Bentley v. Crews

• Decision Date: 08 December 1981
• Docket Number: No. 41616,41616
• Parties: Nancy K. BENTLEY and Rebecca Ann Bentley and Samuel Boyd Bentley, minors, by Nancy K. Bentley, their mother and next friend, Plaintiffs-Respondents, v. Mildred CREWS, Executrix of the Estate of Herbert A. Mahler, Deceased, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 99

630 S.W.2d 99

Nancy K. BENTLEY and Rebecca Ann Bentley and Samuel Boyd Bentley, minors, by Nancy K. Bentley, their mother and next friend, Plaintiffs-Respondents, v. Mildred CREWS, Executrix of the Estate of Herbert A. Mahler Deceased, Defendant-Appellant.

No. 41616.

Missouri Court of Appeals, Eastern District, Division Four.

Dec. 8, 1981.

Motion for Rehearing and/or Transfer Denied Jan. 15, 1982.

Application to Transfer Feb. 16, 1982.

Wuestling & James by William F. James, St. Louis, for defendant-appellant.

Gray & Ritter by Charles E. Gray, St. Louis, for plaintiffs-respondents.

SATZ, Judge.

This is a wrongful death action in which there are no survivors and no other eye witnesses. Plaintiffs are the widow and minor children of Albert Bentley (Bentley). Defendant, Mildred Crews, is the executrix of the estate of Herbert Mahler (Mahler). Plaintiffs obtained a jury verdict and judgment of $120,000. Defendant appeals. We affirm.

The accident giving rise to this action occurred about 10:00 p. m., near a curve in Clarkson Road, a two-lane road in St. Louis County. In this area, Clarkson Road runs north and south and, as it runs north, it curves to the west. There is no dispute that prior to the accident, defendant's decedent, Mahler, was headed north on Clarkson Road in a 1973 Toronado and plaintiffs' decedent, Bentley, was a passenger in a pickup truck which was headed south. ¹ Plaintiffs' theory of negligence was that Mahler's Toronado crossed the centerline onto the wrong side of the road and collided with the pickup truck. Defendant argues the evidence equally supports the contrary theory that the pickup truck crossed the centerline onto its wrong side of the road and collided with Mahler's Toronado. Because the evidence supports two opposing theories with equal force, defendant argues, plaintiffs failed to make a submissible case. Under present Missouri law, we are constrained to disagree with defendant.

To determine whether plaintiffs made a submissible case, we review the evidence and sensible inferences in the light most favorable to plaintiffs. E.g., Vaeth v. Gegg, 486 S.W.2d 625, 629 (Mo.1972). Viewed in this light, the record reflects that an Officer Hoag arrived on the scene after the accident occurred. The road was wet. There were no skid marks. The primary damage was to the right front of each vehicle. Hoag found Mahler's Toronado facing northeast, blocking all of the southbound lane and part of the northbound lane of Clarkson Road. The pickup truck, in which Bentley was riding, had come to rest on the east shoulder of the road, facing southwest and was partially blocking the northbound lane.

Edwin Woods, a driver for the Chesterfield Fire District, arrived at the scene shortly after it occurred. Woods and Charles Ossenfort, another Chesterfield fireman, began to clear debris from the scene by flushing the street. Woods had not seen anyone sweeping the debris prior to his clean-up operation. The area was then lighted by two flood lights attached to the district's "Rescue Unit" and by search lights from the county helicopter. According to Woods, the area "seemed to be fairly well lit for seeing that kind of debris." Woods stated the debris was located entirely within the southbound lane of traffic. Ossenfort agreed with Woods on the location of the debris.

Plaintiffs' theory of the accident was that Mahler's Toronado crossed the centerline; its right front collided with the right front of the pickup; the force of impact spun both vehicles clockwise and carried both vehicles to their resting places, the Toronado blocking the southbound lane and facing northeast and the pickup truck on the east shoulder of the northbound lane, facing southwest. The following is a schematic diagram of plaintiffs' version of the accident:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Boiled down, plaintiffs' case rests on the damage to the vehicles, their location after the accident and the location of the debris. The momentum ² of each of the vehicles and their angle of impact do not appear in the record. Thus, reconstruction of the accident based solely upon the damage to the vehicles and their location after the accident would be sheer speculation. At best, from the damage and location of the vehicles, it would be as plausible to infer the accident occurred in the southbound lane, as plaintiffs contend, as it would be to infer the accident occurred in the northbound lane of traffic, as defendant contends. Since the damage and location of the vehicles would support equally either of these two inconsistent factual inferences, this evidence alone fails to make a submissible case. Lappin v. Prebe, 345 Mo. 68, 131 S.W.2d 511, 513 (1939).

We are left then with the question whether evidence of location of debris in the southbound lane makes the location of the accident in that lane more probable than not. With general consistency, our courts have held or stated that location of debris alone does not necessarily imply the accident occurred where the debris is located. See, e.g., Berry v. Harmon, 323 S.W.2d 691, 695 (Mo.1959); Schoen v. Plaza Express Co., 206 S.W.2d 536, 539 (Mo.1947). The location of debris fails to raise this implication because the fall of debris varies with the momenta of colliding vehicles and their angle of impact. This physical fact has been recognized and generally followed by our courts. Schoen v. Plaza Express Co., supra at 539; Hamre v. Conger, 357 Mo. 497, 209 S.W.2d 242, 248 (1948). Thus, the location of debris alone raises no single implication about the location of the accident but may raise several equally sensible and, at times, conflicting implications. See Berry v. Harmon, supra at 695 (Mo.1959). Recognizing this logic, other operative facts are looked for by our courts to locate the point of impact. See, e.g., Zeigenbein v. Thornsberry, 401 S.W.2d 389 (Mo.1966) (tire tracks, debris, location of vehicles, passenger testimony); Brawley v. Esterly, 267 S.W.2d 655 (Mo.1954) (skid marks, debris, damage to and location of vehicles); Filkins v. Snavely, 359 Mo. 356, 221 S.W.2d 736 (1949) (debris, gouge marks, position of vehicles and damage).

Having established this seemingly solid precedent, the Court deviated from it in Hodge v. Goffstein, 411 S.W.2d 165 (Mo.1966). In Hodge, as in the present case, there were no survivors and no other eye witnesses. There were three vehicles involved in the accident: a pickup truck driven by plaintiff's decedent, Hodge, a Chevrolet station wagon driven by defendant's decedent Gray, and a Plymouth driven by one Barber. By concession and deduction, it was shown that Hodge's pickup and Gray's Chevrolet traveled north on the highway and Barber's Plymouth traveled south. Apparently, a collision occurred between Gray's Chevrolet and Barber's Plymouth. The left front portion of each vehicle was damaged and this apparently was the point of impact. There were no skid marks or tire tracks. Debris from the accident was most heavily concentrated in the southbound lane of traffic. Plaintiff's version of the accident was that Gray, traveling north, entered the southbound lane while passing the Hodge pickup, and Gray's Chevrolet was hit by Barber's Plymouth in the southbound lane as Gray was attempting to return to his northbound lane. Gray's Chevrolet then veered off in a northeasterly direction and left gouge marks in the northbound lane. In veering off, Gray's Chevrolet forced the Hodge pickup off the road.

The Court stated the concentration of the debris in the southbound lane "coupled with the nature of the damage to the vehicles involved and their location following the collision, ..., justify the inference that the collision occurred in the southbound lane." Id. at 168. However, the defendant sensibly argued "the evidence equally would support the inference that Gray had turned northeasterly (in his own lane) to avoid the Barber Plymouth which had entered the (northbound) lane." Id. at 168. Implicitly recognizing the damage to the vehicles and their location after the accident would support either plaintiff's or defendant's theory with equal force, the Court disposed of defendant's theory by stating: L.C. 168-169.

"Defendant's theory ... ignores the location of the debris in the southbound lane and attaches greater significance to the witnesses' testimony that there was some debris in the northbound lane. We think that the jury, as it obviously did, was permitted to attach major significance to the concentration of debris in the southbound lane and to accept the presence of some debris in the northbound lane as a natural consequence of the collision."

On its face, this unprecedented appraisal of the probative value of debris evidence is clearly contrary to the Court's previous characterization of that evidence as generally speculative and, at best, equivocal. See, e.g., Schoen v. Plaza Express Co., supra. We read Hodge as changing the Court's former evaluation of debris evidence. Understandably, defendant attempts to distinguish Hodge on its facts and, thus, avoid the apparent change from Schoen and its progeny. Defendant emphasizes the Court in Hodge did "couple" the concentration of the debris in the southbound lane "with the nature of the damage to the vehicles involved and their location following the collision, ..., (to) justify the inference that the collision occurred in the southbound lane." However, it is apparent that neither the momenta of the vehicles nor the angle of their impact was before the Court in Hodge and, thus, the location of the vehicles after the accident and their damage would support the plaintiff's and defendant's scenario in that case with equal force. Sensibly construed, the Hodge opinion changes the evaluation of debris evidence and permits the jury "to attach major significance" to the location of debris. Hodge has not been overruled, questioned or expressly limited by subsequent...