Petition for Writ of Certiorari — St. Louis Southwestern R. Co. v. Dickerson

84 - Q 1 4 (') it : US.

DEC 6 i954

No. :

Maem STEVES |

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

St. Louis SOUTHWESTERN RAILWAY Co.,

Petitioner,

vs.

ROBERT WAYNE DICKERSON,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE MISSOURI COURT OF APPEALS

EASTERN DISTRICT

SHEPHERD, SANDBERG & PHOENIX, P.C.

JOHN C. SHEPHERD

GERALD D. Morris

PAUL N. VENKER

Suite 3000

One Mercantile Center

St. Louis, Missouri 63101

314/231-3332

and

JOHN J. CORRIGAN

General Solicitor

Southern Pacific Transportation Co.

Counsel for Petitioner

St. Louis Southwestern

Railway Company

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477

QUESTIONS PRESENTED FOR REVIEW

I. THE MANDATORY INSTRUCTION SYSTEM OF THE

MISSOURI SUPREME COURT PROHIBITS GIVING A

PRESENT VALUE INSTRUCTION TO THE JURY IN AN

FELA CASE, CONTRARY TO THE DECISIONS OF THIS

COURT AND THE UNITED STATES COURTS OF AP-

PEALS. THEREFORE, THE MISSOURI COURT OF AP-

PEALS IN DICKERSON V. ST. LOUIS SOUTHWESTERN

RAILWAY COMPANY, 674 S.W.2d 165 (MO. APP. 1984),

PREJUDICIALLY ERRED IN FOLLOWING THE

MISSOURI SUPREME COURT’S MANDATE AND SUS-

TAINING THE TRIAL COURT’S REFUSAL OF THE PRE-

SENT VALUE INSTRUCTION WHICH PETITIONER

TENDERED IN THIS CASE.

Il. THE MISSOURI COURT OF APPEALS IN DICKER-

SON V. ST. LOUIS SOUTHWESTERN RAILWAY COM-

PANY, 674 S.W.2d 165 (MO. APP. 1984) ERRONEOUSLY

DENIED PETITIONFR EQUAL PROTECTION UNDER

THE LAW BECAUSE IT OBEYED THE MISSOURI

SUPREME COURT’S REQUIREMENT OF THE ExX-

CLUSIVE USE OF ITS MISSOURI APPROVED INSTRUC-

TION 8.02, THE JURY INSTRUCTION FOR DAMAGES IN

PERSONAL INJURY FELA CASES, BECAUSE M.A.1I. 8.02

DOES NOT REQUIRE A PROXIMAL RELATIONSHIP

BETWEEN THE DEFENDANT’S CONDUCT AND PLAIN-

TIFF’S DAMAGES WHEREAS ALL OTHER MISSOURI

APPROVED INSTRUCTIONS ON DAMAGES DO HAVE

THIS REQUIREMENT.

111. THE MISSOURI COURT OF APPEALS IN DICKER-

SON V. ST. LOUIS SOUTHWESTERN RAILWAY COM-

PANY, 674 S.W.2d 165 (MO. APP. 1984) ERRED IN AFFIR-

MING THE ONE MILLION DOLLAR JURY AWARD AS

NOT EXCESSIVE BECAUSE THE EVIDENCE DID NOT

WARRANT AN AWARD OF SUCH MAGNITUDE AND

BECAUSE RESPONDENT’S COUNSEL MADE IMPER-

MISSIBLE CLOSING ARGUMENT REGARDING THE

VALUE OF ANY AWARD AND FURTHER BECAUSE THE

PETITIONER WAS NOT PERMITTED TO SUBMIT A PRE-

SENT VALUE INSTRUCTION TO THE JURY.

LIST OF PARTIES

In compliance with Rule 28, Petitioner states the following:

Petitioner St. Louis Southwestern Railway Company owns

directly a portion of the capital stock of the following com-

panies:

l.

3

_

5

6.

Alton & Southern Railway Company

Arkansas & Memphis Railway Bridge & Terminal

Company

Kansas City Terminal Railway Company

Southern Illinois Railway & Bridge Company

Terminal Railroad Association of St. Louis

Trailer Train Company, Inc.

Over ninety-nine percent of the stock of the St. Louis

Southwestern Railway Company is owned by the Southern

Pacific Transportation Company. The stock of the Southern

Pacific Transportation Company is owned by the Santa Fe

Southern Pacific Company.

TABLE OF CONTENTS

Questions Presented for Review.................005-

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Decisions Which Petitioner Seeks to Have Reviewed ...

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Reasons For Granting the Writ .................005.

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Appendix:

Appendix A - Text of Dickerson v. St. Louis

Southwestern Railway Company, 674 S.W.2d

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Appendix B - September 11, 1984 Supreme Court

Order Denying Petitioner’s Application For

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Appendix C - Order Of The Missouri Court Of

Appeals, Eastern District, Denying Peti-

tioner’s Motion For Rehearing And In The

Alternative An Application For Transfer ....

Appendix D - Missouri Supreme Court Rules

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Appendix E - Portion Of Transcript On Appeal—

Instructions Conference ..........--eeee0-

18

A-l

A-15

A-16

A-18

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Appendix F - Instruction On Present Value Tend-

ered By Petitioner And Refused By Trial

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Appendix G - Pertinent Paragraphs From Petition-

er’s Motion For New Trial.................

Appendix H - Trial Court’s Order Denying Petit-

ioner’s Motion For Directed Verdict And Mo-

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Appendix I - Petitioner’s Points Relied On In The

Missouri Court Of Appeals And The Missouri

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Appendix J - Committee Comment to M.A.1. 8.02

Appendix K - Pertinent Rules Of The Missouri

Supreme Court Governing Application For

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Appendix L - Portion Of Transcript On Appeal —

Plaintiff’s Closing Argument On Valuation

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TABLE OF AUTHORITIES

Cases:

Bair v. St. Louis-San Francisco Railway Company, 647

S.W.2d 507 (Mo. banc 1983) ............0 eee eee

Beanland v. Chicago, Rock Island & Pacific Railroad

Company, 480 F.2d 109 (8th Cir. 1973) ..........

Brown v. St. Louis Public Service Company, 421 S.W.

BE IO Es CES TID vs ce ccccvecasccsseceees

Chappell v. City of Springfield, 423 S.W.2d 810 (Mo.

SEED « oc essecerevecsccesecsneoereéacéusonucs

A-22

A-23

A-26

A-27

A-30

A-30

A-31

9, 17

13

13

Chesapeake & Ohio Railway Company v. Carnahan,

241 U.S. 241, 60 L.Ed. 979, 36 S.Ct. 594 (1916) ... 12

Chesapeake & Ohio Railway Company v. Kelly, 241

U.S. 485, 60 L.Ed. 1117, 36 S.Ct. 630 (1916) ....... 7,8,9

Crane v. Cedar Rapids & lowa City Railway Co., 395

U.S. 164, 23 L.Ed.2d 176, 89 S.Ct. 1706 (1969) ... 11

Dickerson v. St. Louis Southwestern Railway Co., 674

S.W.2d 165 (Mo. App. 1984) .1, 3, 4, 5, 7, 8, 10, 15, 16, 17

Duncan v. St. Louis-San Francisco Railway Company,

480 F.2d 79 (8th Cir. 1973), cert. denied, 414 U.S.

859, 38 L.Ed.2d 109, 94S.Ct. 69 (1973) .......... 8

Gallick v. Baltimore & Ohio Railway Company, 372

U.S. 108, 9 L.Ed.2d 618, 83 S.Ct. 659 (1963) ..... 12

Gulf, C. & S.F. R. Co. v. Moser, 275 U.S. 133, 72 L.Ed.

Ds 660X656.) eens 000 006400 ee cba bees Y

Harris v. Norfolk Southern Railway, 319 F.2d 493

(4th Cir. 1963) cert. denied, 375 U.S. 985. 11

L.Ed.2d 473, 84S.Ct. 517 (1964) ............... 12

Heater v. Chesapeake & Ohio Railway Company, 497

F.2d 1243 (7th Cir. 1974), cert. denied, 419 U.S.

1013, 42 L.Ed.2d 287, 95 S.Ct. 333 (1974) ........ 8

Holladay v. Chicago, Burlington & Quincy Raiiroad

Company, 255 F.Supp. 879 (S.D. lowa 1966) ..... 11, 12

Jones & Laughlin Steel Corp. v. Pfeifer, ___._ US.

___,76 L.Ed.2d 768, 103 S.Ct. 2541 (1983)........ 7, 8,9

Norfolk & Western Railway Company v. Liepelt, 444

U.S. 490, 62 L.Ed. 689, 100 S.Ct. 755 (1980)...... 7

Pierce v. New York Central Railway Company, 257

EIS 5 60-5 bs os wkeeese-oeeee ens. 12

Rogers v. Missouri Pacific Railroad Company, 352 U.S.

500, 1 L.Ed.2d 493, 77 S.Ct. 443 (1957)

Seaboard Air Line Railway v. Padgett, 236 U.S. 668,

59 L.Ed. 777, 35 S.Ct. 481 (1915)

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Shupe v. New York Central System, 339 F.2d 998 (7th

Cir. 1965), cert. denied, 381 U.S. 937, 14 L.Ed.2d

701, 85 S.Ct. 1769 (1965)

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Sleeman v. Chesapeake & Ohio Railway Company, 414

F.2d 305 (6th Cir. 1969)

Other Authorities:

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Illinois Pattern Jury Instructions - Civil (2d Ed. 1970) ..

Missouri Supreme Court Rule 70.02

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Missouri Supreme Court Rule 70.03

Missouri Approved Instruction 8.02

U.S. Const., Fourteenth Amendment

Mo. Const., Art. I, §2

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DECISIONS WHICH PETITIONER SEEKS

TO HAVE REVIEWED

Dickerson v. St. Louis Southwestern Railway Company, 674

S.W.2d 165 (Mo. App. 1984), Application for Transfer to

Missouri Supreme Court denied September 11, 1984.

No.

IN THE

Supreme Court of the United States

OcTOBER TERM, 1984

St. Louis SOUTHWESTERN RAILWAY Co.,

Petitioner,

VS.

ROBERT WAYNE /ICKERSON,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE MISSOURI COURT OF APPEALS

EASTERN DISTRICT

JURISDICTIONAL STATEMENT

St. Louis Southwestern Railway Company (hereafter referred

to as Petitioner), filed this Petition for Writ of Certiorari subse-

quent to an adverse verdict in the Circuit Court of the City of

St. Louis in an action brought under 45 U.S.C. §51 et. seq.

(F.E.L.A.). Petitioner appealed to the Missouri Court of Ap-

peals, Eastern District and that court affirmed the jury verdict

in Dickerson v. St. Louis Southwestern Railway Comnany, 674

S.W.2d 165 (Mo. App. 1984). Petitioner properly filed with the

Court of Appeals a Motion for Rehearing and in the alternative

an Application for Transfer to the Missouri Supreme Court.

After the Court of Appeals denied those motions (Appendix C),

Petitioner filed an Application for Transfer with the Missouri

Supreme Court pursuant to Rule 83.03 (Appendix K).

~~

On September 11, 1984, the Missouri Supreme Court denied

Petitioner’s Application for Transfer. (Appendix B). Peti-

tioner has ninety (90) days to file its Petition for Writ of Cer-

tiorari with this Court. Therefore this Petition is timely filed.

This Court’s jurisdiction is invoked pursuant to 28 U.S.C.

§1257(3). The questions presented involve the invalidity and un-

constitutionality of certain pattern, mandatory jury instruction

promulgated by the Missouri Supreme Court (Missouri Approv-

ed Instructions)' for FELA cases and a resultant excessive ver-

dict and the Court of Appeals’ decision in this case because it is

contrary to the decisions of this Court and the Federal Courts of

Appeal.

CONSTITUTIONAL PROVISIONS

Constitution of the United States

Amendment 14

Section 1. Citizens of the United States.

All persons born or naturalized in the United States, and subject

to the jurisdiction thereof, are citizens of the United States and

of the State wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal protec-

tion of the laws.

‘ M.A.I. is an acronym for Missouri Approved Instruction. The

Missouri Supreme Court promulgates mandatory pattern jury instruc-

tions. The court is aided by the M.A.I. Committee.

=

Missouri Constitution, Article I, §2

Promotion of general welfare—natural rights of persous

—equality under the law—purpose of government

Section 2. That all constitutional government is intended to

promote the general welfare of the people; that all persons have

a natural right to life, liberty, the pursuit of happiness and the

enjoyment of the gains of their own industry; that all persons

are created equal and are entitled to equal rights and opportuni-

ty under the law; that to give security to these things is the prin-

cipal office of government, and that when government does not

confer this security, it fails in its chief design.

STATEMENT OF THE CASE

Although the Dickerson opinion, (see Appendix A) sets out in

detail the factual accounts of the event in question, Petitioner

will sketch a brief factual summary thereof. This case was tried

in December, 1982. The injured railroad worker, Mr. Dicker-

son was thirty years old when he was allegedly injured on

December 11, 1978. At that time Respondent Dickerson was a

railroad policeman and was climbing on multi-level railroad cars

which were loaded with Cadillac automobiles. His purpose was

to inspect them for possible vandalism. In climbing from one

level to the next on one of the cars, Respondent fell to the

ground and landed on his back. He brought suit under the

Federal Employers Liability Act (hereafter FELA) against St.

Louis Southwestern Railway Company, his employer, alleging

that the railroad had failed to provide him: (1) reasonably safe

work conditions, (2) reasonably safe appliances, (3) reasonably

safe methods of work, and (4) reasonably adequate help. Pur-

suant to a verdict directing instruction submitting to the jury the

issues whether Petitioner either failed to provide reasonably safe

conditions for work or reasonably safe methods for work, the

jury found for plaintiff and awarded him $1,000,000.00 in

damages.

— wo

Petitioner filed a timely motion for new trial but the trial

court denied thai motion. Petitioner appealed to the Missouri

Court of Appeals, Eastern District which affirmed the judgment

in Dickerson v. St. Louis Southwestern Railway Company, 674

S.W.2d 165 (Mo. App. 1984). Petitioner then filed with the

Court the Motion for Rehearing and in the alternative an Ap-

plication for Transfer to the Missouri Supreme Court which

were both denied. (Appendix C). Petitioner next filed an Ap-

plication for Transfer with the Missouri Supreme Court, seek-

ing review of the Dickerson opinion. On September 11, 1984,

the Missouri Supreme Court denied the Application for

Transfer. (A copy of the order is contained in Appendix B).

The issues raised herein concern Missouri jury instructions

practice as required by the Missouri Supreme Court and an ex-

cessive verdict resulting therefrom. Under Missouri Supreme

Court Rule 70.02 (see Appendix D) it is clear that Missouri Ap-

proved Instructions are mandatory and are to be used to the ex-

clusion of any others. For purposes of clarity, each of these

issues addressed will be set out hereunder with separate headings

with additional facts set out in the Argument where ap-

propriate.

Present Value Instruction

At the instruction conference, counsel for Petitioner

tendered, and the court refused, an instruction to have the jury

reduce the award to its present value. (See Appendix E for the

instruction conference transcript and see Appendix F for the

text of this instruction, marked as Instruction G, which the trial

court refused). In accordance with Missouri Supreme Court

Rule 70.03, Petitioner raised in its Motion for New Trial the fact

that it had tendered a present value instruction and that it was

refused. (See Appendix G, Paragraph 10). Petitioner also there

argued that to refuse to give a present value instruction was er-

roneous because the Petitioner was entitled to have the jury con-

sider the present value rule under controlling federal law. The

— =

trial court denied the Motion for New Trial. (See Appendix

H). Petitioner then raised the issue in the Missouri Court of Ap-

peals, Eastern District where the point was ruled against it.

Dickerson, supra, 674 S.W.2d at 171. (See Appendix A).

Subsequent to that decision, Petitioner filed an Application for

Transfer with the Missouri Supreme Court and there raised the

issue again. (See Appendix I for points of error raised in the

courts below). That court denied the Application for Transfer

on September 11 (see Appendix B for the court order).

Difference In Causal Requirement For Damages

In FELA Personal Injury Cases

Denies Petitioner Equal Protection

In its Motion for New Trial, defendant raised the fact that

M.A.1. 8.02 [the damages instruction for FELA personal injury

cases] deprived it of equal protection under the law of the

United States Constitution and the Missouri Constitution. (See

Appendix G, para. 12). This is because the Missouri Supreme

Court, through its Missouri Approved Instructions, requires

that the plaintiff’s damages directly result from the plaintiff’s

injuries in all cases except for FELA cases involving personal in-

jury (as opposed to wrongful death). There is no rational

distinction here and this results in Petitioner’s being denied

equal protection under the law. Petitioner raised this point of

error in its Motion for. New Trial (see Appendix G, paragraph

12). The Missouri Court of Appeals, Eastern District, in

Dickerson ruled against Petitioner on this point. 674 S.W.2d,

at 171. (see Appendix A). The Missouri Supreme Court refused

to review that determination when it denied Petitioner’s Ap-

plication for Transfer on September 11, 1984. (Appendix B).

The Excessive One Million Dollar Verdict In This Case Resulted

From Erroneous Missouri Approved Instruction System

The verdict and judgment in this case was Une Million

Dollars ($1,000,000.00). Respondent, at the time of trial, was

—_

thirty-four years of age. His past wage loss from the date of the

injury to the time of trial was allegedly Sixty-Three Thousand

One Hundred Eighty Dollars Thirty-Three Cents ($63,180.63).

In January, 1983 plaintiff purportedly would have earned

Twenty-Four Hundred Dollars ($2,400) per month and he pro-

vided evidence that he could work until he was sixty-five to

seventy years of age. His total claimed wage loss was Nine Hun-

dred Two Thousand Six Hundred Twenty Dollars ($902,620.00)

if he worked until he was sixty-five, and One Million Fifty-One

Thousand Four Hundred Twenty Dollars ($1,051,420.00) if he

worked until he was seventy. Additional facts will be set out in

the argument portion for this issue. This point of error was

timely raised in Petitioner’s Motion for New Trial (Appendix G,

para. 28, 29).

=P

REASONS FOR GRANTING THE WRIT

I. The Mandatory Instruction System Of The Missouri

Supreme Court Prohibits Giving A Present Value Instruc-

tion To The Jury In An FELA Case, Contrary To The

Decisions Of This Court And The United States Courts Of

Appeals. Therefore, The Missouri Court Of Appeals In

Dickerson v. St. Louis Southwestern Railway Company,

674 S.W.2d 165 (Mo. App. 1984), Prejudicially Erred In

Following The Missouri Supreme Court’s Mandate And

Sustaining The Trial Court’s Refusal Of The Present Value

Instruction Which Petitioner Tendered In This Case.

It is undisputed that the issue of damages in an FELA case is

governed by federal law to the exclusion of state law on that

issue. Norfolk & Western Railway v. Liepelt, 444 U.S. 490, 100

S.Ct. 755, 62 L.Ed.2d 689 (1980). In 1916, this Court held that

an FELA defendant has a right as a matter of federal law, to an

instruction telling the jury that they are to award damages on

the basis of present value only. Chesapeake & Ohio Railway

Company v. Kelly, 241 U.S. 485, 491, 36 S.Ct. 630, 60 L.Ed.

1117 (1916). The viability of Kelly was very recently recognized

by this Court in Jones and Laughlin Steel Corporation v.

Pfeifer, ____ U.S. ___, 76 L.Ed2d 768, 103 S.Ct. 2541 (1983)

where it stated:

It has been settled since our decision in Chesapeake &

Ohio R.C. v. Kelly, {citation omitted], that in all cases

where it is reasonable to suppose that interest may be safe-

ly earned upon the amount that is awarded, the ascertained

future benefits ought to be discounted in the making up of

the award.

___._ U.S. ___, 76 L.Ed. 2d at 783, 103 S.Ct. ___.

The theory underlying this is the plaintiff’s duty to mitigate

the amount of his damages and in these circumstances he could

certainly do so by placing the money in an interest bearing ac-

—

~

count. Chesapeake & Ohio R. Co., supra, 241 U.S. at 489;

Jones & Laughlin Steel Corp. v. Pfeifer, 76 L.Ed.2d, at 783,

n.20. Kelly has not been overruled, and has been cited in

countless cases dealing with the present value instruction issue.

Moreover, Petitioner has yet to find a case which affirms a ver-

dict where a proper present value instruction was requested and

refused and where the jury rendered its verdict without any pre-

sent value instruction being given. For example, in Bean/and v.

Chicago Rock Island & Pacific Railroad Company, 480 F.2d

109 (8th Cir. 1973), the Eighth Circuit Court of Appeals, citing

extensive authority, held that failure to give a present value in-

struction in an FELA case was prejudicial error. 480 F.2d at

115. The Beanland court relied directly on Kelly, supra, in

reversing the case because no present value instruction of any

kind was given. 480 F.2d at 114. Beanland also cited Sleeman v.

Chesapeake & Ohio Railway Company, 414 F.2d 305 (6th Cir.

1969), where no present value instruction was given and the

court remanded the case for a recomputation of the damages

based on the Kelly ‘‘present worth formula.’’ 480 F.2d at 115.

Nor does there need be any intricate formula submitted to the

jury to aid them in arriving at present value - they can properly

apply the rule upon being told that the award should be only

present money value. Duncan vy. St. Louis-San Francisco

Railway Company, 480 F.2d 79, 87 (8th Cir. 1973), cert. denied,

414 U.S. 859, 38 L.Ed.2d 109, 94 S.Ct. 69 (1973). Heater v.

Chesapeake & Ohio Railway Company, 497 F.2d 1243 (7th Cir.

1974), cert. denied, 419 U.S. 1013, 42 L.Ed. 287, 95 S.Ct. 333

(1974).

In denying Petitioner’s claim of error of the trial court’s

refusal to give the tendered present value instruction, the

Missouri Supreme Court made clear that its position is that the

M.A.I. scheme or system does not allow for a present value in-

struction and therefore Missouri juries cannot be instructed on

the present value issue. Dickerson v. St. Louis Southwestern

Railway Company, 674 S.W.2d 165 at 171 (See Appendix A);

—

see also, Bair v. St. Louis San-Francisco Railway Company, 647

S.W.2d 507, 510[2] (Mo. banc 1983). Given that the unanimous

weight of authority is that if requested, the present value in-

struction must be given, the Missouri courts are clearly contrary

to opinions of this Court, notably that in Kelly, supra, and

Jones & Laughlin Steel Corp., supra.

Moreover, the instruction tendered here was adequate and ac-

ceptable under Kelly, because it would merely have informed

the jury as follows:

If you find in favor of plaintiff and decide to make an

award for any loss of earning in the future, you must take

into account the fact that the money awarded by you is be-

ing received all at one time instead of over a period of time

extending into the future and that plaintiff will have the

use of this money in a lump sum. You must therefore

determine the present vaiue or present worth of the money

which you award for such future loss.

(This was Instruction No. G tendered by Petitioner to the trial

court, but refused by that court. See Appendix F). The instruc-

tion is short and straightforward and embodies the concept of

mitigation of damages articulated in Chesapeake & Ohio

Railway Company v. Kelly, supra and Jones & Laughlin Steel

Corp. v. Pfeifer, __. U.S. ____, 76 L.Ed.2d 768, 103 S.Ct.

2541, (1983). See also, Gulf, C. & S.F. R. Co. v. Moser, 275

U.S. 133, 135-136, 72 L.Ed. 200, 201-202 (1927) (exemplar in-

struction set out). The tendered instruc‘ion is a correct state-

ment of the law. The reason for its refusal by Missouri Courts is

merely that they refuse to include it in the required Missouri

damage instructions. This refusal is plainly contrary to this

Court’s decisions and is prejudicial to FELA defendants sued in

Missouri state court.

Petitioner tendered a proper present value instruction, had it

refused by the trial court, objected to that refusal, and has pro-

perly preserved its objection up through the appellate process to

—=

this Court. This point of error involves a fixed, substantive

right for FELA defendants under federal law and should not be

resolved against Petitioner merely because the appellate courts

of Missouri refuse to follow controlling federal law. Therefore,

Petitioner prays this Court to issue its Writ of Certiorari on this

point of error and to order a retrial in this case with Petitioner

having the right to submit a present value instruction to the

jury.

Il. The Missouri Court Of Appeals In Dickerson v. St. Louis

Southwestern Railway Company, 674 S.W.2d 165 (Mo.

App. 1984) Erroneously Denied Petitioner Equal Protec-

tion Under The Law Because It Obeyed The Missouri

Supreme Court’s Requirement Of The Exclusive Use Of Its

Missouri Approved Instruction M.A.I. 8.02, The Jury In-

struction For Damages in Personal Injury FELA Cases,

Because M.A.I. 8.02 Does Not Require A Proximal Rela-

tionship Between The Defendant’s Conduct And The

Plaintiff’s Damages Whereas All Other Missouri Approv-

ed Instructions On Damages Do Have This Requirement.

In the case at bar, the trial court gave M.A.I. 8.02 (modified

for this case), marked as Instruction No. 9, which provides as

follows:

If you find the issues in favor of plaintiff, then you must

award plaintiff such sum as you believe will fairly and just-

ly compensate plaintiff for any damages you believe he sus-

tained and is reasonably certain to sustain in the future as a

result of the fall on December 11, 1978, mentioned in the

evidence. Any award you make is not subject to income

tax.

If you find plaintiff contributorily negligent as submitted

in Instruction No. 8, then you must diminish the sum in

proportion to the amount of the negligence attributable to

plaintiff. (emphasis added).

M.A.I. 8.02 (the damages instruction for FELA personal injury

cases). The M.A.I. Committee’s Comment to M.A.I. 8.02

states that the instruction is the same as the ordinary negligence

damage instruction (M.A.I. 4.01) except that the word ‘‘direct’’

has been removed as a modifier of ‘‘result.’’ (See Appendix J

for the Committee Comment to 8.02). This was done, the Com-

mittee explains in the Comment, to comport with federal

substantive law of the FELA. On the contrary, Petitioner sub-

mits that present M.A.I. 8.02 is a gross and prejudicial depar-

ture from federal law.

This action by the Missouri Supreme Court through its

M.A.1. Committee shows that the Court is erroneously blurring

together the two separate issues of (1) an FELA employer’s

threshhold liability for injuries sustained, and (2) the damages

[directly] caused by the injury. With an obvious purpose, the

FELA alters the causation component of common law

negligence and reduces the question of an FELA employer’s

liability to whether any negligent acts by the employer played

any part in the employee’s injury. Crane v. Cedar Rapids and

1.C. Railway Co., 395 U.S. 164 (1969); Rogers v. Missouri

Pacific Railroad Co., 352 U.S. 500, 506-507 (1957). However,

this statutorily created standard of causation is designed only to

aid the FELA plaintiff on the threshhold issue of liability. Cer-

tainly, a plaintiff is entitled only to damages which he can prove

were directly or proximately caused by the injury for which he is

suing. Holladay v. Chicago, Burlington and Quincy Railroad

Co., 255 F.Supp. 879, 887 (D.C. lowa 1966).

The United States Supreme Court has shown that its members

clearly perceive the distinction between these two aspects of this

issue; in Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500,

506-507, the court said:

[T]he test of a jury case is simply whether the proofs justify

with reason the conclusion that employer negligence

played any part, even the slightest, in producing the injury

or death for which damages are sought. (Footnote omit-

ted).

=

Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500,

1L.Ed.2d 493, 77 S.Ct. 443, 77 S.Ct. 443 (1957). The soundness

of the proposition that proximate cause is still required between

the injury sued for and the alleged damages is almost too ob-

vious to require citation. Many cases have expiicitly held it ap-

plies in FELA cases. E.g., Chesapeake & Ohio Railway v. Car-

nahan, 241 U.S. 241, 244-245, 60 L.Ed. 979, 36 S.Ct. 594

(1916); Shupe v. New York Central System, 339 F.2d 998 (7th

Cir. 1965) cert. denied 381 U.S. 937, 14 L.Ed.2d 701, 85 S.Ct.

1769 (1965); Harris v. Norfolk Southern Railway, 319 F.2d 493

(4th cir. 1963) cert. denied 375 U.S. 985, 11 L.Ed.2d 473, 84

S.Ct. 517 (1964); Holladay v. Chicago, Burlington and Quincy

Railroad Co., 255 F.Supp. 879, 887 (S.D. Iowa 1966).

Most all jurisdictions realistically accommodate the prox-

imate cause issue for damages. Some utilize separate instruc-

tions on causation and/or separate instructions on each element

of damage. E£.g., see Illinois Pattern Jury Instructions-Civil

(2nd Ed. 1971). Prior to the M.A.I. system in Missouri, the

damage instruction could at least specify each proper element of

damage for the jury’s consideration. E.g., Pierce v. New York

Central Railway Company, 257 S.W.2d 84, 89 [8] (Mo. 1953).

Some jurisdictions use special verdicts or interrogatories for the

jury. E.g., Gallick v. Baltimore & Ohio Railway Co., 372 U.S.

108, 9 L.Ed.2d 618, 83 S.Ct. 659 (1963). Such approaches limit

the jury to considering only proper elements of damage when

determining an award. Any of these approaches would be bet-

ter than that which the State of Missouri has in its M.A.I. which

permits the jury to engage in the broadest kind of speculation

and conjecture.

The Missouri Supreme Court’s position that federal law does

not require that damages directly or proximately result from the

injury is a misstatement of substantive federal law as to

damages under the FELA. The United States Supreme Court

has stated that such a causal relation must exist. See,

Chesapeake & Ohio Railway Co. v. Carnahan, 241 U.S. 241,

244-245, 60 L.Ed. 979 (1916). This erroneous declaration of

=

federal law by the highest court of a state certainly constitutes

grounds for allowing a writ of certiorari to issue. Seaboard Air

Line Ry. v. Padgett, 236 U.S. 668, 35 S.Ct. 481, 59 L.Ed. 777

(1915).

What is most alarming here is that in the legal philosophy of

the Supreme Court of Missouri, the absence of the adjective

“‘direct’’ in a damage instruction (in all but an FELA case) is

prejudicially erroneous because it allows a jury to speculate and

consider damage indirectly caused. To this effect, the Missouri

Supreme Court has stated:

The deletion of the word ‘“‘direct’’ as a modifier of

‘fresult’’ changes the meaning of the instruction. Damages

sustained as the result of an occurrence would include all

such damages, whether resulting directly or indirectly. On-

ly if the word ‘‘direct’’ is kept in the instruction is the jury

told that the damages which i may award must be the

direct result of the occurrence. ‘he word ‘‘direct’’ adds a

limiting factor not otherwise included.

Brown v. St. Louis Public Service Co., 421 S.W.2d 255, 257

(Mo. banc 1957); See also Chappell v. City of Springfield, 423

S.W.2d 810, 812 (Mo. 1968) (citing Brown, supra). Therefore,

as the Missouri Supreme Court sees it, in all except FELA cases,

failure to use the adjective ‘‘direct’’ to modify ‘‘result’’ in in-

structing a jury on the proper scope of damages, is to er-

roneously and prejudicially allow that jury to consider elements

of damage not directly or proximately resulting from plaintiff’s

injury which was caused by the defendant’s acts. Yet, the

Missouri Supreme Court finds the omission of the word

‘‘direct’’ is not only proper, but required, by federal law when

instructing the jury on damages in an FELA case.

There are at least two substantial and injurious ramifications

of the present language in M.A.I. 8.02. First, an FELA plain-

tiff’s burden of proof on damages is altered by making it less

than the burden intended by Congress and less than it has been

interpreted to be by the United States Supreme Court. Second,

—_.

FELA defendants are erroneously subjected to a jury’s propen-

sity to speculate and the instruction permits them to make

awards on the basis of damages not proximately caused by the

injury for which plaintiff seeks recovery.

There is yet another prejudice that results from the fact that

M.A.I. 8.02 fails to require a direct or proximate causal link

between a plaintiff’s injuries and his damages—the denial of

equal protection under the law as guaranteed by the Fourteenth

Amendment to the Constitution of the United States and by Ar-

ticle I, §2, of the Missouri Constitution. By contrast, M.A.I.

8.01 (the damages instruction for FELA wrongful death cases)

does require that a plaintiff’s damages directly result from his

injuries. Therefore, personal injury FELA defendants are the

only Missouri defendants discriminated against by being denied

a ‘‘direct’’ causal link between a plaintiff’s injury and damages.

M.A.I. 8.01 provides in pertinent part as follows:

8.01 Damages - Death of Employee Under FELA.

If you find in favor of plaintiff, then you must award

plaintiff such sum as you believe will fairly and justly com-

pensate (list the beneficiary; i.e., the widow, minor

children, parents, ets.) for (her, his, their) losses which can

reasonably be measured in money which you believe (she,

he, they) sustained as a direct result of the death of (name

of decedent) [and if you believe decedent endured pain and

suffering directly resulting from his injuries then in addi-

tion you must add to such sum an amount that would fair-

ly and justly compensate a decedent for such pain and suf-

fering]. . .(footnotes omitted) (emphasis added).

The text of M.A.I. 8.02 was set out above, it contains neither

“‘direct’’ nor ‘‘directly.’’

It is well settled that a classification created by state action is

violative of the equal protection clause unless it is reasonable

and bears a rational relation to the ends of the act. Weber v.

Missouri State Highway Commission, 639 S.W.2d 825, 829-830

(Mo. 1982). There is no reason in case law or logic to

—_—

distinguish the requisite causal connection for damages in an

FELA personal injury case from that in an FELA wrongful

death case or non-FELA case. Moreover, there is no reason to

distinguish between these two situations on the issue of losses

which can be measured in money, which is included in the

wrongful death instruction, but is not included in the personal

injury instruction. Furthermore, since the question of damages

in FELA cases is one of federal law, personal injury FELA

defendants are being denied equal protection under the law by

the Missouri Supreme Court. As a practical matter, comparison

of M.A.I. 8.01 and 8.02 and non-FELA damages instructions of

the M.A.I. shows that the Missouri Supreme Court

misunderstands the FELA on the issue of required causal con-

nection between the injury and damage claimed to result

therefrom as well as what the proper elements of damages are.

Petitioner asserts that this misunderstanding denies it rights

under federal law and discriminates unconstitutionally between

personal injury FELA defendants on the one hand and

wrongful death FELA defendants and non-FELA defendants

on the other.

For these reasons, defendant St. Louis Southwestern Railway

Company requests this court to reverse the case below and to re-

mand it with an order for the trial court to submit M.A.I. 8.02

modified as pointed out above.

Ill. The Missouri Court of Appeals In Dickerson v. St. Louis

Southwestern Railway Company, 674 S.W.2d 165 (Mo.

App. 1984) Erred In Affirming The One Million Dollar

Jury Award As Not Excessive Because The Evidence Did

Not Warrant An Award Of Such Magnitude And Because

Respondent’s Counsel Made Impermissible Closing Argu-

ment Regarding The Value Of Any Award And Further

Because The Petitioner Was Not Permitted To Submit A

Present Value Instruction To The Jury.

The record shows that Respondent’s injuries were serious but

not totally disabling as argued. Respondent had a history of

—

back problems. When he was 17 years old in 1965, Respondent

fell on his back and was hospitalized for three days. He was

subsequently hospitalized again in Centreville, Illinois for that

injury. He later was injured in an auto collision when he was in

a car that was rear-ended. In 1969, he consulted Dr. Frank A.

Palazzo, a neurosurgeon, about his back. Dr. Palazzo prescrib-

ed a lumbosacral belt for Respondent to wear, and had him

undergo a myelogram. Respondent also admitted that when he

worked at the General Motors’ plant in the early }970’s he fell

off a material rack onto his back.

Respondent also had a history with regard to his depression

which he claimed was a result of the December, 1978 incident.

When he was 13 years of age he went to hospitals on two dif-

ferent occasions for nerves and anxiety in September and

November of 1961. Therefore, Respondent has had a history of

being depressed and it is clear that the accident alone is not the

cause of his depression, but rather merely a circumstance which

provides a focal point for his general depression.

Furthermore, Petitioner wrote Respondent a letter and in-

formed him that if he could do the work, he could return to the

railroad at his previous job. As well, the railroad employed

Respondent on light duty—a job different from railroad

policeman—until March of 1981 at regular pay. There was also

expert testimony that Respondent would recover and that he

was not totally disabled and, therefore, could work in a job

which was sedentary in nature.

This excessive verdict resulted from passion and prejudice of

the jury. Respondent was allowed to put to the jury evidence of

his depression because he allegedly could not have a normal life

with his wife and cannot play with his children. As recorded in

the Dickerson opinion (see Appendix A), this evidence obvious-

ly goes beyond the permissible scope of FELA damages of

reasonably certain pecuniary loss and into the areas of consor-

tium. In addition, and most aggregious, Respondent argued to

the jury that they could take into account that he would get a

five percent annual increase in salary when awarded money for

—

lost wages (see Appendix L for a copy of the transcript of this

argument). This terribly inflated the figure prayed for by

100% —Respondent’s counsel himself attempted to put a $2

million figure before the jury with this formula being used.

Is this verdict excessive? Consider that this one million dollar

($1,000,000) verdict if conservatively invested in tax-exempt

bonds at ten percent annual interest could earn one hundred

thousand dollars ($100,000) per year. This is much more than

the thirty-five thousand dollars ($35,000) (before taxes) per year

Respondent was earning while working for the railroad and is

much more than he could ever hope to earn there. Remember

too, that this $100,000 per year is merely interest and the

$1,000,000 principal is not depleted by one penny.

The major factor in this excessive verdict is that the jury was

improperly instructed in that no present value instruction was

permitted due to the Missouri instruction practice prohibiting it.

This prejudice was heightened by Respondent’s argument that

the jury could consider that his salary would increase at an an-

nual rate of five percent (Appendix L contains the transcript set-

ting this out). Petitioner objected to this argument at trial and

raised the point of error in its Motion for New Trial (Appendix

G, para. 26). The Court of Appeals denied this point on appeal.

Dickerson, supra, 674 S.W.2d at 170 [5]. (See Appendix A).

As pointed out above, under this view, plaintiff’s wage loss

would have been $2,000,000.

Although FELA defendants are told by Missouri courts that

they may argue to the jury that they should reduce their verdict

to present value, Bair v. St. Louis San-Francisco Ry. Co., 647

S.W.2d 507, 513 [12] (Mo. banc 1983), those courts also allow

the plaintiff to tell the jury that they should inflate their verdict,

as was the case here. Without an instruction on present value to

submit to a jury, how would they ever know that is the law they

must follow? In most every trial a jury is told that the court

gives them the law in the form of the instructions and they are

told that what lawyers say is neither the law nor evidence. Can

Missouri courts in any way be following this Court’s mandate

when they hold that defendants may argue present value to a

jury but may not have an instruction to that effect?

The time has come for this Court to make clear to the

Missouri Supreme Court that it must follow decisions of the

United States Supreme Court and that it must allow FELA

defendants to give a present value instruction to juries.

CONCLUSION

For a'l the above reasons, Petitioner requests this Court to

issue its Writ of Certiorari to the Missouri Court of Appeals,

Eastern District, and to provide relief sought by Petitioner.

Respectfully submitted,

SHEPHERD, SANDBERG &

PHOENIX, P.C.

John C. Shepherd

Gerald D. Morris

Paul N. Venker

Suite 3000

One Mercantile Center

St. Louis, Missouri 63101

314/231-3332

Counsel for Petitioner

St. Louis Southwestern

Railway Company

and

John J. Corrigan

General Counsel

Southern Pacific Transportation

Company

APPENDIX

= A-j

APPENDIX A

IN THE MISSOURI COURT OF APPEALS

EASTERN DISTRICT

DIVISION ONE

No. 46998

Robert Wayne Dickerson,

Plaintiff-Respondent,

vs.

St. Louis Southwestern Railway

Company,

Defendant-Appellant.

Appeal from the Circuit Court

of the City of St. Louis

Hon. Ivan Lee Holt, Jr.,

Judge

OPINION FILED: June 5, 1984

Plaintiff-respondent Robert Wayne Dickerson obtained a

jury verdict and judgment for $1,000,000 against defendant-

appellant St. Louis Southwestern Railway Company. Respon-

dent was injured when he fell from a railroad car and landed on

his buttocks and low back on the ballast rock below. He sued

the railroad for his injuries pursuant to 45 U.S.C.A. Section 51

et seq., commonly known as the Federal Employer’s Liability

Act (FELA). The railroad appeals. The judgment is affirmed.

Appellant contends the trial court erred: (1) in overruling its

objections to respondent’s reference in opening statement to,

and evidence of, the ‘‘blue flag rule;’’ (2) in refusing to submit

appellant’s tendered present value instruction; (3) in denying

appellant’s motion for new trial because of respondent’s

allegedly improper argument regarding the computation of

—_—*

damages; (4) in submitting a modified form of MAI 8.02, the

damage instruction; (5) in submitting MAI 8.02 as the damage

instruction because MAI 8.02 allows the jury to speculate as to

damages; (6) in submitting MAI 8.02 because MAI 8.02 depriv-

ed appellant of equal protection under the law; (7) in refusing to

submit appellant’s Instruction H, which would have instructed

the jury not to speculate as to damages; (8) in submitting MAI

24.01 as the verdict directing instruction; (9) in denying ap-

pellant’s motion for a mistrial when the jury allegedly saw

respondent’s wife help him up from a supine position on a cour-

troom bench; (10) in overruling appellant’s objection -o

testimony about appellant’s depression; (11) in overruling ap-

pellant’s objection to respondent’s closing argument which

allegedly improperly injected the issue of punitive damages; and

(12) in overruling appellant’s motion for a new trial because the

jury’s verdict was allegedly excessive.

Respondent Robert Dickerson at the time of trial was a thirty-

four year old man with a wife and two young sons. Before the

accident in question, he enjoyed a normal relationship with his

wife, who described her husband as a relatively happy man. In

addition resp»ndent had also enjoyed such family activities as

camping, hiking, fishing, and watching his sons play baseball.

In 1972, at the age of 24, respondent began working as a

railroad policeman for appellant. A railroad policeman per-

forms basically the same function for the railroad as a

municipal police officer performs for his city or county. In par-

ticular, railroad policemen inspect railroad cars for possible

theft, vandalism, damage, or burglary. Appellant employed

respondent at the Valley Junction railroad yard in East St.

Louis, Illinois.

On December 11, 1978 at 7:35 p.m. a train known as CRBY

6014 rolled into Valley Junction. The train had two engines and

one hundred cars. Respondent hopped onto the forty-third car

from the rear in order to inspect its cargo of Cadillac

automobiles. As he was climbing from the first, or A, level to

— A-3 —

the second, or B, level of the railroad car, he slipped and fell to

the ground, landing on his back on the ballast rock below.

Respondent maintains that the train moved while he was at-

tempting to climb from one level to the next.

Respondent injured his lower back as a result of the fall.

Respondent has been hospitalized several times and undergone

several operations on his back since his fall, bur he is

nonetheless in constant pain and cannot lie down, sit or stand

for extended periods of time. Respondent can no longer enjoy

the outdoor activities in which he used to participate with his

family, such as hiking, camping, fishing, water skiing, working

around his farm and going to ball games. His personnal rela-

tionship with his wife has deteriorated. Respondent, although

once a happy man, is now irritable, depressed and unhappy.

In addition, respondent’s evidence showed that he was totally

and permanently disabled. Appellant produced the testimony

of one physician who indicated that appellant could perform a

sedentary job, but this physician could not name any one

specific job for which respondent was suited.

Appellant also produced evidence which tended to show that

respondent had injured his back before the fall from the

railroad car, but respondent testified that he was in good health

prior to the accident and shortly before his fall had completed a

training course for appellant in Oakland, California which in-

volved rigorous physical exercise. He earned a grade of A in

this course and graduated with honors.

Respondent predicated his theory that appellant negligently

failed to provide reasonably safe conditions or methods of work

on three grounds. First, appeliant was negligent for failing to

give railroad policemen the protection of its ‘‘blue flag’’ rule.

According to the evidence, whenever a workman is working on

a train, he places a blue flag or signal at each end of the train

and removes it when he is finished. The train may not move un-

til the blue flag is removed and only the workman who put the

—-

blue flag down may remove it. The blue flag ruie did not apply

to railroad policemen because, according to the railroad, requir-

ing the policemen to put down a blue flag would hamper their

ability to apprehend thieves and vandals on the trains.

Second, respondent alleged that appellant was negligent in

forbidding radio communications between the train crew and

the railroad policemen. Respondent testified that, although he

was equipped with a radio so that he could listen to transmis-

sions between the railyard operator and the conductor and

engineer, the railroad forbade hirm to notify the conductor or

engineer that he was on the train. Appellant produced

testimony that, although communication between railroad

police officers and the train’s crew was not required, there was

no rule forbidding such communication.

Third, respondent maintained that there was insufficient

clearance between the treads of the ladder which led from one

level of the railroad car to the next and the side of the car. The

clearance_was between two and two and a half inches wide and

according to respondent did not provide enough toe room for a

worker climbing the ladder. Appellant relied on the federal

government’s minimum standards, which the steps met, as

evidence of no negligence.

After hearing the evidence, the jury awarded respondent

$1,000,000.

Appellant first contends that the trial court erred in allowing

evidence regarding the blue flag rule because respondent did not

plead the blue flag rule as a theory of recovery, thereby surpris-

ing appellant at trial. The contention has no merit.

Respondent’s first amended petition alleges that appellant

**failed to provide reasonably safe methods of work.’’ The pat-

tern instruction for FELA cases, MAI 24.01, sets forth the

employer’s failure to provide reasonably safe methods of work

as one dereliction from which the jury may infer the employer’s

|

—

negligence. Thus, respondent pleaded the ultimate fact in issue

and the pleading thus states one basis for liability. See Fish v.

Fish, 307 S.W.2d 46, 51 (Mo. App. 1957). That appellant did

not give its policemen the protection of the blue flag rule is

arguably a failure to provide a reasonably safe method of work.

Although respondent pleaded an ultimate fact, the allegation

is a broad generalization. Appellant could have learned more

detailed facts by filing a motion for a more definite statement.

As a matter of fact, the railroad itself pleaded as an affirmative

defense that ‘‘Plaintiff inspected the cars of the train without

being certain that the train was blue flagged.”’

The legal file contains a minute entry indicating that appellant

filed a motion for more definite statement which was overruled;

neither the motion nor the trial court’s ruling, however, has

been made a part of the record on appeal. Nor has appellant

contended the trial court erred in overruling the motion.

This court is confined to the record as presented to it, see

Williams v. Clean Coverall Supply Co., Inc., 613 S.W.2d 659,

664[10] (Mo. App. 1980), and will not speculate as to the con-

tents of motions not filed as part of the record. Any conten-

tion, if there ever was one, that appellant was entitled to a more

definite statement, has been waived. See State ex rel. State

Highway Commission v. City of St. Louis, 575 S.W.2d 712,

724[17,18] (Mo. App. 1978). Any indefiniteness in the amend-

ed petition was cured by the jury’s verdict. See Moschale v.

Mock, 591 S.W.2d 415, 418[4,5] (Mo. App. 1979).

Appellant next asserts the trial court erred in refusing to sub-

mit to the jury a present value instruction.' The Missouri

INSTRUCTION NO. G

' If you find in favor of Plaintiff and decide to make an award for any

loss of earnings in the future, you must take into account the fact that

the money awarded by you is being received all at one time instead of

over a period of time extending into the future and that Plaintiff will

have the use of this money in alump sum. You must, therefore, deter-

mine the present value or present worth of the money which you

award for such future loss.

— *

Supreme Court has held that “* . . . a present value instruction

was not appropriate under MAI.”’ Bair v. St. Louis - Francisco

[sic] Ry. Co., 647 S.W.2d 507, $10[2] (Mo. banc 1983); but cf.

Chesapeake & Ohio Railway Co. v. Kelly, 241 U.S. 485, 36

S.Ct. 630, 60 L. Ed. 1117 (1916) (on writ of error to the Court

of Appeals of Kentucky, the U.S. Supreme Court reversed and

remanded the case because of the trial court’s refusal to give a

requested present value instruction). The point is denied.

Appellant’s thiru contention is that the trial court erred in de-

nying appellant a new trial when respondent’s counsel argued to

the jury that respondent’s future wage loss could be calculated

by increasing respondent’s: salary by 5% per year and by

multiplying respondent’s annual salary by the number of his

employable years. After the remarks by respondent’s counsel,

appellant’s counsel objected. The objections were sustained.

No further relief was requested. This court will not fault the

trial court for failing to sua sponte grant a mistrial. See Griffith

vy. St. Louis - San Francisco R. Co., 559 S.W.2d 278, 281[5]

(Mo. App. 1977). The third point is denied.

Appellant’s fourth point relied on is that the trial court erred

in submitting the damage instruction, Instruction No. 9, which

was MAI 8.02 modified.? Appellant argues that the instruction

is inapplicable here because the evidence did not disclose a

dispute between the parties about which one of several events

actually caused resnondent’s injury and because the instruction

assumes that respondent indeed fell on December 11, 1978.

INSTRUCTION NO. 9

? If you find the issues in favor of plaintiff, then you must award

plaintiff such sum as you believe will fairly and justly compensate

plaintiff for any damages you believe he sustained and is reasonably

certain to sustain in the future as a result of the fall on December 1 1,

1978 mentioned in the evidence. Any award you make is not subject

to income tax.

If you find plaintiff contributorily negligent as submitted in Instruc-

tion Number 8, then you must diminish the sum in proportion to the

amount of the negligence attributable to plaintiff.

—

Appellant adduced evidence which tended to show that

respondent’s injury was caused to some extent by accidents

other than the fall on December 11, 1978. Where there is a

dispute in the evidence as to which of more than one event caus-

ed the plaintiff’s injury, then MAI 8.02 should be modified to

confine the jury’s consideration of damages to the event

asserted by the plaintiff as the basis for the defendant’s liability.

See Russell v. Terminal Railroad Ass’n of St. Louis, 501

S.W.2d 843, 847[2] (Mo. banc 1973); MAI 8.02, Notes on Use,

Note 2.

Appellant’s argument that the damage instruction erroneous-

ly assumes that respondent fell on December 11, 1978, is also

unpersuasive. To hold that the modification of MAI 8.02

assumes a fact in issue would be tantamount to holding that the

Notes on Use to that instruction were inapplicable and er-

roneous, because Note on Use 2 requires the specification of the

date of the incident for which the railroad is responsible in all

cases where more than one event is claimed to be the cause of

the claimant’s injury. The Notes on Use to the MAI must be

followed where applicable. Weinbauer y. Berberich, 610

S.W.2d 674, 680[11] (Mo. App. 1980). The point is not well

taken.

Appellant’s fifth point contends the trial court erred in giving

the jury Instruction 9 because the instruction allows the jury to

speculate as to damages. Instruction 9 is an approved MAI in-

struction. This court is powerless to declare the submission of

an applicable MAI instruction erroneous. Rule 70.02(b). Ap-

pellant’s fifth point is denied.

Appellant argues next that the submission of MAI 8.02

deprives it of equal protection of the laws as guaranteed by the

federal and state constitutions because wrongful death FELA

defendants get the benefit of having the jury consider only pain

and suffering directly resulting from the injuries of the dece-

dent, MAI 8.01, whereas personal injury FELA defendants do

not get the benefit of the word directly. The instruction is the

— po

applicable MAI instruction. ‘‘This instruction [MAI 8.02] is

mandatory to the exclusion of all others under the MAI.”’ Bair

v. St. Louis - San Francisco Ry. Co., 647 S.W.2d 507, 510{[3]

(Mo. banc 1983). Point six is denied. Rule 70.02(b).

The seventh point is that the trial court erred in refusing to

give the jury a speculative damage instruction.’ The instruction

is not in MAI. The Missouri Supreme Court has held that a

non-MAI speculative damage instruction should not be given.

Bair v. St. Louis - San Francisco Ry. Co., 647 S.W.2d at 510[4].

Point seven is denied.

INSTRUCTION No. H

> You are not permitted to award the Plaintiff speculative damages by

which term is meant compensation for future detriment which,

although possible, is remote, conjectural or speculative. You can only

award for future detriment if a preponderance of the evidence shows

such a degree of probability of that detriment occurring as amounts to

a reasonable certainty that it will result from the original injury in

question.

In its eighth point, appellant alleges trial court error in the

giving of Instruction 6,‘ because the instruction gives the jury a

roving commission, i.e., the verdict director does not focus the

jury’s attention on any particular act or acts of negligence. The

verdict director is the applicable instruction, MAI 24.01. Its use

in the present case was mandatory. Rule 70.02(b). Moreover,

INSTRUCTION No. 6

* Your verdict must be for plaintiff if you believe:

First, defendant either failed to provide:

reasonably safe conditions for work, or

reasonably safe methods of work, and

Second, defendant in any one or more of the respects submitted in

Paragraph First was negligent, and

Third, such negligence resulted in whole or in part in injury to

Plaintiff.

—_”

the Missouri Supreme Court has rejected the ‘‘roving commis-

sion’’ argument. Dunn v. St. Louis - San Francisco Ry. Co.,

621 S.W.2d 245, 254-255 (Mo. banc 1981). Point eight is also

denied.

Appellant next argues that the trial court erred in denying ap-

pellant’s motion for a mistrial when the jury saw respondent’s

wife helping him up from a supine position on a courtroom

bench. The point is denied for two reasons.

First, the record is devoid of any indication that the jury ac-

tually saw the incident of which appellant complains, other than

the bare statement of appellant’s trial counsel.

Second, whether to grant a mistrial is a matter within the

sound discretion of the trial court. Hoene v. Associated Dry

Goods Corp., 487 S.W.2d 479, 485[11] (Mo. 1972). Here, no

abuse of discretion has been shown.

The trial court was in a better position than this court to

observe the effect which the alleged incident had on the jury,

even assuming that it took place. Moreover, the jury had

already been told during testimony that respondent needed to lie

down on occasion in order to relieve the pain in his back. This

court has read Fitzpatrick v. St. Louis-San Francisco Railway

Company, 327 S.W.2d 801 (Mo. 1959), upon which appellant

relies, and determines that the case is distinguishable on its

facts. Point nine is denied.

Appellant next maintains that the trial court erred in overrul-

ing appellant’s objections to testimony by respondent and his

wife concerning respondent’s depression.

Respondent testified that he was depressed because he could

no longer play with his children, because his wife had to work to

support the family and because he had heard that he was per-

manently disabled. There was also testimony that respondent

feels depressed because he can no longer work on his farm and

because he no longer has a normal relationship with his wife.

— A-10 —

Appellant argues that this testimony is irrelevant because it

related to the wife’s loss of consortium, which is not compen-

sable under FELA, and is too remote from damages properly

recoverable for pain and suffering.

The parties agree that loss of consortium may not be

recovered in an FELA action. Respondent, however, maintains

that the testimony of which appellant complains is relevant to

establish his pain and suffering from the December 11, 1978

fall.

The first issue is whether an FELA personal injury claimant

may recover damages for emotionai or mental after affects of

an injury otherwise compensable under FELA. In Adams v.

Atchison, Topeka and Santa Fe Ry. Co., 280 S.W.2d 84, 94

(Mo. 1955), the court, in an FELA case, approved an instruc-

tion which permitted the jury to consider ‘‘such physical pain

and mental suffering”’ as it found the plaintiff would endure in

the future. Although the instrucon was not challenged on the

ground that mental suffering was not compensable and the

court accordingly did not address the issue under consideration

here, the fact that the instruction was approved may be taken as

implicit permission to recover damages for mental suffering. At

the very least, Adams v. Atchison, T. & S.F. Ry. Co., does not

support the idea that mental anguish is not compensable.

Federal case law expressly approves the recovery of damages

for mental suffering in an FELA case. In Hayes v. New York

Central Railroad Co., 311 F.2d 198 (2d Cir. 1962) the court

discussed the issue of whether the plaintiff, a frostbite victim

who had to have his feet amputated, could recover damages for

emotional distress. The court held that ‘‘ .. . the jury could...

consider in its computation of damages the fear and anxiety

which plaintiff experienced in knowing of the ever-present

threat of amputation.’’ 311 F.2d at 201[5,6}.

The trial court in Jgsett v. Seaboard Coast Line Railroad Co.,

332 F. Supp. 1127 (D.S.C. 1971) expressly awarded the FELA

plaintiff damages for mental suffering:

— A-ll —

In addition to his physical pain and suffering he has suf-

fered mental anguish, and anxiety, the shame of being

transposed from an able-bodied, self-respecting working

man to a pitiable, legless dependent, disfigurement, loss of

sex life, humiliation and emotional strains attendant to

such a deplorable condition, which would entitle him, if

living, to compensation for his loss of happiness, normal

life and composure. This court feels it appropriate that the

award for the disability per se should include the non-

pecuniary, non-pain aspects of the disabled condition,

such as deprivation of a normal, full life and a chance to

pursu’ non-economic hobbies or recreation. The court

feels tat an award of Fifteen Thousand ($15,000.00)

Dollars iy «4 fair and adequate amount as compensatory

damages therefor.

332 F. Supp. at 1143[18}.

Damages for mental suffering are recoverable in an FELA ac-

tion. The next question is whether appellant [sic] adduced suffi-

cient evidence to justify a finding by the jury that appellant’s

[sic] depression was caused by the December 11, 1978 fall. An

FELA claimant can recover damages for mental distress only

where there is competent evidence that the mental distress is at-

tributable to the accident in question. See Bullard v. Central

Vermont Ry., 565 F.2d 193, 197[3] (1st Cir. 1977).

Medical testimony supports respondent’s claim that his men-

tal depression was caused by the December 11, 1978 accident.

Dr. Michael Murphy, who treated respondent and testified by

deposition, stated that he referred respondent to a psychiatrist

because respondent was depressed and because the doctor

wanted to keep respondent off narcotics. The doctor then gave

his opinion on the cause of respondent’s depression. ‘‘He’s

depressed because of his pain and his inability to work and sup-

port his family.’’

— fi? —

Dr. Robert E. Schultz, Dr. Murphy’s partner and another

physician who treated respondent, opined that respondent was

depressed because of chronic pain and his inability to work and

support his family. The physician employed by appellant ad-

mitted that respondent’s chronic pain, plus his inability to

engage in the ‘“‘normal things in life’’ could contribute to his

depression. Point ten is denied.

Appellant next argues that the trial court erroneously overrul-

ed appellant’s objection to respondent’s closing argument

because the argument allegedly improperly injected punitive

damages into the case. Point eleven is not well taken.

Appellant asserts that the error occurred during the following

portions of respondent’s closing argument:

[MR. RITTER]

And what you do here today when you bring that verdict

form back down to the judge and he reads it is going to be

heard by the railroad all of the way out to San Francisco.

[MR. MORRIS]

Object to this argument, Your Honor. This is a punitive

damage - that is an argument about punitive [damages]

and I object to it.

[THE COURT]

No. Overruled.

[MR. RITTER]

It is going to be heard by this railroad all of the way out to

the home office in San Francisco, and I ask you to make it

for an amount that’s proven by the evidence that we’ve

talked about that they’ll hear about loud and clear for all

times.

But I ask you to make it as generous as you possibly can

and let them know when you come back down here, ‘‘Mr.

Railroad, we have done our job. Here is the price tag.”’

— A-13 —

*e*

** |. . [T]he trial court is vested with a broad discretion in rul-

ing on the propriety of jury arguments and determining whether

prejudice has resulted.’’ S.G. Payne & Co. v. Nowak, 465

S.W.2d 17, 20[5,6] (Mo. App. 1971). No abuse of discretion

occurred. The argument does not expressly request the jury to

punish appellant. Moreover, appellant expressly limited his re-

quest for damages to an amount proven by the evidence.

Appellant relies on Smith v. Courter, 531 S.W.2d 743 (Mo.

banc 1976) where the court held that the plaintiff’s closing argu-

ment improperly injected the issue of punitive damages.

Although respondent walked dangerously close to the precipice

of reversible error, he managed not to fall off the cliff. In Smith

v. Courter, the plaintiff expressly referred to the deterrent effect

which the verdict might have on others. 513 S.W.2d at 745.

Here, respondent limited his arguments to appellant whose cor-

porate headquarters are in San Francisco.

Moreover, in Smith v. Courter, the court acknowledges that

on a cold record, it might be debatable whether the plaintiff was

injecting the question of punitive damages. 531 S.W.2d at 746.

Because the trial court had viewed the plaintiff’s argument as

exhorting the jury to consider deterrence as a factor, the review-

ing court deferred to its determination. 531 S.W.2d at 747.

Conversely, while it may be debatable whether plaintiff here

made an improper plea for punitive damages, the trial court

determined that the argument was not objectionable, and this

court cannot say that the trial court abused its discretion in

making that determination.

In its last point relied on appellant contends that the verdict

was grossly excessive. This court has reviewed the record and

determined that the evidence of respondent’s lost wages,

medical expenses, and pain and suffering adequately support

the $1,000,000 verdict.

The judgment is affirmed.

— dis —

ROBERT O. SNYDER, Judge

JOSEPH G. STEWART, Judge

JOHN J. KELLY, JR., Presiding Judge

Concurs

Concurs

— A-15 —

APPENDIX B

No. 66229

IN THE SUPREME COURT OF MISSOURI

No. ED 46998

September Session, 1984

Robert Wayne Dickerson,

Plaintiff-Respondent,

vs.

St. Louis Southwestern Railway Company,

Defendant-Appellant.

TRANSFER

Now at this day, on consideration of Defendant-Appellant’s

Application to transfer the above entitled cause from the

Eastern District Court of Appeals, it is ordered that said ap-

plication be, and the same is hereby denied.

STATE OF MISSOURI—SCT.

I, THOMAS F. SIMON, Clerk of the Supreme Court of the

State of Missouri, certify that the foregoing is a full, true and

complete transcript of the judgment of said Supreme Court,

entered of record at the September Session thereof, 1984, and

on the 11th day of September 1984, in the above entitled cause.

Given under my hand and seal of said

Court, at the City of Jefferson City,

this 11th day of September, 1984.

/s/ Thomas F. Simon, Clerk.

— A-16 —

APPENDIX C

IN THE MISSOURI COURT OF APPEALS

EASTERN DISTRICT

TO: ATTORNEYS OF RECORD

FROM: JAMES A ROCHE, JR., Clerk

DATE: JULY 12, 1984

Please be advised that the following Motions For Rehearing

and/or Transfer to the Supreme Court have been DENIED as

of July 12, 1984:

44356 Karen S. Williams vs. Venture Stores, Inc.

44705 Louis Szombathy vs. Ferguson Florissant School

District

45822 State of Missouri vs. Willie Thomas

45834 State of Missouri vs. Larry Dewayne Usher

46131 Sandra L. Pinky vs. Dr. Michael Winer

46506 Estate of Gilford Willard, Melba Peters, et al. vs.

State of Missouri

46636 Marlowe Powell vs. Norman Lines, Inc.

46680 Kralik vs. Mortgage Syndicate, Inc.

46761 State of Missouri vs. Craig Arnold

46894 State of Missouri vs. Ronald Richardson

46938 Susan Feinberg vs. Daniel Feinberg

46984 Walls vs. Walls

46998 Dickerson vs. St. Louis Southwestern R.R.

47010 + £«A.T. Knopf vs. Harlow Richardson, et al.

47036 Lonnie Leigh vs. State of Missouri

47042 Andrew Frank, et al. vs. Environmental! Sanitation,

et al.

47099 State of Missouri vs. Eddie P. Waselewski

47147 Donna Frye vs. Meramec Marine, Inc.

47158 David O. Battle vs. State of Missouri

47235 Lippman, et al. vs. Desloge, et al.

47236

47297

47303

47331

47347

47357

47369

4737/2

47486

47531

47611

47632

47649

47838

47881

JAR:kd

= Api?

State of Missouri vs. Earl P. Inman

State of Missouri vs. Darnell Duckett

Jefferson Gravois Bank vs. E. J. Cunningham, J.

Lois Rucker vs. Ballwin Fire Protection

State of Missouri vs. Larry Edmisten

Lisa Ford, a Minor, et al. vs. Goffstein Realty, et al.

State of Missouri vs. Burt Rodgers

Cunningham vs. Cunningham

State of Missouri vs. Stephen Mitchell

State of Missouri vs. Walter Robinson, Jr.

State Tax Comm. of Mo. vs. Oberjuerge Rubber Co.

Wm. Richardson vs. St. John’s Mercy Hosp.

Tibbie Zuker Horvath, et al. vs. City of Richmond

Hts., et al.

State of Missouri vs. Charles E. Martin

John Reid vs. City of Maplewood, Mo.

— A-18 —

APPENDIX D

Rule 70.02. Instructions to Juries.

* * *

(b) Missouri Approved Instructions Exclude Others.

Whenever Missouri Approved Instructions contains

an instruction appticable in a particular case which

the appropriate party requests or the court decides to

submit, such instruction shall be given to the exclu-

sion of any other on the same subject.

* * *

Rule 70.03. Objections to Instructions

Counsel need not object to any instructions to be given at the

request of any other party or by the court on its own motion or

to the refusal of any instruction requested by such party.

Specific objections to instructions shall be required in motions

for new trial unless made at trial. The making of objections

during trial shall not preclude making additional objections to

the same or other instructions in the motion for new trial. No

general objection to instruction is required.

— A-19 —

APPENDIX E

IN THE CIRCUIT COURT OF MISSOURI

TWENTY-SECOND JUDICIAL CIRCUIT

DIVISION NO. 8

CAUSE NO. 812-00914

Honorable Ivan Lee Holt, Judge

Robert Wayne Dickerson,

Plaintiff,

VS.

St. Louis Southwestern Railway Company,

Defendant.

Transcript on Appeal, Volume 2, pages 722-725

INSTRUCTION CONFERENCE

[722] (The following proceedings took place in the Judge’s

chambers:)

THE COURT: Gentlemen, in addition to the instruction

which I’ve already read to the jury, I intend to read to the jury

as instruction No. 2 given by the Court MAI 2.03. As Instruc-

tion No. 3 given by the Court MAI 2.02. As Instruction No. 4

offered by the plaintiff MAI 11.02.

MR. RITTER: Is that definition of negligence?

THE COURT: Yes. As Instruction No. 5 given by the Court

MAI 3.01.

MR. MORRIS: Is that burden of proof?

THE COURT: Yes. As Instruction No. 6 offered by the

plaintiff MAI 24.01 modified. As Instruction No. 7 offered by

the defendant MAI 33.03(2). As Instruction No. 8 offered by

the defendant MAI 32.07 modified. As Instruction 9 offered by

the plaintiff MAI 8.02 modified.

— A-20 —

[723] MR MORRIS: That’s damages?

THE COURT: Yes. As Instruction No. 10 given by the

Court MAI 2.04.

Now, Mr. Ritter, do you care to make any record on the In-

structions?

MR. RITTER: You said 2.04, Judge, was the last one?

THE COURT: Yes, that’s the nine of your number.

MR. RITTER: Judge, I’d like the record to show please that

Instruction No. 5 is given by agreement of the parties as the

burden of proof. Correct, Mr. Morris?

MR. MORRIS: So stipulated.

THE COURT: All right.

MR. RITTER: May the record show, Your Honor, that

plaintiff, prior to your indicating which instruction you were

going to read, offered MAIl—mark these, A, B and C.

THE COURT: Which—oh, yes. A. is assumption of risk.

B. is a damage instruction, C. is a damage instruction, both of

which are erroneous, and so is D.

MR. RITTER: May the record show that plaintiff has of-

fered Instructions A, B, C and D, and that those were refused

by the Court?

THE COURT: Yes. Are you objecting to my refusal?

MR. RITTER: Yes, sir.

THE COURT: Okay. All right, Mr. Morris, do you care to

make any record on the Instructions?

[724] MR. MORRIS: Your Honor —

THE COURT: Off the record.

(Discussion was had off the record.)

— A-21 —

MR. MORRIS: Let the record show that on behalf of the

defendant, that the defendant objects to the giving of instruc-

tions tendered by the plaintiff with the exception of Instruction

No. 5, I believe that was, which has been agreed to—

THE COURT: All right.

MR. MORRIS: — on behalf of the plaintiff. And further,

the defendant objects to the action of the Court in refusing

defendant’s tendered instructions lettered E. through H.

THE COURT: Very well. Those objections will be overrul-

ed. As to the refused Instruction A, the Court is of the opinion

that assumption of risk is not in the case and that the instruction

should not be given. As to B, Instructions B and C, they’re

refused because they make no mention of contributory

negligence diminishing the damages, and therefore are er-

roneous since contributory negligence is being given. As to In-

struction No. D, the Court is giving a damage instruction, In-

struction No. 9, which is more accurate than refused Instruction

D, in that it includes, ‘‘After the fall on December the 11th,”’

the words mentioned in the evidence which is the proper way to

give it under MAI. As to instructions, defendant’s refused In-

structions E through H, none of them are in MAI, and they are

refused for that reason and because they’re simply lectures to

the jury and add nothing of any merit to the issues to instruct

on.

—_

APPENDIX F

INSTRUCTION G

If you find in favor of Plaintiff and decide to make an award

for any loss of earnings in the future, you must take into ac-

count the fact that the money awarded by you is being received

all at one time instead of over a period of time extending into

the future and that Plaintiff will have the use of this money in a

lump sum. You must, therefore, determine the present value or

present worth of the money which you award for such future

loss.

~&i—

APPENDIX G

IN THE CIRCUIT COURT OF THE CITY OF ST. LOUIS

STATE OF MISSOURI

Cause No.

Division No. 812-09941

MOTION OF DEFENDANT ST. LOUIS SOUTHWESTERN

RAILWAY COMPANY FOR JUDGMENT IN ACCORD-

ANCE WITH ITS MOTION FOR A DIRECTED VERDICT

AT THE CLOSE OF ALL THE EVIDENCE, OR, IN THE

ALTERNATIVE, FOR A NEW TRIAL

Comes now Defendant, St. Louis Southwestern Railway

Company, and, for its Motion for Judgment on its Motion for

Directed Verdict at the Close of All the Evidence previously fil-

ed, or, in the Alternative, for a New Trial, states as follows:

* * *

10. The Court prejudicially erred in refusing the following in-

structions tendered by Defendant because said instructions are

legal, valid instructions stating Defendant’s rights under the

Federal Employer’s Liability Act and the federal common law

pertaining thereto:

a. Instruction G, the present value instruction.

Said instruction is particularly important because of

Plaintiff’s young age, his intent to work until age 65

or 70, and the very great future wage loss in view of

the evidence that his current salary would be over

$29,000.00 per year if he were still working.

* * *

12. Instruction No. 9. Plaintiff’s damage instruction was er-

roneously given by the Court to the prejudice of Defendant in

that said instruction uses the language ‘‘fall on December 11,

1978.’’ By use of the word ‘‘fall’’ said instruction assumed as

~~ i ~

true Plaintiff’s evidence that he did, in fact, fall as he claimed in

his testimony. Further, by use of the words ‘‘mentioned in the

evidence’’ the instruction directs the jury that the fall occurred

for the reasons claimed by Plaintiff, namely, that the train mov-

ed, a hotly disputed issue.

Further, said instruction erroneously omits the word direct,

or some other limiting word or phrase such as ‘‘in whole or in

part,’’ in the phrase ‘‘as a result of the occurrence.’’ The

federal common law pertaining thereto and the Federal

Employers’ Liability Act do not permit indirect or remote

damages from Defendant’s negligence. They provide that the

Defendant shall be liable in damages for injury resulting in

whole or in part from the negligence of the railroad. In short,

Instruction No. 9 and M.A.I. 8.02 are clear misstatements of

the law permitting the jury to find Defendant liable for indirect,

remote, speculative and conjectural damages.

This instruction is limited by the M.A.1. Notes on Use, thus

by Supreme Court Rule, to Federal Employers’ Liability Act

cases and, hence, is discriminatory against Federal Employers’

Liability Act defendants. In compelling the use of said instruc-

tion, the Supreme Court of Missouri has deprived Defendant of

its rights under the equal protection of laws provision of the

United States Constitution, Fourteenth Amendment, and

Missouri Constitution, Article 1, Section 2, and has deprived

Defendant of its property without due process of law in viola-

tion of Defendant’s rights under the Missouri Constitution, Ar-

ticle I, Section 10, and has detiied Defendant its rights under the

Federal Employers’ Liability Act, 45 U.S.C.A., Sections $1, ef

seq., in that Defendant is liabie in damages only for injury (or

death) resulting in whole or in part from its negligence, in viola-

tion of Defendant’s rights under Article 6, Clause 2 of the

United States Constitution.

26. The Court prejudicialiy erred in overruling Defendant’s

objection thereto and permitting the Plaintiff’s counsel to argue

— A-25 —

that the Plaintiff’s lost wage in the future is equal to the number

of years Plaintiff has testified that he intended to work times his

current wage rate. Said figure was calculated by Plaintiff’s

counsel to be approximately $1 million dollars. Said argument

is contrary to the law pertaining to FELA cases established by

the United States’ Courts in that it fails to reduce the Plaintiff’s

claim for future wage loss to its present value. Under federal

law, loss of wages in the future under an FELA claim must be

reduced to present value.

* * *

28. The verdict was excessive and against the rule of unifor-

mity. Said verdict was excessive by the sum of $700,000.00 and

the Court should enter a remittitur in the amount of

$700,000.00.

29. The verdict was excessive, so excessive as to be the result

of passion and prejudice and can only be corrected by action of

the Court in setting aside the judgment and remanding the case

for a new trial.

—~

APPENDIX H

IN THE CIRCUIT COURT

CITY OF ST. LOUIS

Filed March 4, 1983

Clerk, Circuit Court

Robert W. Dickerson,

Plaintiff

VS.

St. Louis Southwestern Railway Company,

Defendant

No. 812-09941 March 4, 1983

MEMORANDUM FOR CLERK

Motion of Defendant for Judgment in Accordance with its

Motion for a Directed Verdict at the Close of all the Evidence,

or. in the Alternative, for a New Trial both denied.

/s/ 1. L. Holt, Jr., Judge

cc: Clerk

Court

Mr. Ritter

Mr. Morris

— A-27 —

APPENDIX I

POINTS RELIED ON BEFORE

THE MISSOURI COURT OF APPEALS

The Trial Court Erroneously Refused To Submit A Present

Value Instruction To The Jury Because An Award To Plaintiff

Not Reduced To Its Present Value Or Worth Is Prejudicially In-

flated In That Every FELA Defendant Has A Fixed, Substan-

tive Federal Right To Have The Jury Reduce The Award To

Plaintiff To Its Present Value Or Present Worth.

IV

The Trial Court Erred In Submitting To The Jury Plaintiff’s

Instruction No. 9, The Damage Instruction [M.A.I. 8.02],

Because It Should Not Have Been Modified To Describe The

Compensable Event As Plaintiff’s ‘‘Fall On December 11, 1978,

Mentioned In The Evidence,’’ In That Paragraph 2, Notes On

Use For M.A.I. 8.02 States That Such Modification Should Be

Made Only When And If A Defendant Is Claiming That A Dif-

ferent Event Caused Plaintiff’s Injury And Here Defendant Did

Not Claim Or Attempt To Show That Another Event Caused

Plaintiff's Alleged Injuries, And Furthermore, Defendant Was

Prejudiced Because The Instruction Assumed As True

Plaintiff's Evidence That He Did In Fact Fall And It Directed

The Jury That The Fall Occurred For The Reasons Claimed By

Plaintiff. i

VI

The Trial Court Erred In Overruling Defendant’s Motion

For New Trial, Paragraph 12, To The Effect That Instruction

No. 9 [The Damages Instruction - M.A.I. 8.02] Deprived

Defendant Of Equal Protection Under The Law Under The

United States Constitution And The Missouri Constitution

— A-28 —

Because M.A.I. Fails To Distinguish Between Or Classify

Wrongful Death FELA Defendants And Personal Injury FELA

Defendants On A Rational And Reasonable Basis In That

M.A.I. 8.02 [Here Instruction No. 9] Does Not Require That

Plaintiff's Damages Result Directly Or Proximately From

Plaintiff’s Injury Whereas M.A.I. 8.01 (The Damages Instruc-

tion For Wrongful Death) Requires That Plaintiff's Damages

Be Directly Or Proximately Caused By Plaintiff’s Injury.

XII

The Trial Court Erroneously Overruled Defendant’s Motion

For New Trial, Paragraphs 28 And 29, To The Effect That The

One Million Dollar Verdict Was Excessive Because It Was

Without Support Of The Record And Due To An Impassioned

And Inflaned Jury In That Much Improper Evidence On

Damages Was Admitted Into Evidence And That The Jury Was

Subjected To Plaintiff’s Sympathy-Provoking Scenarios.

IN THE MISSOURI SUPREME COURT

No. 66229

Robert Wayne Dickerson,

Plaintiff-Respondent

VS.

St. Louis Southwestern Railway Company

Defendant-Appellant,

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY’S

APPLICATION FOR TRANSFER AFTER OPINION

BY THE MISSOURI COURT OF APPEALS,

EASTERN DISTRICT

c

COMES NOW appellant, St. Louis Southwestern Railway

Company and for its Application for Transfer for the Missouri

Court of Appeals, Eastern District, to the Missouri Supreme

Court, pursuant to Rule 83.03 states:

** *

— A-29 —

3. Appellant now asserts the following grounds for transfer:

** *

(b) The Court of Appeals affirmance of the trial court’s

(d)

(f)

refusal of appellant’s present value instruction to the

jury is a question of general interest and importance.

(Slip Op. at 5.)

** *

The Court of Appeals’ Opinion affirming the use of

MAI8.02 and MAI 8.01 despite the denial of due pro-

cess to personal injury FELA defendants due to the

distinction in the causal language in those instructions

(8.01 requires no ‘‘direct’’ link between injury and

damage whereas 8.02 does) illustrates the need for

clarification of law in this area.

** *

The Court of Appeals’ Opinion raises a question of

general interest and importance in that it affirmed an

excessive verdict in the amount of $1,000,000, when

the evidence did not warrant this and where plaintiff’s

counsel made impermissible closing argument despite

repeated warnings by the trial court, (Slip Op. at

12-13). This is a case where plaintiff was not paralyz-

ed nor even immobilized, but his claim involves only a

very bad result from a lumbar reptured disc and his

inability to work because of that poor result.

— A-30 —

APPENDIX J

8.02 Damages - F.E.L.A. - Injury to Employee

x**

Committee’s Comment (1978 New)

This instruction is used only in an F.E.L.A. case wherein the

employee sustained injury. It is a duplication of MAI 4.01 with

two exceptions. The word ‘“‘direct’’ is deleted from the fifth line

of MAI 4.01. This is required in an F.E.L.A. case so that the

instruction complies with the correct substantive law, Wilmoth

v. Rock Island Ry., 486 S.W.2d 631 (Mo. 1972); Crane v. Cedar

Rapids & Iowa City Ry. Co., 395 U.S. 314 (1969); and Rogers v.

Mo. Pac. Ry., 352 U.S. 500 (1957).

APPENDIX K

Rule 83.03. Transfer by Supreme Court After Opinion by Court

of Appeals

in any Case in which a motion for rehearing has been overrul-

ed and an application for transfer under rule 83.02 has been

denied, the case may be transferred by order of this court on ap-

plication of a party for any of the reasons specified in rule

83.02, or for the reason that the opinion filed is contrary to a

previous decision of an appellate court of this state. Applica-

tion for such transfer shall be filed in this court within 15 days

of the date on which transfer was denied by the court of ap-

peals. Motions for reconsideration of the court’s action in

refusing an application for transfer shall not be accepted or fil-

ed.

— A-31 —

APPENDIX L

[738] THE COURT: I assume that’s what he did.

MR. RITTER: Yes, sir.

MR. MORRIS: That’s all he’s proven. Now, I object that

there is no evidence for these mathematical calculations and

projections. I don’t know where they came from. I don’t know

how he arrived at them. Likewise, I object that any of these

type of damages have to be, under the federal F.E.L.A. law,

reduced to present value. There has to be expert testimony if

he’s going to do these kinds of projections.

THE COURT: No, | don’t think so, if he’s taking the expec-

tancy and the wages that he was making I think he can argue

that. Overruled.

MR. RITTER: Thank you, Your Honor.

MR. MORRIS: How about the projections, Your Honor,

[739] the other, the projections as to the millions of dollars?

He’s got two million, three million dollars down there. I’d like

for him to tell us what he is going to argue before he does so |

can make a record.

THE COURT: I understood from what he said he took the

years’ expectancy times the wages.

MR. MORRIS: That’s not the two-million-dollar figure.

MR. RITTER: Judge, there are two sets of figures. One is

the future expectancy based upon his earnings today to age

sixty-five and age seventy. The other set of figures assumes a

five percent wage increase, which the evidence has shown

through Mr. Miskell the men had been receiving at least a five

percent increase per year over the years that he’s worked there,

and that creates evidence from which the jury can believe that

would continue.

- &it

MR. MORRIS: I object to that, Your Honor.

THE COURT: No, I don’t think that because—

MR. MORRIS: It requires expert testimony.

MR. RITTER: That’s why I put the evidence in, Judge.

MR. MORRIS: That requires expert testimony, Your Honor.

There is no possible way—

MR. RITTER: Judge, Mr. Miskell was listed as the expert on

that. I read his disposition and he testified.

MR. MORRIS: He is no economic expert. All he did was tell

about the past wages, Your Honor.

[740] THE COURT: Yes. } don’t think you can argue that there

would be a five percent increase every year for the rest of his ex-

pectancy. I think that’s speculative.

MR. RITTER: Judge, I’m not going to argue that there is go-

ing to be a five percent wage increase. All I would like to argue

and propose to argue is that the evidence has shown that he did

have a five percent increase for all the years that he was there, at

least five percent.

THE COURT: Well, I think you can argue that because it's

shown that, but I don’t think you can take that and multiply it

out.

MR. RITTER: If the—

MR. MORRIS: I object to that, Your Honor.

THE COURT: Yes, and I’ll sustain it to that portion of it.

(The proceedings returned to open Court.)

MR. MORRIS: I object to the use of the board if those other

figures are on there.

THE COURT: All right. He says he’s not going to use them.

— A-33 —

MR. RITTER: Ladies and gentlemen, if the man is disabled,

based upon what he was earning when they laid him off and

canceled all of his rights, if he continued to earn the wage rate as

of March, 1981, throughout his working life to age sixty-five,

now this is a large figure, but if you take [741] anybody’s wages

and multiply it out during the time that they have left to work

it’s going to be a large figure; to age sixty-five this man would

have earned $902,620. To age seventy, which they’re entitled to

work to now under the new federal law, he would have earned

$1,051,420. Those figures assume that he would have had no

raises at all for the next thirty-four years.

Now, if he had—the evidence showed from Mr. Miskell that

their wages were going up five percent a year at least over the

years Mr. Dickerson worked there. And I think you can see

that if you assume he would continue to have had those raises, if

he was able—

MR. MORRIS: Wait a minute, Your Honor. I’m going to

object to that. This gets into the area of speculation.

MR. RITTER: Just mentioning a figure, Your Honor.

THE COURT: All right, sustained.

MR. RITTER: That that figure would be very large, very

large indeed. I’m not allowed to multiply it out for you. 1.05

times—

MR. MORRIS: Object to that, Your Honor.

THE COURT: Sustained.

MR. RITTER: Now—

MR. MORRIS: Ask that it be stricken.

MR. RITTER: That’s a million dollars if he never got a raise.

Obviously far more if they got raises. Now, it’s up [742] to the

jury to find how much more that would have been. Now, that’s

— i —

what they have taken out of his pocket. And the evidence has

shown that he’s now cut off, no more rights, no pension, no

retirement, nothing. No insurance, no medical payment,

nothing. It’s all on him for the rest of his life. Now, that’s well

over a million dollars right there, and you can figure out how

much it would be if he would have gotten the raises.

** *