Warren Dee Welliver

Robert Zibung sued Union Pacific Railroad under the Federal Employers' Liability Act after slipping and falling on an ice-covered parking lot while leaving work, alleging an unsafe working condition. A jury awarded him $40,000, but the trial court denied Union Pacific's motion for judgment notwithstanding the verdict and Zibung's motion for a new trial limited to damages, instead granting a new trial on all issues. The Missouri Supreme Court affirmed, holding that Zibung made a submissible case under FELA with evidence of accumulated ice and available equipment to clear it, that a contributory negligence instruction was supported by his testimony about not looking down, and that the trial court had broad discretion under Missouri Rule 78.01 to order a new trial on all issues when damages and causation were intertwined.

labor & employmentproceduretorts & liability

The case concerned whether three Missouri corporations operating Kentucky Fried Chicken restaurants were liable for sales tax on their purchases of vegetable cooking oil used to fry chicken, fish, and potatoes. The Director of Revenue assessed tax on 50 percent of the oil purchases, based on a policy that only that portion was absorbed into the final food products, and the Administrative Hearing Commission upheld the assessment after finding the companies' evidence of higher absorption rates unpersuasive. The Supreme Court of Missouri reversed, holding that the companies' uncontradicted testimony established an 82 percent absorption rate and that the exemption under section 144.030.2(2) applies to the extent the oil becomes a component part of the sold food. The court rejected the Director's regulations and prior administrative decisions to the extent they imposed a 50 percent limit or required proof beyond the actual incorporation into the product.

taxesbusiness & regulatory

This case involves Frank Guinan's appeal from the denial of his Rule 27.26 post-conviction relief motion after his conviction and death sentence for first-degree murder. Guinan alleged ineffective assistance of trial counsel on multiple grounds, including a conflict from a signed affidavit, failure to pursue a change of venue, failure to obtain a psychiatric exam, and inadequate investigation of inmate witnesses; he also challenged trial court errors, prosecutorial statements, and the use of closed-circuit television for his evidentiary hearing. The court applied the Strickland standard for ineffective assistance claims and limited its review to whether the hearing court's findings were clearly erroneous, concluding that counsel's decisions were reasonable and caused no prejudice, that no affidavit or other errors affected the proceedings, and that the video hearing complied with Missouri statutes and preserved constitutional fairness. The court affirmed the denial of relief.

criminal lawprocedure

This case involved a wrongful death lawsuit by the family of Donald Vandergriff, who was killed when his truck collided with a Missouri Pacific Railroad train at a crossing. Plaintiffs alleged negligence in the maintenance of warning flashers and the crossing's safety, but the jury found the railroad not at fault and assigned 100% fault to the decedent. On appeal, the Missouri Supreme Court addressed issues including the setting aside of a default judgment, the propriety of closing arguments, juror nondisclosure, and jury instructions regarding the flashers' operation. The court affirmed the trial court's judgment, finding no abuse of discretion in procedural rulings and that the evidence supported the instructions given, including that plaintiffs bore the burden to prove the flashers were not working at the time of the accident. The decision rejected extending a statutory presumption about auditory warnings to the visual flashers at issue.

proceduretorts & liability

The case concerned whether the Hillsboro R-III School District could apply a voter-approved increase in its ad valorem property tax levy to $2.54 per $100 assessed valuation for the 1986-87 school year, even though the October 1986 election occurred after the September 20 statutory deadline. Taxpayers Southwestern Bell and Union Electric paid the higher rate under protest and challenged its collection. The Missouri Supreme Court reversed the trial court's judgment upholding the taxes and remanded the case. The court held that § 164.021.2 requires the increased rate to be certified and assessed effective only as of September 20 following a favorable vote, so the county clerk could not use the new rate for that year. The opinion rejected arguments based on relation-back, directory-versus-mandatory language, or constitutional provisions, emphasizing strict adherence to the statutory timing for assessments.

taxesproperty

The case involved Mark Molasky, a prisoner serving time for prior convictions, who was charged with multiple counts of attempted murder after recorded conversations with another inmate suggested he solicited killings of his ex-wife, her husband, a prosecutor, and others, along with one count of tampering with physical evidence. After a mistrial on some counts and a second trial, he was convicted of second-degree attempted murder and tampering. The court reversed the attempted murder conviction, holding that the evidence showed only solicitation without the substantial step required under Missouri's attempt statute, but affirmed the tampering conviction as it was not appealed. The opinion addressed the sufficiency of evidence and the scope of attempt liability, distinguishing it from separate solicitation offenses.

criminal law