Brautigam v. Hoffman

• Court: Missouri Court of Appeals
• Writing for the Court: BRADY
• Citation: Brautigam v. Hoffman, 444 S.W.2d 528 (Mo. App. 1969)
• Decision Date: 15 July 1969
• Docket Number: Nos. 33189,33190,s. 33189
• Parties: Gladys BRAUTIGAM and Paul Brautigam, Plaintiffs, Paul Brautigam, Plaintiff-Appellant, v. Herbert K. HOFFMAN, Administrator of the Estate of William Richter, Deceased, Defendant-Respondent. Gladys BRAUTIGAM and Paul Brautigam, Plaintiffs-Respondents, v. Herbert K. HOFFMAN, Administrator of the Estate of William Richter, Deceased, Defendant-Appellant.

Page 528

444 S.W.2d 528

Gladys BRAUTIGAM and Paul Brautigam, Plaintiffs, Paul Brautigam, Plaintiff-Appellant, v. Herbert K. HOFFMAN, Administrator of the Estate of William

Richter, Deceased, Defendant-Respondent.

Gladys BRAUTIGAM and Paul Brautigam, Plaintiffs-Respondents, v. Herbert K. HOFFMAN, Administrator of the Estate of William

Richter, Deceased, Defendant-Appellant.

Nos. 33189, 33190.

St. Louis Court of Appeals, Missouri.

July 15, 1969.

Motion for Rehearing or for Transfer to the Supreme Court

Denied Sept. 15,

1969.

Norman Zaltsman, Clayton, for plaintiff-appellant.

Heneghan & Roberts, George F. Kosta, St. Louis, for defendant-respondent.

BRADY, Judge.

This appeal comes to the writer upon reassignment. Plaintiffs brought this action against defendant's predecessor as administrator of the estate of William Richter, deceased, in two counts: (1) for personal injuries which Gladys Brautigam suffered; (2) for damages Paul Brautigam sustained as a result of an automobile collision. Verdict and judgment were in favor of plaintiff Gladys Brautigam in the sum of $10,500.00 and in favor of plaintiff Paul Brautigam for the sum of $4,500.00.

Defendant appeals from the trial court's action denying his after-trial motions for judgment in accordance with his motion for a directed verdict as to both plaintiffs. The trial court sustained defendant's aftertrial motion as to Paul Brautigam on the grounds it erred in refusing to give defendant's offered Instruction F withdrawing evidence of his wife's hospital and medical bills, and granted a new trial as to '* * * the verdict and judgment in favor of Plaintiff Paul Brautigam * * *.' That plaintiff appeals.

Defendant contends plaintiffs failed to make a submissible case upon the submitted theory the deceased knew or by the exercise of the highest degree of care could have known there was a reasonable likelihood of a collision in time thereafter to have averted the collision by stopping, and that the testimony of the plaintiffs' witness Ashner was improperly admitted over objection. Defendant also contends the trial court erred in giving the verdict directing instructions offered by each plaintiff for the reason they do not require the jury to find there was an accident, a matter defendant contends was in dispute, and that the trial court should have given defendant's offered Instruction E withdrawing evidence relating to a city ordinance. In view of the result reached herein we deem it unnecessary to rule these contentions. While we reverse and remand this case, it is unlikely such issues will be raised upon retrial. Accordingly, we have deleted any statement of the facts bearing on the first of these two points, and as to the last have included only those facts necessary to a full understanding of why we have ordered this cause remanded instead of ruling outright reversal. There is no contention as to the excessiveness of either verdict.

Mrs. Brautigam testified that at about 9:00 P.M. on the day of this occurrence she was going to pick up her son from a Boy Scout meeting. The evidence with regard to the accident comes mainly from the testimony of the witness Ashner, a police officer of the City of Florissant, who received a report of the occurrence and conducted an on-site investigation. His testimony was that this was a four-way stop sign intersection with Florissant Road having a slight incline from north to south while Washington Street was level. Both streets provided for one lane of traffic in each direction. Ashner was asked if he had talked to the deceased and upon replying that the had was asked what the deceased had told him. Defendant objected contending such testimony would constitute hearsay and violate the so-called 'Dead Man's Statute' (§ 491.010 RSMo 1959, V.A.M.S.). The objection was overruled. Court and counsel agreed the same objection would be shown in the record with reference to any question put to Ashner concerning what the deceased said to him. The answer given was: 'Mr. Richter stated to me at that time that he skidded on something at the stop sign and he tried to stop.' Ashner then went on to testify that he saw the automobiles that were involved in the accident, one of which was a Ford and the other a Plymouth, and that the deceased told him he was driving the Plymouth south on Florissant Road.

The witness was then asked whether or not he talked to the plaintiff Gladys Brautigam at the scene and upon replying that he did was asked what she said to him. The objection was made that such a question called for hearsay and for a self-serving declaration. There was no ruling on the objection and immediately after it was made plaintiffs' counsel passed on to establishing how soon Ashner arrived at the scene after receiving the report of the accident. His testimony was that the report was received by him at 9:10 and he arrived at the scene within ten minutes. Plaintiffs' counsel then stated he was going to offer any statements made by Mrs. Brautigam as part of the res gestae. The trial court then overruled the objection previously made and plaintiffs' counsel again inquired of the witness what Mrs. Brautigam had said to him. Ashner testified: 'The woman stated to me that she was coming west on Washington, stopped at the stop sign, and went across the street and her automobile was hit on the right side. Q All right. Now did she tell you which direction she was going and what automobile she was driving? A Yes, sir, she did. Q Which direction was she going? A Going west, sir, on Washington. Q And which automobile was she driving? A The Ford.'

Ashner's further testimony pertinent to the issues of this appeal was that he examined the Ford automobile and that it was damaged on its right side. The front of the Plymouth was damaged. He could not remember where the two vehicles were when he arrived at the scene or their position with reference to the intersection, and did not know whether or not they had been moved prior to his arrival. Ashner and another officer walked up Florissant Road in the direction from which the deceased had come to see if there was any gravel or mud or any similar matter that in their opinion would cause the car to skid, and they found nothing. There was no other evidence offered to further clarify the physical characteristics of the intersection such as the angle at which the streets intersected, the area of visibility for motorists approaching the intersection on either street, nor any similar matter.

Ordinance No. 971 of the City of Florissant, in effect on the date of this occurrence, was admitted into evidence as plaintiffs' Exhibit 4. Leave was granted plaintiffs' counsel to read its pertinent provisions to the jury. The ordinance provides that operators of vehicles traveling north or south on New Florissant Road are obligated to bring their vehicles to a complete stop at this intersection. Plaintiffs' amended petition alleged the deceased had unlawfully failed to obey the traffic controls at the intersection and by doing so had failed to comply with the ordinance. When the instructions were offered defendant asked the court to give Instruction E which withdrew the evidence of the ordinance from the jury's consideration. The trial court refused the request. During the course of its deliberations the jury requested it be supplied for review the authenticated copy of the ordinance as introduced into evidence and from which plaintiffs' counsel was allowed to read. Upon notification of such a request defendant's counsel renewed his request the trial court give withdrawal Instruction E. The trial court again refused to do so but also refused to send the copy of the ordinance to the jury.

As indicated earlier the trial court sustained the motion for new trial with respect to the plaintiff Paul Brautigam for the stated reason it had erred in refusing to give defendant's offered Instruction F withdrawing from the jury's consideration evidence of Gladys Brautigam's hospital and medical bills. Defendant contends there was no circumstantial evidence the hospital and medical bills represented reasonable charges and that even if they did the new trial should have been limited to the issue of damages alone. The evidence as to this issue shows that the plaintiff Paul Brautigam testified that the medical expenses paid by him for his wife totaled $3,756.45. The transcript discloses there was no objection as to his testimony on this issue except one interposed as to Mr. Brautigam's refreshing his recollection from a list he had compiled. When permitted, he broke the total amount down giving the amount and to whom each portion was paid. Again there was no objection as to the payment to or amount of any portion of the breakdown. It appears that of the total sum, Drs. Hoffmann and Earp received $682.00. The deposition of Dr. Hoffmann was read into evidence wherein plaintiffs' counsel asked Dr. Hoffmann if he knew what the charges had been to date and he stated what they were. Plaintiffs' counsel then asked Dr. Hoffmann: '* * * would you consider this to be a reasonable charge for the services and treatments given Mrs. Brautigam?' The answer was the charges were very reasonable.

Defendant contends plaintiffs failed to make a submissible case upon the submitted theory deceased knew or by the exercise of the highest degree of care could have known there was a reasonable likelihood of a collision in time thereafter to have stopped. Whether we sustain this contention or not must depend upon the facts of this case. These we cannot determine without first ruling upon defendant's allegations of error with regard to the trial court's admission of Ashner's testimony as to what the parties told him. The objection made and the points briefed as to Ashner's testimony concerning what the deceased told him were that such testimony violated the so-called 'Dead Man's Statute', § 491.010, supra, and constituted hearsay.

The first of these...