Wiedower v. ACF Industries, Inc.

• Decision Date: 06 December 1988
• Docket Number: No. 54147,54147
• Citation: 763 S.W.2d 333
• Parties: 123 Lab.Cas. P 57,076 William WIEDOWER, Plaintiff-Appellant, v. ACF INDUSTRIES, INC., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 333

763 S.W.2d 333

123 Lab.Cas. P 57,076

William WIEDOWER, Plaintiff-Appellant, v. ACF INDUSTRIES, INC., Defendant-Respondent.

No. 54147.

Missouri Court of Appeals,

Eastern District,

Division Three.

Dec. 6, 1988.

Application to Transfer Denied

Feb. 14, 1989.

Martin, Bahn, Malec and Cervantes, James M. Martin, St. Louis, for plaintiff-appellant.

Mann, Poger, Wittner and Hereford, St. Louis, for defendant-respondent.

SIMON, Judge.

In this civil action for retaliatory discharge under § 287.780 RSMo 1978, the jury returned a verdict in favor of plaintiff, William Wiedower, for $75,000.00 in actual damages and $480,000.00 in punitive damages. Thereafter, defendant, ACF Industries, Inc., (ACF) filed a post-trial motion for judgment notwithstanding the verdict or in the alternative for a new trial. Plaintiff filed a post-trial motion seeking leave to amend his pleadings to conform to the verdict for punitive damages. The trial court granted ACF's motion for a new trial, but denied ACF's motion for j.n.o.v. and plaintiff's motion to amend his prayer for punitive damages. In its new trial order the trial court made extensive findings. On appeal from the trial court's orders granting a new trial and denying plaintiff leave to amend his prayer for punitive damages, plaintiff alleges the following points: (1) that the trial court erred in granting a new trial because the evidence was relevant and sufficient to support the jury verdict of retaliatory discharge; (2) that the trial court did not commit reversible error and did not allow irrelevant and prejudicial testimony and, therefore, granting a new trial upon this basis was error; (3) that the trial court's bolster of its reasons for granting a new trial, namely that the trial atmosphere was charged with prejudice, was further in error and an abuse of discretion; (4) that the trial court erred in refusing to allow plaintiff to amend his prayer for punitive damages; and (5) that the trial court correctly ruled that it did not commit reversible error in permitting plaintiff to submit a verdict director requiring the jury to only find a "direct" causal connection between the plaintiff's actions and ACF's discharge of plaintiff. Further, ACF alleges that the trial court erred in denying its motion for j.n.o.v. because plaintiff failed to plead and prove a submissible case for retaliatory discharge in violation of the Workers' Compensation Law. We affirm.

This action is before this court for the second time. At the first trial, plaintiff received a $70,000.00 jury verdict for actual damages. Thereafter, the trial court ordered a new trial, and on appeal, the order was affirmed. Wiedower v. A.C.F. Industries, Inc., 715 S.W.2d 303 (Mo.App.1986) (hereinafter "Wiedower I "). The present case concerns the retrial of Wiedower I. Our review shall deal solely with the issues raised in the second trial of plaintiff's case. Smith v. Smith, 176 S.W.2d 647, 649 (Mo.App.1944).

A statement of the underlying facts of this case is found in Wiedower I, supra, at 304-5. Further facts pertaining to this case will be discussed in our review of the points.

Plaintiff has filed a motion to withdraw Point V of his brief and argument thereunder, to strike Point IV of ACF's brief and argument thereunder (which point corresponds to plaintiff's Point V), and to strike ACF's Supplemental Legal File for the issue raised by these points and Supplemental Legal File is not properly raised on appeal in that the issue does not concern or allege an erroneous ruling or action by the trial court and therefore is not properly before this court. We agree.

The issue is whether plaintiff's verdict director properly required the jury to find a direct, not an exclusive, causal relationship between plaintiff's filing a workers' compensation claim and his subsequent discharge by ACF. Plaintiff's Point V alleges no error, but seeks to support the trial court's ruling that the verdict director was properly submitted. Floyd v. Brenner, 542 S.W.2d 325, 327 (Mo.App.1976). Furthermore, ACF did not file a cross-appeal, and therefore cannot complain of the trial court's ruling on this point. Dunham v. Estate of Hamilton, 718 S.W.2d 152, 153 (Mo.App.1986). For the foregoing reasons plaintiff's motion is hereby granted, Point V of plaintiff's brief and argument thereunder are withdrawn, and ACF's Point IV and argument thereunder and Supplemental Legal File are stricken.

In his first point plaintiff contends that if the trial court grants a Motion for a New Trial on the apparent grounds of insufficiency of evidence, when in fact the plaintiff has made a submissible case, an order granting a new trial is arbitrary and an abuse of discretion. However, the trial court found that appellant made a submissible case, and based its new trial order on other grounds. Plaintiff's first point is therefore without merit.

In his second point plaintiff contends that the trial court erred in granting a new trial based on the finding that the testimony of plaintiff's expert witness, John R. Igoe, a former chairman of the Labor and Industrial Relations Commission (LIRC), was irrelevant and prejudicial, and drew the attention of the jury away from the issue it was called upon to resolve. Mr. Igoe testified as to the operation of the Workers' Compensation Statute, its application to plaintiff's case, ACF's contest of plaintiff's workers' compensation claim, the holding of the administrative law judge (ALJ) in favor of plaintiff on such claim, ACF's unsuccessful appeals of the award, the three year time period of the appeals process, and the findings of the LIRC. In considering this evidence in its Order for New Trial, the trial court concluded that a new trial was merited because of the admission of prejudicial evidence, argument, and statement before the entire jury panel. Furthermore, since the central issue in this case is whether or not ACF discharged plaintiff because he exercised his rights under the Workers' Compensation Law by filing a claim, the trial court concluded that the testimony of Mr. Igoe did not tend to prove or disprove whether plaintiff was discharged for filing a workers' compensation claim, and the admission of this testimony was prejudicial. Thus, the trial court, relying on Slusher v. Jack Roach Cadillac, Inc., 719 S.W.2d 880, 882-3[3, 4] (Mo.App.1986), found that the evidence should have been excluded inasmuch as it would tend to draw attention of the jury away from the issue that it was called upon to resolve, as well as cause confusion of the issues.

In reviewing the trial court's order for a new trial, we note that "[t]rial courts are vested with wide discretion in passing upon motions for a new trial," and that "[r]eviewing courts will be more liberal in upholding a trial court's grant of a motion for new trial than its denial of the motion." Brickner v. Normandy Osteopathic Hospital, Inc., 687 S.W.2d 910, 913 (Mo.App. banc 1985) (citations omitted). Also, when reviewing the trial court's grant of a new trial, we must indulge every reasonable inference favoring the trial court's ruling, and we will not reverse such ruling absent a clear abuse of discretion. Farley v. Johnny Londoff Chevrolet, Inc., 673 S.W.2d 800, 803 (Mo.App.1984). Here, the admission of Mr. Igoe's testimony concerning the workers' compensation hearing, the appeals process, the final monetary award, the three year time span of the case, and the findings of the LIRC, has no probative effect on the issue of whether plaintiff was discharged for filing a claim. Furthermore, the trial court found the admission of this evidence to have appealed to the jury's sympathies and provoked an instinct to punish d...