Simpkins v. Ryder Freight System, Inc.

• Citation: 855 S.W.2d 416
• Decision Date: 18 May 1993
• Docket Number: No. WD,WD
• Parties: Arthur F. SIMPKINS, Sandra C. Simpkins, and Employers Mutual Casualty Co., Appellants, v. RYDER FREIGHT SYSTEM, INC., Respondent. 45808.
• Court: Court of Appeal of Missouri (US)

Page 416

855 S.W.2d 416

Arthur F. SIMPKINS, Sandra C. Simpkins, and Employers Mutual Casualty Co., Appellants, v. RYDER FREIGHT SYSTEM, INC., Respondent.

No. WD 45808.

Missouri Court of Appeals Western District.

May 18, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied June 29, 1993.

David Eugene Elliott, Lee's Summit, for appellants.

Don B. Roberson, Kansas City, for respondent.

Before BRECKENRIDGE, SHANGLER and SPINDEN, JJ.

SHANGLER, Judge.

The plaintiffs Simpkins, husband and wife, appeal a judgment entered upon a jury verdict for the defendant Ryder Freight System, Inc. ¹

The petition alleged that a semi-trailer truck operated by Ryder approached from behind and struck and attempted to force the vehicle occupied by the Simpkins off the traveled roadway. This was done with the intent to cause harm to the plaintiffs, the petition alleged, and was conduct reckless, willful, wanton and malicious. The prayer was for actual and punitive damages.

In the early course of the litigation, the plaintiffs commenced discovery and served upon Ryder interrogatories and a request for production of documents. The requests were neither objected to nor fully complied with. On April 10, 1989, Judge William W. Ely, then assigned to the case, sustained the plaintiffs' motion for sanctions under Rule 61.01(b) & (d). ² The order struck Ryder's pleadings and entered judgment by default on plaintiff's petition and directed further that trial shall be had on the issues of actual and punitive damages only. Thereafter, on May 10, 1989, without notice to plaintiffs, the court sustained Ryder's motion to set aside the April 10, 1989, order and directed that plaintiffs' motion for enforcement of discovery and/or sanctions be set at a later date.

There followed a motion by plaintiffs to set aside the May 10, 1989, order directing the appointment by Judge Ely of a master, Senior Judge Julian M. Levitt, to make recommendations on the issues presented by the pending motion to set aside the May 10, 1989 order; the report of the master; and, finally, a hearing on November 2, 1989, by Judge Ely on the legal conclusions of the master's report. The order that issued was to reinstate the order for sanctions entered on April 10, 1989: to strike the Ryder pleadings, enter "judgment by default" in favor of the Simpkins petition, and that "trial be had on the issues of actual and punitive damages only."

The case was thereafter assigned to a different circuit judge, and two years later in November of 1991, the case came on for trial. At the conclusion of all the evidence, the Simpkins tendered instructions A, B, C, D and E and verdict forms compatible with the theory of the substantive submissions. Instructions A and B directed the jury that under the law, the defendant was liable to the plaintiff for damages as a result of an assault committed against plaintiff, and that the jury must award the plaintiff at least "nominal actual damages." ³ The validity of these submissions rested on the premise that the assault cause of action pleaded in the first amended petition for damages was deemed as proven by the trial court's sanction order of "judgment by default," and that trial be had "on the issue of actual and punitive damages only." Instructions C, D and E were tendered on the same premise. They were cast on the MAI 31.07 model, and directed that, "Under the law, defendant is liable to plaintiff for damages in this case." ⁴

The plaintiffs also moved for a directed verdict on the issue of the liability of defendant Ryder for assault as already adjudicated by the default judgment, and for "at least" the nominal damages that attend a "direct injury tort." The argument on the motion construed the default judgment sanction to have reserved for jury determination "the issues of the amount of actual damages [and] the entitlement to punitive damages." [Emphasis added].

The trial court refused the plaintiffs' motion for directed verdict on the issue of the defendant Ryder's liability, and refused also the tender of verdict directors on the MAI 31.07 model. The court deemed the tendered submissions to be erroneous and directed the plaintiffs to submit "a 23 series." The plaintiffs protested at "having been told that the trial would be had on the issue of damages only and then told afterwards that [they] had another burden to carry." Nevertheless, the court expressly vacated "the Court's earlier orders" the default judgment against defendant Ryder with the trial limited to actual and punitive damages only and submitted the plaintiffs Simpkins' claims under MAI 23.01 and the plaintiff Employers Mutual Casualty Company's claim under MAI 23.02. MAI 23.01 is the verdict director for assault. MAI 23.02 is the verdict director for battery. These verdict directors submitted to the jury the issue of the defendant Ryder's liability. The damage claimed by the plaintiffs Simpkins was apprehension of bodily harm. The damage claimed by the plaintiff insurer was that to the insured vehicle. The issue of compensation for actual damages was submitted by MAI 4.01 and punitive damages, on behalf of each of the Simpkins plaintiffs, by MAI 10.01.

It is evident from the colloquy at the presubmission conference that the court deemed MAI 31.07 not applicable because Ryder claimed that the plaintiffs Simpkins were not damaged; therefore, the issue of damage was still in controversy. It is evident also that the plaintiffs understood that since liability for assault was already adjudicated by the "default judgment" sanction, recovery of nominal damages followed as a matter of course so that, under the law [and MAI 31.07], Ryder was liable to plaintiffs for damages in the case. That notion assumes that nominal damages is a species of actual damages, so that the controversy was not the issue of damages, but the amount of damages. We are told that much by tendered Instructions A, B, C and D. See fns. 3 and 4.

The appeal rests on the assignment of two fundamental trial errors: (1) the impropriety in vacating the interlocutory judgment of default as to the liability of defendant Ryder at the close of the evidence, and (2) the impropriety in requiring the plaintiffs to instruct by verdict directors that submit the issue of Ryder's liability for jury determination. The numerous other separate points and arguments are dependent and cognate, as discussion makes evident.

Order Vacating the Interlocutory Default Judgment At the Conclusion of the Evidence

The order vacating the interlocutory default judgment sanction was not requested. It was the court's own initiative, and made without expression of reason. The order was prompted by the rejection of verdict directors on the MAI 31.07 model, which tendered the amount of damages as the only issue. The court insisted instead on the MAI 23.01 assault verdict director, which submits the issue of liability and MAI 4.01 which finds damages. That insistence first implicitly, then directly countermanded the interlocutory judgment of default entered two years before.

The plaintiffs Simpkins argue that an interlocutory judgment of default may be validly vacated only for cause and upon notice and that neither condition was met. In support, they cite Rules 74.05(c), 74.06 and 75.01 almost at random. Rule 74.05 relates to interlocutory orders of default or judgments of default for failure to file a responsive pleading. These are defaults nihil dicit. Smith v. Sayles, 637 S.W.2d 714, 717[3-10] (Mo.App.1982). Rule 74.06 governs relief from judgments already final, as does Rule 75.01. In re Marriage of Clark, 813 S.W.2d 123, 126 (Mo.App.1991); Bell v. Garcia, 639 S.W.2d 185, 188[3-5] (Mo.App.1982).

The stricken pleadings and default judgment entered against Ryder as sanctions under Rule 61.01(b) & (d) for failure to give discovery expressly reserved for trial "the issues of actual and punitive damages." To be final a judgment must operate in praesenti. State ex rel. Great Am. Ins. Co. v. Jones, 396 S.W.2d 601, 603[1-3] (Mo. banc 1965). It must determine all of the issues in the case. Joy v. Safeway Stores, Inc., 755 S.W.2d 13, 14 (Mo.App.1988). A judgment that leaves some question or direction for future determination does not operate in praesenti, and is interlocutory only. State ex rel. Great Am. Ins. Co. v. Jones, 396 S.W.2d at 603. Accordingly, the order entered as a sanction was an interlocutory judgment of default. It was not nevertheless a default for failure to plead or otherwise defend, and therefore was not a default nihil dicit. State ex rel. Webster v. Ames, 791 S.W.2d 916, 917[2, 3] (Mo.App.1990).

Thus, the procedure of Rule 74.05(c) does not govern to set aside an interlocutory judgment of default entered as a sanction for failure to give discovery, nor do good cause and a meritorious defense color the prerogative of the court to act to that end. The incongruence of a condition that the party sanctioned by an answer stricken and adverse judgment for unjustified resistance to discovery justify relief from that judgment because the party has a meritorious defense to plead is self-evident. Yet only a meritorious defense and good cause can relieve a party from a default judgment under Rule 74.05(c). It becomes all the more incongruous because good cause within Rule 74.05(c) describes conduct "that is not intentionally or recklessly designed to impede the judicial process."

A "default judgment" imposed as a sanction under the rules of discovery is not governed by Rule 74.05 because it is not a true default judgment. It "does not come by default in the ordinary sense, but is treated as a judgment upon trial by the court." In re Marriage of Dickey, 553 S.W.2d 538, 539 (Mo.App.1977); Hayes v. Hayes, 677 S.W.2d 933, 934 (Mo.App.1984). The rationale is that a presumption arises from the failure of a defendant to produce information necessary to the disposition of a cause that there is no merit in the asserted...