Sharp v. Robberson

• Decision Date: 11 June 1973
• Docket Number: No. 58036,58036
• Citation: 495 S.W.2d 394
• Parties: Dean C. SHARP, Jr., et ux., Appellants, v. James I. ROBBERSON, Respondent.
• Court: Missouri Supreme Court

Page 394

495 S.W.2d 394

Dean C. SHARP, Jr., et ux., Appellants, v. James I. ROBBERSON, Respondent.

No. 58036.

Supreme Court of Missouri, En Banc.

June 11, 1973.

Arch M. Skelton by Theodore L. Johnson, III, Skelton & Forehand, attorneys for appellants.

Wear & Wear, William A. Wear, Springfield, attorneys for respondent.

BARDGETT, Justice.

After opinion of the Missouri Court of Appeals, Springfield District, and on application of plaintiffs-appellants, we transferred this cause to the Supreme Court and will determine the same as on original appeal. Mo.Const., Art. V, § 10, as amended 1970, V.A.M.S., Rule 83.09, V.A.M.R. The principal basis for the transfer was to consider and determine whether the opinion of the court of appeals, which followed its prior case of Ervin v. Coleman, 454 S.W.2d 289 (Mo.App.1970), on a question pertaining to the submission of punitive damages, is in conflict with the decision of this court in Reel v. Consolidated Inv. Co., 236 S.W. 43 (Mo.1921) and other decisions following Reel.

The court has considered defendant-respondent's motion to dismiss the appeal and overrules the motion.

Plaintiffs-appellants, Dean C. Sharp and his wife Catherine, sued defendant-respondent, James I. Robberson, for actual and punitive damages. The jury returned a verdict in favor of plaintiffs for $1343 actual damages and $8100 punitive damages. The trial court overruled defendant's motion for new trial 'provided plaintiffs make a remittitur of $8100 assessed as punitive damages within five days of August 6, 1971. Otherwise Defendant's motion for new trial, sustained on the ground that Instruction No. 8 submitted by the Plaintiff over Defendant's objection, was improperly given.' Instruction No. 8 (MAI No. 10.02) authorized the jury to award punitive damages.

Plaintiffs did not file the remittitur but took an appeal to the Missouri Court of Appeals, Springfield District (hereinafter court of appeals).

The trial court gave the following instructions, among others, to the jury:

'INSTRUCTION NO. 2

'Your verdict must be for Plaintiffs if you believe:

'FIRST, The east wall of Defendant's building was not reasonably safe from collapse upon an adjoining parking lot used by the public, and

'SECOND, Defendant knew or by using ordinary care should have known of the existence of this condition, and

'THIRD, Defendant failed to use ordinary care to remedy it, and

'FOURTH, as a direct result of such failure Plaintiffs were damaged unless you believe Plaintiffs are not entitled to recover by reason of Instruction No. 3.'

'INSTRUCTION NO. 8

'If you find the issues in favor of Plaintiffs, and if you believe the conduct of Defendant as submitted in Instruction No. 2 showed complete indifference to or conscious disregard for the safety of others, then in addition to any damages to which you may find Plaintiffs entitled under Instruction No. 7 you may award Plaintiffs an additional amount as punitive damages in such sum as you believe will serve to punish Defendant and to deter him and others from like conduct.'

Instruction No. 2 is a modification of series 22 of Missouri Approved Instructions and no complaint is made concerning the form of the instruction. Instruction No. 8 is MAI No. 10.02 and there is no complaint concerning its form. Ervin v. Coleman, supra, was the authority under which the trial court held it had erred in giving instruction No. 8 and was the basis upon which the court of appeals upheld the trial court's action.

Defendant does not contend that there was not sufficient evidence to support instructions 2 or 8. The basic contention of defendant is purely one of law and is that the two theories, to wit, (1) ordinary negligence supporting actual damages, and (2) conduct showing complete indifference to or conscious disregard for the safety of others authorizing punitive damages, cannot be submitted in the same case as they constitute a prejudicially erroneous commingling and confusion of two antithetical theories of tort law. The principal authority cited in support of this contention is Ervin v. Coleman, supra.

Plaintiffs' position is that they are entitled to submit ordinary negligence as the basis for actual damages and also to submit the issue of punitive damages under this court's holding in Reel v. Consolidated Inv. Co., supra.

Put another way the issue there is: Assuming there is sufficient evidence to support a negligence submission and sufficient evidence to support of finding that defendant's conduct 'showed complete indifference to or conscious disregard for the safety of others,' must plaintiffs elect which of the two theories to submit or may they submit and recover actual damages under the negligence submission and punitive damages under the punitive-damages submission?

Ervin v. Coleman, supra, involved an automobile collision in which defendant's car ran into the rear of plaintiff's car which was properly parked. Plaintiff Ervin recovered a judgment in a jury trial for both actual and punitive damages. Ervin submitted his case to the jury on ordinary negligence in (1) failing to keep a lookout or (2) excessive speed or (3) rear-end collision theory, using MAI No. 17.02. Ervin also submitted and the court gave MAI No. 10.01 which allowed punitive damages if the jury found the conduct of the defendant as submitted in instruction 2 'was willful, wanton or malicious.' The court of appeals held that the two instructions were prejudicially erroneous as commingling inconsistent theories of recovery, that the two instructions submitted two sparate and distinct torts, and that the two instructions forced the contradictory conclusions that through the exact same acts and conduct defendant was guilty of two incompatible torts which disprove one another. 454 S.W.2d at 292.

It appears of this court that the substance of the holding in Ervin is that a plaintiff cannot submit his case to the jury seeking recovery of actual damages on a theory of ordinary negligence and also submit to the jury the question of punitive damages and recover both actual and punitive damages. It is possible to distinguish Ervin from the instant case on the basis that in Ervin the punitive-damages instruction submitted the issue on the premise that defendant's conduct was 'willful, wanton or malicious' (MAI No. 10.01), whereas here the punitive damages were submitted on the premise that defendant's conduct 'showed complete indifference to or conscious disregard for the safety of others' (MAI No. 10.02); the distinction would be valid if the question were which of the two punitive-damages instructions should be given in this case.

While the court does not want to overstate the holding in Ervin, it appears that, in relying upon Ervin as the authority for holding the submission of punitive damages erroneous in the instant case, the trial court and the court of appeals had to be relying on that portion of the Ervin decision holding that the conduct of defendant, relied upon in the negligence instruction, cannot be utilized as the conduct upon which the jury awards punitive damages--this for the reason that the legal theory of negligence is so antithetical and repugnant to any theory upon which punitive damages could be based that the law prohibits the submission of and the recovery of damages under both theories in any given case.

At least we are certain that the foregoing is the proposition for which defendant cites Ervin because defendant in his brief stated, 'The two theories cannot be reconciled. Plaintiffs' damages could only have been either the result of negligence or intentional acts, but not both.'

In Reel v. Consolidated Inv. Co., supra, plaintiff was injured when two cables of defendant's elevator, in which plaintiff was a passenger, broke and the cab fell. Plaintiff sought recovery of actual damages in an instruction which submitted negligence in general terms--that defendant failed to exercise the highest practicable degree of care in the maintenance of the elevator, and as a direct result thereof the cables broke causing the elevator to fall and plaintiff to be injured. The instruction then set forth detailed findings with reference to the knowledge of defendant that for over a month prior to the accident the elevator was imminently dangerous unless the cables were renewed, etc., and that by reason thereof 'defendant . . . was guilty of gross and wanton disregard of its duty toward plaintiff to exercise care for his safety'; and upon those findings the instruction authorized a verdict for punitive damages.

In Reel plaintiff had a jury verdict for both actual and punitive damages and defendant appealed. Although the case was reversed and remanded for error in instruction No. 1, in that it assumed certain facts, the court held at 46 of 236 S.W.: 'Appellant contends that neither the petition nor the evidence was sufficient to authorize an award of punitive damages. In order to justify the infliction of punitory damages for the commission of a tort, the act complained of must have been done wantonly or maliciously. Lampert v. Drug Co., 238 Mo. 409, 141 S.W. 1095, 37 L.R.S. (N.S.) 533, Ann.Cas.1913A, 351. Ordinarily such damages are not recoverable in actions for negligence, because negligence, a mere omission of the duty to exercise care, is the antithesis of willful or intentional conduct. Raming v. Railroad, 157 Mo. 477, 57 S.W. 268; Bindbeutal v. Railway, 43 Mo.App. 463. But an act or omission, though properly characterized as negligent, may manifest such reckless indifference to the rights of others that the law will imply that an injury resulting from it was intentionally inflicted. McNamara v. Transit Co., 182 Mo. 676, 81 S.W. 880, 66 L.R.A. 486; Railroad v. Arms, 91 U.S. 489, 23 L.Ed. 374. Or, there may be conscious negligence tantamount to intentional wrongdoing, as where the person doing the act or failing to act must be conscious of his conduct, and, though having no specific intent to...