American Family Mut. Ins. Co. v. Robbins

• Decision Date: 06 May 1997
• Docket Number: No. 70118,70118
• Citation: American Family Mut. Ins. Co. v. Robbins, 945 S.W.2d 52 (Mo. App. 1997)
• Parties: AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Plaintiff, v. Gary L. ROBBINS, et al., Defendants/Respondents, and Kenneth Rohrer, Defendant Ad Litem/Appellant.
• Court: Missouri Court of Appeals

Page 52

945 S.W.2d 52

AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Plaintiff, v. Gary L. ROBBINS, et al., Defendants/Respondents and Kenneth Rohrer, Defendant Ad Litem/Appellant.

No. 70118.

Missouri Court of Appeals,

Eastern District,

Division Three.

May 6, 1997.

James Parker Lemonds, St. Louis, for plaintiff/appellant.

David L. Mayhugh, Park Hills, Kurt D. Breeze, Festus, John Dennis Rayfield, Crystal City, Joseph S. Sanchez, Festus, for defendants/respondents.

CRAHAN, Presiding Judge.

Defendant Ad Litem Kenneth Rohrer ("Defendant") on behalf of Carl A. Retzer ("Deceased") appeals from the trial court's judgment following a bench trial assessing 50% fault to Deceased in an automobile accident. On appeal, Defendant asserts that the trial court erred in assessing 50% fault to Defendant because there was no substantial evidence to support the trial court's implicit determination that Deceased either failed to keep a careful lookout or crossed the center line. We reverse and remand.

Neither party requested findings of fact or conclusions of law and none were issued by the trial court. We must therefore assume that the trial court resolved all issues of fact in accordance with the result reached. Rule 73.01(a)(3); Nelson v. Baker, 776 S.W.2d 52, 53 (Mo.App.1989). Further, the evidence adduced at trial must be reviewed in the light most favorable to the prevailing party. Id.

At approximately 11:00 p.m. on September 9, 1991, a fatal collision occurred on Old Highway 67 in St. Francois County, Missouri. One vehicle, a 1990 Mazda pick-up truck operated by Gary L. Robbins ("Robbins"), was headed north. Robbins was alone in the vehicle. The other vehicle, a 1984 Chevrolet Chevette operated by Deceased, was headed south. Three passengers also occupied Deceased's car. They were Lawrence W. Barton, John H. Patrick, and Carl Stokes. Robbins and Lawrence W. Barton were the only survivors of the accident. ¹

This case was initially filed as an interpleader action by American Family Mutual Insurance Company, Robbins' liability carrier, seeking leave to deposit its $100,000 coverage into the registry of the court. Thereafter, cross-claims were filed against Deceased by Robbins for personal injuries, Lawrence W. Barton for personal injuries, Verna Patrick (John H. Patrick's mother) for wrongful death, and Ruth Stokes (Carl Stokes' mother) for wrongful death ("Respondents"). The cross-claims alleged inter alia that Deceased was negligent in failing to keep a careful lookout or in crossing the center line into Robbins' lane.

Old Highway 67 is a dark two-lane asphalt road with no center line. The road measures 20 feet to 20 feet 6 inches in width. There is no lighting for the road and its shoulder consists of grass and gravel. On that night, the road was dry and the speed limit was 55 m.p.h.

At the point of collision, the road is straight with a 4% grade sloping from north to south. The shoulder bordering Deceased's lane consists of an 8 to 9 foot unimproved grass area ending in a grassy ditch. There is a curve in the roadway approximately 300 to 400 feet north of where the collision took place. Deceased's car was traveling around this curve at an undetermined point in time prior to the collision.

Only two witnesses testified at trial. They were Robbins and Officer Rusty Ridge ("Officer"). According to Robbins, he was at a friend's house earlier that evening eating dinner and playing pool. There he consumed 2 to 3 twelve-ounce 5 percent beers approximately 30 to 45 minutes prior to the accident. From the friend's house Robbins drove to Footloose, a bar located one or two miles from the accident scene, to see if a friend had his cigarettes and lighter. He spent approximately 30 minutes there and consumed one-half of a twelve-ounce 5 percent beer. He had his last drink of beer right before he left the bar which was 10 to 15 minutes before the accident.

Robbins testified he left the bar and was driving north on Old Highway 67 at approximately 50-55 m.p.h. when he noticed headlights coming around the corner toward him "in the trees." He could not tell if the headlights were on their half of the road so he decided to move closer to the right-hand side of the road giving the other vehicle room to pass. Although it was not his intention, the right side of his truck fell off the traveled portion of the road and onto the shoulder.

Robbins did not know how long the right side of his truck traveled on the shoulder. He believed the collision occurred at the point when he had just eased his truck back onto the roadway as a result of Deceased having crossed over into his lane. Robbins denied applying his brakes before the collision and stated that his truck did not skid, spin around or make any other unusual action prior to impact. He had no recollection where the vehicles collided. After the accident, Robbins' blood-alcohol content measured at least .06.

At the time of trial, Officer had been a highway patrol officer for 22 years and had extensive training in accident reconstruction. Officer's version of the events leading up to the accident was based on physical evidence obtained at the accident scene. Officer's conservative estimate of Robbins' speed at the point where the right side of his truck left the roadway was 67 m.p.h. Measurements at the scene indicated that the right side of Robbins' truck traveled on the shoulder for approximately 170 feet and the truck was in a "yawing motion" while driving partly on and partly off the roadway. A "yawing motion" occurs when the rear tires travel outside the front tires.

Officer testified that Robbins' speed would have decreased somewhat as a result of the "yawing motion" but Officer could not determine the resulting speed. Officer also could not determine the speed at which Deceased was traveling or the speed of the vehicles at the point of collision. Furthermore, Officer could not determine the location of Deceased's car when Robbins' truck left the road, engaged in the "yawing motion," or came back onto the road.

Officer found a skid mark made by the left front tire of Robbins' truck. The skid mark measured 43 feet in length. It began 13 feet from the shoulder of Deceased's lane and ended 6 feet 10 inches from the same shoulder, terminating at the point of collision. The width of the entire road measured 20 feet to 20 feet 6 inches. Officer testified that skid marks are made by tires locking up and sliding on the road. Officer also found a scuff mark made by the passenger-side rear tire of Robbins' truck. Officer testified that scuff marks are made by tires that are rotating and sliding leaving striations. Officer observed significant gouge marks at the end of the skid mark. Officer testified that gouge marks occur at the point of collision as the under-carriage of the vehicle digs out the road through the dissipation of kinetic energy. The gouge marks were approximately 3 1/2 to 4 feet from the point where Deceased's lane meets the shoulder.

Officer concluded that the physical evidence taken at the accident scene indicated that Deceased had operated the car down the middle of Deceased's lane at all times but at least the front portion of Robbins' truck was...