Beesley v. Howe, 56108
| Decision Date | 10 April 1972 |
| Docket Number | No. 56108,No. 1,56108,1 |
| Citation | 478 S.W.2d 649 |
| Parties | Donnie Ray BEESLEY, by his next friend, Lillian Beesley, and Basil Beesley, Appellants, v. Orvel George HOWE, Respondent |
| Court | Missouri Supreme Court |
Rolland L. Comstock, Devon F. Sherwood, Donald E. Bonacker, Springfield, for appellants.
Woolsey, Fisher, Clark & Whiteaker, Harold J. Fisher, Raymond E. Whiteaker, Springfield, for respondent.
Plaintiffs sought to recover damages resulting from defendant's alleged negligence when the truck defendant was driving struck plaintiff Donnie Beesley. In Count I of the petition plaintiff Donnie Beesley, a minor, sought $50,000 as compensation for personal injuries and in Count II his parents sought $25,000 as compensation for medical expenses and the loss of the services of their minor son. A jury trial resulted in a verdict for defendant on both counts. Plaintiffs have appealed from the ensuing judgment. We affirm.
On September 18, 1968, at around 6:45 a.m., Donnie Beesley, age 12, Richard Beesley, Donnie's brother, and Randy Hilburn, Donnie's nephew, were pushing or riding their bicycles east on Highway 'U', a hard surface road in Greene County, Missouri, on their way to school at Walnut Grove, Missouri. The weather was clear and the road was dry. The defendant Orvel Howe was also proceeding east on Highway 'U' on his way to the stockyards in Springfield, Missouri, with a load of twelve hogs in his pickup truck. Richard Beesley was at the top of the hill on which the collision occurred, ahead of Donnie and Randy who were about two-thirds of the way up the hill. Randy was ahead of Donnie. All of the boys were on the right-hand shoulder of the road.
Richard Beesley testified that he first heard the truck, then saw it coming down the hill to the west; that the truck was traveling 60--70 m.p.h. when he first saw it; and that he yelled at the other two boys. He gave conflicting testimony as to whether or not Donnie was on the pavement and as to which side of the bicycle Donnie was on. When he first heard the tires skid he turned and saw Donnie flying through the air. He further testified that the defendant repeatedly said, 'It was my fault,' after the accident.
Defendant testified that he had first seen the boys when he was on the hill west of the one where the collision occurred; that he had slowed down and shifted from fourth gear to third gear at the bottom of the hill where the collision occurred; that he was traveling at a speed of 30--35 m.p.h. and was about 30 feet from Donnie when Donnie, who was on the shoulder about 18--24 inches from the edge of the pavement, appeared to fall to the left onto the highway; that he cut his wheels to the left and applied his brakes, but could not avoid hitting him.
Harold Shelton, a Missouri Highway Patrolman, stated that he investigated the accident; that he took a statement from the defendant and that the skid marks left by the defendant's truck were 33 feet long.
Donnie Beesley testified that he did not hear the truck, but that he did hear Richard yell about it and tell him to hurry up; that his bicycle was off the pavement on the grass when he was hit; and that the bicycle was between him and the pavement.
Donnie suffered head and abdominal injuries and a broken leg as a result of the collision. He was taken to Cox Medical Center in Springfield where he underwent surgery and had his spleen removed. The issues on this appeal do not require that we give further details concerning his injuries.
Plaintiffs' first contention is that the court erred in failing to reprimand defendant's attorney before the jury for asking the defendant on direct examination: At this point the attorneys approached the bench and plaintiffs objected to the last question and asked that the jury be instructed that the question was improper, that the question be stricken from the record, and that the defendant's attorney be reprimanded. The court sustained the objection and when proceedings resumed before the jury, stated: 'The jury will disregard the last question of counsel and the answer to that question of the witness.' Questioning was then continued by defendant's attorney with no further objection by the plaintiffs.
All of the cases upon which plaintiffs rely point out the fact (which plaintiffs concede) that the giving of a reprimand rests within the sound discretion of the trial judge. Cotton v. Pyle, Mo.Sup., 400 S.W.2d 72; Adair v. Cloud, Mo.Sup., 354 S.W.2d 866. After recognizing that the discretion to reprimand rests with the trial judge, plaintiffs contend that the court in this case abused that discretion. We do not agree. Our review of the record does not indicate such an abuse. The court recognized that the question was improper by sustaining the plaintiffs' objection and instructing the jury to disregard the question and answer. Under the circumstances here shown we cannot say that the court erred in failing to reprimand the defendant's attorney. 'Since matters of this kind are lodged in the sound discretion of the trial judge whose opportunity to fairly appraise the seriousness of the transgression, the effectiveness of the cure and to judge whether prejudice was engendered, is far superior to ours, 'we feel contrained to defer to the trial court's discretion, which was exercised in the light of knowledge not afforded us by the printed record,' * * *' Edwards v. Lacy, Mo.Sup., 412 S.W.2d 419, 422. As indicated, we rule this point against plaintiffs.
Plaintiffs also contend that the trial court erred in permitting the highway patrolman, on cross-examination by defendant's attorney, to read from the accident report certain statements made by the defendant. On direct examination plaintiffs' attorney had the patrolman read two statements which defendant made to the patrolman at the scene of the accident. Cross-examination by Mr. Whiteaker, defendant's attorney, proceeded as follows:
'Q. Trooper, in direct examination, Mr. Bonacker asked you something about some statements contained in remarks you read to the jury, comments or remarks.
'A. Yes, sir.
'Mr. Bonacker: If the court please, I object to them as hearsay.
'The Court: Let's see it, Trooper. You are taking about the trooper remarks now?
'Mr. Whiteaker: Yes, sir, remarks he read or Mr. Bonacker asked him to quote certain portions of what he thought about the--what the defendant had said. This is all intertwined together. He read part of what the defendant said but not all of what he told the trooper.
'Mr. Bonacker: Well, that is true. I don't have any objection to what he told the trooper, but that part of the report is the trooper's remarks, description of what happened.
'Mr. Whiteaker: That's what he was asked to quote awhile ago.
'The Court: That's right. This statement starts out, 'According to driver No. 1 statement,' which could be the defendant. And all of this down here under remarks is what the defendant told you, Mr. Howe told you?
'The Witness: Yes, sir. Then we, on the remarks, we tell what we think happened at the accident scene, and--
'The Court: I want to make sure here. You look at it and just tell me whether that is what the defendant told you or what you thought had happened.
'The Witness: No, sir, this is what the defendant told me; this is what the driver told me.
'The Court: All right. I think that is proper then. You can read to the jury all of this (indicating).
'The Witness: 'O.K. 'According to driver No. 1 statement, two bicycle riders were going east on Highway 'U', and as No. 1 approached the riders a bicycle turned in front of his vehicle and the impact knocked the rider in the ditch. Driver No. 1 stated he thought Donnie Ray Beesley's bicycle struck the bicycle of Randolph Hilburn knocking the Hilburn subject into the ditch. Driver No. 1 stated he didn't think his vehicle struck the Hilburn subject."
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