Glasscock v. Miller, 14329

• Decision Date: 26 November 1986
• Docket Number: No. 14329,14329
• Citation: 720 S.W.2d 771
• Parties: George P. GLASSCOCK, Plaintiff-Appellant, v. Bradley A. MILLER, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 771

720 S.W.2d 771

George P. GLASSCOCK, Plaintiff-Appellant, v. Bradley A. MILLER, Defendant-Respondent.

No. 14329.

Missouri Court of Appeals,

Southern District,

Division Two.

Nov. 26, 1986.

Kenneth G. Gibbar, Cape Girardeau, for plaintiff-appellant.

David M. Remley, Donald L. Dickerson, Thomasson, Dickerson, Gilbert & Cook, Cape Girardeau, for defendant-respondent.

HOGAN, Presiding Judge.

This case, a wrongful death action, arose out of an automobile accident which occurred on August 3, 1983, on Interstate Highway 70 near Arriba, Colorado. Kenneth Glasscock, 20 years of age, was killed in the accident. Defendant Miller, who was driving the vehicle, was injured. This action was instituted in the Circuit Court of Scott County on March 2, 1984. Upon trial to a jury the defendant had a verdict and plaintiff, the decedent's natural father, now appeals.

The occupants of the vehicle were members of a senior "Babe Ruth" baseball team called the SEMO North baseball team. The team was composed of players from Jackson, Chaffee, Scott City, Cape Girardeau and other nearby communities. In the summer of 1983, the team had won the local regional tournaments, the state championship game and was entitled to participate in a national regional play-off at Delta, Colorado. The members of the team wanted to participate, but because they had a long trip to make in a short time, they took a vote to decide whether to drive or to fly. Some members of the team wanted to fly; others "wanted to go in vans." Vehicles were provided for the group which was interested in driving. The decedent was not a member of the team, but he was acquainted with one or more of the players. He was interested in seeing Colorado, because as defendant put it, "[none of us] had [ever] been there before, and our coach said it was pretty." It was agreeable to the coach to have Glasscock accompany the team if he obtained permission from his parents. This permission was obtained from a member of the decedent's family.

It is not quite clear from the record whether the group which decided to drive rode in two vans or a van and an automobile, but in any case the motorists met at Scott City, Missouri, about 6 p.m. on August 2. The vehicles traveled in convoy. The motorists drove across Missouri and Kansas during the night and reached the city of Scott City, Colorado, about 6:30 a.m. the next morning. They stopped at a restaurant, and the defendant, having slept well during the night, agreed to drive the rear vehicle, a 1979 Chevrolet van. When the group left Scott City, Colorado, there were five young men in the rear van. The defendant was driving; the decedent was sitting in the "passenger's" seat beside the defendant. Two other young men were sitting behind the defendant and Glasscock, and the team's coach, Jim Noon, was attempting to sleep at the rear of the van. Defendant's counsel repeatedly brought out that none of the occupants of the van used seat belts at any time.

After the defendant had been driving about 30 to 45 minutes, "averaging around 60 miles an hour," both he and Glasscock saw two coyotes along the side of the road. Defendant "hollered" about the coyotes, and Glasscock said "Hey, look at those coyotes." The defendant's account of the events which followed--which we quote only because it was the most lucid account given--was that he was driving along on a "[f]airly level stretch of road":

"I was driving along and all of a sudden I looked up and two coyotes jumped, they were off to the side, we were all looking to the side. And I hollered and, you know, Ken was saying 'Hey, look at those coyotes,' and Tim [another team member who had just awakened] jumped up and looked out the side and I looked back up just a split second after that and I seen this reflector pole coming right at me. And I turned, and I just didn't--the van didn't have no response, just wouldn't communicate with me.

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Q. ... You referred to a reflector pole or a marker of some kind--

A. Yes, sir.

Q. Was that off on the right part of the grassy shoulder there?

A. Yes, sir.

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Q. But your recollection is that you glanced off for just an instance [sic] to the coyotes, you looked back, and had the van strayed off towards the shoulder?

A. Yes, sir.

Q. And you saw the reflector?

A. Yes, sir.

Q. Now, what did you do?

A. I tried, to the best of my capability, to turn the van back onto the road.

Q. And you indicated you had trouble getting it to respond?

A. Yes, sir.

Q. Now, can you tell us what happened next?

A. I don't remember nothing after that, sir."

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Otherwise, the record indicates that when the defendant turned the van to avoid the reflector pole, the van overturned, or "rolled." Three of the passengers were thrown out of the van, and both the defendant and the decedent were pinned under the vehicle. Glasscock lived only a few minutes. There was some evidence--from Coach Noon--that the shoulder of the road was very narrow, and the edge of the shoulder was marked by reflector poles. Upon this evidence, the cause was submitted to the jury upon the defendant's failure to keep a lookout. As noted, the jury found for the defendant.

In this court, the plaintiff has made three assignments of error. His first assignment, elaborately stated, is that the trial court erred in failing to grant him a new trial because the jury's verdict was against the law and the evidence in that the defendant was guilty of negligence as a matter of law. It has been the law of this State for many years that when the trial court has refused a motion for new trial, an assignment of error that the verdict is "against the weight of the evidence" or is "against the law under the evidence" is insufficient to preserve any question for review on appeal. Clay v. Owen, 338 Mo. 1061, 1064, 93 S.W.2d 914, 915 (1936); Boswell v. Saunders, 224 S.W.2d 125, 128 (Mo.App.1949); Hooper v. Wineland, 131 S.W.2d 232, 240-41 (Mo.App.1939). If the assignment is meant to be an assignment that the verdict is against the weight of the evidence, then the allegation presents a question which is for the trial court alone. An appellate court does not weigh the evidence; it is only when there is a complete absence of probative fact to support a verdict that an appellate court will interfere. Stevens v. Wetterau Foods, Inc., 501 S.W.2d 494, 496 (Mo.App.1973).

Plaintiff also seems to be contending that the defendant was guilty of negligence as a matter of law. This is tantamount to saying that plaintiff was entitled to a directed verdict. It is a general rule of appellate practice that an appellate court will not, on review, convict a trial court of error on an issue which was not put before it to decide. Lincoln Credit Co. v. Peach, 636 S.W.2d 31, 36 (Mo. banc 1982), appeal dismissed 459 U.S. 1094, 103 S.Ct. 711, 74 L.Ed.2d 942 (1983). An adjunctive rule is that on this appeal, the plaintiff having never moved the trial court for a directed verdict, is precluded from contending that he was entitled to recover as a matter of law. Parsons Construction Co. v. Missouri Public Service Co., 425 S.W.2d 166, 171[1, 2] (Mo.1968); Stanziale v. Musick, 370 S.W.2d 261, 266 (Mo.1963). See also Crystal Tire Co. v. Home Service Oil Co., 525 S.W.2d 317, 320-321 (Mo. banc 1975), holding the same rule to be applicable to cross-claims. We may say that we have examined the record and the evidence on the sole ground submitted, and had the point been properly preserved, we would be obliged to rule it against the plaintiff.

In his second point, the plaintiff contends that the trial court erred and deprived itself of jurisdiction by refusing to apply the Colorado wrongful death statute, C.R.S. '73 § 13-21-202, as well as the Colorado "rules of the road" and the standard of care required by those rules.

The action was commenced on March 2, 1984. On May 17, 1985, by leave of court, the plaintiff filed a first amended petition, averring: 1) that defendant's negligence caused the van to roll; 2) that the defendant's negligence caused the decedent's death; 3) that both the tort and the death occurred in Colorado, and 4) that "a legal and statutory action [had] accrued to him under the laws and statutes of Missouri and Colorado by the death of his son caused by the aforesaid negligence of the Defendant." The defendant, in his responsive pleading, alleged among other things that "this action is controlled and governed solely by the laws of the State of Colorado, with all defenses, actions and limitations contained thereon."

The parties argued the choice-of-law question at a pretrial conference. The trial court firmly closed its mind to any application of Colorado law. In part, the court stated:

"I would get more complicated than ever by taking a piece of their law and a piece of our law. I believe the interest here is Missouri interest. I believe both parties are citizens of this state. They are in a Missouri car, Missouri license, assuming bought their insurance, if they have it, in Missouri. I see no law in Colorado that would be significant [enough] to warrant changing any approach I would take to the case.

One of the reasons I am giving you so much, I think I would booger you up if I take a piece of it. If I am wrong, they will pop me and you will be saved and you will have a good, clean appeal point."

Preliminarily, we reject the notion that an incorrect choice-of-law ruling deprives the trial court of jurisdiction. Some of the older cases held, or seemed to hold, that unless a plaintiff seeking recovery under a foreign wrongful death act did not at least plead the foreign statute, no cause of action was stated. Rositzky v. Rositzky, 329 Mo. 662, 671, 46 S.W.2d 591, 595 (1931); Nelson v. Hall, 684 S.W.2d 350, 357 (Mo.App.1984). This is no longer the law. In contemporary practice a court takes judicial notice of a foreign statute when the pleading avers that the law of another state is relied...