Cummings v. Tepsco Tennessee Pipe & Supply Corp., 43463

• Decision Date: 23 February 1982
• Docket Number: No. 43463,43463
• Citation: 632 S.W.2d 498
• Parties: Donald Lee CUMMINGS and Judith Cummings, Plaintiffs-Appellants, v. TEPSCO TENNESSEE PIPE AND SUPPLY CORPORATION and James Harris, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 498

632 S.W.2d 498

Donald Lee CUMMINGS and Judith Cummings, Plaintiffs-Appellants, v. TEPSCO TENNESSEE PIPE AND SUPPLY CORPORATION and James Harris, Defendants-Respondents.

No. 43463.

Missouri Court of Appeals, Eastern District, Division Three.

Feb. 23, 1982.

Motion for Rehearing and/or Transfer Denied April 16, 1982.

Terry A. Bond, MBE, Luke, Cunliff, Herr, Chavaux, Hilgendorf, McCluggage & DeYoung, St. Louis, for plaintiffs-appellants.

Eugene K. Buckley, Evans & Dixon, St. Louis, for defendants-respondents.

SNYDER, Judge.

Plaintiffs-appellants, in an action for personal injury and loss of consortium, appeal from an adverse judgment entered upon a jury verdict for defendants-respondents. Appellants contend the trial court erred in admitting a portion of the deposition of respondent Harris allegedly relating the deponent's opinion about the cause of the accident which was the subject of the lawsuit.

The judgment is affirmed.

Appellant D. L. Cummings was injured while moving a one-half section of a modular home down a steep hill on a narrow, rocky road. Respondent Harris was a truck driver for respondent Tepsco and had delivered four one-half sections of the modular homes to appellant D. L. Cummings at the top of a steep hill above the site of Cummings' real estate development. Mr. Cummings proposed to assemble the modular homes at the bottom of the hill.

Respondent Harris drove a truck which was equipped to tow separately each one-half section of modular home which was mounted on a frame with wheels. Respondent Harris could not move the one-half sections of modular home down this hill with his truck alone. Appellant D. L. Cummings and respondent Harris, therefore, agreed to attach one end of a chain to the rear of the half section of modular home to be moved, and the other end to a bulldozer owned by appellant D. L. Cummings, and then have the truck, in the front, and the bulldozer, in the rear, move the modular home slowly down the hill. The bulldozer was to prevent the modular home from going down the hill too fast by keeping tension on the chain. Witness Thuet was to follow in a pickup truck. On a trip down the hill, the bulldozer, which appellant D. L. Cummings was operating, overturned and Cummings was injured.

Appellants' evidence was that respondent Harris attached the chain to the modular home and the bulldozer; that respondent Harris had the idea to use the bulldozer; and that the accident occurred while moving the fourth and last section of the modular home down the hill.

Respondents' evidence was that appellant D. L. Cummings and witness Thuet attached the chain to the modular home and the bulldozer; that appellant D. L. Cummings suggested using the bulldozer; that the accident occurred while moving the first, rather than the last, section of modular home down the hill; and that appellant D. L. Cummings continued to help move the other three sections of modular home after the accident.

Appellants also introduced evidence that it had been agreed that witness Thuet (in the pickup truck) was to follow the procession of the truck tractor, modular home and bulldozer down the hill and sound his horn and turn on his headlights should anything go amiss. When the bulldozer started to tip over, witness Thuet did sound his horn and turn on his lights but respondent Harris did not hear the horn. Harris could not have seen the lights because his vision was obstructed by the modular home section and the bulldozer which were between his truck tractor and the Thuet pickup truck.

Appellants' sole point relied on is that the trial court erroneously overruled their objections to portions of the deposition of respondent Harris because Mr. Harris's deposition testimony constituted inadmissible opinion evidence. The point is ruled against appellant and the judgment affirmed.

The deposition was taken by appellants but introduced and read to the jury by respondents. Appellants contend six questions and respondent Harris's answers to those questions constituted inadmissible opinion evidence that appellant D. L. Cummings had improperly chained the modular home to the bulldozer so that the bulldozer bucket, which had metal teeth, was pushed into the ground, thus causing the bulldozer to overturn. Respondent Harris also said Mr. Cummings attempted to raise the bulldozer bucket but could not, that the weight of the chain, modular home and truck pushed the bulldozer bucket into the ground because the chain was attached to the bulldozer over the top of the bucket. Harris said further that the accident was caused by the chain pushing the bulldozer bucket into the ground which flipped the bulldozer.

Appellants argue such evidence was inadmissible because it was based upon respondent Harris's opinion grounded on surmise. Harris had testified he could not see behind the modular home he towed and did not see the accident other than to see the bulldozer "when it flipped over."

The testimony of a witness must be based upon knowledge. State v. Dixon, 420 S.W.2d 267, 271(3) (Mo.1967). If the testimony of a witness, read as a whole, conclusively demonstrates that...