Donnelly v. Goforth
| Decision Date | 14 November 1955 |
| Docket Number | No. 1,No. 44822,44822,1 |
| Citation | 284 S.W.2d 462 |
| Parties | John W. DONNELLY, Plaintiff-Appellant, v. Fred GOFORTH, Defendant-Respondent |
| Court | Missouri Supreme Court |
Riley & Riley, James K. Riley, St. Louis, for appellant.
Robert E. Keaney, Charles F. Hamilton, Moser, Marsalek, Carpenter, Cleary & Carter, St.Louis, for respondent.
VAN OSDOL, Commissioner.
This action for an aggregate of $65,000 damages was instituted by plaintiff, John W. Donnelly, against his son-in-law, Fred Goforth, for the wrongful death of plaintiff's wife and for personal injuries sustained by plaintiff when plaintiff's southbound automobile driven by defendant collided with a northbound automobile driven by one Gray at a point on U. S. Highway No. 61-67 approximately five miles north of Bonne Terre. At the conclusion of plaintiff's evidence the trial court sustained defendant's motion for a directed verdict. Plaintiff has appealed from the ensuing judgment for defendant.
Plaintiff had alleged, inter alia, specific negligence of defendant in failing to keep a vigilant watch and lookout ahead; in failing to sound a horn or signal of warning; in failing to swerve to the right; and in operating the automobile to the left of the center line of the highway and into the path of the northbound car.
Herein plaintiff-appellant, in addition to the basic contention that the sustention of the motion for a directed verdict was erroneous, contends the trial court erred in excluding, striking out and directing the jury to disregard plaintiff's testimony of an admission made by defendant, which admission, it is said, was a substantial evidentiary basis supporting plaintiff's claim. Plaintiff-appellant also contends the trial court erroneously restricted plaintiff's crossexamination of the witness, defendant. On the other hand, defendant-respondent contends there were no errors of the trial court in excluding evidence, or in circumscribing plaintiff's examination of the witness, defendant; and, as to plaintiff's basic contention, defendant-respondent says the trial court correctly directed a verdict for defendant. Defendant-respondent asserts the evidence was insufficient in affording substantial bases for the conclusions that defendant was negligent and that defendant's conduct was a proximate cause of the collision.
Plaintiff's evidence, in so far as it was pertinent to the issue of liability, consisted of his own testimony and that of defendant who was called to the witness stand by plaintiff. There was evidence that both plaintiff and defendant suffered concussions of the brain and other injuries in the collision. A physician, witness for plaintiff, testified that plaintiff, because of his head injury, suffered a loss of memory of events occurring during some indefinite period of time prior to the collision. It was said this condition--'retrograde amnesia'--is not uncommon when a person has had a blow on the head of sufficient force to render him unconscious. Defendant also seems to have but an imperfect recollection of events transpiring immediately prior to the collision.
There was evidence that plaintiff had asked defendant to drive plaintiff's automobile on a journey from St. Louis to Doe Run. Proceeding on this journey, defendant and his wife and one of their children were riding in the front seat of plaintiff's car, and plaintiff and his wife and another of defendant's children were riding in the rear seat. The automobile, with defendant driving, had proceeded to a point approximately five miles north of Bonne Terre where the fatal collision occurred, as stated. At this place the two-lane concrete highway with black-tarvia center line is straight and fairly level for around three-quarters of a mile. The collision seems to have occurred when the automobile driven by defendant had passed over approximately half of this three-fourths mile segment of the highway. Defendant was driving fifty to fifty-five miles per hour. He had met and passed a northbound truck. He had glanced to his left to see if he could recognize the truck driver.
Defendant, called to the witness stand by plaintiff, testified that he remembered He 'figures' the collision occurred when he had moved one hundred feet 'past the truck * * * something like that.' He could have been down the road a quarter of a mile. The shoulder on his right was sufficiently wide for a car to have been driven off the pavement. He possibly did not sound the horn; 'I wouldn't know.' He didn't apply the brakes. He didn't swerve to the right. Having been asked if he turned to the left, defendant answered, 'Couldn't say that either.' He 'never did see the other (Gray) car.' He could 'remember getting past the truck, but that's all; really all.'
Plaintiff, who, as stated, was unable to remember the circumstances of the collision, testified that defendant had later explained to him 'that we were in an accident and traveling down the highway and passed a truck, and that he waved at the driver of the truck, and that he may have gone on the wrong side of the road.' Defendant's counsel objected to 'what might have been,' and asked that it be stricken. The trial court directed the jury to disregard 'that part of the answer that he might have turned to the left side of the road, and it will be stricken.'
Attending now plaintiff-appellant's contention that he was erroneously restricted in his cross-examination of defendant--the contention is ruled adversely. We have examined the entire transcript of defendant's testimony and have found that but one objection was interposed by defendant's counsel during the entire interrogation. Defendant was asked,
'Mr. Hamilton (counsel for defendant): If the Court please, I object to what the witness has noticed lately.
'The Court: Sustained.'
As noted, the answer of the witness-defendant was interrupted by the objection interposed by defendant's counsel, which objection was sustained, and any completed answer was in effect excluded. Plaintiff was entitled to examine defendant, an adverse party, in plaintiff's behalf under the rules applicable to cross-examination of witnesses. Section 491.030 RSMo 1949 V.A.M.S. But, clearly the answer, had it been completed, would not have been responsive to the question, and, furthermore, it is doubtful that the completed answer would have been admissible. It seems the witness was about to state something he had noticed or experienced lately, after the event of the collision. And plaintiff did not make any offer of proof; nor did plaintiff request the trial court to permit the witness-defendant to complete the answer (out of the presence of the jury); nor did plaintiff in any other manner advise the trial court of what the answer would be and of its bearing on the issues of the case so that the trial court could determine the question of its competency and materiality. In this situation there is nothing preserved for this court to review. Pitha v. St. Louis Public Service Co., Mo.Sup., 273 S.W.2d 176; Byam v. Kansas City Public Service Co., 328 Mo. 813, 41 S.W.2d 945, and cases therein cited. As we have said, this was the only objection made by defendant's counsel during the progress of plaintiff's examination of the witness-defendant.
We shall examine plaintiff-appellant's contention relating to the asserted admission of defendant as a preliminary to and in connection with our examination of the question of the submissibility of plaintiff's case.
In order that a statement of a party be competent as an admission, it is unnecessary that the statement be a direct admission; it may be competent if it bears on the issue,...
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