Meyers v. Southern Builders, Inc.

7 S.W.3d 507, 1999 Mo. App. LEXIS 2170, 1999 WL 997512
CourtMissouri Court of Appeals
DecidedNovember 4, 1999
Docket22499
StatusPublished
Cited by13 cases

This text of 7 S.W.3d 507 (Meyers v. Southern Builders, Inc.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Meyers v. Southern Builders, Inc., 7 S.W.3d 507, 1999 Mo. App. LEXIS 2170, 1999 WL 997512 (Mo. Ct. App. 1999).

Opinions

CROW, Presiding Judge.

On September 24, 1996, Martyn G. Meyers, age 43, was operating a motorcycle southbound on Glenstone Avenue in Springfield. Lance S. Wheelis, an employee of Southern Builders, Inc. (“SBI”), was operating a truck northbound on Glen-stone. Wheelis turned west into a construction area where he was working. In that maneuver, Wheelis’s truck crossed the southbound lane in front of Meyers’s motorcycle. The vehicles collided.

Meyers sued Wheelis and SBI for bodily injuries Meyers allegedly sustained in the collision. The parties stipulated that at the time of the collision, Wheelis “was acting in the course and scope of his employment for [SBI].”

At the conclusion of a five-day trial, a jury returned a verdict assessing 73 percent fault to Wheelis and SBI (“Defendants”) and 27 percent to Meyers. The jurors found Meyers’s damages, disregarding any fault on his part, were $1,117,800.

Consistent with the verdict, the trial court entered judgment for Meyers against Defendants for $815,994. Defendants appeal, presenting five assignments of error.

Defendants’ first complaint is that Meyers’s lawyer, during opening statement and again in closing argument, made a “per diem” request for noneconomic damages.

This court first addresses Defendants’ about the opening statement, Defendants’ brief refers this court to two pageg of ⅛6 transcript where, according to Defendants, Meyers’s lawyer voiced a per diem request.

This court has examined the pages cited by Defendants and has espied no objection, request to strike, or motion for mistrial by Defendants. Inasmuch as Defendants remained mute during the allegedly improper statement, Defendants preserved no issue about it for review. Smith v. Ohio Millers’ Mutual Fire Ins. Co., 330 Mo. 236, 49 S.W.2d 42, 46[8] (banc 1932).

This court next turns to the closing argument. There, this dialogue occurred.

“MR. STRONG [1 ... If it were just a little bitty job to assess for non-eeo-nomic damages, we’ll just pick an hour. Now, it’s going to be an hour when he’s at work, or it’s going to be an hour when he’s in the courtroom, or it’s going to be in the middle of the night, maybe he’s asleep and maybe he’s rolling around in pain. Whatever hour it is, folks, you on the jury just have to assess damages for an hour.
If someone said $3.00. Oh, my, that’s outrageous. I don’t think so. But in this case, you see, you have to assess it for a lifetime. And there will be some hours in his life when he’s relatively comfortable. And there will be some hours in his life when he’s extremely uncomfortable. But his life expectancy, as I calculate it, is 325,872 hours. And we believe that a fair sum for that amount of time is $950,000.00. We think if you award that sum for thirty-seven years and two months, 325,872 hours, it should be a no greater than awarding Marty $3.00 just for an hour.
And so we have a verdict form. And we—
[510]*510MR. KIEFER [2]: Your Honor, may we approach?
THE COURT: All right.
(Counsel for the Plaintiff, counsel for the Defendants, and the court reporter approached the bench and the following proceedings were entered of record):
MR. KIEFER: Your Honor, we object on the grounds that he’s using a per diem argument, which is not authorized under Missouri law. We would ask that the jury be instructed to disregard the last comment by Mr. Strong and that he be instructed not to pursue any further with a sum which is related to any particular time of day or for each day or for each hour or whatever. We think it’s improper. We have to, at this point, move for a mistrial because of the improper comments.”

After a brief discussion, the trial court announced: “I’m going to overrule the objection and ... overrule the motion for mistrial.”

A scholarly and eloquent discussion of the “per diem” or “mathematical formula” technique of arguing damages for pain and suffering appears in Faught v. Washam, 329 S.W.2d 588, 601-04 (Mo.1959). There, the plaintiffs lawyer told the jury:

“In considering what is an adequate sum for this young man, suppose I was to meet one of you ladies on the street and I say to you, T want to offer you a job and I want to tell you a little bit about this job before you say you are going to accept it; one peculiar thing, if you take it you have to keep it for the rest of your life, you work seven days a week, no vacations, work daytime and night. The other thing is, you only get paid $3.00 a day. Here is your job— your job is to suffer Mr. Faught’s disability.’ ”

Id. at 601-02.

The trial court in Faught overruled the defendant’s objection to the argument. Id. at 602. On appeal, the Supreme Court of Missouri held the ruling erroneous and, together with other errors, amounted to cumulative prejudice requiring reversal. Id. at 604[29] and [30].

Nineteen years later, the Supreme Court of Missouri decided Graeff v. Baptist Temple of Springfield, 576 S.W.2d 291 (Mo. banc 1978). There, the plaintiffs lawyer argued to the jury:

“ ... This boy was in the hospital for 40 days and we think, and we suggest this, for this 40 days in the hospital, we think $4,000 to $4,500 is a modest sum for the kind of agony Frankie underwent with five operations.... Now, after he came home from the hospital he was in a cast.... And for that period of time, being in that cast for 34 days, we say somewhere in the range of $3,400 to $3,600 is a modest sum.... Then excluding all this up to the present time, 413. days have elapsed, and in that period of time this is the way Frankie’s leg has looked,_ For those to the present time, 413 days, we say eight to nine thousand dollars is a modest sum.
What about the future? ... You can see the way he has to take care of his leg when he has done nothing but sit in the courtroom. Your verdict must be for life and for the future, these 23,701 days [64.89 years] we think a fair amount would be $71,103 to $80,000, and either column you use (writing on large paper before the jury) — it ranges from $86,503 to $97,100, and we say that this is a small amount for a lifetime of injury.”

Id. at 299.

As in Faught, the opinion in Graeff thoroughly discussed case law regarding “per diem” arguments, id. at 301-03, and held the argument was “not within the limitations and objections of Faught.” Graeff, 576 S.W.2d at 303[3]. The opinion explained:

[511]*511“The posture in which the plaintiffs counsel in this case offered the figures is such that he did not refer to any per day or per hour amount but merely suggested a lump sum for the specific periods of hospitalization, the time in the cast, the pain and suffering for the period from injury to trial, and for future life expectancy. The argument was not broken down into minutes, hours or days. There was no ‘job offer’ argument as in Fought.

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7 S.W.3d 507, 1999 Mo. App. LEXIS 2170, 1999 WL 997512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/meyers-v-southern-builders-inc-moctapp-1999.