Allison v. Sverdrup & Parcel and Associates, Inc.

• Decision Date: 28 July 1987
• Docket Number: No. 51177,51177
• Parties: Jama S. ALLISON, et al., Plaintiffs-Appellants, v. SVERDRUP & PARCEL AND ASSOCIATES, INC., et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 440

738 S.W.2d 440

75 A.L.R.4th 845

Jama S. ALLISON, et al., Plaintiffs-Appellants, v. SVERDRUP & PARCEL AND ASSOCIATES, INC., et al.,

Defendants-Respondents.

No. 51177.

Missouri Court of Appeals,

Eastern District,

Division Four.

July 28, 1987.

Motion for Rehearing and/or Transfer Denied Sept. 2, 1987.

Application to Transfer Denied Nov. 17, 1987.

Barry A. Short, St. Louis, for plaintiffs-appellants.

William Floyd Kopis, Belleville, Ill., Richard C. Wuestling, Lawrence B. Grebel, Henry D. Menghini, St. Louis, for defendants-respondents.

SIMON, Judge.

Plaintiffs, the survivors of Mr. Donny Lee Allison (Allison), brought this wrongful death action against Sverdrup Corporation (hereinafter Sverdrup), Sverdrup & Parcel and Associates, Inc. (hereinafter "SPA"); Sverdrup Technologies, Inc. (hereinafter "STI"); and Dr. Virgil Flanigan. SPA and STI, formerly ARO, Inc., are both subsidiary corporations of Sverdrup. The case was tried in the Circuit Court of the City of St. Louis. At the close of plaintiffs' case, the trial court entered directed verdicts in favor of defendants Sverdrup, SPA, and Dr. Flanigan. Plaintiffs' claims against STI were submitted to the jury at the close of all evidence. The jury returned a verdict in favor of STI and against plaintiffs. Based upon the comparative fault instruction given, Instruction No. 9, the jury assessed Allison's fault at 100% and STI's fault at 0%.

Plaintiffs' second amended petition contained counts of strict liability for defective design, strict liability for failure to warn, and negligence against Sverdrup, SPA, STI, and Dr. Flanigan. Plaintiffs' claims against STI were ultimately submitted to the jury on a negligence theory.

Plaintiffs appeal the directed verdicts entered in favor of Sverdrup and SPA, and the jury verdict and judgment in favor of STI. The directed verdict in favor of Dr. Flanigan is not part of the instant appeal. Plaintiffs argue that the "trial court's granting of directed verdicts in favor of Sverdrup and [SPA] should be reversed, in that plaintiffs presented ample evidence from which the jury could have found that these defendants were liable to plaintiffs." Plaintiffs argue further that the trial court erred in refusing to instruct the jury on the rescue doctrine while instructing on the rule of comparative fault.

Defendants Sverdrup and SPA have both moved to dismiss plaintiffs' appeal with respect to the directed verdicts entered in their favor. Both motions relate the following: That on October 11, 1985, the trial court entered an order granting Sverdrup's and SPA's separate motions for directed verdict; that on January 31, 1986, plaintiffs filed notice of appeal in the trial court; that said notice of appeal did not specify any appeal from the October 11, 1985 orders; and that said notice of appeal indicated that the only order appealed from was the judgment on the jury's verdict entered in favor of STI, on October 28, 1985. Sverdrup and SPA argue that the only appeal taken by plaintiffs is from the judgment entered in favor of STI on October 28, 1985 and, consequently, the October 11, 1985 directed verdicts in favor of Sverdrup and SPA are not reviewable.

Rule 81.08(a) requires, inter alia, that a "notice of appeal shall specify ... the judgment or order appealed from." The plaintiffs concede that they failed to specify the order of October 11, 1985, granting Sverdrup's and SPA's motions for directed verdict, in their notice of appeal. Nevertheless, plaintiffs argue that this failure should not result in dismissal. Relying on Williams v. MFA Mutual Insurance Co., 660 S.W.2d 437 (Mo.App.1983), plaintiffs contend that we should review the merits because defendants Sverdrup and SPA have not been prejudiced and were aware that plaintiffs intended to appeal from the directed verdicts, and because the issues are discernible from the briefs and record.

It is well settled that the formal averments contained in a notice of appeal are to be liberally construed in order to permit appellate review so long as the opposing party has not been misled to his irreparable harm. Weller v. Hays Truck Lines, 197 S.W.2d 657, 660 (Mo. banc), transferred by, 192 S.W.2d 677 (Mo.App.1946). In an attempt to liberalize the judicial view of technical errors, the Weller court held "that a notice of appeal which can reasonably be construed as an attempt in good faith to appeal from a final judgment or appealable order shall be deemed sufficient." Id. at 660-61. Weller has been consistently followed. See, e.g., Williams, supra; Carson Union May Stern Co. v. Pennsylvania Railroad Co., 421 S.W.2d 540 (Mo.App.1967); State ex rel. State Highway Commission v. Kendrick, 383 S.W.2d 740 (Mo.1964); Triller v. Hellwege, 374 S.W.2d 104 (Mo.1963). See also, the many cases cited at 2 Mo.Digest, Appeal & Error, §§ 417-422.

We are aware of the cases cited to us by Sverdrup and SPA, holding that a fault in the averments of notice is ineffectual to bring an unspecified order before the court of appeals. See, e.g., Green Hills Production Credit Association v. R & M Porter Farms, 716 S.W.2d 296 (Mo.App.1986); Charles v. Ryan, 618 S.W.2d 220 (Mo.App.1981); In re Marriage of E.A.W. 573 S.W.2d 689 (Mo.App.1978); Donnell v. Vigus Quarries, Inc., 489 S.W.2d 223 (Mo.App.1972); Brissette v. Brissette, 471 S.W.2d 691 (Mo.App.1971). However, in none of those cases did the court find a good faith attempt on the appellant's part to appeal from the unspecified order and that the opposing party had not been misled to his detriment. See further, Pittman v. Reynolds, 679 S.W.2d 892, 893 (Mo.App.1984); Anthony v. Morrow, 306 S.W.2d 581, 583 (Mo.App.1957).

It is true that Weller and its progeny, except for Williams, supra, have dealt with a notice of appeal from an order overruling a motion for new trial, obviously an unappealable order, see Haywood v. Haywood, 527 S.W.2d 36, 37 (Mo.App.1975), instead of from the underlying judgment and, therefore, the issues were discernible from the briefs and the record. That rationale, however, is no less persuasive here, as was shown in Williams, 660 S.W.2d 437.

Williams involved a personal injury action brought by a motorcycle passenger against her insurer and the driver's insurer. Summary judgments were granted in favor of both underwriters and the plaintiff appealed. On appeal the driver's insurer argued, among other things, that the plaintiff had failed to perfect her appeal by not specifying the exact judgment from which the appeal was taken. The plaintiffs' notice stated that the appeal was from "an appealable order and judgment." Although the court noted the technical rule violation, it declined to dismiss the appeal. The court stated that undoubtedly Rule 81.08 requires that appellants specify exactly what order or judgment is being appealed from. It found, however, that the driver's insurer had not been prejudiced by the plaintiff's failure to specify that the appeal was taken from the summary judgment in its favor. The insurer was deemed aware that an appeal had been taken from the summary judgment in its favor and, because there was no confusion between judgments or parties, the court decided to review the merits. The court noted that the rule violation did not hamper the review of the merits, presumably because the record was otherwise sufficient.

What was said in Williams, is controlling here. Both Sverdrup and SPA were aware or should have been aware that plaintiffs' appeal was taken from the trial court's directed verdicts in their favor. The issue clearly appears and was raised in plaintiffs' motion for new trial. Sverdrup and SPA were served with copies of plaintiffs' notice of appeal, on which they were listed as parties. Thereafter, they were served by plaintiffs with copies of the legal file, the transcript, and plaintiffs' brief in which plaintiffs argued that the directed verdicts in favor of Sverdrup and SPA were granted in error. Sverdrup and SPA have filed briefs in response, arguing that the directed verdicts were providently granted. Thus, we conclude that Sverdrup and SPA have neither been misled nor prejudiced. Furthermore, we view the actions of plaintiffs as a good faith effort to comply with the provisions of notice and we are able to easily discern, from the briefs and record, the issues raised. Sverdrup's and SPA's motions to dismiss are hereby denied.

The pertinent facts surrounding the death of Allison are as follows: Sometime during the early part of 1977, Dr. John Amos, a professor of engineering management at the University of Missouri-Rolla (UMR) campus, learned that the Coors Brewing Company (Coors) of Golden, Colorado had abandoned an experimental project designed to investigate the feasibility of converting waste material into natural gas. Coors was willing to donate the equipment used in their experiment to UMR, so long as the costs involved in transporting the equipment were borne by the University. Dr. Amos conceived of bringing the Coors equipment to an area near Pomona, Missouri, to use in the disposal of sawdust. However, nothing was done by UMR to obtain the equipment. It was doubtful whether UMR could obtain federal funding for this sort of project.

In the late fall of 1977, Dr. Amos contacted another engineering management professor at UMR, Dr. Yidirim Omurtag, and suggested Omurtag look into other possible uses for the Coors equipment. Dr. Omurtag worked on various extension projects at the University, but was primarily interested in alternative energy sources. Omurtag contacted Art Tschannen, the Energy Director at Coors, and made arrangements for an on-site inspection of the equipment at Golden, Colorado. Two professors from the University, Dr. Marshall Findley, professor of chemical engineering, and Dr. H.H. Sineath, professor of engineering management, performed the inspection.

Drs. Findley and Sineath returned from Colorado with a positive report. Based on the information collected...