Hallberg v. Brasher

• Decision Date: 03 June 1982
• Docket Number: No. 81-1974,81-1974
• Citation: 679 F.2d 751
• Parties: Leon HALLBERG and Nedra E. Hallberg, Appellants, v. Enid BRASHER, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 751

679 F.2d 751

Leon HALLBERG and Nedra E. Hallberg, Appellants, v. Enid BRASHER, Appellee.

No. 81-1974.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 12, 1982.

Decided June 3, 1982.

Godfrey, Vandover & Burns, Inc., Samuel T. Vandover, St. Louis, Mo., for appellee.

Coleman, Ross, Carey, Goetz & Schaaf, Inc., George E. Schaaf, Dennis J. Curland, Clayton, Mo., for appellants.

Before LAY, Chief Judge, STEPHENSON, ^* Senior Circuit Judge, and GIBSON, ^** Circuit Judge.

STEPHENSON, Senior Circuit Judge.

Appellants, plaintiffs in the court below, Leon and Nedra Hallberg brought this diversity action in federal district court ¹ under Missouri's wrongful death statute, Mo.Rev.Stat. § 537.080 (1981), to recover damages for the death of their emancipated, adult son, Gregory L. Hallberg. They bring this appeal alleging error in the district court's conduct of their trial. We affirm in part, reverse in part and remand for a new trial on the issue of damages.

At approximately 3:00 p. m., on November 20, 1980, the defendant, Enid Brasher, was driving her automobile west on Chesterfield-Airport Road in St. Louis County, Missouri. The weather was clear, visibility unobscured and the road surface dry. As she approached the "Y" intersection with Old Olive Street Road and attempted to make a left-hand turn thereupon, her automobile collided with that of the decedent, which was traveling eastbound on Chesterfield-Airport Road. Mr. Hallberg was critically injured by the collision and pronounced dead the following day.

Trial was conducted before a jury. On July 23, 1981, judgment was entered in accordance with a verdict for the plaintiffs in the amount of $12,000. The plaintiffs subsequently moved for a new trial on the issue of damages alone or, in the alternative, an entire new trial. This motion was denied on August 24, 1981.

I. DISCUSSION

A. Voir Dire

The first point the plaintiffs raise on appeal is that the trial court erroneously refused their request to voir dire the jury panel regarding any potential bias in favor of the defendant's insurance carrier. They allege that failure to allow such an inquiry was reversible error and resulted in irreparable injury to their case.

We disagree. The specific voir dire question propounded by the plaintiffs was "whether any members had a financial interest in or whether they were employed by MFA Mutual Automobile Insurance Company ?" (emphasis supplied). This court has stated that voir dire questions regarding a specific insurance carrier are generally inappropriate inasmuch as they tend to overemphasize the issue of insurance. Labbee v. Roadway Express, Inc., 469 F.2d 169, 172 (8th Cir. 1972). Furthermore, in this case, voir dire was conducted by counsel rather than by the court. Although the trial court refused the plaintiffs' proffered question, it in no way expressed or intimated a restriction upon their ability to pursue a more generalized line of inquiry regarding insurance, see Kiernan v. Van Schaik, 347 F.2d 775, 780-82 (3d Cir. 1965), devoid of any reference to a specific insurance carrier. The trial court's refusal of the plaintiffs' voir dire request was, therefore, well within its sound discretion, see Labbee v. Roadway Express, Inc., supra, 469 F.2d at 172.

B. Instruction on Aggravated Circumstances

Second, the plaintiffs contend that the trial court erroneously refused to instruct the jury on the issue of aggravated circumstances. In Missouri, the trier of fact, may, in awarding damages for wrongful death, consider evidence of such circumstances. Mo.Ann.Stat. § 537.090 (Vernon Supp.1981). Accordingly, the plaintiffs requested the optional portion of Missouri Approved Jury Instruction (MAI) 5.01 which provides, inter alia, "(i)n assessing damages you may take into consideration any aggravating circumstances attendant upon the fatal injury." MAI 5.01 (West 1981). However, this requested language is only to be added "if supported by the evidence." Id., Notes on Use (1981 Revision), n.5. Therefore, our inquiry is limited to whether the district court erred in refusing the instruction based upon the evidence adduced at trial. After considering the transcript and arguments of the parties, we hold that the district court properly refused the proffered instruction.

The Missouri courts have consistently held that aggravating circumstances, as envisioned by section 537.090, entail conduct substantially more reprehensible than ordinary negligence. See Wiseman v. Missouri Pacific Railroad, 575 S.W.2d 742, 752-53 (Mo.App.1978); Williams v. Excavating & Foundation Co., 230 Mo.App. 973, 93 S.W.2d 123, 126-27 (Mo.App.1936). See also May v. Bradford, 369 S.W.2d 225, 229 (Mo.1963). In Williams, the court characterized incremental damages related to "aggravated circumstances" as punitive in nature, therefore requiring a showing of "willful misconduct, wantonness, recklessness, or a want of care indicative of indifference to consequences." Williams v. Excavating & Foundation Co., supra, 93 S.W.2d at 127. Contrasted with that standard of proof, "if the evidence shows only that the accident was the result of a want of due care on the part of the defendant * * *, then the case is merely one of negligence and nothing more * * *." Id. In May v. Bradford, supra, the Missouri Supreme Court held that instruction upon aggravated circumstances was warranted where the defendant, despite knowledge of the proximity of the plaintiff's oncoming vehicle, nevertheless maneuvered his heavily laden truck into the plaintiff's lane of traffic and persisted in his attempt to pass another vehicle on an upgrade curve. Id. 369 S.W.2d at 229. The court, therefore, concluded that the jury could have reasonably found the defendant's conduct was "reckless and wanton and in gross disregard of the rights and safety" of the plaintiffs. Id.

Here, the plaintiffs alleged that the defendant's act in turning her automobile into the decedent's lane of traffic, despite her earlier sighting of his vehicle approximately one city block away, established the requisite degree of intentional, wanton and reckless misconduct. However, the defendant's uncontroverted testimony also revealed that the decedent's right-turn signal was flashing at the time she first sighted his automobile, thus indicating to her that the decedent intended to turn off the highway prior to entering the intersection. Therefore, based upon that assumption, she momentarily diverted her attention from the decedent and proceeded in her attempt to turn across his lane of traffic. ² We agree that the plaintiffs established a prima facie case of negligence premised upon the defendant's failure to maintain a proper lookout and failure to yield the right-of-way. We do not, however, believe that the evidence was sufficient to allow the jury to reasonably consider her conduct to be intentional, wanton and reckless. We affirm the trial court's action. The refusal to instruct upon aggravated circumstances was entirely proper. ³

C. Instruction on Future Damages

The defendants also argue that the trial court erred in refusing to instruct the jury on the proper measure of future damages. Specifically, the plaintiffs requested that the court's wrongful death damage instruction incorporate the optional language of MAI 5.01, supra, which expressly allows the jury to assess those damages which the "plaintiff is reasonably certain to sustain in the future." (footnotes omitted). In this case, the plaintiffs argue that this refusal prevented the jury from making an award for future loss of comfort as otherwise provided by the Missouri wrongful death damages statute, section 537.090, supra. ⁴ The defendant, on the other hand, argues that as with the "aggravated circumstances" instruction, this "reasonably certain" language is only to be added if supported by the evidence, see MAI, supra, § 5.01, Notes on Use (1981 Revision), n.5.

The question, therefore, to be resolved is whether the plaintiffs' evidence was sufficient to support an instruction on future damages. The issue is apparently one of first impression since the Missouri legislature's revision of section 537.090 in 1979. Although we regard the question as close, we nevertheless reverse the decision of the trial court.

Prior to the revision in 1979, the Missouri courts had interpreted section 537.090 as precluding parental recovery for pecuniary benefits resulting from the continued life of a child beyond the age of majority. E.g., Oliver v. Morgan, 73 S.W.2d 993 (Mo.1934). However, in the 1977 decision of Mitchell v. Buchheit, 559 S.W.2d 528, 531-33 (Mo.1977) (en banc), the Missouri Supreme Court judicially shifted Missouri to a position in accord with the majority of states, holding that parents suing for the death of a minor child could recover for the reasonably probable pecuniary benefits owing to the continued life of the child beyond the age of majority. In 1979, the Missouri legislature responded by amending section 537.090, apparently in conformance with the Mitchell opinion, see Note, Missouri's New Wrongful Death Statute-Highlights of Some Significant Changes, 45 Mo.L.Rev. 476, 484 (1976), so as to specifically provide for wrongful death recovery "without limiting such damages to those which would be sustained prior to attaining the age of majority by the deceased or the person suffering any such loss * * *." In addition, the legislature also amended section 537.090 to expressly allow the recovery of damages for loss of comfort and companionship. ⁵ There are no reported Missouri decisions which discuss the significance of these statutory amendments.

Despite these revisions, the approved Missouri wrongful death damage instruction retained the proffered "reasonably certain" language, allowing for its optional inclusion dependent upon sufficient evidentiary support. This instruction, and the attendant Notes on Use, were specifically reviewed and approved by the Missouri...