrating the ex a reasonable to return a verdict pert opinion re had worn his [he] resisting party. safety quired gear it would not have done staggering While the record contains a any good.” amount of pertinent documental material compensation” Erickson’s “workers’ de- origin appears open- of this issue fense, genuine we hold there is no issue as ing lawyer statements. Erickson’s said: affecting material fact that issue. really the evidence in this case lets “... Contention “A” of рoint Erickson’s sixth you come to one conclusion ... in terms of (which is, asserts there but identifies no why injured Don Porter was ... ... issue) such is denied. he we believe that will be the fact that eye protection didn’t have his on....

We further the facts heretofore set [W]e hold clearly forth in our discussion of believe the evidence will show Erickson’s con- “A” support only thing tention the trial court’s find- can of is if he that we be certain 2. Rule references are to Missouri Rules of Civil briefs would be well-served to review Rule 84.04 (1992). Procedure "points appeal” and the discussion of on King, v. Thummel 684-86 asserted, points 3. Plaintiff has as one of the 1978), and to be mindful that the rule's brief, respondent’s his the claim that Erickson's mandatory. requirements are Hoffman points 84.04(d). appeal on violate Rule Koehler, 1988). (Mo.App. points appeal contends that Erickson’s on do respect point Other than with to Erickson’s fifth identify specific rulings actions or appeal, infra, glean- on discussed this court has trial court claimed to be erroneous and fail to appellant's ed the issues raised Erickson’s specify why” "wherein and such actions and sufficiently permit appellate brief review. rulings points appeal were error. Erickson’s reviewed, point gratia, anything Erickson’s fifth ex appellate practice. are but a model of Attorneys undertaking prepare appellate plain error. positioned with The nozzle of a hose was on, today.”4 here had it wouldn’t be

had we goggles. from the aperture four feet “experiment” pertinent Evidence ¾6 inch. aperture The diameter witness, Gary Wil- from Plaintiffs came through hose un- propelled Water was Friend, engi- professional a “licensed liam square pounds per pressure der tank He testified hoses used on neer.” duration of the “burst inch. As to the 150 “working pressure” trailers have holding water,” person the Coday testified inch, square “proof test” of pounds per “just opened upit and closed the nozzle inch, square and a “burst pounds per 300 immediately.” just almost per square inch. pressure” pounds of 600 times, performed six was exercise Friend, Therefore, fail at said such hoses angle, different spray each the at a with per pounds and 600 pressure between 300 always away. feet On each occa- four but square inch. sion, off the goggles the were knocked four repetition testified he was “about mannequin’s head. A seventh aperture he “bent ten feet from away” feet from the done with the was Again, mannequin, “directly in front.” evidence the at it. Plaintiff’s over” to look goggles off. the were knocked ruptured its con- the hose near established “discharge port.” pump’s the nection at arranged by Plaintiff’s The second test couple rupture the was “a Friend indicated Logue. supervised by Michael counsel was size, and circumferential. of inches” wearing time, mannequin was This hard hat with an splash goggles plus a recounted the sodium alumínate According Logue, shield. to attached face directly in the “hit me face.” “snug, tight” on the the hard hat was pressure explained that had the Friend aperture nozzle mannequin’s head. The correctly, the been installed relief valve the same as Co- pressure and were water have ex- in the hose would not pressure day’s test. He pounds рer square inch. ceeded 100 test, discharged Logue’s In water was hose pressure ruptured that opined the occasions, each at a toward the head on six inch, pounds per square around 450 “was away. always four feet angle different but Consequently, 600.” in between 300 and occasion, hat goggles, hard each On rup- through the came sodium alumínate off the man- shield knocked and face were pounds per square inch ture “[a]bout nequin’s head. Friend, According to ... all at once.” testified, test ... Engineer Friend “[T]he alumí- the force with which the sodium was happened to compared what is conservative nate hit Plaintiff. “field explained to Mr. Porter.” Friend trial, arranged counsel Before Plaintiff’s would have spray” that hit Plaintiff “tests,” were both of which video- experiments, two larger that in the been than supervised by Jerry taped. larger The first was than rupture in the hose was as the Sandbags to a Coday. Donald were belted that the aperture. Friend added the nozzle weighed pounds. The mannequin so it have impact” on Plaintiff would “actual chair, mannequin not mannequin was seated but greater than that on been “Splash goggles” were alu- strapped specific gravity to it. of sodium because the head, gravity of mannequin’s specific secured and the water placed on mínate is, which, are, strap according Coday, respectively, 1.47 and 1.0. That by their tighter you is “one half times heavi- tight or than would sodium alumínate was “as er.” normally wear them.” First, safety gear jury. plaintiff did not wear his was submitted to the Instruc-

4. This issue Ray unloading in Del while sodium alumínate given by tion tendered Beach, Florida, and [sic] court, read: trial Second, thеreby negligent, plaintiff you percent- your verdict must assess Third, directly negligence plaintiff such age plaintiff you of fault to believe: directly caused or damage contributed cause may plaintiff sustained. have (a) explosion. It is sufficient for admissibili- complains experi- tests that salient conditions substantially ty ments were not similar to the of such Plaintiff, (b) injured substantially similar. v. incident that be Klaesener Markets, Inc., trial experiments were disclosed before Schnucks Washam, though parties agreed (Mo.1973); Faught “even had 558-9 exchange expert (Mo.1959). information.”5 or exclusion of test In the admission “(a)”: complaint As to results, discretionary a certain latitude experimen- The law is settled that well judge. The ultimate allowed to the trial the ex- tal evidence is admissible when admissibility the test test of is whether

periment made under conditions sub- in decid- results will be of aid particulars stantially similar essential The results of ing the issues of case. prevailed at the conditions which having admitted into evi- the tests been suit, time and that of occurrence dence, they may exposed to cross- be the conditions need not be identical. The any supposed examination and dissimilar similarities must in those circum- be examined. The value of the conditions might supposed- stances or conditions as jury to assess. test results is then for the ly question; affect the result in and the degree similarity of or difference should at Salsberry, 587 S.W.2d 912[2-4]. judged light in the of the fundamental be involving Erickson cites four cases ad- principle any fact be admissi- should one, missibility experiments. ap- of In an logically the trier ble which tends to aid pellate error in admission of court found nо in determination In deter- of the issue. gunpowder marks evidence about tests mining question this of sufficient similar- was fired at various dis- when a revolver ity, a substantial measure of discretion object. Lynch Railway tances an judge. must be accorded to the trial Association, (Mo.App. Mail 375 S.W.2d216 Motors, Blevins v. Cushman 551 S.W.2d 1964). Citing Lynch v. Missouri-Kansas- 602, (Mo. 1977) (citations Co., 610[9 12] 333 Mo. 61 S.W.2d Texas R. — omitted). (1933), Lynch in the the Court held, judge trial should not be ease “[T]he proponent experimental evi which, arbitrary hampered by rules presenting dence has the burden of a foun evidence, drawn in detail as to this class of test, showing dation in material as obviously so technical as to be would be pects, requisite similarity has the to the application productive difficult of conditions or occurrences at issue in the appeals.” 375 S.W.2d at 220. suit. Lawson v. Schumacher & Blum Chevrolet, Inc., by other three cases cited (Mo.App.1985). Variances in conditions Erickson, appellate courts found no error propo which are more detrimental to the experiments. exclusion of evidence about nent of the test than those existed in The earliest of the three was the 1933 the incident at issue will not bar admission. preceding case mentioned in the Lynch Blevins, 609-10; Lawson, 551 S.W.2d at paragraph. The other two were State v. 954[9], 687 S.W.2d at Johnson, (Mo.App.1986), 721 S.W.2d 23 Brewer,

In Salsberry Plumbing v. Archibald & Deskin v. 590 S.W.2d 392 Co., Inc., Heating (Mo.App. 587 S.W.2d 907 experiments App.1979). None 1979), explo- incident in issue remotely those three cases resemble the District of this Court case, sion. The.Western experiments in instant and we said: lengthen opinion by need not this discuss ing in detail. All of hon- exactly those cases them way

There is of course no proposition that admission or exclu they existed at or the reconstruct conditions as at the instant of the sion of such evidence is entrusted to the the instant before or running videotape both minutes. 5. The time of the aggregate, experiments, is less than 12 in the discretion, in their admission. That is because and reversal will

trial court’s only experiments discretion is abused. were not the evidence occur where 921; Johnson, 721 Lynch, goggles 61 S.W.2d at shield would and a face whether Deskin, 27[3]; place 5.W.2d at had been have remained wearing by struck the sodium them when During cross-examination aluminate. brief, argument portion of its Er- In the lawyer, Aluminate’s and without ob- U.S. to the ef- quotes objections ickson at trial dialogue lawyer,6 this jection by Erickson’s substan- experiments fect that the lacked occurred: similarity the incident where tial with Among agree the differ- me that injured. Q you Plaintiff was with ... wouldn’t experi- in ‍​‌​​​​​‌​‌‌‌‌​‌​‌‌‌‌‌​‌‌‌​​​‌​‌‌‌​‌​​​​​‌​​‌‌​‌‌‍the tight water was used ences were:. a difference how it would make ments, alu- was hit sodium but Plaintiff [goggles and face were on these shield] minate; experi- in the pressure the water respect kind person’s head with what inch, pounds per square but ments was 300 off? force it would take to knock them unknown; is pressure that hit Plaintiff Well, using goggles those it wouldn’t A hitting goggles volume of water just They’re make difference.... experiments is and face shield they’re hit If going to come off.... shown, of sodium aluminate but volume over, explosion, impact of the it’s unknown; angles at that hit Plaintiff they’re gone. goggles and face which the water hit the telling you is Q you’re us Okay. What shown, experiments is but the shield in the gog- Porter had had these believe Don sodium aluminate hit angle at which the unloading this sodi- gles on when he was Plaintiff is unknown. Beach, Delray the force um aluminate the differences Friend was asked about them explosion going that is blow cross-examination, hence the on direct anyway? off his head together the similari- with differences — right. A That’s could as- jury, before the which ties—were experiments deter- sess the value of the if he’d had Q you also even And believe mining Plaintiff could have avoid- whether on, right? this hard hat these on and by wearing goggles and a face injury ed A Yes. shield. down, Q it’s And had the face field [sic] hold there was sufficient evidence We all off? going to blow them trial court could find the from which the A That’s correct. experiments made under conditions were goggles? Q This and the particulars substantially in essential similar correct. A That’s surrounding Plaintiffs ac- to the conditions there sufficient Additionally, cident. examination, Friend had In direct evidence from the trial court could gog on whether the expressed opinion no experi- find the differences between the dis shield would have been gles and face were such ments and Plaintiffs accident alumi- lodged by the force of the sodium experiments were that the conditions of However, testimony nate. because to Plaintiff than to Erick- more detrimental above, objection by quoted received without conclude the trial court son. We therefore Erickson, videotape experiments be allowing did not abuse its discretion opinion to Friend’s that came cumulative Complaint “(a)” videotape. to see the burst, aluminate the hose the sodium when point denied. of Erickson’s first goggles and face have blown the would wearing However, off Plaintiff had he been shield even had foundation experiments party them. A is not entitled to assert admissibility of the been if such inadequate, prejudice by no error admission of evidence there was reversible lawyers representing ap- The in this son at trial. Erickson lawyers represented peal who Erick- are not the side, official of (2) an merely other re a recommendation evidence is cumulative to Big that Plaintiff receive lated admitted evidence. Biller v. Lines United Van Transplanter Mfg., 795 S.W.2d Recognition John Tree Award” “Exemplary Service (Mo.App.1990); Manage Iota actions, (3) Plaintiff a letter to for his 635[12] Co., Corp. ment v. Boulevard Investment conferring Lines official from a United Van (Mo.App.1987). 731 S.W.2d presenting $500 the award and check. “(b)” regard complaint point, first us to a letter directs Citing v. Laclede Electric Co Haynam lawyer opposing from Plaintiff’s counsel Inc., 205-08 op., days six before trial. The letter is in re 1992), gen correctly asserts it is sponse request by to a Aluminate’s U.S. testimony erally error to reversible allow counsel that Plaintiff’s counsel “disclose good during plaintiff’s character about a any additional ex work [Plaintiff’s] points out his case-in-chief. Erickson also perts change or have done which would issue, good is in that even where character opinions at trial.” Erickson in alter their shown generally character cannot be agreement sists the letter confirms an be good deeds. Id. at specific evidence of to inform each “if tween counsel 207-08; Mer v. Farmers LaGue experts any did additional work or came to Co., 14, 16[2] chants Insurance opinions.” video new or altered (Mo.App.1989). tape experiments are unmentioned in the responds evidеnce Therefore, Erickson, says letter. the trial truck employability to his as a relevant court should have excluded them. earning capacity and his before the driver disagree. experiments We were not injuries accident. His evidence showed the Indeed, performed by Friend. he was not vision, severely impaired his eyes to his present they even were carried out. rendering “unemployable.” him Consequently, they did not constitute “ad- 806 75 Browning, In Kilmer v. S.W.2d by experiments ditional him. The work” parents wrong- (Mo.App.1991), by a suit merely opinion utilized Friend’s that son, stated a of their this Court ful death ruptured pressure hose of at least evaluating damages potential factor in is pounds per square inch. Friend revealed deceased, by aid can be financial which opinion deposition that taken his earning capacity. his by shown evidence of by Er- Erickson three months trial. before parents’ on Id. at evidence 81[11]. surprised by ickson does not claim it was by the included awards that issue received testimony Friend’s to that effect at trial. found no abuse of deceased. This Court The other circumstances under admitting trial court in discretion videotape experiments conducted were Id. at the evidence. 81[13]. were based Plaintiff’s version here showed United Van The evidence accident. Erickson does not contend was release, proceeding with a news Lines was testimony. Complaint surprised reap public relations presumably to bene- “(b)” point merit. of Erickson’s first has no episode. Plaintiff maintains fits from the point Erickson’s second has two a commendation in his that someone with “A” parts, designated “A” and “B.” Part likely employed work record is more to be “erroneously the trial court allowed avers employed and remain than someone with- of evidence of the introduction [Plaintiff’s] out one. good argument From the fol character.” rule, general As a determina learn that the evidence lowing point, we proof offered at (1) tion of relevance complains is: about which discretion of trial trial is for the sound 11,1987, United Van Lines August letter to ordinarily and is not reviewable on court employed) then (by Plaintiff was whom Village v. appeal. Midwest Materials Co. expressing gratitude for from a motorist 477, Co., Development gave her emergency assistance 495[24] family along (Mo.App.1991); Penny, road- of her and members Radloff S.W.2d (Mo.App.1949). It mentioning is of a United Van Lines official 502-03[2] general rule in a jury case that where garnishments, two neither of which was for purpose evidence is admissible for one support. child The official Plain- avowed issue, one pur- but inadmissible for United, other “by tiff was not fired but left issues, poses received, or other it should be choosing.” his own objector right and the then has the to an Generally, appellate courts will not instruction, it, requests limiting he specific review excluded evidence without a extent to purpose which and the for which Frank v. En proof. definite offer jury may consider such evidence. Dyer Management, vironmental Sanitation Co., Publishing v. Globe-Democrat Inc., 883[14] (Mo.1964). 1985). where, A exception narrow exists receiving disputed After the three exhib- among circumstances, the record case, the instant the trial in- court complete understanding demonstrates a structed the the еxhibits “were testimony. the excluded solely they received bear on Mr. Porter's Here, the record no demonstrates such earning capacity and not as evidence of understanding. source to which good character.” passage deposi- us directs is Given the discretion with which a trial says tion of Nikki she Plaintiff left where determining court is vested relevance of garnished his United because ex-wife his evidence, proffered we cannot convict the wages. That remark does not indicate receiving trial court here of error employment United terminated Plaintiff’s complains, evidence about which Erickson garnishment. because of the particularly inasmuch as the trial court and equivocality Given the nebulousness clearly jurors informed the of the limited evidence, “garnishment” we cannot purpose they for which could consider it. excluding court of error in convict the trial point Part “A” of Erickson’s second is de- point “B” Erickson’s second it. Part nied. meritless. “B” of Erickson’s second Part point Erickson’s third reads: point reads: plain- court objection, Over allowed erroneously The court excluded the in- counsel, Strong, Tom to use exhib- tiff’s troduction of evidence of Porter’s bad opening noth- its in statement that were erroneously character as rebuttal to the ing argument. his more than permitted good evidence of Porter’s char- following point, argument acter. From the the complaining one we learn Erickson is about Although point identify the does not the exhibit, not The exhibit dis- “exhibits.” evidence, “bad character” we are told in following enlarged the words: played argument follоwing the point that there such were two items. One was an incident ERICKSON involving stray cat. Erickson does not pertains explain how that occurrence to ASSEMBLED THE 1. IMPROPERLY employability earning capaci- Plaintiff’s ON THE TRUCK DON ROPER PUMP ty, see and we no relevance. WAS DRIVING THAT alleged The second item 2. FAILED TO ADVISE DON was Plaintiff’s FILL employment THERE A CLOGGED loss of at United Van Lines WAS because, AT according lawyer, to Erickson’s PIPE DELRAY BEACH “wages got garnished per- Plaintiff’s 100 one case in Erickson cites support.” cent for back child Passman, 537 point, Matter Estate of 1976). There, a trial correctly points out Erickson’s 380 S.W.2d display to the lawyer proof regarding lawyer made no offer of to court allowed statement, large garnishment. Additionally, jury, during opening Plaintiff di- dates and an out- deposition testimony paper displaying rects our attention to various by points one and are those raised dates. Not- errors” line of what occurred on such left two, rejected. We are ing proof with the dates we have was consistent document, argument” “improper on the ponder and events shown what to error, referring of Missouri found no Supreme Court is to the infer Erickson was. We using the observing simply counsel five, “was point of in in- complained argument help clarify the aid to paper as visual see, lawyer Erickson’s shall As we fra. 385- Id. at many dates and occurrences.” argument at objection to the registered no trial. here, Plaintiff’s statement opening action, the determina In a tort in- lawyer described evidence per tion of the amount be awarded present prove that the tended to resting primarily injuries a matter sonal is and that Erick- improperly assembled it in jury in that in the discrеtion there was a son failed to advise Plaintiff credibility and the of witnesses volves pipe Delray fill Beach. Erick- clogged given testimo weight to be their and value failed to does not contend Plaintiff son Hooker, 443 Long v. ny on a fact issue. he outlined. present the evidence (Mo.1969). 178, a trial While S.W.2d 182[5] character general manner and prejudice may infer bias court opening statement are within of an alone, appellate court size of a verdict court, of the trial and such sound discretion Arnold, 443 S.W.2d may Reynolds not. v. appel subject discretion is to review an 793, (Mo.1969); Reynolds, v. Gardner preju court when abused to the late (Mo.App.1989). On 775 S.W.2d 177[7] party complaining. dice of the Vaeth against the verdict appeal, party whom (Mo.1972). Gegg, 486 error must first show some was rendered discovery pretrial The extensive skir- incite trial sufficient to or occurrence at mishing augured in the instant case a trial and, second, that the prejudice against him Obviously realizing epic dimension. light most in a favorable evidence viewed evidence, there would be massive the trial party does not merit prevailing to the court did not its discretion in allow- abuse Gardner, at 177- verdict. ing lawyer display to the Plaintiff’s Louis, 78[7]; Archbishop St. Smith v. the ultimate facts toward which the evi- (Mo.App.1982). in opening dence he outlined statement such error or point third has identified no would be directed. Erickson’s Furthermore, is denied. an economics occurrence. Plaintiff, was asked expert, testifying point Erickson’s fourth reads: (a) Plaintiff would have worked assume refusing The trial court erred injured— age until 70 had he not been $3,700,000 grant trial a new because the accident Plaintiff was almost when grossly and indicates verdict excessive (b) Plaintiff’s “eco- occurred—and calculate bias, prejudice part passion, (excluding expenses) medical nomic loss” improp- jury due to trial error and resulting accident. The from the witness argument by er counsel. $1,262,760. figure at Plaintiff’s set the $3,700,000 point’s The reference to “the $26,266.93. expenses medical totaled jury misleading. Although the verdict” is the ac- expectancy” Plaintiff’s “life when $3,700,000, damages Plaintiff’s to be found years. Plaintiff occurred was 36.76 cident percent 24 of the fault to jury assessed pain suffering, presented evidence of seen, judg- have the eventual him. As we syndrome, and limit- post-traumatic stress (including prejudgment interest of ment activity. ability for recreational ed $2,961,326.42. $225,326.42)was comparable no case with Erickson cites Although point yields no clue as indicating the verdict here is circumstances improper argument trial errors and Indeed, in three cases cited all jury, argu- from excessive. incited the we seine four, the point of following point by that “trial ment 744

damages by upheld. Finding assessed no were basis for reversal of on, points Point four is meritless. deny appeal Erickson’s relied we point Erickson’s fifth reads: improper closing Plaintiffs argument Appeal 18157 ground for reversal it because was presents point one relied plain error, though objected even to. on; it avers the trial court erred in direct 84.04(d) Rule reads: ing against a verdict Plaintiff on his claim points briefly The relied on shall state punitive damages against for Erickson. concisely rulings what actions or of sought the court are to be reviewed and issue, deciding сon we why they

wherein and are claimed to be sider the evidence and all reasonable infer erroneous.... light ences from it in the most favorable to Plaintiff and determine whether he made a Erickson’s fails point fifth to iden punitive submissible case for damages tify “improper” argument and fails to against any theory pled Erickson on in his explain why plain wherein and error. was petition. Weidemeyer, Rustici v. 673 point presents nothing therefore 762, (Mo. 1984); Angot S.W.2d banc 765[1] review. Thummel King, v. 570 S.W.2d 742, Corp., v. ti Celotex 812 S.W.2d 746 679, (Mo. 1978); 684-86 Missouri (Mo.App.1991). uphold can the direct We Highway Transportation Commis ed verdict if Plaintiff failed to do so. 676, Taylor, sion v. 678-79[3] 746; Angotti, 812 S.W.2d at Vandever v. Goslee, (Mo.App.1992); Estate 807 of Metropolitan College Junior Dist. Kan 552, (Mo.App.1991). S.W.2d 555-56 Fur 711, City, (Mo.App. 708 716 sas S.W.2d thermore, point presented even had the 1986). The to determine test whether review, something for such review would directed verdict is correct is whether rea 84.13(c) plain only, be under Rule error proper minds could differ as to the sonable inasmuch as Erickson concedes it did not 746; verdict. 812 S.W.2d at Angotti, object to allegedly improper Plaintiff’s ar Volz, 424, Morse v. 429 S.W.2d gument at Chong trial. Kee Min v. Wun Co., App.1991); Love v. Deere & 171, Hong, 802 (Mo.App. Sik S.W.2d 176[7] (Mo.App.1986). S.W.2d 1991); Hospital Lawton v. Jewish St. Louis, (Mo.App.1984). pump mounted on Nikki’s tractor Roper pump. was a It installed Relief plain under the error rule is Friggle, Mike an Erickson mechanic. At only exceptional warranted those circum time, “grading Erickson had scale” reviewing stances court deems for its mechanics. Erickson classified them injustice manifest or miscarriage jus “A,” “B,” Friggle grade or “C.” “B.” Lawton, tice occurred. 679 S.W.2d at Grade “A” mechanics “had to know ev- 372[4]; Desloge Goodman Firmin Hos erything they from front to back ... ... pital, 540 (Mo.App. They knew it all.” were allowed to work 1976). supervision. without “B” When a mechan- gratia Ex of the passages review ic worked equipment, on Erickson’s he was argument complained Plaintiff’s supervised by “A” mechanic. about Erickson reveals no manifest in Friggle When installed the justice miscarriage justice. Some of tractor, Nikki’s unsupervised. he was the comments are misdescribed Erick retaliatory. Viewing son and others are pump The port had an “inlet” and an challenged the light remarks the port. “outlet” liquid cargo To unload isolation, entire record trailer, rather than Lewis a tank one end of a hose was Inc., 920, Bucyrus-Erie, tank; hooked to an outlet valve of the the (Mo. 1981), plain banc we hold no port other end was 926[8] attached to the inlet of justified. error relief is pump. A the second hose was to attached installing a new read one before hose he never pump; port of the the outlet pump. receptacle. liquid the to the carried displacement” the accident “positive a evidence showed pump was Plaintiff’s revolution, the “fill pump a because Delray each such Beach occurred

pump. With Plain- If the tank into which through port. storage its outlet liquid pipe” forces blocked, pump the alumínate the sodium pumping outlet hose becomes tiff was up in forcing liquid pressure into it built clogged, nonetheless continues therefore was (cid:127) pressure This the pump is turned off. will Had unless the hose until burst. something correctly, the up pressure positioned until “build relief device been relieving the opened, have breaks.” would valve rupture. preventing pressure and occurrence, pump such an prevent To pressure relief Nikki’s tractor had a may puni plaintiff A be awarded pressure discharge If the device. negligence suit if the damages in a tive level, a valve port reached an excessive to complete indifference defendant showed liquid open, allowing designed to was safety disregard for the of or conscious inlet, relieving pressure. escape into the Weller, 802 S.W.2d Stojkovic v. others. was de- pump on Nikki’s tractor 1991). is, (Mo.banc punitive That could the inlet signed port so either be if the defendant damages are recoverable outlet, depending could port either be a reason to know there was or had knew power source turned on which direction the that the action high degree probability of this, mechanism. Because of pumping Plaintiff con injury. result in would pressure relief device was constructed found juror could have tends a reasonable regardless it could function of which so employees met of Erickson’s the conduct However, port the valve had to was-which. so, could be If Erickson that standard. liquid receive positioned be so it would con damages for such punitive assessed outlet, from the not the inlet. Co., 236 Inv. duct. Reel v. Consolidated (Mo.1921); v. Ma Melchior S.W. posi- properly To ensure the valve was (Mo. Corp., 622 S.W.2d desco Inv. tioned, the “INLET” was cast on the word App.1981). housing in pressure relief device’s raised function, For the the “IN- letters. valve instances of con- lists several Plaintiff housing LET” side of .the must face the which, him, according are sufficient duct is, opposite port. That direction the outlet finding complete indiffer- support looking port cannot person into outlet for, to, disregard safety ence or conscious see the word “INLET” if the device is First, points out Erick- of others. Plaintiff properly positioned. Friggle, unsupervised permitted an son mechanic, pump. to install the grade “B” Friggle pump mounted the on Nikki’s Friggle us that had reminds top port the outlet and tractor so was tractor, pump mounted the on an However, port the inlet. the bottom checked an “A” job have been would housing pressure positioned he mechanic. so “INLET” could be seen relief device An looking port. into the outlet person Plaintiff, evidence, says a rea From this mechanic, testifying grade “A” Friggle was not juror sonable could find Plaintiff, “180 conceded the device was qualified or to install the properly trained although the Consequently, degrees off.” supervision. Citing pump Me without device operated, pressure relief Inc., 799 naugh Optometry, v. Resler did not. 1990), asserts training qualifications on trial, proper lack of Friggle admitted he knew

At perform part employee an pressure device had to the sometimes the relief tends to rotated, knowledge “very assigned is evidence which his task be but punitive damages Roper new limited.” He also admitted submission manuals, against defendant. accompanied by corporate but pumps were company Frig- optometry In al- circumstances are in this case in that Menaugh, an opto- gle’s training experience so person provide an were not lowed unlicensed to examination, lacking grossly as that of the fuel attend- (eye care to a metric customer narrow, Although application ant. is we prescription lens and advice about lens accept illustrating to care) Blum that failure performed only by properly —services perform properly employee train an a optometrist. a licensed 72- S.W.2d at that, improperly performed, task threat- damaged 73. The customer’s vision was a ens death or serious harm can suffice as cleaning employee supplied because punitive damages. basis award for the customer’s contact lenses solution inadequate disinfect them and that was The second instance conduct to which previous told her to abandon a method of Friggle Plaintiff directs us is failed Supreme disinfecting. Id. at 72. The Roper manual follow instructions jury of Missouri held the could find Court pump, he installed the failed to run person gave that if an advice or unlicensed by any post-installation required tests performed only appropriate services pressure manual to determine whether the optometrist, licensed such conduct showed functioning, failed to relief device was complete disre- indifference to or conscious give Plaintiff an owner’s manual which gard safety of at 73. for the others. Id. helped could have Plaintiff discover was installed backwards. From device professional This case does not involve Plaintiff, conduct, says such a reasonable however, licensure; Menaugh illustrates to, juror complete find could indifference principle employee that an occu- whose for, disregard safety of others. conscious pational graded skills are should not be he, assigned proper tasks for absent Plaintiff relies on four cases. Two have supervision, expertise perform. lacks To already Menaugh and been discussed: extent, holding Menaugh in Stojkovic, two are Blum. applicable here in of the fact that view v. Lester E. Schroeder Friggle’s Ctr., improper (Mo.App. installation of the 833 S.W.2d 411 CoxMedical plaintiff 1992). and did on the truck drove could pump’s operation affect the so that its mal- passenger injured was Stojkovic a plain- function harm to resulted serious riding when the vehicle in which she was

tiff. operated by struck a vehicle was Supreme driver. The Court of drunken Plaintiff also cites Blum v. Air Missouri held there was evidence of erratic Services, Inc., port Terminal driving manifesting disregard a reckless There, (Mo.App.1988). 18-year-old an intoxication, consequences exacerbated employee airport-based of an service com find the driver from which a could pany piston-driven told to refuel a was there knew or had reason to know airplane gasoline. lead aviation with low high degree probability that his action Instead, jet he used fuel. Because it was at 155. injury. would result in engine, engine incompatible with the pu- Consequently, passenger’s claim for shortly plane failed after takeoff and the damages nitive should have been submitted employee crashed. The had received jury. The Court added that to the (the training fueling one week of usual damages (deterring purpose punitive two) training at least and the did not conduct) hardly recklеss could be better catastrophic instruction about the include driving served than in alcohol-related cases. putting jet piston effect of fuel in aircraft. reprehensible Stojkovic conduct in Furthermore, holding gaso the fuel truck does not exist here. holding jet line and the truck fuel were appearance inadequate and had are more identical Circumstances Schroeder Schroeder, a signs indicating they contained. The akin to those in this case. In what undergoing markings hospital patient indi died sur- nozzles and hoses bore no while gery. improperly cating type of fuel. 762 S.W.2d at 74. Death was caused solution, prepared in factually “cardioplegic” Blum is more extreme than the mixed have miscompounding could not hospital pharmacy the administered greater. during operation. been patient’s the The surviv- ing spouse hospital. The and son sued the Id. at 423. jurors they trial court instructed the could pharmacist’s the parallels The between damages aggravating circum- award (or inactions) and the conduct of actions they hospital’s stances if found the conduct Friggle include failure employee Erickson’s outrageous of reckless indif- was because regard- read the manufacturer’s manual rights ference to the of others. 833 S.W.2d (the or in- ing proper pharmacist) use the at 423. This Court held the evidence was machine even (Friggle) stallation of a sufficient to the submission. was available though respective the manual product of their and the failure to test the In the solution mixed Schroeder was respective after their tasks were labors “compounder.” The a device called a evi- completed. pharmacist The failed to deter- compounder dence indicated the malfunc- produced con- mine that the solution she tioned, producing lacking a the solution Friggle prescribed ingredients. tained necessary ingredient. of the critical amount pressure failed to determine if the relief compound- During the ten minutes that the device would function as intended follow- solution, preparing pharma- er was ing pump the truck installation of on performed cist There evi- tasks. was plaintiff driving. would be pharmacist dence that had watched Schroeder, upon In of the use substance compounder, the mal- she would have seen intended, the effect of an the manner function. There was also evidence that the required ingredient of the absence hospital policy requiring pharma- had no its patient for whose tragically assured. operation cists to observe the the com- of prepared ‍​‌​​​​​‌​‌‌‌‌​‌​‌‌‌‌‌​‌‌‌​​​‌​‌‌‌​‌​​​​​‌​​‌‌​‌‌‍surgery the substance was could pounder, and that such was inconsistent case, In the effect of not survive. this good practice. with standard failing properly install the so that Additionally, pharmacist at 422-23. pressure relief device would function testified that she had never the com- read pumping part to cause some pounder regarding manufacturer’s manual system expel and to the substance burst proper operation monitoring externally, being pumped from the trailer although machine it was available high pressure. Although death or under pharmacy. Id. at 417-418. There was evi- upon serious harm was not assured dence that the manufacturer’s manual stat- function, pressure failing to a relief device operator opera- ed the should observe the jury or had could find that “knew compounder tion of the to make sure that high there de- reason to know that was a adequate “an fluid transfer” occurred. Id. gree probability of that the action would pharmacy policy at 418. The did not a have injury.” Stojkovic, result “end-testing”, analyzing of i.e. the sub- bursting part of the Upon of a produced stance after it was to assure it discharge pumping system so as to proper ingredients. contained the Id. at substance hauled—a hazardous sub- pharmacy acknowledged 418. The director high stance—a could have found end-tested, product that if the had been degree probability person operat- today.” ‘probably’ “decedent would be alive ing pumping system pres- or otherwise assisting unloading process ent with the Schroeder, this court said: discharge in- would be struck juror properly A infer reasonable could jured or even killed. capable mechanical device is in Me Mindful of caution sounded malfunctioning.... naugh Optometry, 799 S.W.2d at v. Resler compounded punitive damages

This solution was for the “that are to be the rule,” specific purpose using protect exception it to rather than the and that damage they depend wrongdoing, human heart from while it was or reck willful stopped. potential arising legal equivalent is the of harm lessness which Services, willfulness,” Id., Airport Terminal Blum jury In we hold that a could Inc., that, (Mo.App.1988), the circumstances the 18- have found under case, in this Erickson’s amounted only conduct one yеar-old employee had received disregard safety for the to a conscious training fueling in aircraft instead week of others so as to constitute such reckless night made customary of the two. he point in that ness. Plaintiffs No. 18157 duty the fatal error was his first on alone. directing in a verdict the trial court erred training he had received did at 69. The punitive him claim for dam against on his instruction about the cata- not include against is ages well-taken. in putting jet piston fuel strophic effect of Additionally, safety checklist aircraft. part judg In No. furnished him mentioned and instructions part and the ment based on the verdict nothing preventing misfueling, even about granting judgment on the order based though recognized problem in it had been a summary judgment motion for Plaintiffs Id. at 74. many years. aviation for compensation” on Erickson’s de “workers’ part are affirmed. In No. fense above, Here, Friggle an noted for judgment that directed verdict evidently had experienced mechanic who punitive for Erickson on Plaintiff’s claim pumps 15 similar without installed some damages The case is remand is reversed. mishap. post-instal- he did not run a While only ed for new trial as to the issue of pres- lation test to determine whether punitive damages. properly, he sure relief device functioned CROW, concurring in Presiding Judge, it run the to ensure worked did part dissenting part. (which did). scholarly I portion concur Weller, 802 S.W.2d 152 (Mo. Stojkovic v. principal opinion adjudicating Erickson’s 1991), Plaintiff, a cited involved banc (18155). appeal respectfully I dissent light a at a driver who ran red drunken appeal portion adjudicating Plaintiff’s accident, intersection, then busy caused an (18157). me, thе cases on which Plain- To No such criminal conduct fled the scene. that he tiff relies to his contention here. exists against made a case submissible Ctr., E. Medical v. Lester Cox Schroeder damages punitive are too dissimilar to (Mo.App.1992), also cited persuasive be here. Plaintiff, princi- in the is discussed in detail Inc., In Menaugh Optometry, v. Resler appears there need pal opinion. What 1990), optome- 799 S.W.2d 71 However, signifi- there are repeated. be try company person an unlicensed allowed cant differences between Schroeder li- provide optometric care that a the instant case. optometrist legally censed could render. Schroeder, an in- pharmacist used holding by the That was the basis for the prepare a medication for strument vital Supreme Court of Missouri undergoing surgery. heart patient manifesting complete find conduct could oper- cautioned the manufacturer’s manual disregard indifference to or conscious the instrument to make ator observe Id. at 73. safety of others. adequate fluid transfer occurred. sure an principal opinion, As observed in the Instead, performed other pharmacist nothing suggests case a me- instant preparing the instrument was tasks while installing Roper pump required chanic pharmacist Had the the medication. Friggle to be licensed. had been an Erick- instrument, have she would watched years son mechanic seven when he installed malfunction, thereby preventing seen the pump. grade He had started at Nikki’s fatality. grade “B.” He testified “C” risen to Here, an in- Friggle operating was not without contradiction that he had installed medi- produced strument a critical pumps. directs us to “around 15” in- surgical patient. He was indicating Friggle installed cation for a no evidence tractor. except stalling a mechanical device on a pump incorrectly Nikki’s. gave any- There is no evidence the task to Erickson and was told to “wire them he thing other than full or his attention best down.” effort, slighted job that he in haste pump, The second time he used the Plain- to finish it. heWhile did not read instruc- problem. He experienced tiff the same installing pumps,

tion manuals before he shop, took the tractor Erickson’s where “specifics” had read in the manuals and mechanics installed a “bleed valve” on the had received oral instructions on how to so, doing pump. maintains that put them on. pres- should noticed the the mechanics have Sledge

The facts here are closer to sure relief was “backwards.” device Centers, Inc., Country Town & Tire improper While the failure detect the mechanic, (Mo.App.1983). S.W.2d 176 A in positioning pressure of relief device replacing bearings rear axle on a motor may negligence, have constituted we fail to vehicle, pack failed some of them with oversight see how the demonstrates com- grease. heating This caused excessive of to, plete indifference or conscious disre- axle, breaking. in it resulted for, gard safety. Plaintiff’s On the con- crashed, highway The vehicle left the trary, good the evidence manifests a faith sued, injuring passenger. recovering She problem effort to correct the Plaintiff re- punitive damages. appeal, actual and On ported pump. the me- about the Asked the Eastern Distriсt of this Court reversed explanation installing chanics’ the bleed punitive damages, saying: valve, Plaintiff testified: passenger] argument bases [The [her] they thought maybe you open ... when upon knowledge of the mechanic that you the rear on the tank and allow valves improper lubrication could result in over- hoses, pushes a product your into that heating breakage and axle and that with up pump, of air to the that volume knowledge such he failed to consult a might locking pump, you be air gave manual which the correct method of open you the bleed valve could bleed lubrication of this vehicle. But the you got product air out until and then evidence in the record is that the mechan- you shut it off and wouldn’t have believed, ic experience from his and from air. inspection his visual of the axle and bear- wrong While the valve was the bleed ings that the method he utilized was the remedy, it was nonetheless a conscientious correct one. His actual or constructive attempt problem. to solve knowledge injury could if he occur negligent sum, was an Frig- element of defen- the evidence demonstrates duty. dant’s supply gle positioning pres- It does not made a mistake knowing duty violation of necessary pump, sure relief device on the and his punitive damages. The me- error was not detected other Erickson chanic utilized a method he they believed to be mechanics when added the bleed correct; negligent he doing in so but valve. knowingly improperly

he did not act nor In Menaugh, 799 S.W.2d at the Su- hewas indifferent to or in conscious dis- preme Court of Missouri cautioned: regard plаintiffs safety. the uniform tenor the recent ... eases 654 S.W.2d at 182. punitive damages is that are to be the rule, exception

Plaintiff asserts Erickson's mechanics rather than the and that improper posi- should they have discovered the are to be confined to cases in which tioning pressure supports relief device evidence the award. The reported phraseology difficulties with the differs different kinds cases, pump prior depend to the accident. wrongdo- but all on willful ing, legal is the recklessness which Plaintiff testified that the time first he equivalent of willfulness. liquid cargo, used the to unload “overclamps on the hose connectors here mes- were trial court heeded that trying open.” reported sage, obviously concluding to vibrate He no reasonable this culpa-

juror could Erickson of such convict

bility. agree. I principal opinion erodes the standard punitive damages. separating The line manifesting complete indifference

conduct

to, for, safety disregard or conscious (MAI Revision]) from

others 10.02 [1988

ordinary negligence is obliterated. Suers damages encouraged punitive seek

are ordinary to exercise anyone who fails compelled

care. Trial courts are to instruct awarded, punitive damages. If damages appeal. insulated on

such will be re- judgment

I affirm the in all would

spects. Missouri, Respondent,

STATE DOSSETT, Appellant.

Tamra

No. WD 46112. Appeals,

Missouri Court

Western District.

April Anderson, City, North Kansas Bruce ‍​‌​​​​​‌​‌‌‌‌​‌​‌‌‌‌‌​‌‌‌​​​‌​‌‌‌​‌​​​​​‌​​‌‌​‌‌‍R. appellant. Finnical, Atty., Clay Pros.

Timothy Asst. County, Liberty, respondent. C.J., LOWENSTEIN, Before KENNEDY, JJ. TURNAGE TURNAGE, Judge. guilty found

Tamra Dossett was arrest, resisting jury of misdemeanor 575.150, In accordance RSMo 1986.1 § sentenced Dos- the court with the verdict jail fine county and a year sett to one contends the evidence Dossett $100. a conviction. was insufficient Reversed. May 1992 Offi-

At about 3:10 a.m. on Safety Public Baer of the Gladstone cer statutory otherwise stated. are Mis- souri Statutes unless 1. All references to Revised

Case Details

Case Name: Porter v. Erickson Transport Corp.

Court Name: Missouri Court of Appeals

Date Published: Apr 13, 1993

Citation: 851 S.W.2d 725

Docket Number: 18155, 18157

Court Abbreviation: Mo. Ct. App.