Daniels v. Dillinger

• Decision Date: 26 August 1969
• Docket Number: No. 8791,8791
• Citation: 445 S.W.2d 410
• Parties: Barbara DANIELS, Plaintiff-Respondent, v. Carolyn Sue Thomas DILLINGER, Defendant-Appellant, and Lee Payton and Donald Houston, Defendants.
• Court: Missouri Court of Appeals

Page 410

445 S.W.2d 410

Barbara DANIELS, Plaintiff-Respondent, v. Carolyn Sue Thomas DILLINGER, Defendant-Appellant and Lee Payton and Donald Houston, Defendants.

No. 8791.

Springfield Court of Appeals, Missouri.

Aug. 26, 1969.

Edwin C. Haseltine, Donald E. Bonacker, Springfield, for defendant-appellant.

Thomas G. Strong, Farrington, Curtis & Strong, Springfield, for plaintiff-respondent.

TITUS, Judge.

Shortly after midnight on October 17, 1965, in Springfield, Missouri, Barbara Daniels, the plaintiff, was a passenger in a Dodge driven by Donald Houston when it was struck successively at the intersection of Glenstone and Seminole Streets by an Oldsmobile operated by Lee Payton and a Chevrolet driven by Carolyn Sue Dillinger. Plaintiff sued the three drivers in the Circuit Court of Greene County, but settled her claim for damages against Payton for $10,000 prior to trial. In accordance with the jury's verdict, the circuit court entered judgment for plaintiff against Houston in 'the sum of $25,000.00 less $10,000.00 paid by Mr. Lee Payton, or the sum of $15,000.00,' and in favor of defendant Dillinger 'on Plaintiff's petition.' Thereafter plaintiff was granted a new trial against Dillinger on the issue of liability only, on the sole ground that plaintiff had been prejudiced by testimony regarding her consumption of intoxicants. Neither plaintiff nor Houston appealed. Dillinger, as the lone appellant, asserts a new trial is not warranted because her motion for a directed verdict should have been sustained and the examination of plaintiff apropos her imbibing was not error for reasons to be detailed presently. Plaintiff, by not appealing, has permitted the maximum amount of her possible recovery against Houston, or Houston and Dillinger, to become fixed at $15,000. Therefore the amount in dispute upon this appeal does not exceed $15,000, and we have jurisdiction. V.A.M.S. Const. art. 5, §§ 3 and 13; V.A.M.S. § 477.040; cf. Joffe v. Beatrice Foods Company, Mo., 335 S.W.2d 34, 35(1, 2).

Dillinger's position as to the first point is not that the evidence was insufficient to submit to the jury the issue of her negligence, but rather that there was not enough substantial evidence to show that her negligence was a proximate cause of plaintiff's injuries. This is predicated upon Dillinger's asseverations that plaintiff was not in the Dodge when it was struck by the Chevrolet and that the Chevrolet did not otherwise contact plaintiff to cause her any harm. When a defendant who has had a verdict appeals from an order granting plaintiff a new trial (V.A.M.S. § 512.020) on the ground there was not sufficient evidence to sustain a verdict for the plaintiff or to justify the submission of plaintiff's case to the jury, we are subject to the requirement that we view the evidence and the permissible inferences in the light most favorable to the plaintiff. Walsh v. Phillips, Mo., 399 S.W.2d 123, 125(2); Walker v. Niemeyer, Mo., 386 S.W.2d 87, 89(1).

Ten people occupied the three involved vehicles but, with the exception of plaintiff who had no recollection of the accident or of the events immediately before and after, none of them testified at the trial. Admissions against interest, as contained in the depositions of Houston and Dillinger, were read to the jury by plaintiff. Defendants offered no evidence after plaintiff had rested.

Glenstone is a north-south thoroughfare which Seminole intersects at right angles. The posted speed limit in the area of the intersection was 40 miles per hour. Eyewitness Yoakam recounted that the Dodge, traveling west on Seminole, entered the intersection from the east shortly ahead of the Oldsmobile operated by Payton. The Oldsmobile, going north on Glenstone in the two east or northbound lanes, was traveling 85 miles per hour. Yoakam testified the Chevrolet, driven by Dillinger northward in the inside northbound traffic lane on Glenstone at a speed of 65 miles per hour, was a block south of the intersection when the Oldsmobile struck the Dodge on Glenstone 'about midway between the (east) curb and the center line.' The Oldsmobile spun 'towards the west and the Dodge traveled * * * right straight north on Glenstone.' When the Chevrolet was 15 to 40 feet south of the intersection Yoakam saw its 'brake lights come on (and saw that the Chevrolet) gave a good swerve to the right (east).' The witness estimated that eight to twelve seconds elapsed after the Dodge-Oldsmobile impact and before the Chevrolet his the Dodge 75 to 85 feet north of Seminole. Yoakam 'thought (the Chevrolet struck) the rear left-hand side of the Dodge' and recalled seeing 'objects flying, but if they were a body or a gas tank or what,' he didn't know. Subsequently Yoakam saw 'a lady was laying (with) her head * * * approximately six or eight inches up against the (east) curb * * * and her feet were headed northwest.' Considered with other evidence the lady whom Yoakam saw but did not identify was lying in an area of 60 to 70 feet, more or less, north of the north curbline of Seminole.

After the collisions, the Oldsmobile stopped at the west edge of Glenstone and the Dodge and Chevrolet came to rest at the extreme east side of the street. All three cars were about 100 feet north of the intersection. Pictorial exhibits revealed that the right front of the Oldsmobile and the left front of the Chevrolet were heavily damaged; the Dodge had extensive damage to its left front, damage to the left rear fender and tail light, and its right front door, according to a police officer, was 'crushed in and forward (leaving) an opening there large enough for a person to come out.' The officer identified a wavy gouge mark found on Glenstone as having been made by the right front wheel of the Dodge as it coursed northward during and following the impacts. The mard commenced five or six feet south of the north Seminole curbline and approximately 21 feet west of the east curb on Glenstone, and was continuously tracked to the Dodge's final resting place. A traffic accident report, admitted into evidence without objection as an unmarked exhibit under 'The Uniform Business Records as Evidence Law' (V.A.M.S. § 490.660 et seq.), noted, inter alia, the second impact, i.e., the collision of the Dodge and Chevrolet, occurred 'approx. 18 north of the north curbline of Seminole and 12 feet west of the east curbline of Glenstone.'

Both plaintiff and Dillinger acknowledge the rule that when two or more independently acting persons are consecutively negligent in a closely related point of time and cause an injury which the fact trier determines cannot be reasonably apportioned among them, the tort feasors are jointly and severally liable for all damages directly and proximately resulting from such negligence. Glick v. Ballentine Produce Incorporated, Mo., 396 S.W.2d 609, 612--613(5, 6), appeal dismissed 385 U.S. 5, 87 S.Ct. 44, 17 L.Ed.2d 5. Dillinger argues, however, this rule is inapplicable because 'the only evidence in the case shows' that the first impact dispatched plaintiff from the Dodge so she was not in that vehicle when it was hit by the Chevrolet, and that the Chevrolet did not strike plaintiff when she was lying on the pavement. This is based upon Dillinger's assumption the Chevrolet only hit the right front door of the Dodge at a point 75 to 85 feet north of Seminole, and her conclusions that if plaintiff had been in the Dodge at the time of the second impact she would have been found north, not south, of this collision site or would have been found pinned inside the Dodge by the right front door which was 'crushed inward.' Dillinger's reasoning, in part, presumes that it was plaintiff who was 'the lady' discovered lying near Glenstone's east curb, although in our perusal of the record we fail to find one witness who identified 'the lady' as being the plaintiff. In her brief Dillinger refers to 'the lady' as being the plaintiff, but proof of a fact cannot be bottomed on statements contained in an appellant's brief (Slivka v. Hackley, Mo., 418 S.W.2d 89, 90(2)), and the transcript pages to which we are referred by the brief to confirm identification lead us to the testimony of witness Yoakam who never did identify 'the lady' and to the unsworn remarks of appellant's counsel made during his opening statement which do not qualify as evidence for the fact asserted. Hardwick v. Kansas City Gas Co., 352 Mo. 986, 991--992, 180 S.W.2d 670, 673(3); STATE EX REL. HORN V. RANDALL, MO.APP., 275 S.W.2D 758, 763(7). ¹ We are directed to no evidence in the record, and have found none, which positively indicates where plaintiff was found after the accident. For all we know she could have been pinned inside the Dodge, but such conjecture is not necesarily harmonious with Yoakam's testimony that he thought the Chevrolet first hit the Dodge on the left fear side, or with the police officer's statement the right front door of the Dodge had been 'crushed in and forward (leaving) an opening there large enough for a person to come out.' But should it be assumed plaintiff was, in fact, 'the lady' lying on Glenstone in the area in question, we do not believe 'the only evidence' is that the Dodge-Chevrolet impact was north of plaintiff's position. Dillinger relies solely upon the testimony of Yoakam that the collision occurred 75 to 85 feet north of Seminole (an estimation he made when a blick or a block and a half south of the intersection), and ignores the accident report which placed the point of impact only 18 feet north of the intersection and a considerable distance south of where 'the lady' was found in the roadway. ² Of course Dillinger's additional contention that the Chevrolet did not come into contact with plaintiff while she was lying in the street presupposes that plaintiff was thrown out of the Dodge by the first impact, and is dependent upon her argument 'that the Dodge's course (northward) was some distance from the curb, (and) that the...