Frechin v. Thornton

• Decision Date: 13 July 1959
• Docket Number: No. 1,No. 47048,47048,1
• Parties: Cleora FRECHIN, Plaintiff-Appellant, v. John THORNTON, Defendant-Respondent
• Court: Missouri Supreme Court

Page 122

326 S.W.2d 122

Cleora FRECHIN, Plaintiff-Appellant, v. John THORNTON, Defendant-Respondent.

No. 47048.

Supreme Court of Missouri, Division No. 1.

July 13, 1959.

Dale Beal, Laurence R. Smith, Swofford, Schroeder & Shankland, Kansas City, for appellant.

E. E. (Tom) Thompson, F. Russell Millin, Thomas A. Sweeny, Kansas City (Popham Thompson, Popham, Mandell & Trusty, Kansas City, of counsel), for respondent.

HOLMAN, Commissioner.

In this action plaintiff sought to recover $30,000 for personal injuries sustained when the Studebaker automobiel in which she was a passenger ran off the highway and overturned. The casualty occurred on U. S. Highway 71 by-pass about three miles north of Harrisonville, Missouri, at a point where a county gravel road runs east from said highway. As the southbound Studebaker approached the said intersection it was following a milk truck owned by the defendant. Plaintiff contended that the Studebaker was forced off the east side of the highway when the truck stopped suddenly in the highway and then made a left turn toward the county road. A trial resulted in a verdict for defendant. Plaintiff has duly appealed from the ensuing judgment.

On Sunday morning, May, 15, 1955, plaintiff and her husband left their home in Kansas City, Missouri, and drove south intending to go to Osceola, Missouri, on a pleasure trip. Their testimony concerning the instant occurrence is correctly summarized in plaintiff's brief as follows: 'The Studebaker automobile was traveling south on Highway 71 by-pass at approximately 50 miles per hour and 150 to 200 feet behind defendant's truck, and had been following the truck for a mile of more. The truck came to a sudden stop and no hand or mechanical signal or light of any kind was seen by either Mr. or Mrs. Frechin. Mr. Frechin applied his brakes. He didn't think he could stop in time and so let up on his brakes and pulled to the left. At the same time the Studebaker pulled to the left, defendant's truck pulled to the left and on over to the east shoulder and the Studebaker was forced to go into the ditch, there being less than a foot separating the vehicles when the Studebaker went into the ditch. The truck then turned to the right and stopped on the west side of the highway headed south and just south of the gravel road.'

The testimony of the Frechins was corroborated by the testimony of Mr. Orie Melching, a Kansas City attorney. Mr. Melching stated that the car he was driving was following the Studebaker; that the defendant's truck was about 75 or 80 feet ahead of the Frechin car; that the truck stopped in the southbound lane and then turned across the northbound lane and onto the east shoulder; that the Studebaker angled across the highway just to the north of the truck and overturned in the east ditch and that the truck then pulled back across the highway and parked on the west shoulder.

John Van. Alst, Jr., a photographer, was a passenger in the Melching car. He took two photographs at the scene within a few minutes after the casualty which were admitted in evidence. Plaintiff sustained serious injuries but the issues upon this appeal do not require a consideration thereof.

Defendant's version of the occurrence is accurately stated in plaintiff's brief as follows: 'The truck was traveling 40-45 miles per hour as it came over the crest of the hill north of the point of the accident. Henry Hensley, driver of the truck, started .slowing down for the turn onto the gravel road when he was back 500 feet. A hand signal was given and a signal given by the mechanical turn indicator and these signals were started when the truck was 400 feet back from the side road. Hensley stated that he saw no one through his rear-vision mirror when he commenced to give the signals. He stated that when he was 75 feet from the side road traveling 15-20 miles per hour he heard the squeal of brakes behind him and when he looked in his rear-view mirror the Studebaker was 100 feet behind him. Hensley testified that there was nothing wrong with the electrical turn signal that he knew of. (However, in a signed statement given to plaintiff's counsel about a week after the accident Hensley stated, 'I had electric signals, but it wasn't working right, so I had my hand out.') Hensley testified that after hearing the squeal and seeing the Studebaker he put the truck, which was then going 15-20 miles per hour, into third gear to give it more power and pulled to the right and stopped fifty feet south of the side road on the west side of the highway. He testified that he never drove the truck across on the east half of the highway.'

Howard A. Todd testified for defendant. He stated that he was driving south on the highway in question and that the Studebaker passed his car a short distance to the north of the county road; that his car was immediatley behind the Studebaker and was the first car to arrive at the scene after the car overturned. Mr. Todd testified that he was an eyewitness to the occurrence and in most respects his version of the incident corroborated the testimony of Mr. Hensley.

A highway patrolman arrived at the scene a short time after the casualty. He testified that skid marks made by the Studebaker began on the west side of the highway and extended for a distance of 136 feet at a southeasterly angle to the point where the car came to rest in the ditch. He stated further that Mr. Frechin made the following statement to him: 'I was just driving along there about one hundred feet behind this truck and I looked up and he was stopping fast, and I guess it went out of control when I stepped on my brakes.' Other facts will be stated in connection with our discussion of the points briefed.

The first point we shall consider is the contention of plaintiff that the court erred in excluding evidence that defendant had caused a new stoplight switch to be installed in his truck the day following the instant occurrence. Upon cross-examination defendant testified that he had checked the lights on the truck on the night before the casualty and that the taillight was working. He further stated that he had all of the mechanical work on his trucks done at the Acuff Garage at Harrisonville. The following interrogation then occurred:

'Q. Did you take either one of your trucks in to that particular garage to have the taillight fixed after this accident? A. How long afterwards would you have in mind?

'Q. Right away, the next day, a week later? A. I don't think so.

'Q. Well, wouldn't you remember whether or not you took the truck in to have the taillight fixed immediately after this occurrence, if you did have it fixed? A. You mean would I remember?

'Q. Yes, sir. A. I don't know. I have trucks in the garage every week, for minor repairs.

'Q. Well, now, this happened on Sunday, May 15, 1955, did you take either one of your trucks on the following Monday morning to any garage and have the taillight fixed? A. Not that I know of.

'Q. Well, do you think you did? A. No.'

Thereafter, in rebuttal, the plaintiff called as a witness the bookkeeper from the Acuff Motor Company who produced an invoice in the name of John Thornton which indicated that a new stoplight switch had been installed on a 'blue 1954 Chev. truck' on '5-16-55.' The admissibility of the invoice was considered out of the hearing of the jury in a colloquy between court and counsel. Defendant objected upon the ground that it was not proper rebuttal. The objection was sustained. Thereafter the following occurred: 'Mr. Price: Your Honor, you are putting us out on this. This would not preclude us from recalling Mr. Thornton for further cross-examination, now, would it? * * * The Court: I think you have a right to call Mr. Thornton. I think you have a right to confront him with this and ask him if he recognizes it, and if says he knows what it is, does it bring to his mind any recollection, and if he says 'no,' then you are through. If he says 'yes,' why of course you can go ahead.' Defendant, however, was not recalled by plaintiff for further cross-examination. Plaintiff thereafter made the following formal offer of proof: 'Mr. Beal: I want to make an offer of proof that we again are asking the court to let us produce the invoice from the Herb Acuff Motor Company, and the lady who keeps the records, for the purpose of showing that there was trouble with the stoplight switch and that it was repaired on the day after the accident, the date being 5/16/55, and that we are offering it for the purpose to answer the cross-examination of the defendant, Mr. Thornton, who stated--who was asked the question several times, whether or not he had had either truck in the garage after the accident--immediately after the accident, and we feel that we should be entitled to make this offer of proof and that it is not part of the examination in chief. * * * Mr. Thompson: We make the same objection previously made and upon which the court previously ruled, plus the other objection that it would tend to show subsequent repairs which would be inadmissible on the theory of negligence. The Court: The same ruling.'

Plaintiff concedes that the evidence would not have been admissible in chief on the issue as to whether the stoplight was operating at the time of the instant casualty. She recognizes the...