Tauchert v. Ritz

909 S.W.2d 687, 1995 Mo. App. LEXIS 662, 1995 WL 142274
CourtMissouri Court of Appeals
DecidedApril 4, 1995
DocketNo. 65299
StatusPublished
Cited by6 cases

This text of 909 S.W.2d 687 (Tauchert v. Ritz) 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
Tauchert v. Ritz, 909 S.W.2d 687, 1995 Mo. App. LEXIS 662, 1995 WL 142274 (Mo. Ct. App. 1995).

Opinions

PUDLOWSKI, Judge.

William Tauehert appeals from the jury-verdict of his personal injury action. The jury found Russell Ritz, the defendant, to be 28% at fault and Tauehert to be 72% at fault, but awarded zero damages to Tauehert.

We review the facts in a light most favorable to the verdict. Tauehert, at the time of the accident, had been an elevator mechanic apprentice at Westinghouse Elevator Company for three months. While on the project at which he was injured, he worked under the supervision of Ritz, an elevator mechanic. Before coming to work at Westinghouse, Tauehert had held substantially the same position for six months at Long Elevator Company. In addition to this work experience, Tauehert had also taken home study courses given by the Elevator Workers Union, including one on the rigging and hoisting of elevators.

On October 17, 1985, Tauehert was working under Ritz’s supervision on a Boatmen’s Bank building in Clayton, Missouri. He had been working on the project for approximately six weeks. Until October 16, Tauehert had been working exclusively on an electric traction elevator. On the day before the [689]*689accident, Ritz instructed Tauchert to assist him on a problem with hydraulic lift elevator which was part of the parking garage.

Ritz and Tauchert raised the elevator to the top floor. Prior to doing so, Ritz, with Tauchert’s assistance, rigged a hoisting system so they could drain the hydraulic fluid and still be able to raise and lower the elevator manually. The accident occurred while Tauchert was raising the elevator using the rigging that he and Ritz had put together. While Tauchert was standing on top of the elevator, which had been raised to the top of the five-story shaft, the rigging broke. The elevator cab fell to the bottom of the shaft where Ritz had been working, pinning him beneath the cab.

As a result of the fall, Tauchert suffered compound fractures to both bones in the lower part of his leg. He had to undergo four surgeries on his leg, including muscle flap surgery and lengthening of his Achilles tendon. He continues to have problems with his right foot and ankle, particularly because his right big toe is unable to straighten and remains almost perpendicular to his foot. He also claims to have slight psycho-motor retardation. The uncontested evidence revealed that Tauchert incurred Thirty Thousand Two Hundred Fifty-four dollars and seventy-eight cents ($32,254.78) in actual medical expenses. In closing argument, defense counsel acknowledged these injuries by stating, “We all know he got hurt.... I don’t have to defend that because there is no question the man got hurt.... Again I want to stress I’m not belittling this man’s injuries. He was hurt.” Tauchert also claimed depression as a result of the accident.

Tauchert, at the time of the accident, was not wearing his safety belt which he had received from his employer. In fact, he denied ever receiving one until confronted with the form which he had signed on which he acknowledged receipt of a safety belt.

After the jury returned its verdict, Taue-hert filed his motion for a new trial which was denied. This appeal followed.

Tauchert raises two points on appeal. First, he contends that the trial court erred in permitting Ritz to testify that he was married and had children. Second, he avers that the trial court erred in submitting a jury instruction in the disjunctive rather than in the conjunctive and as such it granted the jury a “roving commission.” We address the points in reverse order.

In his second point on appeal, Tauc-hert contends that the trial court erred in giving Instruction No. 7. He avers that because the instruction was given in the disjunctive rather than the conjunctive, it granted a roving commission to the jury. We agree.

The pertinent part of Instruction No. 7 read as follows:

In your verdict, you must assess a percentage of fault to plaintiff Walter Tauchert, whether or not defendant Russell Ritz was partly at fault, if you believe:
First, plaintiff Walter Tauchert assisted in the manner in which the hoisting mechanism was rigged, or failed to use his safety belt, and....

The part of the comparative fault instruction which lists the alleged acts of negligence by Tauchert states “[if you believe ...] plaintiff Walter Tauchert assisted in the manner in which the hoisting mechanism was rigged,....” This is a general statement regarding potential negligence. It requires no finding upon an ultimate fact. The jury-need not find a specific act by Tauchert which was contributorily negligent. The second part of the comparative fault instruction which contains the alleged acts of negligence states “[if you believe ... plaintiff Walter Tauchert] ... or failed to use his safety belt,_” This is a specific act of negligence. This statement allows the jury to find upon an ultimate fact. In Hicks v. Graves Truck Lines, Inc., 707 S.W.2d 439, 447 (Mo.App.W.D.1986) our colleagues in the Western District, in finding prejudicial error in a disjunctive verdict director, stated, “... it has long been the rule that a case may not be submitted on both general and specific negligence and the rule is equally applicable to MAI instructions. By submitting disjunctive charges, the jury is not confined to the factual issues but may speculate on other omissions in the nature of a roving commission.” See also, Lucky v. Avon Products, [690]*690Inc., 589 S.W.2d 364, 366 (Mo.App.1979). This is precisely what occurred in this case. The jury was left to speculate regarding Tauchert’s negligence in assisting Ritz in the assembly of the rigging. The phrase “... Walter Tauchert assisted in the manner in which the hoisting mechanism was rigged ...” does not submit ultimate facts which define for the jury Ritz’ specific theory of contributory negligence.

As a result, we hold that the comparative fault instruction failed to give the jury any real direction. Instruction No. 7 gave the jury a “roving commission” to consider other omissions which could lead to speculation. The instruction failed to submit in specific terms what act by Tauchert, regarding the rigging and hoisting of the elevator cab, was eontributorily at fault. Accordingly, we hold that the trial court committed prejudicial error and thus grant a new trial.

We address Tauchert’s first point on appeal due to the substantial likelihood that the situation will repeat itself at the new trial.

In his first point on appeal, Tauchert claims that the trial court erred by allowing prejudicial evidence that Ritz was married and had children. We disagree.

During Ritz’s direct examination the following exchange took place:

Question: Are you married?
Answer: Yes.
Q: Is your wife Lisa?
Mr. Duree [Tauchert’s counsel]: Objection.
Court: Overruled.
Q: Do you have children?
A: Yes.
Mr. Duree: Objection.
Court: Overruled.

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Bluebook (online)
909 S.W.2d 687, 1995 Mo. App. LEXIS 662, 1995 WL 142274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tauchert-v-ritz-moctapp-1995.