Beshore v. Gretzinger
| Decision Date | 26 October 1982 |
| Docket Number | No. WD,WD |
| Citation | 641 S.W.2d 858 |
| Parties | Michael BESHORE and Donna Beshore, Appellants, v. Donald GRETZINGER, Respondent. 32775. |
| Court | Missouri Court of Appeals |
Larry E. Kinnamon, Jr., Kansas City, for appellants.
Charles E. Weedman, Jr. (argued), Crouch, Crouch, Spangler & Douglas, Harrisonville, for respondent.
Before NUGENT, P.J., and TURNAGE and LOWENSTEIN, JJ.
Michael and Donna Beshore appeal from the order of the trial court sustaining the defendant's motion for a directed verdict at the close of plaintiffs' evidence in an action for damages for personal injury, loss of consortium and property damage. We reverse.
On the night of November 18, 1979, Mr. and Mrs. Beshore and Mrs. Beshore's children, riding in a 1965 Plymouth station wagon, collided with a black bald-face cow in the northbound lane on Route BB approximately two miles south of Ballard, Missouri, in Bates County. Mrs. Beshore suffered back and neck injuries, the car was damaged and the cow, thrown some twenty feet into the southbound lane of Route BB, was killed. The Beshores filed suit against Donald Gretzinger, the lessee of a pasture approximately four hundred fifty feet from the accident scene who raised black, bald-faced cattle. The petition alleged that the defendant owned the cow and that it was running at large in violation of the Missouri Stock Law, § 270.010, 1 which reads in pertinent part:
It shall be unlawful for the owner of any ... cattle ... in this state, to permit the same to run at large outside the enclosure of the owner of such stock, and if any of the species of domestic animals aforesaid be found running at large, outside the enclosure of the owner, it shall be lawful for any person ... to restrain the same forthwith, and thereupon the owner shall ... pay all persons damaged by reason of such animals running at large, the actual damages sustained by him or them; provided, that said owner shall not be responsible for any accident on a public road or highway if he establishes the fact that the said animal or animals were outside the enclosure through no fault or negligence of the owner....
At the trial Mr. Beshore testified that in obedience to a curve warning sign he had slowed to forty-five miles per hour when he saw the white face of the cow. He "slammed on his brakes" causing the occupants of the car to be thrown forward. Brittani, Mrs. Beshore's nine-year-old daughter, flew from the back of the station wagon onto Mrs. Beshore's head and neck. After the impact, Mr. Beshore turned the car around so that the headlights shone on the dead cow. As he did so, he noticed cattle with white faces in the nearby pasture.
On the morning after the accident he checked the Gretzinger fence and found "dips" in the ground leaving gaps between the ground and the fence. He offered into evidence photographs of the fence taken some seventeen months after the accident. These exhibits were denied because Mr. Beshore could not show that he knew the boundaries of Mr. Gretzinger's leasehold.
Mrs. Beshore confirmed the facts of the accident. However, she did not inspect the fence until shortly before trial. Mrs. Beshore, her doctor and physical therapist presented evidence of her injuries and medical expenses.
Melvin Wendleton, who lived south of the accident scene, observed the car at the accident scene and investigated. Fearing that it was his cow, he found a brand on it that, in the dark, appeared to be a "G" or a "C". Both Mr. Wendleton and his son, David, testified that they had never noticed any gaps or holes on Mr. Gretzinger's fences.
Called as an adverse witness for the Beshores, Mr. Gretzinger testified that he owned bald-face cattle with a "G" brand on the date of the accident. After the accident his employee, Ernest Koehn, assumed the dead animal belonged to his employer and placed it on Gretzinger's leased property where it remained. Since Mr. Gretzinger was out of the state at the time of the accident he did not inspect the scene until a few days later. At that time he saw no evidence that a cow had gone through the fencing. He had no personal knowledge as to whether any gates were left open that night. No such gate opened onto Route BB, however, and he had never known the gates inside the property to be left open. The fence along Route BB is 32-inch hog wire with three barbed wires on top attached to hedge posts and "maybe a steel post". The fencing around the property was routinely inspected. Photographs, showing the fencing to be in good repair, were admitted into evidence.
Section 270.010 was read to the jury, and the parties stipulated that the law was in effect in Bates County on the date of the accident.
The trial judge made the following statement when overruling the Beshores' motion for a new trial:
I think, so there is no misunderstanding in the event you appeal the matter, the Court did not find that you did not make a submissible case as to the ownership of the cow, and I will say that on the record for you. What the Court found was that at the close of all your evidence there was no submissible case as to the question of negligence and that you did call the defendant as an adverse witness and his testimony was uncontroverted about the condition of the fences, and again I want to mention to you that in your opening statement, when you were pointing out to the jury about what your evidence would show, you told them that the evidence would show that the cow came out through a barbed wire, one-strand barbed wire with a tire tied to it, and the evidence developed that that wasn't where the defendant's cattle were enclosed, so I think to a degree you are bound by your opening statement as to what you told them the evidence was going to be. As the evidence developed, it didn't develop that way at all, and I very sincerely didn't feel you made a submissible case as to the question of negligence and that the defendant, when he was called as an adverse witness, did meet whatever burden he had to disprove any negligence that was uncontroverted by any other witness you had, including the Wendletons who you called (emphasis added).
On appeal the Beshores contend that the trial court committed prejudicial error by: (1) excluding their photographs of the fencing around the Gretzinger leasehold; and (2) sustaining Mr. Gretzinger's motion for directed verdict at the close of plaintiffs' evidence.
On the first point, we consider only whether the evidence showed that the photos were a "true and faithful representation of the subject, place or condition" they purport to represent, at the time of the accident. The question is one that rests in the sound discretion of the trial judge. We cannot disturb his ruling unless it is shown to be an abuse of that discretion. Fox v. City of Kansas City, 343 S.W.2d 200, 201 (Mo.App.1960).
The record shows that Mr. Beshore, the photographer, identified the photographs taken some seventeen months after the accident as fairly and accurately representing the condition of fencing he observed which enclosed a herd of black bald-faced cattle similar to the animal involved in the accident, as it appeared on the day after the wreck. The defendant objected to their admission on the basis that Mr. Beshore could not state that he knew the boundaries of the land belonging to Grant Cook, the lessor of the property leased by defendant. He had determined that the fence he was photographing was on Mr. Cook's land by asking neighbors where the Cook property was. The trial court excluded the photographs.
If this testimony by Mr. Beshore were all we had before us relevant to the admissibility of these photographs, we would have to agree that the proper foundation was lacking. Here, however, we also have a diagram admitted as Defendant's Exhibit 2, in which the defendant drew a map of his leased land, including the area referred to as the east pasture. Mr. Beshore, referring directly to the defendant's diagram, testified that in order to take the photograph labeled Plaintiff's Exhibit 14, he had walked into the east pasture. He further testified that Plaintiff's Exhibit 10 was taken at the...
To continue reading
Request your trial
-
Lollar v. Poe
...v. Pawelk, 263 N.W.2d 634 (Minn.1978); Hughes v. W & S Constr. Co., 196 So.2d 339 (Miss.1967) (recognizing rule); Beshore v. Gretzinger, 641 S.W.2d 858 (Mo.App.1982); Ambrogini v. Todd, 197 Mont. 111, 642 P.2d 1013 (1982); Jensen v. Nielson, 91 Nev. 412, 537 P.2d 321 (1975); Mitchell v. Rid......
-
Allison v. Sverdrup & Parcel and Associates, Inc.
...762, 765 (Mo. banc 1984). We reject all unfavorable inferences, and disregard defendants' contrary evidence. See Beshore v. Gretzinger, 641 S.W.2d 858, 862 (Mo.App.1982). Plaintiffs maintain that the "evidence affirmatively illustrated the involvement of [Sverdrup] and [SPA] with the design......
-
Riley v. Union Pacific R.R.
...photograph is within the discretion of the trial court. Rust & Martin, Inc. v. Ashby, 671 S.W.2d 4, 8 (Mo.App.1984); Beshore v. Gretzinger, 641 S.W.2d 858, 861 (Mo.App.1982); Fox v. Kansas City, 343 S.W.2d 200, 201 (Mo.App.1960). That ruling will not be disturbed on appeal unless it is show......
-
Ragland Mills, Inc. v. General Motors Corp.
...v. Weidemeyer, 673 S.W.2d 762, 765 (Mo. banc 1984); Krug v. Sterling Drug, Inc., 416 S.W.2d 143, 146 (Mo.1967); Beshore v. Gretzinger, 641 S.W.2d 858, 862 (Mo.App.1982). Another principle to be borne in mind, generally stated, is that answers to interrogatories constitute admissions, althou......