Smith v. Harold's Supermarket, Inc.

• Citation: 685 S.W.2d 859
• Decision Date: 04 December 1984
• Docket Number: No. WD,WD
• Parties: Maraland SMITH, Appellant, v. HAROLD'S SUPERMARKET, INC., et al., Respondent. 34415.
• Court: Court of Appeal of Missouri (US)

Page 859

685 S.W.2d 859

Maraland SMITH, Appellant, v. HAROLD'S SUPERMARKET, INC., et al., Respondent.

No. WD 34415.

Missouri Court of Appeals Western District.

Dec. 4, 1984.

Motion for Rehearing and/or Transfer

to Supreme Court Overruled and Denied

Jan. 29, 1985.

Application to Transfer Denied

April 2, 1985.

860 Joseph Y. Decuyper, Kansas City, for appellant.

James H. Ensz, Kansas City, for respondent.

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

MANFORD, Judge.

This is an action to recover damages for wrongful death. The judgment is affirmed.

Prefatory to the recital of pertinent facts and the consideration of the points presented to this court, a few preliminary remarks to identify the parties and to clarify the development of this case are in order at this juncture of this opinion.

Appellant (plaintiff at trial and hereinafter referred to as plaintiff) originated this action for damages based upon a claim for the wrongful death of her son, William L. Halstead, against Harold Nichols and David Nichols, d/b/a Harold's Supermarket, and Jack Shockley. The pleadings subsequently determined that Harold's Supermarket was a duly authorized Missouri corporation. Plaintiff filed an amended petition naming as defendants Harold's Supermarket in its corporate capacity, and Jack Shockley. Plaintiff then entered her voluntary dismissal as to Harold and David Nichols. The capacity of defendant Jack Shockley as an employee-manager of Harold's Supermarket has never been questioned and has never been an issue.

Respondents were defendants at trial and are hereinafter referred to as defendants. For purposes of this opinion, defendants denote both Harold's Supermarket and Jack Shockley, and such reference shall be collective as to both defendants, except where necessary for factual clarification and then the defendants are referred to separately.

The plaintiff was awarded $30,000.00. Plaintiff filed this appeal on the basis which becomes evident from consideration of her points on appeal infra. Liability is not an issue on this appeal as acknowledged by defendants in their brief. With this acknowledgment, no factual account relative to liability is included in this opinion.

While plaintiff formally presents four points, they are readily reducible to a single point when accompanied by a consideration and discussion of how the charged error applies to varied evidentiary matters. In summary, plaintiff charges that the trial court erred in admitting records and related evidentiary matters arising from and as a result of the juvenile record of plaintiff's deceased son, because such admission violated § 211.271(3), RSMo 1978.

In summary, the record shows that William L. Halstead (then 18 years old), the son of plaintiff, entered the defendant supermarket on September 27, 1979 on North Main Street in Richmond, Missouri. Halstead was apprehended by defendant Shockley for shoplifting a package of cigarettes. Shockley escorted and restrained Halstead in Shockley's office. Shockley then called the local police. When the officers arrived, Halstead complained of pain from his neck down, along with an inability to move or feel his legs. He was removed to a local hospital, where he died 19 days later (October 15, 1979). Before he died, Halstead was examined, and the physician diagnosed a cervical fracture dislocation at C6-7, with quadriplegia and paralysis of the four extremities.

As the mother of William Halstead, plaintiff filed this suit under the Missouri Wrongful Death Act (§ 537.080 and § 537.090, RSMo 1978) alleging alternatively negligent and intentional wrongdoing by defendants which resulted in the death of William Halstead. Plaintiff sought recovery for alleged loss of pecuniary assistance, his services, his association, his society, and the pleasure of his company and companionship, plus recovery of medical and funeral expenses incurred as a result of Halstead's injury and death.

During the pre-trial period, defendants sought access to records and other evidentiary matters related to the juvenile court history of Halstead, both from a foreign jurisdiction (Illinois) and the Missouri juvenile system. Dispute over the admissibility of this evidence led to the issuance of an order by the circuit court denying defendants access to the juvenile records of Halstead. In response to this order, defendants sought from this court an alternative Writ of Mandamus seeking to compel the trial court to permit defendants access to the juvenile records. In response to the alternative writ of this court, the trial court, on April 5, 1982 and by order, granted defendants access to the records.

Trial commenced on September 27, 1982, and during the course thereof, over plaintiff's objection, the juvenile record and related evidentiary matters were admitted. Plaintiff challenged the admissibility of such records and evidence as violative of § 211.271(3), RSMo 1978. The evidence closed. Judgment was entered in accordance with the jury verdict, and this appeal followed the overruling of timely-filed after-trial motions.

Plaintiff's first challenge is directed to the admission of the petition, entry of appearance, and the order of the Circuit Court of Madison County, Illinois (juvenile division) regarding the juvenile proceeding in People v. William Halstead. The record and order of the Illinois court revealed that William Halstead had been adjudged delinquent and was ordered placed on probation. When plaintiff and William Halstead moved to Missouri, William was placed under the supervision of the Missouri Division of Youth Services. As a result of orders of the Missouri courts (juvenile), William Halstead was twice placed in custody at the Boys Training School, Booneville, Missouri.

In order to explain the why and how of the use of the foregoing juvenile records and evidentiary matters, it must be pointed out that plaintiff called, as an expert, an economist named Dr. John O. Ward. Dr. Ward testified concerning William Halstead's earning capacity. He estimated William Halstead's future earning capacity by making assumptions, such as William Halstead being an average white 18-year-old male with 9 1/2 years education, who entered the labor or work force at the age of 18. These assumptions were then applied to a variety of statistical sources (i.e., Bureau of Census, Detailed Characteristics of the Population, United States Summary, Handbook of Labor Statistics, Statistical Abstract of the United States, and Life Expectancy Tables). On cross-examination, Dr. Ward admitted that the historical data of any individual is significant in the determination of any one individual's performance at any particular future economic level. Dr. Ward acknowledged that his calculations did not include or give consideration to prior incarceration of William Halstead, that William Halstead's total earned income for the year 1978 amounted to only $856.29.

Upon further cross-examination, Dr. Ward stated that he undertook no additional "refinements" of his calculations beyond his initial assumptions that William Halstead was a white average male with 9 1/2 years education who, it was further assumed, entered the labor market at age 18. Additional factors which Dr. Ward acknowledged he did not consider included the individual intellectual ability, the industry of the individual to seek out work or employment, and the refusal of a parent to permit a child to live with the parent. Dr. Ward also indicated that from his experience in determining whether a person would be employable, the person's arrest record would be an important fact.

In response to plaintiff's evidence (via her own testimony and that of Dr. Ward), defendants offered both record evidence and witness testimony concerning William Halstead. Part of this contravening evidence included the records from the Illinois Circuit Court (Juvenile Division) referenced above.

Plaintiff contends that the admission of the above-referenced juvenile records was error, as such admission violated § 211.271(3), RSMo 1978. That statutory provision reads as follows:

"211.271. Court orders not to affect civil rights--not evidence, exception ...

3. After a child is taken into custody as provided in section 211.131, all admissions, confessions, and statements by the child to the juvenile officer and juvenile court personnel and all evidence given in cases under this chapter, as well as all reports and records of the juvenile court, are not lawful or proper evidence against the child and shall not be used for any purpose whatsoever in any proceeding, civil or criminal, other than proceedings under this chapter."

In her argument, plaintiff notes that there is no civil case within our state that has addressed this precise question, and she urges this court to adopt the interpretation of that statutory section expressed throughout numerous criminal cases in our state.

Citing to the above statutory section, plaintiff concludes that it is against the public policy of Missouri to permit defendants to use as evidence the juvenile records of the deceased William Halstead to defend against alleged pecuniary values of the deceased in an action for wrongful death. Plaintiff directs the attention of this court to that portion of the above statutory section which reads, "and shall not be used for any purpose whatsoever in any proceeding, civil or criminal, other than proceedings under this chapter. " From the just-quoted language, plaintiff concludes that such records and evidentiary matters "shall not be used for any purpose whatsoever in any proceeding, civil or criminal."

Defendants confront plaintiff's argument by suggesting that this issue is res judicata, because plaintiff did not prosecute an appeal from the alternative writ of mandamus issued by this court which granted defendants access to the juvenile records. Thus, it is defendants' position that plaintiff is now estopped from asserting as error issues...