Elmahdi v. Ethridge, WD

• Decision Date: 12 January 1999
• Docket Number: No. WD,WD
• Citation: 987 S.W.2d 366
• Parties: Wafa-A ELMAHDI, Appellant, v. James A. ETHRIDGE, Respondent. 55428.
• Court: Missouri Court of Appeals

Page 366

987 S.W.2d 366

Wafa-A ELMAHDI, Appellant, v. James A. ETHRIDGE, Respondent.

No. WD 55428.

Missouri Court of Appeals Western District.

Jan. 12, 1999.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 2, 1999.

Application to Transfer Denied

April 27, 1999.

Joseph Y. Decuyper, Kansas City, for appellant.

John L. Mullen, Kansas City, for respondent.

Before Chief Judge PATRICIA BRECKENRIDGE, Presiding, Judge, JAMES M. SMART and Judge LAURA DENVIR STITH.

LAURA DENVIR STITH, J.

Plaintiff-Appellant Wafa-a Elmahdi ("plaintiff") appeals from a judgment entered on November 21, 1997, on a jury verdict in favor of Defendant-Respondent James A. Ethridge ("defendant") in an action for the wrongful death of her husband, Kamal, as a result of a traffic accident. Plaintiff claims that she is entitled to a new trial because the trial court erred: 1) in permitting the defendant to question her concerning her remarriage after the death of Kamal; 2) in not permitting her to question the defendant regarding his prior admission he may have been driving up to 3 miles over the posted speed limit; and 3) in permitting a state trooper to testify regarding an alleged point of impact of Kamal's car with a guardrail prior to being hit by the defendant. While the court's ruling on the remarriage issue was error, it was not prejudicial as it could have affected only damages, and the jury never reached that issue since it found for defendant on the issue of liability. Because a copy of defendant's deposition testimony was not admitted below or offered as part of an offer of proof, we cannot review the second allegation of error. We find no reversible error in regard to the state trooper's testimony, which largely concerned only his factual observations of the scene, and as to which no objection was made below that it invaded the province of the jury, as claimed on appeal. For these reasons, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Kamal Elnimeri left his job as a kitchen associate at the Marriott Hotel located at the Kansas City Airport on April 20, 1993, a little before 6:00 a.m. Kamal was proceeding southbound on Interstate 29 towards his home, and was driving his 1983 Chevrolet Cavalier.

At approximately 5:30 a.m. on the same morning, George Shanks left his home north of Platte City, also heading south on I-29. Shanks testified that when he left it was still dark outside and a light rain was falling, so he turned on his headlights and his windshield wipers.

The defendant, James Ethridge, left his home at approximately 5:45 a.m. and began driving to work in his 1985 Ford Crown Victoria. He, too, was traveling southbound on I-29. The defendant testified that he had set his cruise control at 65 miles per hour and that he had his windshield wipers on intermittent and his lights on low beam due to the light mist that was falling.

There are three southbound lanes on I-29 in the area of the accident. A double metal guardrail median separates these three southbound lanes from three northbound lanes. Mr. Shanks was proceeding in the middle of the three southbound lanes. In the vicinity of 291 Highway and I-29, Mr. Shanks noticed the defendant's car traveling about five to seven car lengths behind him in the innermost southbound lane (the one closest to the median). Shanks noticed the defendant's car because it was a Crown Victoria and the front grill work of it looked to him like a police car. He therefore slowed down from approximately 65 miles per hour to 55 to 60 miles per hour.

As Shanks continued south on I-29, he saw Kamal's Cavalier stopped and sitting crosswise in the innermost southbound lane just north of the 112 th Street exit. The car did not have any lights on and there were no flares in the road. There were no street lights in the area and he did not notice anyone outside the car. The front of the car looked dark and Shanks swerved to the right because he feared that part of the stalled car might be sticking into his lane. He looked back and saw the Crown Victoria was still coming about five to seven car lengths behind him in the left lane, the same lane that Kamal's car was stopped in. He continued looking back at it and thought to himself that there was no way the defendant could avoid hitting the stopped car. He saw the Crown Victoria crash into Kamal's car. He then pulled over and ran back to try to help.

Sergeant Jack McMillen of the Missouri State Highway Patrol was dispatched to the accident at 6:07 a.m. Trooper McMillen has been on the highway patrol for over 30 years and has received training as a regular accident investigator, consisting of a one-week school conducted at the Missouri Highway Patrol Academy in Jefferson City. He had also been trained as an advanced accident scene investigator, consisting of a two-week school conducted at the Missouri Highway Patrol Academy.

Upon his arrival at the scene, Trooper McMillen observed that two vehicles had been involved in the accident: the 1983 Chevrolet Cavalier driven by Kamal, and the 1985 Ford Crown Victoria driven by Mr. Ethridge. The Cavalier was facing the guardrail just north of the 112 th Street exit. The Crown Victoria was parked in the left lane about 30 feet north of the Cavalier. Trooper McMillen testified he observed a pool of water in the left lane, scuff marks coming out of the water toward the guardrail, and damage to the guardrail approximately 200 feet north of where the Crown Victoria came to rest. He inspected the Cavalier and confirmed that Kamal was dead. He testified at trial that he was trained to look at accident debris and determine where it came from. He stated that he found debris at the scene associated with both vehicles and that he found part of the deceased's Cavalier smashed into the guardrail, specifically, part of the front grill and bumper were wrapped around the guardrail post, in the area of the scuff marks, and that he found paint and chip marks from the Cavalier at that location.

Kamal was survived by his wife, Plaintiff Wafa-a Elmahdi, and his three children. Plaintiff filed her Petition for Wrongful Death on February 18, 1994, in Platte County Circuit Court, alleging the defendant was careless and negligent in operating his vehicle and that his negligence directly caused Kamal's death. On October 8, 1997, the jury returned its verdict finding the defendant 0% at fault and also finding Kamal 0% at fault. It is from this judgment that plaintiff appeals.

II. EVIDENCE CONCERNING PLAINTIFF'S REMARRIAGE DID NOT AFFECT THE LIABILITY DETERMINATION

In her first point on appeal, plaintiff claims the trial court erred in permitting the defendant to question her regarding her remarriage two years after the death of her husband, Kamal. We agree with plaintiff that, generally, evidence relating to remarriage of the plaintiff in a wrongful death case is to be excluded. Call v. Heard, 925 S.W.2d 840, 852 (Mo. banc 1996); Glick v. Allstate Insurance Company, 435 S.W.2d 17, 23 (Mo.App.1968). It is never admissible in order to mitigate damages by showing that the plaintiff has a new spouse who may be providing him or her with income or household services. Johnson v. Pacific Intermountain Express Co., 662 S.W.2d 237, 239 (Mo. banc 1983). On the other hand, as defendant notes, our Supreme Court held in Call that a defendant may mention the fact of plaintiff's remarriage, although not details about the new spouse's income or services, if necessary in order to correct a misimpression created by the plaintiff. Call, 925 S.W.2d at 852.

The parties differ as to how these principles apply here. Plaintiff says that defendant clearly wanted to use the evidence to mitigate damages. Defendant says that plaintiff's testimony left the misimpression that she had no one to provide for her now that her husband was deceased, and that correction of this misimpression was the only reason that evidence of plaintiff's remarriage was introduced below. In fact, in arguing whether defendant could mention the remarriage, defense counsel argued that evidence of remarriage should come in because:

We're talking about the future damages she's claiming. And she's just described the future damages. She said Kamal was her sole income, and the loss of that was devastating to her, and it continues to the present time. First of all, that's not even true. She has the benefit of her husband's income at the present time. And that's why we're entitled to go into that.

Moreover, when the court permitted defense counsel to ask about remarriage, he clearly did attempt to use it to mitigate damages, as follows:

Def. Counsel: What is your present marital status?

Mrs. Elmahdi: I'm married right now.

....

Def. Counsel: When were you remarried?

Mrs. Elmahdi: In 1995

Def. Counsel: to whom?

Mrs. Elmahdi: Soulamon Salan.

Def. Counsel: And you've been married to him since that time?

Mrs. Elmahdi: Right.

....

Def. Counsel: You have the benefit of your husband's income at the present time, correct?

Mrs. Elmahdi: No.

Def. Counsel: He doesn't support you at all?

Mrs. Elmahdi: No.

As is evident, defendant did attempt to use evidence of remarriage to mitigate damages, although the testimony was that, in fact, the new husband did not contribute financially to the marriage, and thus plaintiff did not misrepresent the facts in her testimony about loss of income. In any event, evidence of remarriage was not admissible to show that Mrs. Elmahdi had access to other income now.

While admission of remarriage evidence was thus erroneous, we do not find the error was prejudicial on the particular facts of this case. As the Supreme Court noted in Johnson, the reason for exclusion of evidence of remarriage is a concern that it will be used by the jury to unduly mitigate damages to which the plaintiff is entitled by law. Johnson, 662 S.W.2d at 239. Here, the jury never reached the issue of damages; it found no liability on the part of defendant. Thus, the error...