Kastner v. Beech Aircraft Corp.

• Decision Date: 08 March 1983
• Docket Number: No. WD,WD
• Citation: 650 S.W.2d 312
• Parties: Noreen KASTNER, et al., Appellants, v. BEECH AIRCRAFT CORPORATION, Respondents. 33273.
• Court: Missouri Court of Appeals

Page 312

650 S.W.2d 312

Noreen KASTNER, et al., Appellants, v.BEECH AIRCRAFT CORPORATION, Respondents.

No. WD 33273.

Missouri Court of Appeals Western District.

March 8, 1983.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

May 3, 1983.

Application to Transfer Denied

May 31, 1983.

Heywood H. Davis, John A. Vering, III and James E. Cooling, Kansas City, for appellants; Dietrich, Davis, Dicus, Rowlands & Schmitt and Happy, Cooling & Herbers, Kansas City, of counsel.

Reed O. Gentry, Douglas N. Ghertner, Kansas City, for respondents; Field, Gentry, Benjamin & Robertson, Kansas City, of counsel.

Before PRITCHARD, P.J., and MANFORD and NUGENT, JJ.

PRITCHARD, Presiding Judge.

In their action for the wrongful death of Rick Kastner, appellants, Noreen Kastner, his surviving spouse, and his surviving minor children, Frederick, Brian, David and Evan Kastner, had a jury verdict for $1,000,000 against Beech Aircraft Corporation.The action was brought under the theory of strict liability--a failure to warn of the danger of a Beech Baron aircraft to go into a flat spin, the theory being submitted in InstructionNo. 8, which is:

"Your verdict must be for plaintiffsNoreen Kastner Hendley, Frederick Kastner, Brian Kastner, David Kastner and Evan Kastner against defendantBeech Aircraft Corporation if you believe:

First, plaintiffs were the spouse and children of decedent Rick Kastner, and

Second, defendantBeech Aircraft Corporation sold the Beech Baron Model95-A55, N9567Y, in the course of defendant's business, and

Third, the Beech Baron Model95-A55, N9567Y, was then unreasonably dangerous when put to a reasonably anticipated use without knowledge of its characteristics, and

Fourth, defendant did not give an adequate warning of the danger, and

Fifth, the Beech Baron Model95-A55, N9567Y, was used in a manner reasonably anticipated, and

Sixth, Rick Kastner died as a direct result of the Beech Baron Model95-A55, N9567Y, being sold without an adequate warning.

MAI 25.05(1978)(Revision) Modified per MAI 2.00andMAI 20.01(1981 Revision)

Submitted by Plaintiffs Kastners."

The trial court granted Beech a new trial on the single assigned ground that it was error not to have modified InstructionNo. 8, to include a tail clause (as to appellants' damages for wrongful death of their decedent) that appellants had not been fully compensated by payment to them on behalf of other alleged joint tort feasors.The record shows that appellants had been paid $80,000 by Vanguard Insurance Company in settlement of their claims against the owners of the Beech Baron, the instructor pilot, Claude H. McNabb, and his employer, Wilson Aviation Academy.In granting the new trial, the trial court noted that the phraseology "for which they have not been fully compensated" is required by MAI 7.01¹, and its omission represents error.In ruling the matter, the trial court went on: "It is true that the jury was correctly instructed that it must deduct $80,000 from any damages that the Kastners had sustained.It is equally true that the jury felt that those damages greatly exceeded the $80,000 which had been paid by its verdict of $1,000,000.Under these circumstances, it is difficult to perceive prejudice to the defendant; however, the Supreme Courtcase of Hunter v. Norton, 412 S.W.2d 163, controls."Beech defends its grant of a new trial essentially for the same reasons stated by the trial court, but argues further that the omission of the clause from InstructionNo. 8, and its inclusion in damage InstructionNo. 10 created an "inconsistency" under Hunter v. Norton, 412 S.W.2d 163(Mo.1967), which was prejudicial to it in that irreconcilable and contradictory directions were presented to the jury by these two instructions.InstructionNo. 10 in pertinent part is: " * * * After you have determined such sum [as will fairly and justly compensate plaintiffs for their damages], you must deduct $80,000 which has been paid to plaintiffs * * *.In the event such payment is equal to or exceeds the amount of plaintiffs' damage, then your verdict must be for defendant. * * *"[Brackets added.]

Appellants contend that InstructionNo. 8 was a proper modification of MAI 25.05(the strict liability form), MAI 20.01(the wrongful death form), and MAI 2.00(to identify plaintiffs) because there is no exact MAI verdict directing instruction under which they submitted their case--wrongful death, strict liability--failure to warn.MAI 25.05 was modified to show death and not damages as a hypothesis.The question is, though, not whether there was a proper modification, but whether there was an improper deviation (omission) from MAI 7.01[requiring credit for a settlement with a joint tort feasor], Notes on Use 2."Modified Verdict Director.Add to the appropriate verdict directing instruction at the end of the paragraph hypothesizing that damage was sustained the phrase 'for which he has not been fully compensated.' "Appellants say that in this wrongful death case there was no "appropriate verdict directing instruction" because there is no "paragraph hypothesizing that damage was sustained."Note 2 ofMAI 7.01 is inappropriate, they say, because paragraph Sixth of InstructionNo. 8 hypothesized the death of Rick Kastner(not damage ), and you go to InstructionNo. 10 for the submission of the survivors' damage (which allowed credit thereon for the $80,000 settlement).Appellants are correct in their contention which is further buttressed by their cited cases with reference to MAI 20.01 holding that pecuniary loss need not be hypothesized because " 'where it appears in a statutory action for death that the death was caused by defendant's negligence, nominal damages may be recovered, although no actual pecuniary damage has been shown ....'25 C.J.S. § 96, quoted inStroud v. Masek, 262 S.W.2d 47, 51(Mo.1953)."Committee's Comment (1981 Revision) to MAI 20.01.The law implies pecuniary loss from the legal duty of a deceased to support a wife and minor children, O'Hara v. Lamb Const. Co., 200 Mo.App. 292, 206 S.W. 253, 254[1, 2](1918);Steinmetz v. Saathoff, 84 S.W.2d 434, 437[5-7](Mo.App.1935), "The law will imply pecuniary loss to her by reason of the negligent killing of her husband.";and see alsoState ex rel. Kansas City Stock Yards v. Clark, 536 S.W.2d 142, 149(Mo. banc 1976), where it was said, " 'Judgment for nominal damages is a substantial right since such a judgment decides the incident of costs.'262 S.W.2d 51.See also, Acton v. Shields, 386 S.W.2d 363(Mo.1965).It is interesting to note that in cases such as the one before us the approved instructions do not require a finding that plaintiff suffered damage.SeeMAI 20.01 and 20.02.This was explained in the case of Aubuchon v. LaPlant, 435 S.W.2d 648, 652(Mo.1968) as follows: 'In wrongful death actions, unlike suits for personal injuries, the issue of whether plaintiff has proved pecuniary loss (damages) is not hypothesized in plaintiff's verdict directing instructions.SeeMAI 20.01 and 20.02.The reason for this, as set out in the Committee's Comment to MAI 20.01, is that nominal damages may be recovered in such a case as this even though actual damage is not sustained.' "[Italics added.]

Hunter v. Norton, 412 S.W.2d 163(Mo.1967), cited by the trial court and here relied upon by Beech, is distinguishable.The Hunter case was one for damages for personal injury, and necessarily the verdict directing instruction was required to submit the issue that damages resulted from the hypothesized negligent acts of defendants.Thus, as properly held, the verdict directing instruction, omitting the phrase "the plaintiff sustained damage for which he has not been fully compensated by Percy Reed", was held to be inconsistent with one following MAI 7.01 giving credit for a satisfaction or partial satisfaction by settlement with a joint tort feasor.Here, under the Kansas City Stock Yardscase, supra, and cases cited, it is not required that appellants, as surviving members of the immediate family, submit their damages--i.e., pecuniary loss, for a finding by the jury.The only issue for the jury was that the death of appellant's decedent ensued from the failure to warn of the dangerous propensities of the aircraft to go into a flat spin.Thus, there is no deviation at all from MAI in the giving of InstructionNo. 8, and the grant of a new trial on that basis was error.Beech got all that it was entitled to by InstructionNo. 10, authorizing the jury to deduct the $80,000 settlement with the joint tort feasor from the amount found as appellants' damages.Appellants followed the form of MAI 20.01, as they were required to do.But even assuming that there was a practical inconsistency in that prescribed MAI, it is difficult to see where Beech was prejudiced.Appellants' evidence of economic loss alone ranged from $1,008,053 to $1,084,180, not counting any damage resulting from their loss of a husband and father.The jury's verdict, even after discounting the $80,000 settlement, was within the range of the evidence of economic loss.Furthermore, Beech's own expert testified that appellants' economic loss exceeded $300,000, which would be far in excess of the amount of the settlement.

Beech asserts other grounds, presented to the trial court, which it says would justify the grant of a new trial.It is further contended, first, that the trial court erred in omitting from InstructionNo. 10, the requirement of MAI 7.01 that the name of the joint tort feasor who paid the plaintiff be specified.Shortly before trial, certain crossclaims of parties were dropped, and there remained appellants' claim for wrongful death, Bettie McNabb's claim as executrix of the estate of Claude H. McNabb, deceased (the instructor in the Beech Baron) for wrongful death, and a claim of Vanguard Insurance Company for hull damage to the Beech Baron, which it insured and paid to its owners,...