DeLaporte v. Robey Bldg. Supply, Inc.

• Citation: 812 S.W.2d 526
• Decision Date: 05 February 1991
• Docket Number: No. 57719,57719
• Parties: Gloria J. DELAPORTE, Respondent, v. ROBEY BUILDING SUPPLY, INC., Appellant.
• Court: Court of Appeal of Missouri (US)

Page 526

812 S.W.2d 526

Gloria J. DELAPORTE, Respondent, v. ROBEY BUILDING SUPPLY, INC., Appellant.

No. 57719.

Missouri Court of Appeals,

Eastern District,

Northern Division.

Feb. 5, 1991.

Marion F. Wasinger, Hannibal, for respondent.

Leritz, Plunkert & Bruning, Thomas J. Plunkert, Joseph E. Denigan, St. Louis, for appellant.

SIMON, Judge.

Appellant, Robey Building Supply, Inc., appeals a judgment entered on a jury verdict in favor of respondent, Gloria J. DeLaporte, on her personal injury claim.

On Saturday, August 24, 1985, at about 12:30 p.m., respondent attended an estate sale in Monroe City, Missouri, accompanied by her son, Ray, and her niece, Lori McLeod (now Stroud). At some point respondent needed to use a restroom, and asked if she could do so in the house on the property where the sale was held. The owners did not want people in the house, so respondent and Ms. Stroud walked to a laundromat about three blocks away.

They testified they turned north onto Winter Street and proceeded to walk past property commonly known as the White Mule Oil Company. Appellant's place of business is located on the corner of Vine and Winter Streets in Monroe City, across from the White Mule Oil property. Appellant was adding a warehouse onto its building during August, 1985. Two hundred thirty-two piece units of two-by-fours were used, which were held together with metal bands. Both respondent and Ms. Stroud testified the grass was high around the sidewalk where they were walking, but they saw wood scraps and "metal strips" on the sidewalk, in the grass, and out in the street. They stepped around and over the debris, but they got to a point where the sidewalk was impassable. Respondent stepped into the grass, caught her foot on something, and fell. She was able to get up and continue walking, with assistance.

The next day, respondent had swelling in her left leg and foot, which got progressively worse. On Thursday, August 29, she called Dr. William E. Rice, who took x-rays and put her on crutches. There was no improvement so she went to Dr. Foreman, who took x-rays, diagnosed her problem as pulled ligaments and tendons, and put a cast on her left foot for a week. She went back to Dr. Rice a week later, who found no improvement. Dr. Rice referred respondent to a group of orthopedic surgeons in Columbia, Missouri in October of 1985. X-rays were again taken, which revealed a hairline crack in the bone of her left big toe. She saw Drs. Payne, Quinn, and Carter from the group in Columbia, all orthopedic surgeons, several times between October, 1985 and June, 1986.

Her condition did not improve significantly, and she was seen by Dr. Garth Russell, also an orthopedic surgeon in the Columbia group, on June 27, 1986. Dr. Russell diagnosed her condition as reflex sympathetic dystrophy and sesamoiditis, meaning damage to the nerve endings in her toe causing inflammation, pain, and swelling in her left foot and leg. Respondent was also hospitalized at one point during Dr. Russell's care for swelling that extended to her thigh. It was his opinion that the damage was permanent, and due to her accident on August 24, 1985.

Respondent testified the family owned and operated a farm, and her role in the operation was to breed and raise hogs. Because she cannot walk or stand for long periods of time she can no longer care for the hogs, so the family has had to reduce that area of their business. She can no longer raise a garden, lift heavy objects, do laundry or heavy cleaning, drive, mow grass, exercise, wear dress shoes, shop or bathe without assistance, or do anything requiring two hands.

Respondent filed her petition on November 14, 1988, against appellant and the City of Monroe. The owners of the White Mule Oil property were apparently defendants at one time, but settled before trial. Trial was held on September 28-30, 1989. The jury returned a verdict for the City, and against appellant. It awarded respondent $60,000, but found her to be twenty-five percent at fault. The trial court entered judgment accordingly, and appellant appeals.

Appellant raises ten points on appeal contending that the trial court erred in: (1) allowing respondent to cross-examine Robert Robey concerning conversations with Robey's attorney in that the conversations were not admissible evidence because they were irrelevant, immaterial, were offered to prejudice the jury and were revealed under order of the court in gross violation of the attorney-client privilege; (2) admitting respondent's evidence concerning appellant's insurance in that insurance was injected solely to prejudice the jury because there was no issue presented to the jury on which the existence of insurance was relevant or material; (3) sustaining respondent's motion to prohibit appellant from calling witnesses Wayne Redman and Michael Robey and from questioning witness Paul Walker concerning the condition of the sidewalk in that there was no conduct on the part of appellant to justify such action because appellant properly responded to all discovery and identified these witnesses three and one-half months prior to trial. The trial court further erred in denying appellant's motion for mistrial made during respondent's closing argument when respondent referred repeatedly to appellant's failure to call these witnesses in that respondent's comments unfairly prejudiced the jury because respondent had moved the court to prohibit appellant from calling those very witnesses; (4) overruling respondent's motions for directed verdict and judgment n.o.v. in that there was insufficient evidence for the jury to conclude appellant created the obstruction in issue; (5) submitting the verdict directing instruction, No. 8, in that it failed to hypothesize that the negligence in question was committed by an agent of appellant acting within the course and scope of his agency, which is a required element of respondent's case because where agency is disputed the verdict directing instruction must hypothesize the existence and course and scope of such alleged agency relationship; (6) admitting into evidence respondents' items of special damages in that those items were not properly in issue because they were not pleaded as damages and were not properly recoverable by respondent; (7) excluding the testimony of Dr. William E. Rice in that Dr. Rice's testimony was relevant and material to the issues of causation and damages because it showed respondent had a pre-existing disability to the same part of the body she allegedly injured in this incident and it also impeached her; (8) admitting Exhibits 7 through 10 in that there was an improper foundation laid for their admission because they were merely letters from Dr. Russell to respondent's attorney and the trial court compounded the error by allowing the exhibits to be passed to the jury in that the showing of these exhibits unduly prejudiced appellant because respondent's attorney had highlighted portions of the records with yellow highlighter; (9) denying appellant's motion for a new trial in that appellant did not receive a fair trial because of the cumulative effects of all of the errors of the trial court and respondent's counsel; and (10) denying appellant's motion to amend the judgment in that appellant was entitled to have the judgment reduced because respondent had already received $10,000.00 in settlement from a negligent joint tort feasor who was not a defendant at trial.

We find appellant's fifth point dispositive of this appeal, wherein appellant contends the trial court erred in submitting Instruction No. 8 because the instruction hypothesized that negligent acts were committed by appellant, i.e., placing pieces of lumber and debris close to or on a public walkway and public street. Paragraph 6 of respondent's petition alleges "... Defendant Robey Building Supply, Inc. at said time and place placed debris, metal strippings, and other foreign material upon the sidewalk and adjoining byway making the sidewalk unsafe for the general public." Appellant in its answer denied that allegation.

In addition to the pleadings and answer, the issue of who created a sidewalk obstruction was contested by appellant at trial. Substantial evidence was presented by appellant and/or the City at trial showing that one Herman Schrock was hired by appellant to build a warehouse onto its building. Mr. Schrock provided his own tools and crew, while appellant furnished the materials and a diagram.

There was no written contract between them, but Mr. Schrock has worked for appellant in this capacity several times previously. Mr. Bob Robey testified he checked on the building progress frequently, and had Mr. Schrock correct things that were not done to specifications. Mr. Schrock would clean up the area after work was completed, and appellant would follow up on that if needed. There was ample evidence appellant moved materials in preparation of construction, but no evidence was adduced as to who placed the debris on or near the sidewalk.

Appellant objected at trial on a number of grounds to Instruction No. 8, patterned after MAI 22.02, specifically stating there was no evidence adduced as to who placed the debris on the sidewalk, or further whether it was done by an agent, servant or employee of appellant. Nonetheless, respondent submitted and the trial court gave Instruction No. 8, the verdict director, which read:

In your verdict you must assess a percentage of fault to defendant Robey Building Supply, Inc. whether or not plaintiff Gloria DeLaporte was partly at fault if you believe:

First, defendant Robey Building Supply, Inc. created an obstruction by placing pieces of lumber and debris close to or on a public walkway and public street, and

Second, that such obstruction was so close to or on a public sidewalk and public street that persons using the sidewalk and street in the exercise of ordinary care were exposed to a danger of falling, and

Third, defe...