Ellis v. Union Elec. Co.

• Decision Date: 12 May 1987
• Docket Number: No. 50897,50897
• Citation: 729 S.W.2d 71
• Parties: Sharron ELLIS, et al., Plaintiffs-Appellants, v. UNION ELECTRIC COMPANY, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 71

729 S.W.2d 71

Sharron ELLIS, et al., Plaintiffs-Appellants, v. UNION ELECTRIC COMPANY, Defendant-Respondent.

No. 50897.

Missouri Court of Appeals,

Eastern District,

Division Four.

May 12, 1987.

Richard M. Marshall, Clayton, for plaintiffs-appellants.

Martin J. Toft, Ann E. Buckley, Schlafly, Griesedieck, Toft & Virtel, St. Louis, for defendant-respondent.

CARL R. GAERTNER, Presiding Judge.

Plaintiffs Sharron, Vonda and Carrie Ellis appeal from a judgment for defendant Union Electric in their action seeking damages for the wrongful death of Donald Ellis. They claim the trial court erred (1) in permitting defendant to state or imply that it had exceeded its duty with respect to its electric wires under the National Electric Safety Code; (2) by allowing defendant's expert witness to testify as he was not seasonably identified to plaintiffs prior to trial; (3) in allowing evidence of decedent's negligence as such was not pleaded as an affirmative defense, and further in instructing on contributory negligence; and (4) by permitting evidence that decedent did not call Union Electric to request the power be turned off or the line wrapped with insulating material where he was working. We reverse and remand.

This action was filed by the widow and children of Donald Ellis. Mr. Ellis had been hired by a homeowner to remove some black willow trees growing on an easement owned by defendant Union Electric. The trees had been trimmed some six months previously by a contractor hired by Union Electric, but the homeowner did not like their appearance. The preliminary stage of removal involved trimming the tree limbs, some of which extended above and below--but did not touch--defendant Union Electric's 7200 volt line.

On Monday, November 22, 1982, Ellis and his assistant Ricky Tidwell worked all day trimming the trees. When they left, Ellis tied his 40 foot aluminum ladder to the tree where he had been working. Tuesday it rained and they did not work. On Wednesday the weather cleared and Ellis and Tidwell returned to work. Ellis climbed the ladder and began to trim with his 15-17 foot aluminum pole saw.

The only eyewitness to the accident testified that he saw Ellis on the ladder working. He then looked away and when he looked up again several minutes later, the pole suddenly began to slip very slowly down. The further it slipped, the more control Ellis lost until the pole contacted the 7200 volt line. There was an orange flash, the pole turned cherry red and Ellis's body caught fire. The first paramedic on the scene, who arrived minutes after the electrocution, observed Ellis in the tree and immediately concluded he was dead.

Judgment was entered on a jury verdict for defendant. Further facts will be adduced as relevant to the disposition of each of plaintiffs' points of error.

Plaintiffs' first point is that the trial court erred in allowing defendant to state or imply that compliance with the National Electric Safety Code [NESC] discharged its duty under Missouri law. The evidence showed the 7200 volt line was approximately 10 feet higher than the applicable recommendation of the NESC. In opening statement, counsel for defendant stated "there is no specific standard in Missouri but there is a National Electrical Safety Code that's used as a guide and the people involved will talk about the guideline as 18 feet." The witnesses who testified concerning the NESC height standards uniformly described them as "minimum standards." Defendant's expert acknowledged this fact and added that other factors such as the existence of trees close to the line must be considered in determining safety. Plaintiffs do not contest the admissibility of the NESC as a "minimum standard" but they argue that defendant's repeated references to the Code misled the jury into believing that compliance with the Code discharged defendant's duty. We disagree.

Initially, we note that a generator and transmitter of electricity such as defendant is held to the highest duty of care and must either insulate or isolate its electric wires. See Mrad v. Missouri Edison Co., 649 S.W.2d 936, 940-41 (Mo.App.1983). Indeed in light of this duty our Supreme Court has found that it would constitute "positive misdirection" to instruct the jury that compliance with height requirements under the NESC discharged the defendant electric company's duty under the law. Gladden v. Missouri Public Service Co., 277 S.W.2d 510, 518 (Mo.1955).

Somewhat analogous to the instant case is Freeman v. Kansas City Power and Light Co., 502 S.W.2d 277 (Mo.1973). There the defendant's attorney in opening statement said to the jury "there will be evidence that these lines were built to substantially exceed the minimum requirements of what is called the National Electrical Safety Code which has been accepted as the standard of Missouri." Plaintiffs' objection to this statement was overruled. The Supreme Court held this was error, but that it did not warrant reversal because witnesses testified the Code provisions were only minimum standards and because the jury was properly instructed to hold the defendant to the exercise of the highest degree of care. In the instant case the opening statement of defendant's attorney does not compare with the flagrant misstatement of law made by the defendant's attorney in Freeman. The evidence here unequivocally established the height requirements of the Code to be but minimum standards and that other factors had to be considered. The jury was properly instructed regarding defendant's duty. Freeman is controlling. Point denied.

Plaintiffs' second point on appeal charges trial court error in overruling their motion to exclude the testimony of defendant's expert witness. The lawsuit was commenced on June 24, 1983. On January 6, 1984, plaintiffs filed interrogatories requesting disclosure of expert witnesses defendant intended to use at trial. Defendant's response filed January 10, 1984, was "[a]t present defendant has not identified or consulted any expert witnesses." Rule 56.01(e)(1)(B) requires a party to "seasonably supplement his response with respect to any question directly addressed to ... the identity of each person expected to be called as an expert witness at trial and the general nature of the subject matter on which the expert is expected to testify." The term "seasonably" is not defined in the Supreme Court Rule. Rule 32.6 of the local rules of the 21st Judicial Circuit provides: "[u]nless the Presiding Judge approves some later date, each party shall, not later than 10 days prior to the first trial setting, identify each person whom that party expects to call as an expert witness at trial."

The trial setting of this case was May 20, 1985. Defendant requested and was granted a continuance from this setting to make "discovery" of the two expert witnesses disclosed by plaintiffs' interrogatory answers. The case was reset for trial on June 24, 1985. Defendant again requested and was granted a continuance until August 5, 1985. On July 18, 1985, defendant filed a third motion for continuance alleging that both of its expert witnesses, Dr. J. Derald Morgan and Robert Kane, would be out of the state and unavailable for trial during the week of August 5, 1985. Plaintiffs opposed this motion and plaintiffs' attorney advised the court that he would "make himself available at any time, day or night, to take such depositions as are necessary to avoid conflicting with a person's vacation." The motion for continuance was denied. On July 23, 1985, defendant filed and mailed to plaintiffs' attorney supplemental answers to interrogatories naming expert witnesses it intended to use at trial, including Morgan and Kane. These supplemental answers were received by plaintiffs' attorney on July 26, 1985, six working days before the date of the third trial setting. No depositions were taken as Kane was in Ireland and Morgan was in New Mexico, Wyoming or travelling somewhere in between.

The case was assigned to a trial division on August 7, 1985. Plaintiffs, by written motion in limine, objected to the use of any expert testimony by defendant. The trial court overruled this motion before trial and again when the motion was renewed immediately prior to the testimony of Dr. Morgan, who was the only witness called by defendant as an expert in the field of electrical engineering. Morgan had returned to St. Louis on August 10, 1985 and he testified on August 14, 1985.

Appellate courts give great deference to the exercise of trial court discretion regarding rulings on issues arising from pre-trial discovery and the determination of the appropriate course of action in the event of non-compliance with a discovery rule. Manahan v. Watson, 655 S.W.2d 807, 808 (Mo.App.1983); McClanahan v. Deere & Co., 648 S.W.2d 222, 230 (Mo.App.1983). We look only for an abuse of this broad discretion which results in prejudice or unfair surprise. Hurlock v. Park Lane Medical Center, Inc., 709 S.W.2d 872, 878-79 (Mo.App.1985). No absolute standard may be imposed because the infinite potential for variations in the degree of prejudice resulting from non-compliance with...