Ricketts v. Kansas City Stock Yards of Maine

• Decision Date: 03 May 1976
• Docket Number: No. KCD,KCD
• Citation: 537 S.W.2d 613
• Parties: Harold RICKETTS, Plaintiff-Respondent, v. KANSAS CITY STOCK YARDS OF MAINE, a corporation, Defendant-Appellant. 26956.
• Court: Missouri Court of Appeals

Page 613

537 S.W.2d 613

Harold RICKETTS, Plaintiff-Respondent, v. KANSAS CITY STOCK YARDS OF MAINE, a corporation, Defendant-Appellant.

No. KCD 26956.

Missouri Court of Appeals, Kansas City District.

May 3, 1976.

Motion for Rehearing and/or Transfer Denied June 1, 1976.

Application to Transfer Denied July 12, 1976.

Joe W. Coleman, Leonard A. O'Neal, Kansas City, for defendant-appellant.

M. L. Kodas, James C. Logan, Kansas City, for plaintiff-respondent.

Before DIXON, P.J., PRITCHARD, C. J., and WASSERSTROM, J.

DIXON, Presiding Judge.

This is the second appeal of plaintiff's common law action against the defendant for injuries received by plaintiff while engaged in employment as a laborer by defendant. Plaintiff's injuries were received when a portion of a concrete gutter being removed by plaintiff and fellow workers fell upon him. Plaintiff received a jury award of $150,000 on the second trial, and defendant appeals. The first trial resulted in a jury verdict for $125,000 which was reversed on appeal by the Supreme Court for error in the damage instruction. The opinion on the first appeal is reported in 484 S.W.2d 216 (Mo. banc 1972).

Defendant company has briefed six points of claimed error, each with several subpoints. These points are unreasonably prolix and argumentative, so much so as to verge on violation of Rule 84.04(d). To keep this opinion within reasonable limits of length and intelligibility, they will be paraphrased at the beginning of each section of the opinion.

Generally stated, they are claims of error in the admission and exclusion of evidence, erroneous argument by plaintiff, erroneous exclusion of defense arguments, failure to order remittitur and error in the principal instruction.

As noted, the plaintiff was injured when a large piece of concrete gutter fell upon him as he was climbing to the scaffold erected by defendant to permit the plaintiff and his fellow workmen to remove the gutter. A detailed statement of the facts appears in the prior Supreme Court opinion, and there is so little variance in the evidence presented in the two trials that reference may be made to the earlier opinion for a detailed statement of the facts. In the discussion of the points raised, the evidentiary references will be to the evidence presented in the second trial.

I.

Defendant's first claim of error related to opening statement and evidence of the plaintiff referring to the defendant company's rejection of the Missouri Compensation Act and the failure of defendant to elect coverage under the Kansas Compensation Act.

Some procedural background is necessary for the resolution of this point. On the Friday prior to the start of the trial, there was an extended off-the-record conference between the court and counsel. As appears from the record made on the Monday the trial commenced, there had been a sharp dispute as to the availability to the defendant of the defenses of contributory negligence and assumption of the risk, both of which defenses having been pled in the answer remained in the case. The colloquy between court and counsel also indicates that the issue of the proof of rejection of the Missouri Compensation Act and the election under the Kansas Act also was discussed at the Friday conference. The relation between the Acts and the defenses is that the defenses are denied if defendant rejected the Missouri Act and elected not to come under the Kansas Act. The court in the colloquy indicated that a stipulation had been filed in the prior trial that removed the issues of coverage under the Acts, but that the defendant had indicated such a stipulation would not be made in the pending trial. The trial court thus stated he expected evidence to be offered by the plaintiff on the issue of the rejection of Workmen's Compensation Acts and cautioned the plaintiff not to make any effort to show or imply that this was anything but a proper exercise of defendant's rights.

After that statement by the court reflecting the court's understanding of the position of the parties, the defendant then attempted to amend the pleadings to remove the issues of contributory negligence and assumption of risk. The request of defendant at that time was to obtain a ruling on the motion for leave to amend. Simultaneously, the defendant had offered to admit the allegations of paragraph 2 of plaintiff's petition, again by amendment of the pleadings, thus admitting its rejection of the Missouri Act. No corresponding offer was made to delete the pleading that defendant was subject to the Kansas Act, and no admission thereto was offered.

After this colloquy, the court denied the motion to amend. The plaintiff offered, and the court received over defendant's objection, the testimony of the Directors of Workmen's Compensation of the States of Kansas and Missouri to the effect that the defendant had rejected the Missouri Compensation Act in 1927 and failed to elect to be covered by the Kansas Compensation Act since its adoption. This evidence followed an assertion by plaintiff in opening statement that such evidence would be forthcoming, likewise objected to by defendant.

Defendant's argument on this point is suffused with the trial judge's reasons for the admission of the evidence. Those reasons advanced by the trial court as support for the ruling need not be of concern here. The ruling if it be right, even if erroneously arrived at, will not be disturbed. Edgar v. Fitzpatrick, 377 S.W.2d 314 (Mo. banc 1964); Dill v. Poindexter Tile Company, 451 S.W.2d 365 (Mo.App.1970), and Commercial Union Ins. Co. v. Farmers Mut. Fire Ins. Co., 457 S.W.2d 224 (Mo.App.1970).

Likewise, the issues raised and argued as to the propriety of the plaintiff's pleading the rejection of the Workmen's Compensation Act need not be considered or decided. Whatever the merits of the plaintiff tendering the issue by the anticipatory pleading of the defendant's rejection, the fact remains the defendant elected to plead over and tender the issue. The fundamental issue is the admissibility over the objections made.

The precise objection was that the evidence was 'irrelevant to any issue,' that 'it was strictly a matter for the court' and 'relates to no issue to be submitted to the jury.' Defendant also asserted that such evidence was 'prejudicial' and its only purpose was to 'biasing and prejudicing the jury.'

The action of the trial court in overruling the motion to amend the pleadings is not attacked by defendant, nor could it be successfully attacked. The action of the trial court in ruling such a proffered amendment on the day of the trial is discretionary. Boling v. State Farm Mutual Automobile Ins. Co., 466 S.W.2d 696 (Mo.1971); Kessler v. Reed, 481 S.W.2d 559 (Mo.App.1972). In the circumstances of this case, no abuse of discretion appears. The defendant on the Friday conference had remained adamant in refusing to amend or stipulate. The defendant's tardy recognition of the facts and the effect of the denial of the rejection of the Missouri Compensation Act cannot be said to convict the trial court of an abuse of discretion.

Shorn of issues not properly raised and of the issues not necessary for decision, the question becomes a simple one of relevancy. The trial court must rule on the admission of evidence in the posture of the case at the time the evidence is offered. State ex rel. State Highway Commission v. Heim, 483 S.W.2d 410, 414 (Mo.App.1972). When the evidence was offered, the rejection of the Missouri Act and the election under the Kansas Act were live issues in the case. The evidence offered was clearly relevant on those issues.

What this boils down to is an attempt by the defendant to equivocate on the issue in the pre-trial stages and force the plaintiff to his proof in the hope that this would somehow infuse error in the case. The defendant's belated request that the trial court hear this evidence and rule upon it as a matter of law has the same hollow ring. If defendant wished to keep this evidence from the jury, it could have simply stipulated as in the first trial and in any event have timely filed an admission.

If follows that defendant's claimed error of mention of such evidence in the plaintiff's opening statement also must fail. If the evidence was admissible, it was appropriate for plaintiff to set forth in the opening statement what the proof would show. The objection made was only that defendant intended to object to the evidence itself and in any event defendant, in the two pages devoted to its point of error, never mentions the trial court's action on opening statement as part of the error complaint of.

Defendant also complains that the plaintiff raised the matter of the rejection by defendant in final argument. No objection was made at the time, and the matter is thus not preserved. Defendant in its brief gives a transcript reference to the objection made to plaintiff's opening statement. The objection was not a continuing one. The trial judge's remark that the objection would apply to any other remarks on the subject was clearly intended to preserve the objection to any other such remarks in the opening statement. In no realistic sense was the trial court's remark related to a matter which occurred over one thousand transcript pages later in the trial in the final argument. Likewise, the evidence was in the case, and no motion to withdraw or instruction withdrawing it was offered by the defendant when the case went to the jury. The plaintiff did not elaborate on the simple statement of the nonexistence of any right to compensation benefits as being the reason for the common law action. No error appears.

II.

Defendant's second claim of error may be paraphrased as follows:

1. It was error to sustain an objection to defendant's proffered testimony that plaintiff was warned to stay from underneath the gutter, said testimony being an element of defendant's defense that its method of removing the gutter was...