Bennett v. Owens-Corning Fiberglas Corp.

Citation896 S.W.2d 464
Decision Date25 April 1995
Docket NumberOWENS-CORNING,No. 77653,77653
PartiesLouise C. BENNETT, Respondent, v.FIBERGLAS CORPORATION, Appellant.
CourtMissouri Supreme Court

Thomas G. Hungar, Larry L. Simms, Washington, D.C., Kurt L. Rasmussen, William T. Smith, III, Kay G. Noonan, Kansas City, for appellant.

Brent M. Rosenthal, Dallas, Tex., Mark I. Bronson, St. Louis, for respondent.


Plaintiff Louise Bennett brought this wrongful death action against defendant Owens-Corning Fiberglas Corporation (OCF). She sought damages for the asbestos related death of her husband, including damages based on aggravating circumstances. § 537.090. 1 Pursuant to the court's instructions, the jury returned a verdict assessing actual damages of $1,114,000 and damages based on aggravating circumstances at $1,005,000. Because OCF challenges the constitutionality of the statute allowing damages based on aggravating circumstances, this Court has jurisdiction of the appeal. Mo. Const. art. V, § 3. Affirmed in part and reversed and remanded in part.


"A decision to punish a tortfeasor by means of an exaction of exemplary damages is an exercise of state power that must comply with the Due Process Clause of the Fourteenth Amendment." Honda Motor Co., Ltd. v. Oberg, 512 U.S. 415, ----, 114 S.Ct. 2331, 2342, 129 L.Ed.2d 336 (1994). In Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991), the United States Supreme Court considered the specific standards that must be met in a common law punitive damages case to comply with due process. There an Alabama jury was given an instruction that punitive damages were given "to punish the defendant" and "for the added purpose of protecting the public by [deterring] the defendant and others from doing such wrong in the future." Id., 499 U.S. at 19, 111 S.Ct. at 1044. This language is very similar to language found in the approved exemplary damages instructions, MAI 10.01, et seq. In Haslip the Supreme Court concluded that such an instruction accompanied by post-trial safeguards 2 developed by the Alabama Supreme

                Court meet the "general concerns of reasonableness and adequate guidance from the court when the case is tried to a jury" to meet the requirements of the constitution.  Haslip at 499 U.S. at 18-20, 111 S.Ct. at 1043.   If aggravating circumstance damages include damages which are punitive in nature, the due process requirements of Haslip must be accommodated

In relevant part, § 537.090 provides that the jury may consider the following in a wrongful death action:

The mitigating or aggravating circumstances attending the death may be considered by the trier of the facts, but damages for grief and bereavement by reason of the death shall not be recoverable.

From its origins, our wrongful death statute has allowed for a jury to award "damages as they may deem fair and just, ... and, also, having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect or default." Ch. 51, § 4, RSMo 1855 (emphasis added).

Early cases interpreted the authorization for damages based on aggravating circumstances to allow exemplary or punitive damages. See Parsons v. Missouri Pac. Ry. Co., 94 Mo. 286, 6 S.W. 464, 468 (1888). In Nichols v. Winfrey, 79 Mo. 544 (1883), this Court held: "[I]f the circumstances are of an aggravating character, the jury [is] not held to the mere pecuniary injury, but may give punitive damages." Id. at 552. In Goode v. Central Coal & Coke Co., 167 Mo.App. 169, 151 S.W. 508, 511 (1912), the court noted that the words mitigating or aggravating circumstances "are intended to apply only to cases in which it would be proper to allow punitive damages...."

At one time it was arguable that the legislature intended aggravating circumstances to authorize an award of not only punitive damages but actual damages for exceptional anguish or pain experienced by the decedent that preceded or accompanied death. However, a 1979 amendment to § 537.090 allows the jury to award "such damages as the deceased may have suffered between the time of injury and the time of death and for the recovery of which the deceased might have maintained an action had death not ensued." The quoted language fully covers any pain, suffering and other compensatory damages the deceased may have experienced prior to death. At least since 1979, the damages attributed to "aggravating circumstances" necessarily refers only to punitive damages.

Nevertheless, it is argued that aggravating circumstance damages cannot be fully equated with punitive damages. The cases supporting this argument include Glick v. Ballentine Produce, Inc., 396 S.W.2d 609 (Mo.1965), appeal dismissed, 385 U.S. 5, 87 S.Ct. 44, 17 L.Ed.2d 5 (1966), Contestible v. Brookshire, 355 S.W.2d 36 (Mo.1962); Moreland v. Columbia Mut. Ins. Co., 842 S.W.2d 215 (Mo.App.1992); and Sunshine Realty Corp. v. Killian, 702 S.W.2d 95 (Mo.App.1985). Each of these cases concedes that aggravating circumstance damages include damages designed to punish. Paradoxically, the same cases indicate that aggravating circumstance damages are not to be clearly distinguished from compensatory damages in the jury instructions or stated separately in the jury verdict. None of the cases considered the 1979 amendment which removed essentially all conceivable damages other than punitive damages from the realm of aggravating circumstance damages. In addition, none of the above cases considered the effect of the due process standards set forth in Haslip that would be violated by allowing punitive damages to be awarded without giving the jury appropriate instructions to guide its assessment of such damages. To the extent the holdings in Glick, Contestible, Moreland and Sunshine Realty are in conflict with the requirements of due process, they are overruled. Because aggravating circumstance damages are punitive in nature, they may only be awarded if accompanied by the due process safeguards as articulated in Haslip.


Section 537.090 provides no standards to guide a jury in determining how

much will be awarded for damages based on aggravating circumstances. However, the lack of standards in the statute does not mean that the statute is unconstitutional. Where possible, courts are to interpret statutes so that they are in harmony with the constitution. In re Link, 713 S.W.2d 487, 493 (Mo. banc 1986); State ex rel. Union Elec. Co. v. Public Serv. Comm'n, 687 S.W.2d 162, 165 (Mo. banc 1985). Where an otherwise unconstitutionally vague word or phrase is used in a statute but the word or phrase is judicially defined and limited by proper narrowing instructions, the statute will survive a due process challenge. See State v. Ramsey, 864 S.W.2d 320, 328 (Mo. banc 1993); Sidebottom v. State, 781 S.W.2d 791, 799 (Mo. banc 1989); and State v. Preston, 673 S.W.2d 1, 11 (Mo. banc 1984). A statute permitting a jury to award aggravating circumstance damages in a wrongful death case is, like the common law rule permitting an award of punitive damages, not unconstitutionally vague if subjected to proper narrowing jury instructions or other post-trial safeguards.


A question arises as to whether an objection to the instructions was preserved. Before the instructions were given to the jury, counsel for OCF objected because the jury was "provided no guidance whatsoever with respect to the notion that the purpose of such damages [is] to deter wrongdoing and to punish conduct." A similar complaint was included in the motion for new trial that the instructions failed to apprise the jury of the purpose, nature and character of aggravating circumstances damages as required by due process. This was sufficient to inform the plaintiff and trial court of the basic flaws in the instructions and to preserve the issue on appeal. Rule 70.03. There is no requirement that one objecting to instructions submit correct instructions to preserve the issue on appeal. Southern Missouri Bank v. Fogle, 738 S.W.2d 153, 159 (Mo.App.1987).

Perhaps in reliance on Glick, Contestible, and other pre-MAI cases, the Supreme Court Committee on Approved Jury Instructions has promulgated an instruction relating to aggravating circumstances in wrongful death cases, MAI 5.01. Because the method for submitting aggravating circumstances in MAI 5.01 fails to give adequate guidance to the jury as to the nature and purpose of aggravating circumstance damages, the trial court properly declined to give the aggravating circumstance paragraph of MAI 5.01. However, rather than instructing as in an ordinary case of punitive damages, the trial court gave a modified instruction based on MAI 10.04.

The instructions given to the jury were as follows:

Instruction No. 8

If you find in favor of the plaintiff, then you must award the plaintiff such sum as you believe will fairly and justly compensate plaintiff for any damages you believe plaintiff and...

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