Stancombe v. Davern, SD 28636.
| Decision Date | 30 July 2009 |
| Docket Number | No. SD 28636.,SD 28636. |
| Citation | 298 S.W.3d 1 |
| Parties | Michael STANCOMBE, Plaintiff-Appellant, v. Sally DAVERN, Defendant Ad Litem for Kenneth M. Davern, et al. Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Russell F. Watters of St. Louis, MO for Respondent, Davern.
Charles H. Stitt of Kansas City, MO, for Respondent, Frye and Frye Electric.
Michael Stancombe (Michael) brought an action to recover damages for the wrongful death of Matthew Stancombe (Matthew) against Sally Davern, in her capacity as Defendant ad litem (DAL) for decedent Kenneth Davern (Kenneth); Frye Electric, Inc. (Frye Electric); and Darren L. Frye (Darren).1 The case was tried to a jury, which returned a verdict in favor of all defendants. On appeal, Michael presents two points of alleged error. In Point I, he contends the trial court erred in entering a judgment that was contrary to the law and against the court's instructions. In Point II, he contends the trial court erred in refusing a not-in-MAI instruction tendered by Michael. This Court affirms.
On appeal, the evidence and all reasonable inferences derived therefrom must be viewed in the light most favorable to the jury's verdict; any contrary evidence and inferences are disregarded. Sparkman v. Columbia Mut. Ins. Co., 271 S.W.3d 619, 623 (Mo.App.2008); JAM Inc. v. Nautilus Ins. Co., 128 S.W.3d 879, 883-84 (Mo.App. 2004); Dubinsky v. U.S. Elevator Corp., 22 S.W.3d 747, 749 (Mo.App.2000). This principle has been followed in preparing a summary of the evidence presented at trial.
Michael and his father, George Stancombe (George) live in Indianapolis, Indiana. In 1995, Michael became involved in an on-again, off-again romantic relationship with Bethann McHenry (Bethann). During the next several years, Michael and Bethann lived together intermittently. They "kind of came together and went apart[.]" In 1998, Bethann became pregnant. At that time, Michael and George were actively involved in racing offshore powerboats as a team. When Bethann was due to give birth in October 1998, Michael and George were in Biloxi, Mississippi, attending a boat race. Michael was not present when Matthew was born on October 30th. In the birth certificate prepared at the hospital, Matthew's last name was listed as McHenry.
In 1999, Bethann filed a paternity suit against Michael in Indiana. He hired an attorney to defend him in that action. Bethann was acting pro se. After some discussions between her and Michael's lawyer, a settlement was reached. The first paternity suit was dismissed. Thereafter, a second Indiana paternity suit was filed in which Michael and Bethann were joint petitioners. In October 2000, a judgment was entered in the paternity action. Michael was represented by counsel, and Bethann appeared pro se. The judgment was entered by agreement of the parties. In relevant part, the judgment stated that: (1) Michael was Matthew's father; (2) Matthew's last name would be changed to Stancombe; and (3) Michael would not be required to pay any child support to Bethann at that time because Michael had been, and would continue to be, providing a significant part of the shelter, food and necessities for Matthew.2
In December 1999, Bethann enrolled Matthew at the Learning Time Preschool in Indianapolis under the McHenry surname. On the application sheet that she filled out, she listed herself as the mother. There was no entry for the father's name. On the second page of the application, there was a list of persons authorized to take the child from the preschool. Michael's name was not listed. On another form containing background information, the block for listing the father's name had been left blank. Bethann was assigned a security code to enter the building. The block for the father's code had been left blank. Bethann listed herself as a single parent. She was the only person whom staff observed paying the daycare bills. During the two years that Matthew attended this preschool, he was typically dropped off and picked up by Bethann. The first time anyone at the preschool was introduced to Michael was on March 12, 2001.
In mid-2000, Bethann began dating Darren. He was involved in racing trucks at fairgrounds. In early 2001, he became acquainted with Kenneth at a truck racing event in Michigan. Kenneth came to Indianapolis and stayed at Darren's house to help out the racing team. Darren had two trucks that he raced. He hauled the trucks to events using a Ford F550 truck (the F550) owned by Frye Electric and an auto transport trailer owned by Harold Frye (Harold).
A truck racing event was being held in Springfield, Missouri, on May 5-6, 2001. Darren, Bethann, Matthew and Kenneth drove from Indianapolis to Springfield to attend this event and arrived on Friday, May 4th. There were races on Saturday and Sunday. The last race ended on Sunday between 4:00 and 5:00 p.m. After loading the racing trucks onto the trailer, the group ate supper and went to a motel in Springfield to go swimming. At around 7:30 p.m., they left for Indianapolis. Darren was driving the F550 eastbound on I-44. Later, he pulled over onto the side of the roadway so the group could sleep. Darren, Bethann and Matthew went to sleep in the back bench seat of the F550. Kenneth went to sleep on the front seat. Darren woke up at some point and felt the F550 in motion on the highway. He assumed Kenneth was driving and went back to sleep.
At 6:10 a.m. on May 7, 2001, the Missouri Highway Patrol received a report of a single vehicle accident on eastbound I-44 near the 217 mile marker. The officer dispatched to the scene found the F550 and attached auto transport trailer in the grass off the right shoulder of the eastbound lanes. The racing trucks were found nearby. The F550 was extensively damaged. Its roof had been almost completely crushed down. Kenneth was found dead, lying outside the driver's door. Bethann and Matthew were found dead in the F550's back seat. Darren also was found in the back seat. He was alive, but severely injured.3 At the point where the accident occurred, the eastbound lanes of I-44 curved gently to the left. The F550 had run straight off the right side of the roadway and crashed into a concrete culvert.
Matthew was buried in a cemetery in Greenwood, Indiana. George paid for the plot and the funeral expenses. In the wrongful death case, Michael claimed these expenses as part of his damages even though he had neither paid them nor repaid George for his expenditures. No monument was erected at Matthew's grave for over a year. Bethann's brother had one placed there at his expense.
At some point not shown by the record, Michael filed a petition seeking damages for Matthew's wrongful death in the Circuit Court of the City of St. Louis, Missouri. In November 2003, the case was transferred to Crawford County, Missouri. The amended petition alleged that: (1) Michael was Matthew's natural father; (2) Matthew had been killed in an automobile collision due to Kenneth's negligence in allowing a truck he was driving to leave the roadway; and (3) while operating the truck, Kenneth was acting as the agent of Frye Electric and/or Darren. The three defendants filed answers denying all of the foregoing allegations.
In February 2004, Darren filed a lawsuit against Kenneth's DAL in the Circuit Court of the City of St. Louis, Missouri. The petition alleged that Kenneth had been negligent in the operation of the F550 in six different respects. In May 2006, Darren's case was tried to a jury. The jurors returned a verdict in the amount of $25,000 in favor of Darren and against Kenneth's DAL. Thereafter, the trial court entered a judgment based upon on the jury's verdict.
Michael's wrongful death claim was tried to a jury in May 2007. At the close of all of the evidence, Michael's attorneys filed a motion seeking a directed verdict against Kenneth. During the argument on the motion, Michael's counsel said he was requesting a directed verdict In support of the motion, counsel furnished the court with certified copies of the petition and judgment in Darren's personal injury case. Counsel argued that collateral estoppel should be applied to preclude relitigation of the issue of Kenneth's negligence. The trial court granted the motion over defendants' objections.
Although the court had directed a verdict against Kenneth's DAL, Michael's counsel did not submit a damages-only instruction patterned after MAI 31.07 against the the DAL at the instruction conference. Instead, counsel tendered Instruction 9 as the verdict-directing instruction. This instruction stated:
20.01 Verdict Directing—Single Negligent Act Submitted
Your verdict must be for plaintiff if you believe:
First, plaintiff was the father of Matthew Stancombe, and
Second, that as a direct result of the negligence of Kenneth Davern, Matthew Stancombe died.
In addition, the court gave: (1) a definitional instruction tendered by Michael that was based upon MAI 11.03 and defined the words "negligent" and "negligence" and the phrase "highest degree of care" for the jury; (2) an instruction tendered by Kenneth's DAL that conversed Paragraph Second of Instruction 9; (3) an instruction tendered by Michael that was the MAI 5.01 pattern damages instruction for a wrongful death case; and (4) instructions submitting the issue of Kenneth's alleged agency for Darren and Frye Electric.
Before closing arguments commenced the next morning, Michael's counsel tendered a not-in-MAI instruction that had not been presented during the instruction conference. This proposed instruction stated:
I have decided, as a matter of law, that the actions of ...
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