Bohn v. James
| Decision Date | 31 October 1978 |
| Docket Number | No. 39327,39327 |
| Citation | 573 S.W.2d 448 |
| Parties | George H. BOHN, Respondent, v. Edward T. JAMES, Appellant. . Louis District, Division Four |
| Court | Missouri Court of Appeals |
Robert H. Burns, John H. Marshall, Clayton, for appellant.
Godfrey P. Padberg, St. Louis, for respondent.
Defendant has appealed from a judgment entered pursuant to jury verdict in which plaintiff was awarded $8,000 damages for injuries resulting from an automobile collision.
Plaintiff's and defendant's evidence differed as to the manner in which the collision occurred. According to defendant, plaintiff was driving northward in the right hand lane of Highway 244 (now Highway 270), and defendant was following him but driving in the center lane. After they passed the intersection with Highway 40 defendant's automobile gained on that of plaintiff and when the two automobiles were about 20 feet apart, plaintiff moved quickly from the right lane into the center lane without signaling. Although defendant attempted to brake his automobile he struck plaintiff's automobile in the rear.
According to plaintiff, he was traveling about 55 miles an hour northward in the right curb lane of Highway 244, and he moved over into the center lane before he reached the intersection with Highway 40. The highway was clear of traffic ahead of him, and after driving at least three-quarters of a mile in the center lane his automobile was struck in the rear by defendant's automobile.
Plaintiff testified over objection that immediately following the collision he "detected alcohol on (defendant's) breath," and the investigating police officer testified over objection that his report indicated that he "apparently" smelled alcohol on defendant's breath. Defendant also testified on cross-examination, over objection, that after leaving his place of employment he had consumed three or four beers. Defendant asserts that this evidence to the effect that he had been drinking was prejudicially erroneous because there was no evidence of erratic driving on his part, and as stated in Boehm v. St. Louis Public Service Company, 368 S.W.2d 361, 372 (Mo.1963), such evidence is admissible only "when coupled with evidence of erratic driving * * *." See also Doisy v. Edwards, 398 S.W.2d 846 (Mo.1966); Cheatham v. Chartrau, 237 Mo.App. 793, 176 S.W.2d 865 (1944); Hager v. McGlynn, 518 S.W.2d 173 (Mo.App.1974).
Defendant argues that there was substantial evidence from which the jury could find that plaintiff was negligent in moving into the center lane in front of defendant, and that of "utmost importance" is the testimony of plaintiff that the police officer gave defendant a test in which he was to try to walk a straight line and to bend over, and that the police officer stated on his report that defendant's ability was "not impaired." However, plaintiff relies on other testimony and circumstances disclosed by the evidence as constituting evidence of erratic driving. He points out that it was a clear day, that there was no traffic ahead of him, and that he was driving 55 miles an hour, and that he had been in the center lane for at least three-quarters of a mile. Also, that defendant was driving 75 to 80 miles an hour, which was in excess of the speed limit, and that he continued to drive in the same lane as plaintiff, although the lane on either side was open and overtook and collided with the rear of plaintiff's vehicle. Whether plaintiff's or defendant's version of what occurred was to be believed was an issue for the jury, but plaintiff's version did constitute evidence of erratic driving on the part of defendant. See Hager v. McGlynn, supra. The trial court did not err in overruling defendant's objection to the testimony indicating that he had been drinking.
Dr. Waldo Forsman, plaintiff's treating doctor, referred plaintiff to Dr. Donald O. Burst, an orthopedic surgeon, because, as he said, he had done all he could and wanted another doctor to examine him. At the time of trial Dr. Burst was suffering from a physical disability and was unable to be in court. It was stipulated that a report made by Dr. Burst was made in the regular course of business and that it would...
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...and had alcohol on his breath was admissible because speeding and failure to keep a proper lookout exhibited erratic driving. 573 S.W.2d 448, 449 (Mo.App.1978). In Boehm, supra, a hospital record citing alcoholic breath was admissible because driving a motor scooter through a stop sign at 2......
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...them competent as evidence, as an exception to the hearsay rule, when they meet with the statutory qualifications. Bohn v. James, 573 S.W.2d 448, 450[2-5] (Mo.App.1978). The testimony of witness Minor was not a tender of records. There were no records, they had by then been discarded. The t......
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