Bair v. St. Louis-San Francisco Ry. Co.

• Decision Date: 23 February 1983
• Docket Number: No. 64246,LOUIS-SAN,64246
• Citation: 647 S.W.2d 507
• Parties: James C. BAIR, Plaintiff-Respondent, v. ST.FRANCISCO RAILWAY COMPANY, Defendant-Appellant.
• Court: Missouri Supreme Court

Page 507

647 S.W.2d 507

James C. BAIR, Plaintiff-Respondent, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Defendant-Appellant.

No. 64246.

Supreme Court of Missouri En Banc.

Feb. 23, 1983.

On Rehearing March 29, 1983.

Gerald D. Morris, St. Louis, for defendant-appellant.

C. Marshall Friedman, St. Louis, for plaintiff-respondent.

BLACKMAR, Judge.

Respondent James Bair brought suit for damages in the Circuit Court of the City of St. Louis pursuant to the Federal Employers' Liability Act against appellant St. Louis-San Francisco Railway Company (Frisco). Bair claimed that he had sustained injuries while working as a journeyman carman for Frisco. The jury returned a verdict in Bair's favor for $313,500, and judgment was entered on the verdict. The Missouri Court of Appeals, Eastern District, affirmed. We transferred the case, primarily to resolve the question of retroactivity of a decision of the Supreme Court of the United States regarding income tax effects of damage awards in F.E.L.A. cases. We decide the case as on original appeal, and affirm the judgment. We make use of substantial portions of the opinion of Judge Simon, without quotation marks.

On appeal Frisco raises ten points, alleging that the trial court erred in: (1) refusing to allow Frisco to ask Bair on cross-examination if he was aware that any recovery on his claim would not be subject to federal income tax; (2) refusing to instruct the jury that Bair would not have to pay federal income tax on any jury award he might receive; (3) refusing to submit to the jury a "present value" instruction; (4) submitting to the jury MAI No. 8.02 as the damage instruction; (5) refusing to submit to the jury an instruction pertaining to speculative damages; (6) submitting to the

jury MAI No. 24.01 as the verdict director; (7) failing to grant a mistrial after Bair testified that he had a family to support; (8) failing to grant a mistrial after Bair's attorney made unfavorable comments about Frisco's examining physician; (9) failing to grant a new trial after Bair's attorney made unfavorable comments during his closing argument about Frisco's attorney; (10) failing to grant a new trial on the ground that the damages were excessive.

I.

We believe that all of appellant's points except (1), (2) and (10) were appropriately disposed of in the Court of Appeals opinion.

At the time Bair sustained his injuries he was 30 years old. He had started working for Frisco in its Springfield, Missouri train yard after graduating from high school in 1960. Bair began as a carman apprentice; he was promoted to the position of journeyman carman approximately four years later. Carmen are skilled workers who build, repair, and service various types of railroad cars and equipment. Bair testified that during the course of his employment with Frisco he had learned every phase of the carman's craft.

The evidence adduced at trial showed that on January 18, 1973 Bair was working in Frisco's freight car shop repairing damaged freight cars. Bair and several co-workers were assigned the job of working on a damaged boxcar in the process of being rebuilt. One end of the boxcar had been pushed inward one to two feet. Bair's supervisor, Michael Beavers, told the workers to straighten the end using a large air-powered jack and pole. This method of straightening the end required that one of the workers go inside the boxcar with the jack and a six to ten foot pole. Basically, the idea was to use the jack to push the pole against the indentations on the end of the boxcar. The jack, weighing between three and four hundred pounds, had wheels on its bottom but because it was wider than the centersill, it had to be positioned on its side by hand. Once the jack was in place it would be tied to the centersill and braced so that the jack would not move when pressure was applied to the indentations. As the pole was pushed against the end of the boxcar it was necessary to reposition the jack.

Bair went into the boxcar with the three to four hundred pound jack and a six to ten foot oak pole. Both the boxcar's flooring and the steel "stringers" on which the flooring sits had been removed. The only surface on which Bair could stand inside the boxcar was the centersill, running lengthwise down the middle of the car. The centersill is approximately fourteen or fifteen inches wide. There is a two inch flange on each side of the centersill approximately twelve or thirteen inches below the centersill's surface.

Before Bair went inside the boxcar the workers requested some plywood be placed in the car so that there would be more room to stand. The request was denied. As a result there was room for only one man inside the car to reposition the jack. Bair had moved the jack twice before he was injured. At trial Bair described his attempt to move the jack for a third time:

[a]s I was tugging on the jack--of course, it's a very strenous (sic) process, just brute strength--and I pulled on it and something popped or just--I got a severe pain in my back. It just stopped me. And I just let go and got up and crawled. I couldn't get up. The pain was so severe that it scared me.

Bair was first taken to the shop's office then to the office of Dr. Carl Schroff, the Frisco doctor. Dr. Schroff examined Bair and took X-rays of Bair's lower back. Dr. Schroff gave Bair a muscle relaxer and told him to return the next day, Friday. When he returned to Dr. Schroff's office, Bair was still in pain. Dr. Schroff advised Bair to rest over the weekend and told him that he could return to light duty on Monday. Bair did return to work, but the pain in his back continued.

Soon after Bair returned to work he transferred to the air brake shop because it required less heavy lifting. Bair's back, however, did not improve; the pain continued.

During the next two years Bair went to several doctors. In October of 1975 Bair transferred again, taking a job as an inspector in the train yards. Two days later on October 29, 1975, Bair's doctor put him in the hospital for 11 days for tests and therapy. Bair has not returned to work for Frisco. In January of 1975 Bair again entered the hospital for more treatment. Bair suffers from a degenerative disc disease. Bair's present doctor, an orthopedic surgeon, Dr. Ben Harmon, testified by deposition that Bair was not capable of returning to work. Although Bair tried to return to work with his father as a painter and remodeler, he was unable to perform due to his back problems. Bair stated that in 1976 he had no earnings. In 1977 he earned $1,700. In 1978 Bair obtained a real estate license and earned $4,500.

Several of the points advanced in the brief and renewed here relate to errors in instruction, in which it is argued that MAI does not furnish an appropriate guide. We are always willing to entertain claims of legal error in MAI instructions, including, in F.E.L.A. cases, claims that instructions are contrary to governing federal law. Most of the points here advanced, however, were disposed of in our opinion in Dunn v. St. Louis-San Francisco Ry. Co., 621 S.W.2d 245 (Mo. banc 1981), cert. denied, 454 U.S. 1145, 102 S.Ct. 1007, 71 L.Ed.2d 298 (1982). We adhere to that opinion, and to the general MAI plan of instruction, which seeks to simplify and balance the instruction process. There are instructions which are abstractly correct in law and which are commonly given in some jurisdictions, but which are not included in the MAI plan. The absence of an instruction does not prevent counsel from introducing evidence or making argument.

Frisco's third point is that the trial judge erred in refusing to submit to the jury a present value instruction. In Dunn, at p. 253, we dealt with a very similar issue and held that a present value instruction was not appropriate under MAI. We are not persuaded that federal law requires the instruction. Frisco's third point is denied.

Frisco's fourth point is that the trial court erred in submitting MAI No. 8.02 as the damage instruction. Frisco assigns two reasons for its contention. First, it contends that the instruction failed to limit the jury's consideration to the occurrence of January 18, 1973. Second, Frisco contends MAI No. 8.02 misstates the applicable law of damages for F.E.L.A. cases. Neither of these contentions has merit.

Under MAI when there is more than one occurrence, the jury must be instructed to consider only the occurrence for which defendant is liable. In this case Frisco contends the trial court erred because the damage instruction did not limit the jury's consideration to the occurrence of January 18, 1973. There was some evidence at trial that Bair had sustained several minor injuries prior to that date. However, the extensive medical testimony indicated that the accident sustained January 18, 1973 caused the complained of injuries to Bair's back. See Weinbauer v. Berberich, 610 S.W.2d 674, 680 (Mo.App.1980); Gant v. Scott, 419 S.W.2d 262 (Mo.App.1967). Thus, the trial court was not required to modify, nor was Frisco prejudiced by, the damage instruction. The trial court correctly submitted MAI No. 8.02. This instruction is mandatory to the exclusion of all others under the MAI. Griffith v. St. Louis-San Francisco Ry. Co., 559 S.W.2d 278, 280 (Mo.App.1977), cert. denied, 436 U.S. 926, 98 S.Ct. 2821, 56 L.Ed.2d 769 (1978). We do not believe that the jury was confused as to the incident involved.

Frisco's fifth point is that the trial court erred in refusing to submit a speculative damage instruction. Frisco's tendered instruction was not contained in MAI and "[a]s such it [was] contrary to the scheme of MAI and presumptively prejudicial." McBee v. Schlupbach, 529 S.W.2d 435, 439 (Mo.App.1975). See Dunn, supra at 253.

Frisco's sixth point is that the trial court erred in submitting the verdict director, MAI No. 24.01. The submission of MAI No. 24.01 was proper, and in fact required under Supreme Court Rule No Frisco's seventh point on...