Anderson v. Robertson, 32191

• Decision Date: 19 April 1966
• Docket Number: No. 32191,32191
• Parties: Imogene ANDERSON, Administratrix of the Estate of June Odell Anderson, Deceased, Plaintiff-Respondent, v. Jackie R. ROBERTSON, John T. Slaner and Mrs. Mason A. Sachse, Defendants, Jackie R. Robertson, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 589

402 S.W.2d 589

Imogene ANDERSON, Administratrix of the Estate of June Odell

Anderson, Deceased, Plaintiff-Respondent, v. Jackie R. ROBERTSON, John T. Slaner and Mrs. Mason A.

Sachse, Defendants,

Jackie R. Robertson, Defendant-Appellant.

No. 32191.

St. Louis Court of Appeals, Missouri.

April 19, 1966.

Manuel Drumm, Sikeston, for appellant.

Stephen N. Limbaugh, Limbaugh, Limbaugh & Russell, Cape Girardeau, for respondent.

CLEMENS, Commissioner.

This is a wrongful death action arising from an automobile collision in Cape Girardeau. The decedent, June Odell Anderson, was a passenger in a small sports car, driven by defendant Robertson and owned by defendant Slaner, when it collided with the rear end of a large sedan operated by defendant Mrs. Sachse. The trial court directed a verdict for the owner of the sports car, defendant Slaner, and the jury exonerated the driver of the sedan, defendant Sachse. The administratrix got a $10,000 verdict against the defendant sports car driver, Robertson, whom we will call the defendant. He alone has appealed.

The defendant presents an array of challenges to the judgment. In the order of occurrence: (1) The court erred in refusing to grant defendant's challenge to a venireman who equivocated as to having formed an opinion on the issue of liability. (2) The court erred in permitting a nine-year-old boy to testify about the defendant's speed. (3) The court erred in applying the Dead Man's Statute to the defendant after he had testified as plaintiff's witness. (4) The court erred in permitting the jury to see a police report on which there was a notation, only partly concealed, showing the defendant's arrest for drunken driving. (5) The court erred in permitting plaintiff to argue that there was a financial loss of $15 a week, since that amount represented payment for the decedent's room and board. (6) The $10,000 verdict is excessive.

Since the sufficiency of the evidence is not questioned, a brief statement of the facts consistent with the verdict will suffice to set the background for the six points raised by the defendant.

The decedent was a 27-year-old, unmarried secretary, an acquaintance of the defendant. On a sunny, summer afternoon he had borrowed the open-topped sports car of defendant Slaner to get refreshments for a party. Enroute, while stopped at a tavern, he met June Anderson, who accepted his invitation to join mutual friends at the party. They drove north on U.S. Highway 61 along the outskirts of Cape Girardeau, where the highway has four wide lanes, flanked by paved shoulders. They topped a crest, and starting down a long, gentle slope they had an open view for some 1,600 feet ahead. Halfway down this slope, on the right side, was the intersection of Marilyn Drive leading east into a subdivision, where defendant Sachse lived. She, too, had been driving north on Highway 61, at a speed of 30 miles an hour. A block short of Marilyn Drive she had turned on her right-turn signal. According to his own estimate the defendant was then driving 45 to 50 miles an hour. He did not see Mrs. Sachse's car until he was 100 feet behind it, nor did he realize she was slowing down to make a right turn. Without either swerving or slackening his speed the defendant drove into Mrs. Sachse's car, the right side of the sports car hitting the left-rear fender of her sedan. The sports car then careened out of control, first to the left and then to the right, coming to rest in a ditch along the right side of the highway, 200 feet beyond the point of collision. Somewhere along this last segment of the defendant's path, June Anderson was thrown from the sports car onto the pavement. She was killed instantly. Other evidence will be related as it applies specifically to the points raised.

At 5 Am.Jur.2d, Appeal and Error § 772, it is said: 'The necessities of judicial administration require that courts of first instance be vested with a large measure of discretion in passing upon various matters which cannot, in their nature, be effectively reviewed on the cold record transmitted to the appellate court.' With the sole exception of the point concerning the Dead Man's Statute, every error charged here must be determined by deciding whether the trial court abused its judicial discretion. It seems appropriate, therefore, to say what we mean by judicial discretion and the abuse thereof.

Paraphrasing the rulings of this court in Harriman v. Harriman, Mo.App., 281 S.W.2d 566(4), and that of the Supreme Court of Alabama in Mullins v. Board of Education of Etowah County, 249 Ala. 44, 29 So.2d 339, we say first that judicial discretion is the option the trial judge has in doing or not doing a thing which cannot be demanded by a litigant as an absolute right. In a minority of early American cases it was held that matters resting in the judicial discretion of a trial court could not be reviewed on appeal. Such a principle, however, would cast the trial judge in the role of a tyrant--a role repulsive to the principles of justice. State v. Cummings, 36 Mo. 263, l.c. 278, 279. Early Missouri cases rejected the minority rule. Our courts joined the majority in adopting the principle that discretionary matters are reviewable because 'the ultimate responsibility for every judgment rests upon the court of final resort.' Feurt v. Caster, 174 Mo. 289, 73 S.W. 576(2). See Bowers, The Judicial Discretion of Trial Courts, § 16, p. 29.

Reverting now to the Harriman and Mullins cases, supra, we say that judicial discretion is abused when a trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. It is, however, a principle deep within our law that on appeal from a trial court's discretionary ruling it is presumed that the ruling is correct, and that the burden of showing abuse of that discretion is on the appellant. Stewart v. Small, 5 Mo. 525, l.c. 528; Funkhouser v. How, 18 Mo. 47, l.c. 49; and cases listed in 3 Mo.Dig., Appeal and Error, k 901. When appellate courts are called upon to apply this test, it is well to heed the words: 'If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.' Delno v. Market St. Ry. Co., C.C.A.Cal., 124 F.2d 965, 967. Bowers, The Judicial Discretion of Trial Courts, §§ 12 and 17, pp. 20 and 33.

Initially, defendant urges us to reverse the trial court for denying his challenge to venireman Siemers. Several veniremen had read a newspaper account of the collision, and Mr. Siemers recalled it in detail. A double-barreled, complex question was put to him, asking whether he could render an impartial verdict or whether the reading of the newspaper story had caused him to form an opinion about the collision that he could not strike from his mind. He answered obscurely, 'I would rather say it probably would, yes.' Then:

'THE COURT: You are saying that you feel from your knowledge of reading the newspaper account that you have such a strong idea about what happened in this case that you cannot sit here as a juror and listen to the evidence and make up your mind concerning the case on the basis of the evidence?

'MR. SIEMERS: On the basis of the evidence I believe I could, yes.

'THE COURT: In other words, your memory of the newspaper account and what you decided from that is not strong enough to keep you from making up your mind in this case on the basis of the evidence?

'MR. SIEMERS: No.

'THE COURT: All right. I'm not going to take this man off if that is his feeling.'

The defendant cites cases holding that a litigant is entitled to an impartial jury and points to § 494.190, RSMo 1959, V.A.M.S., which disqualifies a venireman who has formed or expressed an opinion that may influence his judgment. To sustain his point, defendant construes Mr. Siemers' first answer as showing that he had formed an opinion that would influence his judgment. Defendant's argument ignores the venireman's answers to the court's question. They showed that he had not formed such an opinion but would be guided by the evidence. This was an issue directed to the sound discretion of the trial court, and its ruling may be disturbed only if that discretion is manifestly abused. State v. Jones, Mo., 384 S.W.2d 554(1, 2). We hold that when the venireman first asserted but then on further inquiry denied he had formed a disqualifying opinion, the trial court did not abuse its discretion by refusing the challenge for cause. This point is ruled against the defendant.

Defendant next objects to part of the testimony of the only eye-witness to the collision, nine-year-old Blane Nagel. He had been playing whiffle ball on a lot at the northwest corner of Highway 61 and Marilyn Drive. The boy testified in detail about the movements of each car before and after the collision, and then was asked if he observed whether the defendant's sports car was going fast or slow. Over defendant's objection Blane was permitted to answer, and he said: 'It was going pretty fast.' Defendant complains that Blane had not demonstrated the necessary qualifications to give an opinion of defendant's speed.

We are not convinced that it was error to admit this testimony. The admission or exclusion of opinion testimony is largely within the discretion of the trial court. See cases at 12A Mo.Dig., Evidence, k546. Further, it has been held proper for a non-expert witness to testify that a vehicle 'was going very fast.' State v. Watson, 216 Mo. 420, 115 S.W. 1011(2); Burke v. Shaw Transfer Co., 211 Mo.App. 353, 243 S.W. 449(3). But we need not rule that issue. Note that the defendant himself testified he was driving 45 to 50 miles an hour in a 45 m.p.h. speed zone. He was hardly prejudiced by the boy's opinion that he 'was going pretty fast.' Douglas v. Twenter, 364 Mo. 71, 259 S.W.2d 353(...