Aboussie v. McBroom

• Decision Date: 21 November 1967
• Docket Number: No. 32394,32394
• Citation: Aboussie v. McBroom, 421 S.W.2d 805 (Mo. App. 1967)
• Court: Missouri Court of Appeals
• Parties: Martin ABOUSSIE, Plaintiff-Appellant, v. Jerry P. McBROOM, Defendant-Respondent.

Page 805

421 S.W.2d 805

Martin ABOUSSIE, Plaintiff-Appellant, v. Jerry P. McBROOM, Defendant-Respondent.

No. 32394.

St. Louis Court of Appeals, Missouri.

Nov. 21, 1967.

James J. Sauter and Deeba, DeStefano, Sauter & Herd, St. Louis, for plaintiff-appellant.

F. X. Cleary, Donald L. James, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for defendant-respondent.

CLEMENS, Commissioner.

This lawsuit is for damages from an intersectional collision between the parties' automobiles. The defendant got a verdict and judgment, and plaintiff appeals. The amount in dispute is $8,000.

Two issues are before us. The more complex one arose from plaintiff's attempt to impeach a defense witness by showing he had made allegations of defendant's negligence in his own lawsuit over the same collision. The plaintiff also contends the court erred during closing argument by letting defense counsel misstate the testimony of a police officer about the point of impact.

Since both issues touch only lightly on liability, and not at all on damages, a brief factual statement will do. The plaintiff was headed west, the defendant east, on Delor Street. They collided at the intersection of 37th Street, damaging the left-front corners of each car. Plaintiff had stopped on Delor, ready to make a left-hand turn into 37th Street. According to plaintiff, he was stopped with his left directional light blinking when the defendant's car, moving at 60 m.p.h., veered partly across the center line and collided with plaintiff's stopped car. According to defendant, he was driving 30 m.p.h. on his own right-hand side of Delor when the plaintiff suddenly turned left into his path. A police officer testified for defendant that debris from the colliding cars fell on the south (defendant's) side of the intersection.

Two of plaintiff's points concern David Roerig, a passenger in defendant's car, who testified favorably for the defendant. Witness Roerig had an action for damages pending against both plaintiff and defendant. Plaintiff contends the court erred in refusing to allow him to impeach Roerig by reading into evidence two allegations of negligence Roerig had made against his host-driver, defendant McBroom. This, on the theory that Roerig's pleaded allegations were inconsistent with his trial testimony.

On cross-examination by plaintiff, Roerig had testified that the defendant drove on the right-hand side of Delor at all times, his speed was never over 30 m.p.h., and his car was under control. Roerig then acknowledged he had told his own attorney the facts about the collision before filing suit but had not read the petition. Plaintiff again asked Roerig whether McBroom had kept his car in control, and when Roerig answered yes plaintiff's counsel then asked, 'Well, then that isn't true if you said that in your lawsuit, is it?' The court sustained defendant's objection to the attempted impeachment by prior inconsistent statement, telling plaintiff he would 'have to lay a foundation.' But the only other question put to Roerig about his lawsuit was 'You're making some claim that Jerry McBroom was wrong in some way, aren't you?' Roerig answered no.

On the next day of trial, after defendant had rested his case, plaintiff offered to read into evidence two allegations of negligence from Roerig's petition. One charged that McBroom did not have his car under such control as to be able to stop at the first appearance of danger; the other, that by stopping or slackening his speed McBroom could have avoided the collision. The trial court denied plaintiff's proffer because 'the witness was not asked about these allegations.'

Defendant denies plaintiff's right to introduce Roerig's pleaded allegations, contending they were merely conclusions, not factual statements, and hence inadmissible to contradict his oral testimony. (See Bright v. Wheelock, 323 Mo. 840, 20 S.W.2d 684(2).) We need not decide this. Plaintiff's point can best be decided by determining--as the trial court did--whether plaintiff laid the necessary foundation to impeach Roerig by the pleadings in his own lawsuit.

A non-party witness may be impeached by showing he had previously made a factual statement inconsistent with a material statement in his trial testimony. But it is first necessary to ask the witness whether he made the statement, quoting it and pointing out the precise circumstances under which it was supposedly made. This, to give the witness a chance to refresh his recollection of the previous statement and to admit, deny or explain it. As early as 1851 our Supreme Court ruled that the need to lay a foundation before impeaching a witness by a previous inconsistent statement was 'too familiar to need repetition.' Clementine v. State, 14 Mo. 112, l.c. 115. Of course, if the witness admits making the prior inconsistent statement, he stands impeached and the matter is closed. But if the witness denies or equivocates about having made the statement, the cross-examiner may then introduce evidence showing that the witness did in fact make the previous inconsistent statement. Since 1894 these detailed principles have become deeply ingrained in our law. See Spohn v. Missouri Pacific Ry. Co., 122 Mo. 1, 26 S.W. 663, and cases collected in 29A Mo.Digest, Witnesses, § 388.

Here, the plaintiff did not lay the required foundation. He did not confront witness Roerig with the allegations in his petition and give him a chance to admit, deny or explain them. So the trial court properly denied any inquiry about Roerig's allegations until a proper foundation had been laid. When plaintiff later offered Roerig's pleaded allegations in evidence, the trial court properly excluded them because 'the witness was not asked about them.' Both rulings followed the principles cited above.

Plaintiff raises a related point about the testimony of another defense witness, the...