Epperson v. Nolan, 33530
| Decision Date | 24 February 1970 |
| Docket Number | No. 33530,33530 |
| Citation | 452 S.W.2d 263 |
| Parties | Robert Leo EPPERSON and Goldie Epperson, Plaintiffs-Respondents, v. Rex NOLAN, William Edward Baker and Gerald Nolan, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Carstarphen, Harvey & Wasinger, Marion F. Wasinger, Hannibal, for plaintiffs-respondents.
Edwards Seigfreid & Runge, Mexico, for defendants-appellants.
CLEMENS, Commissioner.
Plaintiff Robert Epperson, a one-armed farmer, got a $10,000 judgment for permanent injury to that arm, and he and his wife Goldie got a $1,200 judgment for damages to their pickup truck.
The defendants appealed, not from the judgment but from denial of their after-trial motion. Although improper, we view this as a good-faith attempt to appeal from the judgment and deny plaintiffs' motion to dismiss the appeal. Krekeler v. St. Louis County Board of Zoning Adjustment, Mo., 422 S.W.2d 265(1--3).
The appeal raises issues on misuse of a highway patrolman's accident report showing the point of impact, the aggressive trial conduct of plaintiffs' counsel, personal contact between the plaintiffs and jurors during trial, and the scope of plaintiffs' damage instruction.
These points concern trial errors, making it unnecessary to relate all the evidence. The collision occurred at the crest of a hill on a narrow snow-packed, north-south gravel road in Ralls County east of New London. Plaintiff Leo Epperson was driving a pickup truck south, uphill toward the crest. Defendant William Baker was driving defendants' oil truck north, also uphill toward the crest. Plaintiff claimed he was driving entirely on his right-hand side as he approached the crest; defendant said his oil truck was a foot or two on his left-hand side of the road as he neared the crest. Because of the crest neither driver saw the other vehicle until they were a few car lengths apart. Neither driver braked, but each swerved to his right, too late. The vehicles sideswiped at the crest, near the center of the road. The left rear of defendants' oil truck struck the left front side of plaintiffs' pickup, severely damaging it near the plaintiff driver. Debris from the vehicles fell on both sides of the road; each driver contended most of it was on his own right-hand side. After the impact each truck went off the road on its own right-hand side. The main issue tried was which vehicle was on its own right-hand side at the time of collision.
Defendants stress the effect of a sketch drawn on a highway patrolman's accident report, contending the court erred by asking a question about the sketch and by denying a mistrial when plaintiffs' counsel improperly tried to get it in evidence. The sketch showed the trucks' post-collision position. Also, in dotted lines it showed the trucks' supposed positions at the time of impact, side by side near the center of the road. Drawn over the diagram of the two vehicles and midway in the road was an encircled 'X'. The sketch did not support either driver's contention that the impact was on his own side of the road.
When it seemed apparent to defense counsel that his adversary intended to hand a blown-up photo of the sketch to the patrolman-witness, counsel went to the bench. Defense counsel objected to plaintiffs introducing the still unidentified sketch into evidence and asked the court to instruct plaintiffs' counsel not to offer it. The court told counsel it would be error to admit the sketch as an exhibit. Plaintiffs' counsel then had the witness identify the sketch and offered it in evidence. Again at the bench defense counsel complained he was being forced to object to the exhibit, thus giving the jury the impression he was trying to hide it. He stated that the offer 'is so objectionable that the court should declare a mistrial under the circumstances.' The court did not respond. Instead, still at the bench, there was a three-way colloquy about whether the purpose of the sketch was to describe the supposed point of impact or only the location of debris seen by the patrolman. To resolve this the court asked the witness within the jury's hearing what the encircled 'X' indicated. The patrolman answered 'the approximate point of impact.' Thereupon the court sustained defendants' objection to the exhibit and denied the previous motion for a mistrial.
From this segment of the trial come two claims of error: That the trial court erred in denying the motion for mistrial, and in asking the patrolman the meaning of the encircled 'X' on the sketch. First, the issue of mistrial.
At defendants' request the court had informed counsel that a sketch showing a point of impact based on hearsay was inadmissible. As said, plaintiffs' counsel then had the sketch identified and offered it in evidence. We cannot know his motive. He may have been trying to force defense counsel to object, which might create an unfavorable inference by the jury. Or, since the sketch was not yet identified he may have wanted only to make a record on its admissibility. Granting a mistrial is proper where counsel's conduct has so charged the trial atmosphere with prejudice that the jury can no longer deliberate dispassionately. Green v. Ralston Purina Company, Mo., 376 S.W.2d 119(8). Whether such a poisonous atmosphere has been created can best be determined by the trial court, and its ruling will be upheld absent abuse of discretion. St. Louis Housing Authority v. Barnes, Mo., 375 S.W.2d 144(9). For comparable cases denying a mistrial see Higgins v. Terminal R.R. Ass'n, of St. Louis, 362 Mo. 264, 241 S.W.2d 380(13), and Millard v. St. Louis Public Service Company, Mo.App., 330 S.W.2d 147(6--9). We cannot see how plaintiffs' mere identification and offer of the sketch was prejudicial. Hence, this point is denied.
Defendants also challenge the trial court's question to the patrolman about the meaning of the encircled 'X' on the proffered exhibit. The question of its admissibility was before the court. Counsel had made conflicting statements about whether the purpose of the exhibit was to show location of debris or the point of impact. To resolve this the court asked the witness what the mark meant. When told it represented the point of impact the court promptly sustained defendants' objection, thus excluding the exhibit from the jury. Defendants did not object to the court's action until their motion for new trial. We find neither error nor proper preservation of error and the point is denied. Vernon v. Rife, Mo.App., 294 S.W. 747(11, 12); Civil Rule 79.01 V.A.M.R.
Defendants next seek to invoke the plain error rule, Civil Rule 79.04 V.A.M.R., based on their claim of plaintiffs' continued use of the inadmissible exhibit. After the court had sustained defendants' objection to the sketch further examination of the patrolman showed he had to use a copy of his report to refresh his recollection. Later, defense counsel cross-examined him on differences between his testimony and the contents of his report. Twice during this cross-examination plaintiffs' counsel made objections that included suggestions that the sketch, a part of the patrolman's report, be received in evidence. These suggestions may have indirectly implied defense counsel was trying to keep the sketch out of evidence. At defense counsel's request the court promptly instructed the jury to disregard remarks made by plaintiffs' counsel about the sketch.
Defense counsel continued to cross-examine the patrolman about his report. Then: counsel reoffered the sketch. When defendants' counsel again objected the court ruled: 'Well, in view of what the officer stated the circle with an 'X' in it, meant, or crossarms, I think the objection to this exhibit should be sustained because of the prior statement made by this officer as indicating that to be the point of impact.' Despite this favorable ruling, and admittedly for tactical reasons, defense counsel responded: 'Your Honor, I am going to withdraw my objection and let that exhibit go in.'
Defense counsel now contends he was forced to withdraw his objections to the sketch. In his brief he says he did this 'because of the improper questions and comments of counsel and improper questioning by the court, the jury knew exactly what it was that appellants' counsel sought to exclude from evidence, and further objection could only be interpreted by the jury...
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