Lester v. Sayles, No. 74719

• Citation: 850 S.W.2d 858
• Decision Date: 23 March 1993
• Docket Number: No. 74719
• Parties: Latonya LESTER, et al., Respondents, v. Mark T. SAYLES and McHenry Truck Equipment, Inc., Appellants.
• Court: United States State Supreme Court of Missouri

Page 858

850 S.W.2d 858

Latonya LESTER, et al., Respondents, v. Mark T. SAYLES and McHenry Truck Equipment, Inc., Appellants.

No. 74719.

Supreme Court of Missouri,

En Banc.

March 23, 1993.

As modified April 20, 1993.

Gary P. Paul, Clayton, for appellants.

Roy A. Walther, III, Myron S. Zwibelman, David S. Slavkin, Elizabeth E. Carver, St. Louis, for respondents.

LIMBAUGH, Judge.

This is an appeal from jury verdicts entered in favor of Latonya Lester and her mother, Wanda Thompson, following an accident in which Latonya, then age four years and nine months, was struck by a truck and severely injured. The Court of Appeals, Eastern District, transferred the case to this Court after opinion. Because one of the issues involves the validity of a statute, this Court has jurisdiction of the entire case. Art. V, § 3, Mo. Const. ¹ The judgment in favor of Latonya Lester is reversed and remanded for a new trial. The judgment in favor of Wanda Thompson is affirmed.

BACKGROUND

Latonya sustained injuries on the afternoon of Monday, June 20, 1988, just after 2:00 p.m., when she was hit by a one-ton flat-bed truck owned by defendant McHenry Truck Equipment Inc. and operated by defendant-employee Mark Sayles.

Plaintiffs, Wanda Thompson and her daughter Latonya Lester, lived with their family in an apartment on the south side of St. Louis Avenue near the intersection of St. Louis Avenue and Elliot Street in the City of St. Louis. St. Louis Avenue is a four-lane through street with parking on each side. A fire hydrant is located on the southwest corner of the intersection, approximately 45 feet east of the doorway entrance to the apartment. Earlier in the afternoon, someone had opened this hydrant, apparently seeking respite from the afternoon heat.

A powerful flow of water, surrounded by spray and mist, gushed from the hydrant to a distance nearly half way across St. Louis Avenue. The water then spilled over into the westbound lane of traffic and meandered to the far side of the avenue where a clogged storm drain along the curb was converted to a temporary wading pool. About 2:00 p.m., Wanda crossed the street with her two-year-old nephew so that he could play in the makeshift pool, but she A few moments later, defendant Sayles, who had just made a delivery and was returning to the company offices, was traveling west on the inside westbound lane of St. Louis Avenue approaching the intersection at Elliot Street. He testified that he observed the spray of water from the hydrant as well as a number of children and adults on the sidewalk nearby, and at that point, he slowed the truck considerably. Latonya had apparently been crossing the street as the truck went through the intersection and the wet pavement. She was hit broadside, swept underneath, and run over. Sayles testified that he never saw Latonya and that he stopped the truck only because he heard a "thud" and realized he had hit something. At trial, the testimony regarding the speed of the vehicle at the time of the accident was grossly inconsistent. Some of the several witnesses stated that the truck had slowed down to as little as 5 m.p.h.; others testified that the truck was traveling at as fast as 30 to 35 m.p.h.

left her daughter, Latonya, at the doorway playing with their dog.

Latonya now suffers from substantial and irreparable injuries. She is a spastic quadriplegic; she cannot walk, crawl or reach out; she will be committed to a wheelchair for the rest of her life and will require lifelong physical care. In addition, brain damage has left her with the mental capabilities of a two-year-old. She will never be able to function independently, much less support herself by working. Her mother, Wanda, is her full-time caretaker.

The jury returned a verdict in favor of Latonya and against Sayles and McHenry Truck Equipment in the amount of $19,817,000. Wanda Thompson's damages on her claims for medical expenses and for loss of Latonya's "services, society and companionship" were assessed at $1,860,000. However, the jury found Wanda to be ten percent at fault; accordingly, the court reduced the award to $1,674,000. The trial court also awarded $1,696,240.75 in prejudgment interest pursuant to § 408.040.2, RSMo Supp.1992. Following the denial of their motions for judgment notwithstanding the verdict or in the alternative for new trial, defendants appeal.

ISSUES PRESENTED

The defendants pose the following points of error:

(1) The trial court committed prejudicial error in allowing the jury to view during its deliberations an exhibit detailing plaintiffs' assessment of Latonya's damages when the exhibit had not been entered into evidence.

(2) The trial court erred in granting plaintiffs' request for prejudgment interest.

(3) The trial court erred in denying defendants leave to amend their answer to allege the comparative fault of Latonya Lester and also erred in refusing to submit a comparative fault instruction on that issue.

(4) The trial court erred in allowing Wanda Thompson to demonstrate during trial the physical therapy techniques she uses on Latonya.

(5) The trial court erred in denying defendants' motion for remittitur.

(6) The trial court erred in denying defendants' motion for a new trial in that the verdicts were the result of bias, passion and prejudice on the part of the jury and were grossly excessive so as to shock the conscience.

(7) The trial court erred in excusing an eighty-year-old juror for allegedly sleeping during the presentation of evidence because it was established that the juror did, in fact, hear and appreciate the proceedings.

(8) The trial court erred in not granting a judgment notwithstanding the verdict because plaintiffs failed to make a submissible case for the negligence of defendant Sayles.

We rule issues (1) and (3) in favor of defendants and against plaintiff Latonya Lester. Both the damages and the liability components of her verdict were the result of reversible error; therefore, her claims are remanded for new trial.

There was no reversible error, however, in the proceedings brought by Wanda Thompson, and her judgment is affirmed.

Because issues (1) and (3) are dispositive of the appeal of Latonya's judgment, we will address them first. We address the remaining issues according to the chronology of the trial and only as they relate to the appeal of Wanda Thompson's judgment.

THE DAMAGES EXHIBIT

Defendants' first point is that the trial court committed reversible error in allowing the jury to examine during its deliberations a 40"' by 60"' chart which displayed the "high" and "low" range for each of the various items of damage suffered by Latonya. This chart, captioned "LATONYA LESTER DAMAGES," included amounts for loss of income, past pain and suffering, future health care, future major expenses, and future pain and suffering. Total damages on the "low" side were listed as $11,408,000; on the "high" side, $19,817,000. Plaintiffs' counsel placed the damages chart on an easel in full view of the jury during closing arguments and referred to it several times without objection.

The jury, thirty-five minutes into its deliberations, requested "the chart counsel for plaintiff referred to in closing argument with the sums for pain and suffering of Latonya." Plaintiffs' attorney asked that the request be honored, but defendants objected on the basis that the chart 1) improperly emphasized specific damage awards sought by plaintiff during closing arguments, and 2) had not been properly marked and introduced as evidence. The trial court overruled the objection, marked the chart as Plaintiffs' Exhibit 59, and sent it to the jury room. Fifty-five minutes later, the jury returned its verdict for Latonya Lester in the amount of $19,817,000--the exact figure listed on the chart as the "high" total damage award.

At common law, the jury was not allowed to take exhibits to the jury room during deliberations, Eller v. Crowell, 238 S.W.2d 310, 313 (Mo.1951), and to this day, "it is improper and erroneous to allow the jury to have articles not properly in evidence which would tend to influence the verdict." Zagarri v. Nichols, 429 S.W.2d 758, 761 (Mo.1968); Southwick v. Ace Auto Body Shop, Inc., 646 S.W.2d 401, 404 (Mo.App.1983). However, the common law proscription has been modified and relaxed by modern decisions that give the trial judge discretion to allow or disallow requests to take to the jury room those exhibits that have been properly admitted in evidence. This discretion may be invoked even for articles admitted in evidence merely to illustrate or explain the testimony of witnesses. Zagarri, 429 S.W.2d at 761.

The application of the general rule prohibiting the jury from reviewing unadmitted exhibits is well illustrated in Southwick, supra, involving a dispute over the repair of an automobile. During the deliberations in that case, the jury was given a written "repair estimate," only a part of which had been introduced in evidence and the balance of which consisted of the inadmissible "opinion" of a witness. The trial court committed reversible error because the "opinion" portion of the exhibit was not redacted, and thus, the jury was allowed to consider "opinions" that were not part of the evidence.

Plaintiffs cite Wilkins v. Cash Register Service Co., 518 S.W.2d 736, 751 (Mo.App.1975), for the proposition that an exhibit that is marked, testified to, and displayed to the jury during the presentation of the evidence becomes as much a part of the evidence as if the proffering party had formally introduced it. See also, Waters v. Barbe, 812 S.W.2d 753, 759 (Mo.App.1991); Missouri Commercial Investment Co. v. Employers Mutual Casualty Co., 680 S.W.2d 397, 400 (Mo.App.1984). Although the court in Wilkins determined that either party could use the exhibit during closing argument, no effort was made to send the exhibit to the jury during its deliberations. In our view, because the exhibit had been constructively...