Bussell v. Leat

• Decision Date: 10 October 1989
• Citation: 781 S.W.2d 97
• Parties: Gail BUSSELL, Plaintiff-Appellant, v. Betty LEAT and Eugene Rojek, Defendants-Respondents. WD 40956.
• Court: Missouri Court of Appeals

Page 97

781 S.W.2d 97

Gail BUSSELL, Plaintiff-Appellant, v. Betty LEAT and Eugene Rojek, Defendants-Respondents.

WD 40956.

Missouri Court of Appeals Western District.

Oct. 10, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Nov. 28, 1989.

Application to Transfer Denied Jan. 10, 1990.

Stanley L. Wiles, Kansas City, for plaintiff-appellant.

Patrick K. McMonigle, Russell J. Greenhagen, Dysart, Taylor, Penner, Lay & Lewandowski, Kansas City, for defendants-respondents.

Before GAITAN, J.P., and MANFORD and ULRICH, JJ.

ULRICH, Judge.

Appellant Gail Bussell appeals from the judgment entered on jury verdict for defendant Betty Leat. The trial court directed a verdict in favor of defendant Eugene Rojek at the conclusion of the plaintiff's case, which Ms. Bussell does not directly appeal. The judgment is affirmed.

Gail Bussell liked horses and had ridden them for at least twenty-three years. She purchased a horse in 1985 and rode it weekends and sometimes during the week. She attended horse auctions and bought and sold saddles and tack.

Gail Bussell met Betty Leat at a horse auction. Betty Leat introduced Gail Bussell to George Anderson. Ms. Bussell later drove Mr. Anderson to a horse auction in Concordia, Missouri, where Mr. Anderson bought two horses. George Anderson took the horses to property leased by Betty Leat and Eugene Rojek. Ms. Leat invited Gail Bussell to see the horses that Mr. Anderson bought, and Ms. Bussell drove George Anderson to the property on April 13, 1986, to see the horses.

Before Ms. Bussell and Mr. Anderson arrived at the property where the horses were kept, Ms. Leat rode one of the horses purchased by George Anderson. As she was dismounting the horse, she fell and injured her right heel and coccyx. She did nothing to redress her injuries, apparently believing them to be minor.

When Gail Bussell and George Anderson arrived at the property, Betty Leat, Eugene Rojek, and other people were present. They all ate dinner and visited with each other for several hours. George Anderson then rode one of the two horses he had purchased, and Gail Bussell was asked if she wanted to ride the other horse purchased by Mr. Anderson. Ms. Bussell mounted the horse, and the horse reared and fell on top of her. She was injured and was transported to the Lee's Summit Hospital, where she remained for several days before she was taken to the Trinity Lutheran Hospital in Kansas City. Ms. Leat and others accompanied Ms. Bussell to the Lee's Summit Hospital, and while there, Ms. Leat's right ankle and coccyx were x-rayed.

Gail Bussell sued Betty Leat and Eugene Rojek alleging that both defendants negligently made false statements that the horse that later fell on her had a gentle nature which induced her to ride it. After Ms. Bussell presented evidence and rested her case, the court sustained defendant Rojek's motion for a directed verdict. Defendant Leat introduced evidence, and plaintiff Bussell again testified in rebuttal. Ms. Bussell changed her theory of recovery and, with court approval, submitted her case against Ms. Leat to the jury on a theory of fraudulent misrepresentation. She contended that Ms. Leat fraudulently misrepresented to her that the horse was placid, gentle natured, and not dangerous, causing her to ride it, and resulted in her injuries when it reared and fell on her. The jury found in favor of Ms. Leat.

Gail Bussell alleges several points on appeal. She contends that the trial court erred by (1) restricting cross-examination of Betty Leat, (2) refusing to vacate its order directing the verdict in favor of Eugene Rojek and not reinstating Mr. Rojek as a defendant when she changed her theory of recovery, (3) refusing to permit her to testify in person and the treating chiropractor by video deposition that she was unable to obtain additional chiropractic treatments because she could not afford them, (4) refusing to permit testimony about the condition of defendants' premises where the horse that fell on her was kept, (5) refusing to permit her attorney to ask the venire during voir dire whether it could award her $300,000, (6) refusing to permit her attorney forty minutes for closing argument, (7) allowing defendant's medical expert witness to testify about her preexisting mental condition, and by (8) refusing to permit her attorney to cross-examine defendant Betty Leat about George Anderson's availability as a witness in Betty Leat's behalf.

Respondents Eugene Rojek and Betty Leat filed a motion with this court to strike points five through eight of appellant's brief, contending that these points are not preserved for appellate review because they were not timely filed. The trial court's judgment was entered on August 12, 1988. Rule 78.04 requires that entry of judgment shall be the date of the verdict and that a motion for a new trial must be filed within fifteen days after entry of judgment on a jury verdict. Therefore, Gail Bussell had through August 27, 1988, in which to file a motion for a new trial expressing the reasons the trial court should grant her a new trial. Contentions not raised in a motion for a new trial are not preserved for appellate review. Overfield v. Sharp, 668 S.W.2d 220, 222 (Mo.App.1984). Gail Bussell filed her motion for a new trial on August 15, 1988, and her first amended motion for a new trial on August 22, 1988. Ms. Bussell raised points five and six in her timely first amended motion, and they are preserved for review. Ms. Bussell filed a second amended motion for a new trial on September 14, 1988, after the deadline for filing a motion for a new trial, which preserved nothing not previously preserved for appellate review. State v. Berry, 609 S.W.2d 948, 951 (Mo. banc 1981).

Gail Bussell's second amended motion for a new trial asserted for the first time points seven and eight of her appellate brief. Absent plain error resulting in "manifest injustice or a miscarriage of justice" as provided by Rule 78.08, an issue not preserved in a timely motion for new trial is not preserved for appellate review. Overfield, 668 S.W.2d at 222; see also Rule 84.13(c). The court reviews points seven and eight for plain error.

Point seven contests the qualifications of defendant Leat's medical expert, Dr. Victoria Cook, to testify about the plaintiff's mental state when examined by Dr. Cook and when younger. ¹ Dr. Cook testified by video deposition that she conducted a physical examination of plaintiff Bussell, administered several tests to the plaintiff, and reviewed records of the plaintiff's medical history. Included among the tests Dr. Cook conducted was the Minnesota Multiphasic Personality Inventory (MMPI), a test to evaluate a person's psychological state. The court permitted Dr. Cook's testimony about the administration of the MMPI to Ms. Bussell and her evaluation of the test, which, summarizing, included statements that Ms. Bussell may have had "borderline" psychological problems when she was younger, but that she demonstrated no evidence of any severe psychiatric or psychological problems when tested by Dr. Cook.

The trial court has broad discretion to determine the qualifications of experts and the admissibility of their expert opinions. Huelster v. St. Anthony's Medical Center, 755 S.W.2d 16 (Mo.App.1988); Pfeffer v. Kerr, 693 S.W.2d 296 (Mo.App.1985). Dr. Cook is a medical doctor licensed to practice medicine in Missouri and other states, specializing in emergency medicine and trauma surgery. Her medical school training included psychiatry rotations. Her training in emergency medicine included responding to patients with emergency psychiatric problems. She completed a "mini residency" in work fitness and disability evaluation, about one-seventh of which concerned psychological aspects of chronic disability pain and evaluation of MMPI test results. She possesses a bachelor of arts degree in clinical psychology. While in undergraduate school, she studied the administration and evaluation of the MMPI test. The court's recognition of Dr. Cook as an expert qualified to testify about the administration and evaluation of the MMPI test to the plaintiff did not prejudice the substantial rights of plaintiff Bussell, and did not result in manifest injustice or the miscarriage of justice.

Point eight alleges that the court erred by sustaining defendant Leat's objection to appellant's question inquiring on cross-examination whether Ms. Leat had an opportunity to see and subpoena George Anderson to appear at the trial and testify. Plaintiff Bussell did not make an offer of proof. The court's sustention of defendant Leat's objection did not prejudice the plaintiff's substantial rights and it did not result in manifest injustice or the miscarriage of justice.

Points seven and eight of Gail Bussell's appellate brief were not preserved by appellant in a timely motion for a new trial, and neither identifies plain error. Rule 84.13(c). The court declines to consider points seven and eight.

Point one alleges that the trial court erred by sustaining defendants' objection to plaintiff's question asking Betty Leat on cross-examination what parts of her body were injured when she fell while dismounting a horse the same day a horse fell on Ms. Bussell injuring her. ² Ms. Leat testified earlier during direct and cross-examination that her right heel and coccyx were injured by the fall and later her heel was X-rayed at the Lee's Summit Hospital. The court, sustaining defendant Leat's objection, stated that the question inquired of a collateral matter. Later, during the cross-examination of Ms. Leat, Ms. Bussell's attorney again inquired about injuries Ms. Leat sustained from her fall while dismounting a horse on the date of Ms. Bussell's accident. Ms. Leat responded to her opponent's questions without objection.

Respondent Leat testified during direct and cross-examination that her right heel and coccyx were injured and examined at the Lee's Summit...