Griffith v. Adair, 16430
| Decision Date | 10 October 1990 |
| Docket Number | No. 16430,16430 |
| Citation | 796 S.W.2d 443 |
| Parties | Violet GRIFFITH, Appellant, v. Richard C. ADAIR, Respondent. |
| Court | Missouri Court of Appeals |
Lindell R. Church; and D. Patrick Sweeney, Hall, Ansley, Carmichael & Gardner, Springfield, for appellant.
JoAnne Spears Jackson, Bussell, Hough, O'Neal, Crouch & Hall, Springfield, for respondent.
On November 3, 1987, a motor vehicle in which plaintiff Violet Griffith was a passenger was struck in the rear by a motor vehicle operated by defendant Richard C. Adair. Plaintiff sued defendant for bodily injuries. Trial by jury resulted in judgment for defendant. Plaintiff appeals, seeking plain error review per Rule 84.13(c) 1 of her lone assignment of error. We set forth only the evidence pertinent to the alleged error.
At trial, plaintiff testified on direct examination that she "had suffered from nervousness and tension headaches" prior to the subject accident. Asked the cause of these problems, plaintiff replied she has a retarded daughter (age 15 at time of trial) who for several years required extensive therapy. Plaintiff recounted she worked with her daughter three to four hours per day and in doing so became "really frustrated and uptight." According to plaintiff, this caused her "depression and tension headaches."
Plaintiff avowed she was still having headaches. Her testimony:
During cross-examination of plaintiff by defendant's lawyer this testimony was adduced:
"Q Have you had problems with depression?
A Yes, ma'am.
Q Okay. Just since the accident?
A It's a different kind of depression than I've felt in the past, but yes, I have had depression since the accident. It's of a different nature, but it's depression.
Q Mrs. Griffith, has there been anything else that's happened in your life in the months immediately before or after this automobile accident in November [1987] that would cause you to not have an appetite, to be depressed, not sleep?
....
A Well, before the accident, yes, I would say, as far as my appetite--
Q And what was that?
A One was the loss of my father. He was a diabetic and he died in a nursing home. He had his leg amputated and three weeks later he was--passed away. I would call that depressing, yes, ma'am.
Q Well, anything else?
A Kinette is depressing.
Q And that's your handicapped daughter?
A Yes, ma'am.
....
Q Has there been anything else?
A Before the accident of '87?
Q Yes, or in the months since.
A The months since, I have been extremely depressed, yes.
Q Okay. Talking about things that may have happened in your life that would cause you to have these problems, such as not eating, not sleeping, being depressed--
A ... I've been depressed for several years. A handicapped child is severely depressing to anyone.
Q Okay. So it wasn't just since this accident that you became depressed--
A No, ma'am--
....
Q Okay. And, in fact, you--don't you have a daughter who was kidnapped and raped and committed suicide?
A No, ma'am. I did not.
Q Have you ever told anyone that?
A I had a daughter that was--"
At this juncture plaintiff's lawyer requested, and received, a bench conference where he registered the following objection: "This line of questioning ... is purely inflammatory and is a gross attempt to inflame the jury, prejudice the jury, and ... doesn't have anything to do with this accident or the issues involved."
Defendant's lawyer assured the trial court she could substantiate plaintiff had told others plaintiff had a daughter who was kidnapped and raped and later committed suicide. The trial court overruled the objection, whereupon cross-examination continued:
"Q ... Did you have an opportunity to examine Defendant's Exhibit Q, ma'am?
A Yes, ma'am, I did.
Q Is that a letter you wrote?
A Yes, ma'am, I did.
....
Q Who did you write it to?
A Mary Merry of Aloway Cosmetics.... She's a franchise president for Aloway Cosmetics.
Q And you worked for Aloway Cosmetics?
A Yes, I did.
Q Okay. When did you start working for them?
A Shortly before the accident, basically.
....
Q Okay. And did you write this letter to her after you had started working with her company?
A Yes, ma'am, I did.
....
[Defendant's lawyer]: I'd offer Defendant's Exhibit Q.
[Plaintiff's lawyer]: We'd object, Your Honor, on the grounds that it's purely character assassination, or an attempt to. It's irrelevant and immaterial and doesn't go to any issues in this lawsuit.
THE COURT: Be overruled. Be admitted.
[Defendant's lawyer:] This letter, Mrs. Griffith, you write: Dear Mary: Sorry I haven't called but, as you know, I have been out of state. My daughter passed away. She committed suicide. Is that what you wrote to her?
A Yes, ma'am, I did...."
Defendant's lawyer then handed plaintiff a six-page document marked Defendant's Exhibit P. Plaintiff identified it as another letter she had sent Ms. Merry. At a bench conference defendant's lawyer stated she wanted to show the jury only one paragraph of Exhibit P. A "photocopy" of that paragraph was marked Defendant's Exhibit P-1. Proceedings resumed in the jury's presence and this colloquy ensued:
[Plaintiff's lawyer]: No.
THE COURT: Okay. There being no objection, P-1 is admitted.
Q [By defendant's lawyer] Mrs. Griffith, this letter, from which Exhibit P-1 has been taken, was written to Mary Merry before the other letter you identified as Exhibit Q, wasn't it?
A I believe so, ma'am.
Q And in this letter ... you state:
A Yes, ma'am.
Q And you wrote this letter?
A Yes, ma'am."
Plaintiff's point relied on reads:
"The trial court erred in allowing defense counsel to impeach plaintiff ... on the collateral issue of whether she had a daughter who had been kidnapped, raped and committed suicide and further erred in allowing defense counsel to introduce extrinsic proof of prior inconsistent statements contained in letters on this collateral matter, because a witness may not be cross-examined on a collateral fact for the purpose of impeaching her testimony by contradicting her and extrinsic evidence may not be introduced for the purpose of impeachment on collateral matters, and the admission of the highly inflammatory evidence was extremely prejudicial and constitutes plain error [by] the trial court and the verdict in favor of defendant was the direct result of prejudice against plaintiff."
The above allegations of error do not appear in plaintiff's motion for new trial; consequently, they are not preserved for appellate review. Stafford v. Lyon, 413 S.W.2d 495, 497 (Mo.1967). Furthermore, plaintiff did not object when Exhibit P-1 was offered in evidence at trial. Therefore, she would have been barred from assigning its admission as error on appeal even had she raised the issue in her motion for new trial. Wilhoit v. Fite, 341 S.W.2d 806, 817 (Mo.1960).
Consequently, plaintiff's point relied on may be considered only under the plain error rule. Plain error review is reserved for situations in which hatred, passion or prejudice has been engendered causing manifest injustice or miscarriage of justice. Sterling v. Thomas, 657 S.W.2d 57, 58-59 (Mo.App.1983); Sherpy v. Bilyeu, 608 S.W.2d 521, 523 (Mo.App.1980).
Plaintiff cites Senter v. Ferguson, 486 S.W.2d 644 (Mo.App.1972), in support of her contention that admission of the evidence specified in her point relied on constituted plain error. In Senter the plaintiff claimed she sustained a fractured left wrist, lacerations, bruises, and "black eyes" in an automobile accident. On direct examination she testified she had been in good health before the accident. On cross-examination of the plaintiff and her doctor the defendant adduced evidence about physical injuries and conditions over a 17-year period prior to trial. None of the injuries or ailments were even remotely connected with the injuries pled in the suit. The Eastern District of this Court held the evidence was irrelevant and immaterial, and that generally a witness may not be cross-examined about a distinct collateral fact...
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