Forbis v. Associated Wholesale Grocers, Inc.

Citation88 A.L.R.3d 62,513 S.W.2d 760
Decision Date13 August 1974
Docket NumberNo. 9584,9584
PartiesDorothy John FORBIS, Plaintiff-Appellant, v. ASSOCIATED WHOLESALE GROCERS, INC., Defendant-Respondent.
CourtCourt of Appeal of Missouri (US)

Thomas G. Strong, Mathew W. Placzek, Jr., Farrington, Curtis, Strong, Knauer & Hart, Springfield, for plaintiff-appellant.

Donald E. Bonacker, Jerry L. Reynolds, Springfield, for defendant-respondent.

BILLINGS, Judge.

Plaintiff appeals from an adverse nine-man jury verdict and judgment in her suit for the wrongful death of her husband, contending reversible error was committed by the trial court's refusal to permit her cross-examination of defendant's driver as to prior criminal convictions. We have concluded that our Supreme Court decisions construing § 491.050, RSMo 1969, V.A.M.S., gave the plaintiff an absolute right to show the prior convictions for the purpose of affecting the credibility of the driver-witness and accordingly, we reverse and remand the case for a new trial.

Plaintiff's husband, William C. Forbis, had been travelling in an easterly direction on Highway 60 in Marionville, Missouri, on July 6, 1972, and had stopped in order to make a left turn. A tractor-trailer owned by the defendant and driven by Donald Adams (originally a defendant but dismissed shortly before trial commenced) was also travelling in an easterly direction some distance behind Forbis. A vehicle driven by a Mrs. Williams was west-bound on the highway at the time of the collision. Both the tractor-trailer and Mrs. Williams' car struck the Forbis automobile and as a result William Forbis was killed.

In pre-trial discovery proceedings the plaintiff directed the following interrogatory to Adams, then a co-defendant:

'Have you ever been convicted of a crime? If so, please state the date, the nature of the conviction, the punishment assessed and the court in which the charge was filed and the conviction obtained.'

To this question Adams, under oath, replied:

'Approximately at Christmas, 1971, I was convicted of speeding in Miami, Oklahoma, and I was fined. When I was about 17 years old I was convicted of passing in a non-passing zone in Vinita, Oklahoma, and was fined.'

On the day of the trial but before voir dire of the panel commenced, the defendants (Associated and Adams) filed and presented a motion to suppress any evidence of or mention by plaintiff of various matters, including Adams' 1971 Oklahoma speeding conviction. 1 The motion alleged 'that such matters are irrelevant and immaterial . . . and highly prejudicial to Defendants' and that as to the speeding conviction it was also 'too remote in time and too emotional and prejudicial to be relevant.'

After sustaining the motion as to subsequent accidents by Adams or other drivers and as to municipal court charges or dispositions the court initially ruled that the speeding conviction would be irrelevant, whether it occurred in municipal or magistrate court, because it did not involve moral turpitude. Relying on Adams' answer to the interrogatory plaintiff sought and offered to prove both of the Oklahoma convictions by way of cross-examination of Adams for the purpose of affecting his credibility as a witness. 2 The court then ruled that without certified copies of the record these convictions could not be shown.

Plaintiff voluntarily dismissed the suit as to Adams and trial commenced. Before Adams took the stand as defendant's witness the plaintiff sought a reconsideration of the court's earlier ruling. Her offer of proof, based on the interrogatory and answer thereto, and Adams' deposition, was rejected by the court which held that absent documentary proof to show that the Oklahoma convictions were 'real criminal convictions' plaintiff could not cross-examine Adams about them. Additionally, the court ruled that the conviction for passing in a no-passing zone when Adams was 17 years old was 'too remote.' 3 Abiding the court's rulings, plaintiff did not cross-examine Adams concerning the two Oklahoma convictions.

Defendant seeks to uphold the ruling of the trial court by first contending plaintiff failed to make a submissible case of negligence under the rear-end doctrine and thus any error in prohibiting cross-examination of Adams as to the convictions was harmless. Defendant further avers that plaintiff's offer of proof was insufficient because plaintiff failed to prove 'facts amounting to a conviction of a crime or show . . . Adams had the knowledge and the capacity to distinguish between conviction of a violation of a criminal statute and of an ordinance.' Lastly, defendant attempts to question the constitutionality of the Supreme Court's interpretation of § 491.050, RSMo 1969, V.A.M.S.

We first consider defendant's point that any error in the court's refusal to permit the impeachment of its driver by showing the prior convictions was harmless by reason of plaintiff's failure to make a submissible case of negligence. In so doing 'we must consider all the evidence in a light most favorable to (plaintiff) and take (her) evidence as true if not entirely unreasonable or opposed to physical law, and must give (her) the benefit of all reasonable inferences arising from the evidence and must reject all unfavorable inferences.' Vaeth v. Gegg, 486 S.W.2d 625, 628--629 (Mo.1972). 'Testimony favorable to plaintiff must be accepted as true in deciding the question of submissibility' (Helming v. Dulle, 441 S.W.2d 350, 352 (Mo.1969)) and defendant's evidence must be disregarded except where it aids plaintiff's case. Kinder v. Pursley, 488 S.W.2d 937, 939--40 (Mo.App.1972).

Plaintiff's version of the accident was that the defendant's truck-trailer struck the Forbis vehicle from the rear as deceased was stopped, waiting to turn left, propelling Forbis' car into the path of the oncoming Williams' vehicle. The testimony of witness Dodson is supportive of the application of the rear-end doctrine and plaintiff's theory that defendant's rig first struck the Forbis automobile from the rear. Further support for plaintiff's submission is found in the testimony of defendant's witness White as well as descriptive testimony of marks and gouges on the pavement and evidence concerning the damage to the rear end of the Forbis car and the front portion of defendant's truck.

'It is negligence for the operator of an automobile upon the public highways of this state, following another automobile proceeding in the same direction, to allow and permit the front of his automobile to come into violent contact and collision with the rear end of an automobile in front of him.' Witherspoon v. Guttierez, 327 S.W.2d 874, 880 (Mo.1959). Dodson was driving a truck ahead of the Williams vehicle. He saw the Forbis vehicle stopped, with its left blinker turn signal on, in the eastbound lane. After Dodson's truck passed the Forbis car he met defendant's rig beyond that point. Defendant's truck was not slowing. Dodson said: 'Well, I couldn't see how that boy (Adams) was going to get stopped behind that car. This man (Forbis) had never moved. I was looking in my mirror and handling my truck at the same time. But I just didn't think the boy could get stopped and I felt sorry for him.' Dodson, through his said mirror, watched defendant's truck strike the rear of the Forbis vehicle. Following this impact, Dodson then saw the Williams car come in view, moving through the fire and smoke.

Witness White was travelling in the same direction as defendant's truck and was behind it. He saw the truck strike the rear of the Forbis car and did not see any prior collision between any vehicles before defendant's truck struck the Forbis vehicle.

Physical evidence at the scene, described by other witnesses, as well as photographs of the front of defendant's tractor and the rear of the Forbis car (Gaynor v. Horwitz, 464 S.W.2d 537 (Mo.App.1971)), also support the submissibility of the rear-end doctrine. It was defendant's theory that during the process of making a left turn the Forbis car was first struck by the Williams automobile and knocked backwards into the path of the tractor-trailer. However, Adams did not remember seeing the Williams car coming towards him or the fact that a third vehicle was involved in the collision. He did not see or hear any impact between two cars in front of him before his rig struck the Forbis car in the rear. The highway was straight, it was a bright and clear day, and Adams' view was unobstructed for one-quarter of a mile west of the collision scene. We hold plaintiff's evidence sufficient to submit defendant's negligence under the rear-end doctrine.

This brings us to the determinative issue raised by the trial court's prohibiting plaintiff's cross-examination of Adams as to the latter's convictions. § 491.050, RSMo 1969, V.A.M.S., an enabling statute removing the common law disqualification of a person convicted of a criminal offense as a witness provides: 'Any person convicted of a criminal offense is, notwithstanding, a competent witness; but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer.'

This statute was enacted by the Missouri Legislature in 1895 (§ 8944b, RSMo 1889, Laws 1895, p. 284) and has remained unchanged since that date. In State v. Blitz, 171 Mo. 530, 71 S.W. 1027, 1030--1031 (1903), the court carefully considered the import of the statute and said: 'Now, it will be observed that this section makes a very material alteration in the rules of evidence. It first provides, by the broad language that 'any person who has been convicted of a criminal offense,' such conviction may be proved to affect his credibility. This leads us to inquire, what is...

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