Blunkall v. Heavy

• Decision Date: 28 May 2013
• Docket Number: No. SD 31526.,SD 31526.
• Citation: 398 S.W.3d 534
• Parties: Kelcee Jean BLUNKALL, Individually, and Gavin Heath Blunkall and Hannah Audree Blunkall, Minors, by Court Appointed Guardian and Conservator Rhonda Atkins, Plaintiffs–Appellants, v. HEAVY AND SPECIALIZED HAULERS, INC., and CWF Wood Products, Inc., Defendants–Respondents, and Missouri Highways and Transportation Commission, Defendant.
• Court: Missouri Court of Appeals

398 S.W.3d 534

Kelcee Jean BLUNKALL, Individually, and Gavin Heath Blunkall and Hannah Audree Blunkall, Minors, by Court Appointed Guardian and Conservator Rhonda Atkins, Plaintiffs–Appellants,

v.HEAVY AND SPECIALIZED HAULERS, INC., and CWF Wood Products, Inc., Defendants–Respondents,andMissouri Highways and Transportation Commission, Defendant.

No. SD 31526.

Missouri Court of Appeals,

Southern District,

Division One.

March 25, 2013.

Motion for Rehearing and/or Transfer to Supreme Court Denied April 15, 2013.

Application for Transfer Denied May 28, 2013.

H. Lynn Henry, West Plains, MO, for appellants.

Christopher P. Leritz, St. Louis, MO, for respondent CWF.

Daniel T. Rabbitt, Jr., St. Louis, MO, for respondent Heavy Haulers.

WILLIAM W. FRANCIS, JR., J.

Kelcee Blunkall, individually, and Gavin and Hannah Blunkall, minors, by court appointed Guardian and Conservator Rhonda Atkins (collectively the “Blunkalls”), filed suit against Heavy and Specialized Haulers, Inc. (“HSH”), CWF Wood Products, Inc. (“CWF”), and Missouri Highways and Transportation Commission (“MHTC”) for the death of their parents following an automobile collision. The jury returned a verdict for the Blunkalls against MHTC, ¹ but for HSH and CWF as to the remaining claims. This appeal followed. The Blunkalls raise seven points of error. Blunkalls' Point I as to CWF has merit and we reverse and remand for a new trial as to CWF only. All other points are denied.

Factual and Procedural Background

On September 20, 2007, the pickup truck carrying Timothy and Shelly Blunkall (the “Blunkall parents”) was hit head-on by a log truck operated by Keneth Shomaker (“Shomaker”).² The Blunkall truck was headed west as three vehicles crested a hill headed east: first, a red Plymouth driven by Claudie King (“King”), who died prior to trial; second, a flatbed 18–wheel truck (“HSH flatbed”) driven by HSH employee Eugene Toivonen (“Toivonen”); and last, a log truck owned and operated by Shomaker. At the time of the collision, a crew of six inmates from the Licking correctional facility was “weed eating” and picking up trash near the accident location under the supervision of a senior crew worker with the Missouri Department of Transportation. King hit his brakes after cresting the hill when he thought one of the inmates was going to walk out into his path. In response, the HSH flatbed applied its brakes and was hit from behind by the Shomaker log truck. Shomaker then entered the wrong side of the road and hit the Blunkall truck head-on. The Blunkall parents died as a result of the collision.

The Blunkall parents were survived by three children, Kelcee, Gavin and Hannah Blunkall. The Blunkalls filed suit and proceeded to trial against MHTC, HSH and CWF.

During voir dire, Blunkalls' counsel inquired into the venire's beliefs with respect to damages and monetary awards, regarding: (1) feelings on a dollar judgment for the loss of human life; (2) putting a price on life; (3) frivolous lawsuits; (4) religious beliefs on placing monetary value on loss of life; (5) feelings that they could not enter a verdict awarding “X dollars of damages”; (6) damages for loss of companionship between parents and children; (7) damages for loss of comfort; (8) damages for loss of instruction; (9) damages for loss of guidance, counsel, training and support; and (10) feelings about being able to enter a “substantial or a large verdict” maybe “millions of dollars.” The trial court allowed Blunkalls' counsel, over objection, to inquire whether there was an amount too large to award regardless of the evidence.

After these lines of inquiry, the following colloquy took place:

[BLUNKALLS' COUNSEL]: Is there anyone on this jury panel who feels that no matter what the evidence is, and no matter what the instructions are from the Court, that you would not award a verdict under any circumstances in excess of a million dollars?

[CWF's COUNSEL]: I'm going to object, your Honor. It calls for a commitment from the jury without hearing the evidence.

THE COURT: Sustained as phrased.

....

[BLUNKALLS' COUNSEL]: If I tell you now that at the close of all of the evidence, at the end of the case, that I intend to ask for judgment for the [Blunkalls], against [CWF, HSH and MHTC], for the loss of their father damages in the range of three to five million dollars; and I'm going to ask you for the same thing—damages of the [Blunkalls] against [CWF, HSH and MHTC] for the loss of their mother in the amount of three to five million dollars. Would a request for such an amount place you in a position where it would be difficult or impossible for you to render a verdict in this case?

[HSH's COUNSEL]: Your Honor, let me object. I think he's attempting to commit the jury to an amount. The Supreme Court says that should not be done.

THE COURT: At this point I think we've covered damages. I'm going to sustain the objection. Let's move on.

A key issue at trial was CWF's liability for Shomaker's actions. The Blunkalls alleged that CWF was liable because “Shomaker was an employee, agent and servant acting within the course and scope of his employment by and [sic] agency for [CWF],” and as a result of Shomaker's negligence, Blunkalls' parents died. CWF denied Shomaker was its employee, agent or servant, and argued in closing that Shomaker “was in fact not an employee of CWF, and that he was independent of CWF.” Substantial evidence was presented by both the Blunkalls and CWF concerning CWF's operations, Shomaker's operations, and Shomaker's relationship with CWF.

At the close of evidence, the trial court conducted a conference to review jury instructions. The Blunkalls offered verdict directing Instructions A and B against CWF:

INSTRUCTION NO. A

Your verdict must be for plaintiffs Kelcee Blunkall, Gavin Blunkall and Hannah Blunkall and against defendant CWF Wood Products, Inc., if you believe:

First, the driver Keneth Shomaker was an agent of CWF Wood Products, Inc. and was operating his truck within the scope and course of his agency for CWF Wood Products, Inc. at the time of the collision, and

Second, either:

Keneth Shomaker failed to keep a careful lookout, or

Keneth Shomaker was following the Heavy and Specialized Haulers, Inc. truck too close, and

Third, Keneth Shomaker was thereby negligent, and Fourth, such negligence either directly caused or combined with the acts of defendant Missouri Highways and Transportation Commission and/or defendant Heavy and Specialized Haulers, Inc. to cause the fatal injury to Timothy Blunkall.³

Instructions A and B modified paragraph first of Missouri Approved Instruction (“MAI”) 18.01 by changing the word “employee” to “agent.” ⁴ The Blunkalls' contention was that Shomaker was an agent of CWF ⁵ and that MAI 18.01 was “confusing because it uses employee in paragraph first, then goes on to say, operated his truck within the course and scope of his agency[ ]” without giving the option to submit that Shomaker was an “agent” of CWF in paragraph first. CWF objected to Instructions A and B because they deviated from MAI and that the Blunkalls' position throughout the course of trial was that Shomaker was an employee of CWF, which CWF denied.

The trial court did not submit Instructions A and B because they were “non-MAI instruction(s).” Rather, the trial court submitted Instructions 13 and 20 ⁶ to the jury as the verdict directors, both of which read in part:

INSTRUCTION NO. 13

....

First, the driver Keneth Shomaker was an employee of CWF Wood Products, Inc. and was operating his truck within the scope and course of his agency for CWF Wood Products, Inc. at the time of the collision, and ...

The jury returned a verdict in favor of the Blunkalls and against MHTC, but found in favor of HSH and CWF on the remaining counts. The jury assessed 100 percent fault to MHTC. This appeal followed.

The Blunkalls cite seven points of error on the part of the trial court. We find Point I as to CWF dispositive.

Point I: Error in Refusing Blunkalls' Verdict Directing Instructions A and B

The first issue for our determination is whether it was error to refuse Blunkalls' proposed Instructions A and B, which submitted that Shomaker was an “agent” of CWF rather than an “employee.”

Standard of Review

“Whether a jury was properly instructed is a question of law that this Court reviews de novo.” Edgerton v. Morrison, 280 S.W.3d 62, 65 (Mo. banc 2009). This Court reviews the evidence in the light most favorable to submission of an instruction. Bach v. Winfield–Foley Fire Prot. Dist., 257 S.W.3d 605, 608 (Mo. banc 2008). “Reversal for instructional error is appropriate when the instruction misdirected, misled, or confused the jury and resulted in prejudice.” Edgerton, 280 S.W.3d at 66.See also Lee v. Mirbaha, 722 S.W.2d 80, 83 (Mo. banc 1986) (holding the complaining party must show that the instruction misdirected the jury, thereby resulting in prejudice).

Analysis

The Blunkalls allege the trial court erred in submitting Instructions 13 and 12 rather than their proposed verdict directors, Instructions A and B, because the submission misstated the law and allowed the jury to find for Blunkalls only if Shomaker was an “employee” of CWF.

Missouri law regarding the difference between “agent” and “servant” is oftentimes misunderstood, and causes confusion when instructing a jury. See MAI 13.01 [2011 Revision] Comment D.⁷ In light of this confusion, we first review Missouri principles of law regarding agency and employment to demonstrate how we arrive at our finding.

“Agency is the fiduciary relationship resulting from the manifestation of consent by an agent to a principal that the agent will act on the principal's behalf and subject to his control.” Bach, 257 S.W.3d at 608;Restatement (Second) of Agency § 1 (1958). In Bach, the appellant “Aunt” appealed the trial court's judgment for injuries she sustained in an automobile accident in which the negligence of the driver, her nephew, was imputed to her. 257...