Graeff v. Baptist Temple of Springfield
| Decision Date | 18 December 1978 |
| Docket Number | No. 60507,60507 |
| Citation | 576 S.W.2d 291 |
| Parties | Frank Kenneth GRAEFF, by his next friend Kenneth S. Graeff, Plaintiffs- Appellants-(Respondents), v. BAPTIST TEMPLE OF SPRINGFIELD, Defendant-Respondent, and Emmett M. Davis, Defendant-Appellant. |
| Court | Missouri Supreme Court |
Thomas G. Strong, Springfield, for plaintiffs-appellants-(respondents).
B. H. Clampett, Springfield, for defendant-respondent.
Gerald H. Lowther, Theodore L. Johnson III, C. Ronald Baird, Springfield, for defendant-appellant.
These are two appeals from the granting of a new trial by the circuit court of Greene County. Plaintiff Frank Kenneth Graeff 1, by his next friend and father, Kenneth S. Graeff, filed an action seeking damages for personal injuries in the circuit court of Greene County against the defendant-respondent Baptist Temple of Springfield and defendant-appellant Mr. Emmett M. Davis. The jury returned a verdict in favor of plaintiff, Frank (Frankie) Graeff, against Baptist Temple in the amount of $97,100, and returned a verdict in favor of defendant Emmett M. Davis. After motions for new trial filed by Baptist Temple and the plaintiff Frank Graeff, the court sustained the motions and granted a new trial "as to all parties on all issues." These are two appeals from that order granting a new trial. Plaintiff Graeff appeals the order granting a new trial to defendant Baptist Temple and defendant Emmett M. Davis appeals the order granting a new trial to the plaintiff. The appeals were originally taken to the Missouri Court of Appeals, Springfield District, but on recommendation of that court to consider an alleged per diem argument and the propriety of giving a converse instruction, we granted transfer of the cause before opinion because of the importance of these issues. Art. V, § 10, Mo.Const.
The petition for damages was filed on July 15, 1975, and trial commenced on August 16, 1976. Although there are different and sometimes contradictory versions of the facts, the jury could reasonably find the following.
Baptist Temple of Springfield is a corporation conducting religious services and educational activities. As a part of its operation it conducts schools and engages in programs which reach out to families and children. There are such things as Bible clubs and "gym days". Gym day is a day "where they get all the kids together and just have one . . . big Bible club . . . They'd have refreshments and games and a Bible story and possibly a film or something for them to see." Baptist Temple owned a number of church buses. One was number 40, a 1963 Chevrolet. The bus was equipped with directional lights, brake lights and flashing warning lights which could be activated by switches inside the bus. The bus also had a "stop arm."
In April, 1975 George Huntsman 2 was a student at Baptist Bible College and was employed by Baptist Temple part-time. Mr. Huntsman was primarily employed by Baptist Temple as a maintenance man cleaning buildings, lawn care and running around for supplies. On some occasions he was called upon to drive the bus to pick up people for "gym day." On the day of the accident he picked up about 15-30 people, including the Graeffs Frank, his two sisters and mother. Two young women, Janice Dodd and Cindy Payne also students directed him to the various homes. After "gym day" and on the return trip to the Graeff's home located at 2023 Taylor Avenue, 3 Huntsman drove South on Howard Street to Atlantic, east on Atlantic and then north on Taylor. There were 15 people on the bus on the return trip. All were children except Mrs. Graeff, Janice Dodd, Cindy Payne and Huntsman. 4 The bus proceeded south on Howard, east on Atlantic and north on Taylor to the Graeff home. As Huntsman turned north on Taylor no cars were parked on either side of the street.
When Huntsman turned north on Taylor and about two bus lengths from the Graeff home he saw in his left rear view mirror the Davis vehicle, a 1969 Ford station wagon "straddling the corner of Atlantic and Taylor, just turning onto Taylor." According to Huntsman, he was traveling between 15 and 20 miles per hour. Huntsman observed Davis when he was a bus length or two from the Graeff home. When Huntsman was about 70 feet south of the Graeff house he put his foot on the brake to "start slowing down to come to a stop." At this time Mr. Davis was about 30 feet from Atlantic or 225 feet from the Graeff home. Huntsman testified he turned on a switch which activated the flashing lights on the top of the bus which would alternate as long as the foot was on the brake. 5 He kept his foot on the brake. Huntsman heard the "clicking sound louder than a turn signal." Huntsman never activated the stop-arm of the bus. Huntsman stopped the bus "even" with the Graeff driveway, but the left side of the bus was "two or three feet over the center (line) of Taylor." He estimated that he was two feet over the center line of Taylor so that some five to nine feet existed between the right side of the bus and the curb on Taylor Avenue.
When the bus stopped, Huntsman opened the door. The Davis vehicle was then "just at the tail end of my bus" "He would have been just coming around the bus." 6 He admitted that he knew Davis was to the rear starting to pass him. He never informed the Graeffs that "There's a car coming behind us, . . ." or "honk(ed) the horn." When the bus stopped, Frankie was "back with his mother . . . somewhere behind me." He didn't know Frankie was off the bus until the collision with the Davis car. He saw Frankie take "two or three steps" before he and the car collided. Frankie seemed to be "moving briskly." At the time when Frankie collided with the Davis vehicle, he was 2-3 feet in front of and 3-5 feet west (left) of the bus. The collision took place "between the fender and front wheel" of the Davis vehicle. Huntsman saw that the boy's leg was broken between the knee and thigh, "and his bone (femur) was sticking through his pants and sticking out where you could see it." Frankie was screaming.
Emmett M. Davis, age 75 and retired, lived at 1102 E. Atlantic at the intersection of Atlantic and Howard. On the afternoon of April 19, 1975, he drove east on Atlantic and turned north on Taylor. "(W)hen I got to where I could look down Taylor" he saw the bus "sitting parked in front of the Graeff house on the east side of the street." No lights were on during the time he drove the 256 feet to the Graeff home. The stop-arm was not out. He saw no "flashing" lights or "brake lights." When Davis was about "two car" lengths or 40-50 feet behind the bus, he started to pull out to go around it. He sounded no horn. When he passed the bus he was going between five and ten miles per hour and "possibly" three or four feet to the left side. Davis never saw Frankie prior to the impact. The first time he saw the child was the "very instant" that he and the car "touched." According to Mr. Davis, Frankie ran into the side of the car "between the bumper and the front wheel." "He dashed out in front of the bus into the car."
Mrs. Linda Lee Graeff, the mother of Frankie, accompanied him and her two other children, Linda Yvonne, age 10, and Billie Jo, age 5 to gym day. She, her husband and family are members of the Baptist Temple. They attend regularly. Prior to the accident Frankie's leg was normal, he engaged in normal activities was "very active" and was in the second grade. He enjoyed boxing and swimming. 7 Because of mild retardation, Frankie was placed in special education. Mrs. Graeff and the children had taken the bus on other occasions but she did not recall "having to cross the street to get to the bus."
At the time of the accident, Mrs. Graeff stated "the next thing I knew, Frank was laying on the ground, screaming." Frankie was underneath Mr. Davis' vehicle at about the center post. Mrs. Graeff could see the "bone in his leg sticking out approximately, six inches." 8 Mrs. Graeff pulled him from underneath the car.
Several witnesses corroborated plaintiff's version of the accident.
Frankie received serious injuries in the collision. The hospital report indicated that he was admitted on April 19, 1975 and dismissed May 10 a total of 21 days. The report indicated that Frankie had received a compound fracture of the left femur "The distal fragment is displaced medially and posteriorly and it is rotated laterally." "Adjacent soft tissues are severely lacerated." Frankie was operated on by Dr. Newt Wakeman, Jr., an orthopedic surgeon. Dr. Wakeman saw Frankie in the emergency room. "(H)e was a frightened youngster, . . . the most obvious injury was his left lower limb where there was a large laceration of approximately one half the circumference of his lower thigh with a bone protruding from the wound." He determined that an operation was necessary. Surgery was performed, a metallic pin was inserted in the tibia, the wound partially closed over the bone, and about half the wound was left open. Frankie was placed in traction from April 19 to May 10. On April 27, another operation was performed to close the wound. On May 10, Frankie underwent another operation for the removal of the pin and a body cast was applied. The cast covered all of the left limb, and the right limb to the knee. The upper cast encircled his body "up to approximately the level of his belly button."
After Frankie left the hospital Dr. Wakeman "saw" him fourteen times. The cast was removed, June 12, 1975. When the cast was removed there were some "raw areas" on the thigh and leg. The Doctor instructed Mrs. Graeff to...
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