Douglas v. Twenter

• Decision Date: 08 June 1953
• Docket Number: No. 1,No. 43074,43074,1
• Citation: 364 Mo. 71,259 S.W.2d 353
• Parties: DOUGLAS v. TWENTER et al
• Court: Missouri Supreme Court

Page 353

259 S.W.2d 353

364 Mo. 71

DOUGLAS v. TWENTER et al.

No. 43074.

Supreme Court of Missouri, Division No. 1.

June 8, 1953.

Motion for Rehearing or to Transfer to Court en Banc Denied

July 13, 1953.

Opinion Modified on Court's Own Motion July 13, 1953.

Henry W. Buck and W. H. Curtis, Kansas City, Howard F. Major, Columbia, Roy D. Williams, Boonville (Morrison, Hecker, Buck, Cozad & Rogers, Kansas City, of counsel), for appellants.

Herbert C. Hoffman, Kansas City, William H. Becker, Columbia (Clark & Becker, Columbia, of counsel), for respondent.

COIL, Commissioner.

At the outset we rule two motions which were taken with the case.

Respondent's motion to dismiss the appeal on the ground that appellants' brief violates Supreme Court Rule 1.08 in that it allegedly does not contain a fair and concise statement of the facts without argument, is overruled.

Appellants' motion to strike and expunge from our records respondent's 'Narrative Digest of the Testimony' is sustained. In this connection, we call attention to S.C. Rule 1.08(c) which provides in part: 'The respondent in his brief may adopt the statement of facts of the appellant, or, if not satisfied therewith, he shall in a concise statement correct any errors therein.' Subsection (d) of the same rule provides that respondent's brief shall not exceed 90 pages without leave of court being first obtained. Respondent's 'Narrative Digest' consists of 153 printed pages. This, in addition to a brief of 67 pages. If the separate 'Narrative Digest' volume be considered part of respondent's brief, the total pages (220) exceed the number allowed by the rule. However, the 'Narrative Digest' may not be considered part of respondent's brief because no attempt is made therein to correct any errors in appellants' statement by a concise statement by respondent. In short, there is no provision or authority for filing such a document as respondent's 'Narrative Digest of the Testimony'; and such should not be filed, unless under unusual circumstances justifying an order of court permitting it. We are certain that respondent was attempting to aid the court by furnishing this 'digest' but, for many reasons, the statutes and rules pertaining to the documents authorized on appeal should be enforced.

On March 12, 1950, plaintiff-respondent was a passenger in an automobile being driven by her husband westwardly on U. S. Highway 40. About 6:15 p. m., about eight miles west of Columbia, she was injured in a collision between the automobile and a stock truck being driven eastwardly by defendant-appellant Twenter for his employer, defendant-appellant Wessing. The jury returned a verdict for plaintiff for $60,000 and defendants appealed from the ensuing judgment.

Defendants contend that the trial court erred: in the admission of evidence, in giving instructions, and in permitting allegedly improper argument. They also contend that the judgment is excessive and so excessive as to show bias and prejudice on the part of the jury.

Plaintiff submitted her case on excessive speed and failure to drive as close to the right-hand side of the highway as practicable. The highway was straight and ran upgrade from the east to the crest of a hill, west of the collision point. The pavement for appreciable distances east and west was covered with a 'glaze' of ice.

Plaintiff's evidence showed that the truck approached the collision point on the wrong or left side of the pavement and struck the automobile when it was either fully or partially off the pavement (to the north) and when it had stopped or practically stopped. The truck stopped on the north shoulder, on its right side, facing north. The automobile came to rest near the center of the pavement facing east.

Plaintiff, her husband, and another passenger in the automobile testified that the truck was traveling at 40-45 m. p. h. as it came over the hill and at the time of the collision. A state highway patrolman testified that Twenter, shortly after the collision, said that his truck was going 40-45 m. p. h. immediately before and at the time of collision. Twenter did not categorically deny having made this statement; he said he did not remember making it. He did, however, testify that he was driving on his right side of the road at about 25 m. p. h.

Plaintiff's counsel, in his opening statement, proposed to prove that about three miles west of the collision point Twenter passed eastbound automobiles which were traveling on the slick road at 25 or 30 m. p. h. Defendants' objection that such evidence would be 'too remote from the scene of the accident to constitute any admissible evidence as to the conduct of this automobile' was overruled. Plaintiff's counsel then stated that he would also show that close to the point of, and shortly before, the collision, Twenter, while traveling 40 to 45 m. p. h., passed another string of cars. No objection was made to that statement.

Twenter, called by plaintiff, denied that he had passed any eastbound automobiles on the day in question. Thereafter, when plaintiff's counsel was about to examine Charles Turner, the trial court indicated, out of the hearing of the jury, that the testimony concerning Twenter's having passed cars three miles from the collision point would be admitted on the statement of plaintiff's counsel 'that you are going to follow it up'. Plaintiff's counsel said that other witnesses would testify that the truck passed their automobiles between that place (three miles away) and the collision point. 'I'm going to bring it up continuously to the scene of the accident, * * *.'

Charles Turner and a passenger in his automobile testified that the same truck later involved in the instant accident passed their automobile three miles from the collision point and continued on to pass another automobile or two ahead of them. Five other witnesses testified that, at a place 1/2 to 3/4 miles west of the collision point, Twenter, at a speed of 40 to 45 m. p. h., passed the two automobiles which the witnesses were either driving or in which they were riding; and some observed Twenter pass other cars ahead of them, which were also traveling eastwardly at 20 to 25 m. p. h. 'in a procession.'

Viewing the testimony of these five witnesses from the standpoint most favorable to plaintiff, and according to plaintiff all reasonable inferences therefrom, the jury could have found that Twenter continued to drive at 40 to 45 m. p. h. from the time he was last observed by these witnesses until he reached the crest of the hill just west of the collision point. True, none of the five testified that he observed the truck until it reached the crest of the hill; but the testimony of some of them was such that the jury could find that the witnesses' observation continued until the truck was near the crest and that this observation was only a few seconds before the collision.

One of the ultimate facts to be proved by plaintiff was the truck's speed at the time of the collision. We are of the opinion that the testimony of these five witnesses was legally relevant, i. e., material on the ultimate issue of speed at the time of the collision. This because: This testimony tended to corroborate the accuracy of the testimony of the witnesses who testified as to the speed at the time of the collision, and tended to make it more probable that the statement as to speed attributed to Twenter by the patrolman was an accurate statement. Thus, this testimony might well have aided reasonable jurors in determining whether the truck's speed at the time of the collision was 40-45 m. p. h. Whether the probative value of this testimony on the ultimate issue of excessive speed at the time of the collision was sufficient to justify its admission, in view of the positive testimony on this issue, was a question for the trial court in the exercise of a sound discretion. We may not say that this testimony introduced 'many new controversial points and a confusion of issues' or constituted unfair surprise or 'undue prejudice disproportionate to the usefulness of the evidence.' Jones v. Terminal R. R. Ass'n of St. Louis, Mo.Sup., 242 S.W.2d 473, 477. We hold that the trial court did not abuse its discretion in admitting this testimony. See: Olson v. Rose, 21 Wash.2d 464, 151 P.2d 454, 456[1, 2]; Dean v. Bolduc, 296 Mass. 15, 4 N.E.2d 441, 442[1, 2]; Mathews v. Dudley, 212 Cal. 58, 297 P. 544, 545; Schwarting v. Ogram, 123 Neb. 76, 242 N.W. 273, 81 A.L.R. 769, 775; 61 C.J.S., Motor Vehicles, Sec. 516r, pp. 268, 269; Wigmore on Evidence, 3rd Ed., Vol. 2, Sec. 382, n. 10, p. 324.

Defendants rely upon Sisk v. Industrial Track Const. Co., 316 Mo. 1143, 1150, 295 S.W. 751, 753, and Long v. Mild, 347 Mo. 1002, 1011, 149 S.W.2d 853, 858[13, 14]. The Sisk case involved a collision between a truck pulling a trailer and a horse-drawn wagon on the levee in St. Louis. Of the refusal of the proferred testimony of a witness as to the speed of the truck and trailer before the collision, the court said: 'He only saw the vehicles when a block away from the scene of the accident, and 'never noticed them any more.' His having seen them a block away from the scene, and not thereafter, afforded no basis for even a conjecture as to the rate of their speed after he lost sight of them. The immateriality, therefore, of this testimony is so apparent as to require no further discussion.' 295 S.W. 753.

An estimate of the speed of a truck traveling along the levee in a city, even though only a block from the scene of collision, is not comparable to the instant situation involving an estimate of the speed of a truck on U. S. Highway 40 at the crest of a hill several hundred feet west of the collision point.

In the Long case a witness testified that an automobile continuously traveled at 50-60 m. p. h. between a point several miles from the collision and up to within 3 1/2 blocks of the collision. We said: '* * * defendants' evidence sufficiently connected...