Steenrod v. Klipsch Hauling Co., Inc.

• Court: Missouri Court of Appeals
• Writing for the Court: SIMON; DOWD, P.J., and JOSEPH J. SIMEONE
• Citation: Steenrod v. Klipsch Hauling Co., Inc., 789 S.W.2d 158 (Mo. App. 1990)
• Decision Date: 10 April 1990
• Docket Number: No. 56308,56308
• Parties: James STEENROD, Appellant, v. KLIPSCH HAULING COMPANY, INC., et al., Respondents.

Page 158

789 S.W.2d 158

James STEENROD, Appellant, v. KLIPSCH HAULING COMPANY, INC., et al., Respondents.

No. 56308.

Missouri Court of Appeals,

Eastern District,

Division Five.

April 10, 1990.

Motion for Rehearing and/or Transfer to Supreme Court

Denied May 11, 1990.

Application to Transfer Denied June 19, 1990.

Eric J. Snyder, Clayton, for appellant.

Donald R. Morin, Brinker, Doyen & Kovacs, P.C., Clayton, for respondents.

SIMON, Chief Judge.

Plaintiff/Appellant, James Steenrod (Steenrod), appeals from a judgment entered on the jury's verdict in favor of Defendant/Respondent, Klipsch Hauling Company, Inc. (Klipsch), on his action to recover for injuries sustained while unloading Klipsch's tank trailer. The claims against the other defendants were either dismissed or settled. The jury assessed 100% of the fault to Steenrod for the injuries sustained.

On appeal, Steenrod sets forth thirteen points of error containing several multiple subparts. Essentially, Steenrod alleges that the trial court erred: (1) in giving jury Instruction No. 7, a converse instruction, because it does not require the jury to make a finding that Steenrod failed to use ordinary care, because it assumes that if its two submissions presented in the instruction are believed, then there is no possibility that Klipsch could have been negligent, and because it does not adequately define the terms, "opened" and "functioning properly;" (2) in granting Klipsch's motion in limine which prohibited Steenrod from presenting evidence that Klipsch knew the safety catch was removed from the dome lid on compartment no. 1 of the tank trailer and that there was no warning about the safety catch on the dome lid, because such facts constituted negligence per se and the pleadings of both parties supported the introduction of such evidence; (3) in failing to permit Steenrod to amend his petition at trial to include a claim of negligence per se for failure to have a safety catch on the tank trailer; (4) in failing to require Klipsch to respond to Steenrod's second request for admissions concerning the absence of a safety catch and warning, in not requiring Klipsch to respond to Steenrod's request for production, and in quashing a deposition subpoena duces tecum for pictures of the tank trailer immediately after the accident; (5) in not permitting Gary Haley to testify concerning statements made to him by Delvin Sylvester, Klipsch's driver, where such statements were not hearsay because they showed that Klipsch, through its agent, knew of the danger of unloading a tank trailer, and such statements also were an admission by a party opponent and an admission against interest; (6) in not submitting Instruction No. A, a verdict director on failure to warn, to the jury where such an instruction was supported both by the evidence presented at trial and Steenrod's pleadings; (7) in excluding Dr. Ben Bayse as an expert witness at trial resulting in prejudice to Steenrod because Dr. Bayse's testimony would have strengthened Steenrod's case; (8) in issuing a protective order on June 27, 1988 ordering that Klipsch was not required to respond to any discovery requests filed or served by Steenrod after May 27, 1988 and that there would be no further discovery conducted by either party; (9) in allowing Klipsch to read excerpts from Steenrod's deposition out of context without requiring Klipsch to read surrounding statements or allowing Steenrod's attorney to question Steenrod about his statements, which permitted the jury to give greater weight to such statements; (10) in permitting Klipsch to read statements from Steenrod's first amended petition where Steenrod's attorney objected to this reading because he had included the statement in the first amended petition due to Klipsch's false representation that such statements had been made and later abandoned the statements when further investigation indicated that the statement had not been made; (11) in reducing Steenrod's time for closing argument from sixty minutes to thirty-five minutes where that amount of time was insufficient for him to present adequate argument due to the complexities of the case and the amount of information to be presented to the jury; (12) in allowing the jury's verdict to stand because it was against the weight of the evidence; (13) in allowing the jury's verdict to stand where the cumulative effect of the trial court's errors rose to the level of prejudicial error and resulted in an unfair trial and an erroneous verdict. We affirm.

The record on appeal reveals the following facts, which we view in a light most favorable to the verdict. At the time of the incident at issue, Klipsch was in the business of hauling liquid chemicals. Steenrod was a supervisor for Dennis Chemical Company (Dennis). Dennis ordered a load of chemicals from Dow Chemical's representative, Chem Central, to be delivered by Klipsch on November 12, 1980. Klipsch had made deliveries to Dennis for more than twenty years.

The load to be delivered to Dennis arrived at Klipsch's St. Louis terminal from Freeport, Texas, on November 11, 1980. Robert Glaub, the purchasing agent and office manager at Dennis, was told by either Martin Klipsch, Vice-President of Klipsch, or a Klipsch dispatcher that the load was ready for delivery.

Previously, on November 1, 1980, Dennis employees called a strike which resulted in supervisory personnel handling the entire daily operation, including unloading tank trailers when delivered. When Robert Glaub placed the order with Chem Central, he informed them of the strike. He also assured them that if they used a union truck line and the driver would not cross the picket line to make the delivery, Dennis had personnel that were qualified to unload the tank trailer.

Prior to delivery, Klipsch was aware that its driver, Delvin Sylvester, would not cross the picket line. Arrangements were made to have a Dennis employee unload the tank trailer. Klipsch was also told that the employee would be qualified to unload the tank trailer.

George Bigby, Dennis's plant manager, assigned Steenrod to unload Klipsch's tank trailer. Previously, Steenrod had unloaded another of Klipsch's tank trailers and had assisted in unloading eight to ten other tank trailers. Steenrod testified at trial that he initially felt qualified to unload the tank trailer.

Tank trailers may be unloaded by several methods: gravity, liquid pump, and pressure. The gravity method requires that the tank trailer be positioned over the storage facility into which the product is to be placed. The hoses are hooked up and the internal and external valves are opened to allow the product to gravitate into the storage facility. The liquid pump method requires hoses to be hooked up to an on-board pump. The internal valve and the dome lid on the top hatch are opened, and the pump creates a vacuum that unloads the product.

The pressure method uses a compressor to create pressure. A christmas tree valve and external valve are opened and a hose is attached to the tank from the customer's storage facility. When the appropriate pressure is reached, the internal valve is opened to allow the product to flow through the hose. There are two pressure gauges, one located at the front of the tank and the other next to the dome lid. When the tank is empty of the product, these gauges will gradually return to zero as the built-up pressure escapes through the hose. The valves are then shut off at the customer's end and at the tank end. The compressor is turned off and the hose is unhooked. The christmas tree valve is opened to bleed off the small amount of air pressure that may be left. With this method, the dome lid must be tightly sealed.

On November 12, 1980, Sylvester, Klipsch's driver, arrived at Dennis's gate and turned over the tank trailer to Steenrod. Steenrod drove the tank trailer into Dennis's plant and positioned it over the storage facility. Steenrod sampled the product in the tank trailer by opening the dome lids for each compartment on top of the tank. He remembered seeing a warning sign on the dome lid that said something to the effect, "Danger do not open under pressure." He then proceeded to attempt to unload compartment no. 1 by the liquid pump method. Steenrod was unable to unload by this method because he could not find the necessary fittings. Thereafter, Steenrod decided to use the pressure method.

To build up pressure, Steenrod turned on the compressor and opened up the external and christmas tree valves. While the compressor ran, Steenrod continued to look for fittings so that he could revert to the pump method. About this time, Bigby saw Steenrod and talked to him. According to Bigby, Steenrod said that he was using air pressure to "blow off the load," which did not seem to be working. Bigby recalled Steenrod being concerned that pressure was building in the tank, but that he could not locate the pressure gauge to confirm this fact.

Steenrod's search turned up enough fittings to revert to the pump method. Steenrod proceeded to turn off the compressor, which, at that point, could have been running for up to four hours. According to Steenrod's deposition testimony of December 1981, which was read at trial, he then hooked up one hose, went up on top of the tank to open the dome lid, and "that's when it blew up." Steenrod testified at trial to a conflicting set of events that resulted in the dome lid blowing open. The blast caused Steenrod to be thrown to the ground, which resulted in his injuries.

Subsequently, Steenrod filed an action in negligence against Klipsch on July 6, 1981. After starting trial on this action, the trial court granted his motion to dismiss without prejudice on November 13, 1984. On November 8, 1985, Steenrod refiled his petition in five counts, subsequently amending his petition six times between November 8, 1985 and October 14, 1988. On October 31, 1988, the first day of trial, Steenrod attempted to amend...