# Helm v. Wismar > Supreme Court of Missouri · December 17, 1991 · 820 S.W.2d 495 URL: https://www.frixlaw.com/law-library/cases/9646874 ## Case - **Full name:** Donald S. HELM, Et Ux., Appellants, v. Jack WISMAR, Et Al., Respondents - **Court:** Supreme Court of Missouri - **Decided:** December 17, 1991 - **Citations:** 820 S.W.2d 495; 1991 Mo. LEXIS 131; 1991 WL 270109 - **Precedential status:** Published - **Opinion:** Concurring in part by Blackmar - **Judges:** Robertson, Covington, Holstein, O'Malley, Blackmar, Rendlen, Benton, Thomas - **Cited by:** 23 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9646874 ## Opinion text BLACKMAR, Judge, concurring in part and dissenting in part. I concur in Parts I-A and I-B of the principal opinion, which speak with special eloquence. I dissent from Parts I-C and II and from the scope of the remand. The venerable Justice Oliver Wendell Holmes reminds us that “[t]he life of the law has not been logic: it has been experience.” Holmes, The Common Law 1 (Little, Brown & Company 1948). Part I-C of the principal opinion is swimming in logic. It would commend itself to a lawyer of mechanical turn of mind. But, as any experienced trial observer knows, juries often return larger awards when an employer is a party than might be returned against individual defendants. These plaintiffs properly chose the employer as an additional defendant. The trial judge excused the employer, in a ruling which was patently erroneous. The question is whether we are compelled by substantial authority to allow the defendant employer the intangible benefit of this erroneous ruling. I submit that we are not. Collateral estoppel is a flexible concept, especially when the parties are not identical. In Oates v. Safeco Insurance Company of America, 583 S.W.2d 713 (Mo. banc 1979), more often cited for its dicta than for its holding, the Court expostulated on the law of collateral estoppel, but went on to hold that a claimant against an uninsured motorist insurer could be maintained even though the same claimant had lost his right to recover against the actual uninsured motorist. Every mechanical argument that could be made in favor of the result reached by the principal opinion could be made against the actual result of Oates . The insurance was designed to provide coverage only for a meritorious claim against an uninsured motorist. Yet the Court felt that it would not be just to bar the claimant’s suit against the carrier, under the circumstances of the case. In Brickner v. Normandy Osteopathic Hospital, 687 S.W.2d 910 (Mo.App.1985), a hospital was erroneously excused on directed verdict at the close of all the evidence. The court of appeals found error in this, and undertook to, “insofar as is practicable, ... put the parties in the position they would have been had no uncorrected trial court error occurred.” Brickner, 687 S.W.2d at 914 . There the court thought it best to limit the retrial to liability only, pointing out that the plaintiff did not argue that the verdict was inadequate. Here, realistically, the parties can be put in the position they would have occupied, absent the error, only if a complete new trial is afforded plaintiff Donald Helm against the employer. 1 *500 The principal opinion cites Restatement (Second) of Judgments, § 51 comment d, but the comment is not grounded in the case law. The restaters drew a logical conclusion about a hypothetical situation, but, as centuries of experience under the common law have shown, it is not possible to foresee all potential variations on a doctrinal theme. The reason for the employer’s absence from the initial litigation is an appropriate consideration. The closest case I have found is Collins v. Board of Medical Examiners, 29 Cal.App.3d 439 , 105 CaLRptr. 634 (Cal.App.1972), in which a plaintiff took a default judgment against an employee and then proceeded to trial against the employer. The district court of appeal held that the plaintiff was limited to the amount of the default judgment. The case is distinguishable in that the plaintiff voluntarily elected to take the default judgment. Here the employer was excused at its own instance, and over the objection of the plaintiff. One thing is sure. Had the plaintiff recovered a multi-million dollar verdict against the employee, the employer could not be bound by the amount, because it was not a party to the verdict. Under these circumstances, it is wise to apply a rule of reciprocity, so that the plaintiff may have the benefit of his choice of defendants. Reciprocity of collateral estoppel is the normal holding; exceptions should be justified by special circumstances. The employer derived an undeserved benefit from the erroneous sustaining of its motion for directed verdict. Now the Court simply tells the plaintiff that this is the rub of the green. The employee should not be punished for this error. The state of the case law does not require it. The principal opinion should also take the opportunity to remind trial judges that they should not withhold issues from the jury, unless the case is very clear. Motions for directed verdict may always be reconsidered at the post-trial stage. Here the hasty sustention produces manifest injustice. I would reverse the judgment in favor of the employer and against Donald Helm, and would remand for a complete new trial of his claim. . In drawing the careful distinctions required by cases of this kind, I would agree that the verdict against plaintiff Jean Helm and in favor of the employee should not be disturbed. It is not unreasonable to assume that the finding of *500 liability would not be different, had the employer been present. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9646874. Public record. Not legal advice.