Craft v. Scaman, 49800
| Decision Date | 25 February 1986 |
| Docket Number | No. 49800,49800 |
| Citation | 715 S.W.2d 531 |
| Parties | John R. CRAFT, Appellant, v. Thomas S. SCAMAN, Respondent. |
| Court | Missouri Court of Appeals |
Frank B. Green, Jack Randall, Inc., St. Louis, for appellant.
Richard B. Dempsey, Union, for respondent.
In his petition, plaintiff alleged that on September 20, 1978, defendant negligently applied friction to a reel of highly flammable fuse, thereby causing a flash fire that injured plaintiff. Defendant filed a counterclaim, and also filed a motion to dismiss plaintiff's petition, arguing that the trial court lacked subject-matter jurisdiction. The trial court denied the motion to dismiss, and the case proceeded to a jury trial. The jury returned verdicts in favor of plaintiff on the original claim and on the counterclaim, assessing his damages at $75,000.00. On defendant's motion, alleging several errors in the jury instructions, the trial court issued an order granting a new trial. Plaintiff appeals from that order. We reverse.
In reviewing the trial court's decision to grant a new trial, we consider the evidence in a light most favorable to the plaintiff, together with all inferences reasonably deducible therefrom. Farley v. Johnny Londoff Chevrolet, Inc., 673 S.W.2d 800, 803 (Mo.App.1984); Fancher v. Southwest Missouri Truck Center, Inc., 618 S.W.2d 271, 272 (Mo.App.1981).
On the date of the accident, plaintiff was employed at a fireworks factory owned by Apollo of the Ozarks, Inc., a Missouri corporation. Defendant has been the corporation's president since the corporation was formed thirteen years ago. Defendant and his wife are the corporation's only shareholders. Defendant's duties as president include selling merchandise, creating good will, supervising operations at the factory, and some clerical work.
The corporation manufactures both fireworks and fuse, all of which are class C explosives. 1 Part of plaintiff's duties at the factory required him to fill customers' orders for fuse. In performing this task, plaintiff operated an electrically-powered machine that transferred the fuse from a large spool on which the fuse was stored to another spool on which the fuse was shipped to customers. Plaintiff controlled the speed at which the fuse was wound from one spool onto the other by means of a foot pedal which was connected to the machine's electrical motor.
On September 20, 1978, plaintiff was operating the machine that transfers the fuse, when a flange on one of the spools separated from the spool's cylinder. The spool remained on its axle, but bounced up and down when it was rotated. Plaintiff located the defendant elsewhere in the factory and directed him to the machine. After examining the machine, defendant found an eight-foot long board and used it as a lever to prop up the broken spool. In this position the board rested against the fuse. Defendant then instructed plaintiff to go ahead and run the machine. Plaintiff began operating the machine at a slow speed, whereupon defendant told him to "speed it up." Plaintiff did so, and within a few seconds a flash fire erupted, engulfing the plaintiff in flames.
Plaintiff brought this action to recover for bodily injuries he suffered as a result of the fire. Defendant counterclaimed for injuries he received in the same fire. Defendant also filed a motion to dismiss plaintiff's petition, arguing that payments made by defendant to plaintiff under the Missouri Workmen's Compensation Law deprived the trial court of subject-matter jurisdiction. The court denied this motion, and the case proceeded to a jury trial. At the close of all the evidence, plaintiff's case against defendant was submitted to the jury as Instruction No. 8:
Your verdict must be for plaintiff and you must assess a percentage of fault to defendant if you believe:
First, defendant ignited the spool of fuse by placing a board against the fuse while plaintiff was rewinding it on to another spool, and
Second, before placing the board against the fuse defendant knew or in the exercise of ordinary care could have known that the fuse was highly flammable and explosive and that if ignited was reasonably likely to injure plaintiff, and
Third, defendant, in the respects submitted in paragraphs First and Second was thereby negligent, and
Fourth, as a direct result of such negligence, plaintiff sustained damage.
Plaintiff's defense to defendant's counterclaim was submitted to the jury as Instruction No. 13:
You must assess a percentage of fault to defendant if you believe:
First, defendant ignited the spool of fuse by placing a board against the fuse while plaintiff was rewinding it on to another spool, and
Second, before placing the board against the fuse defendant knew or in the exercise of ordinary care could have known that the fuse was highly flammable and explosive and that if ignited was reasonably likely to injure defendant, and
Third, defendant, in the respects submitted in paragraphs First and Second was thereby negligent, and
Fourth, such negligence of defendant directly caused or directly contributed to cause any damage defendant may have sustained.
The jury returned verdicts in favor of plaintiff on his claim and against defendant on his counterclaim. The jury assessed plaintiff's damages at $75,000.00. Defendant then filed a motion for a new trial, alleging error in the jury instructions on four grounds. The trial court granted defendant's motion, assigning error on each of the asserted grounds. We reverse the grant of a new trial, holding that error was not properly assigned on any ground.
The general rule provides that an appellate court will be more liberal in upholding a trial court's decision to grant a new trial than it will be if the trial court denies a new trial. Large v. Carr, 670 S.W.2d 71, 72 (Mo.App.1984). However, a trial court's authority to grant a new trial is discretionary only as to questions of fact, not matters of law. Harrell v. Knight, 679 S.W.2d 432, 433 (Mo.App.1984). Instructional error involves a question of law; therefore, if a new trial has been granted for such error the appellate court must examine the record presented to determine whether the challenged instructions were erroneous and, if so, whether such instructions prejudiced respondent. Kuzuf v. Gebhardt, 602 S.W.2d 446, 449 (Mo.banc 1980). In recent years, Missouri courts have been reluctant to reverse a judgment for instructional error unless there is a substantial indication of prejudice. Lawton v. Jewish Hospital of St. Louis, 679 S.W.2d 370, 375 (Mo.App.1984). If the trial court orders a new trial on several grounds, its order will be upheld on appeal if any one of those grounds is valid. Kuzuf, supra at 449.
Each of the four errors alleged by defendant in his motion for a new trial derived from Instructions Nos. 8 and 13, as set forth above. In his first two allegations of error, defendant alleged that paragraph "Second" of each instruction improperly hypothesized defendant's knowledge in terms of what defendant "knew or in the exercise of ordinary care could have known." (Emphasis added.) Defendant argued that the instructions should have hypothesized defendant's knowledge in terms of what he "should" or "would" have known in the exercise of ordinary care. In granting a new trial on these grounds, the trial court explained that the word "could" "expresses mere possibility," whereas the word "should" "denotes duty." The court thus concluded that "should have known" was the proper standard, and that using the "could have known" standard unfairly prejudiced defendant.
We cannot agree that inclusion of the "could have known" standard was either erroneous or prejudicial. With regard to both the claim and the counterclaim, plaintiff and defendant each admitted they were aware that applying friction to the fuse would cause it to ignite. The only issues contested at trial were factual issues as to what each party said and did immediately prior to the fire. 2 Given that both parties admitted having knowledge of the danger, the jury was only required to find that defendant ignited the fuse by placing the board against it, and that the resulting fire injured plaintiff. Defendant's knowledge was, therefore, a "non-issue," and paragraph "Second" of Instructions Nos. 8 and 13 was wholly unnecessary. Cline v. Carthage Crushed Limestone Co., 504 S.W.2d 102, 111 (Mo.1973); Husar Industries, Inc. v. A.L. Huber & Son, Inc., 674 S.W.2d 565, 574 (Mo.App.1984).
Defendant apparently recognized that knowledge of the danger was undisputed, because his verdict-directing instruction did not contain any element of scienter. 3 At the instructions conference, moreover, defendant specifically objected to Instructions Nos. 8 and 13 on the ground that scienter "is not a proper element, or necessary element, in a matter such as this." (Emphasis added.) We also observe that if a person does know of a particular danger, then he necessarily could have known and should have known, in the exercise of ordinary care, of that danger. Dorrin v. Union Electric Co., 581 S.W.2d 852, 859-60 (Mo.App.1979). Accordingly, we hold that defendant was not prejudiced by the superfluous submission of the "could have known" standard, and that the trial court thus erred in granting a new trial on the first two grounds asserted by defendant.
Defendant's third argument supporting his motion for a new trial provided that paragraph Second of Instructions Nos. 8 and 13 was improper because it failed to hypothesize that defendant knew that placing the board against the rotating fuse would cause it to ignite and injure plaintiff. Instead, the instructions only hypothesized that defendant knew "that the fuse was...
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