Hemeyer v. Wilson

• Decision Date: 06 November 2001
• Docket Number: WD58731
• Citation: 59 S.W.3d 574
• Parties: Judith Hemeyer and Michelle Hemeyer, Appellant-Respondents, Scott Hemeyer, Plaintiff, v. Mick D. Wilson, as Defendant Ad Litem for Gary Benson, Jr., Defendant, Thomas D. Cain and Sears, Roebuck and Company, Respondent-Appellants. WD58731 and WD58784 Missouri Court of Appeals Western District
• Court: Missouri Court of Appeals

Judith Hemeyer and Michelle Hemeyer, Appellant-Respondents, Scott Hemeyer, Plaintiff v Mick D. Wilson, as DefendantAd Litem for Gary Benson, Jr., Defendant, Thomas D. Cain and Sears, Roebuck and Company, Respondent-Appellants

WD58731 and WD58784

Missouri Court of Appeals Western District

11/06/2001

Appeal From: Circuit Court of Boone County, Hon. Ellen S. Roper

Counsel for Appellant: Lee Bushie

Counsel for Respondent: Mike Ward

Opinion Summary:

A jury awarded Judith Hemeyer and Michelle Hemeyer $95,500 in damages for the death of Glen Hemeyer, who was Judith's husband and Michelle's father.Mr. Hemeyer and his passenger, Gary Benson, Jr., were killed when his pickup truck was struck by a van driven by Thomas D. Cain in the scope and course of his employment with Sears, Roebuck and Company.The Hemeyers appeal the court's judgment entered in accordance with the jury's verdict, which had awarded $955,000 in total damages and assessed Mr. Hemeyer 90 percent at fault for the accident, and Cain and Sears 10 percent at fault for the accident.Mr. Cain and Sears cross-appealed.

Division IV holds: (1)The court did not err in admitting a highway patrol officer's opinion as to whether Cain was being honest and reliable when the officer discussed the accident with Cain.From the conduct of the Hemeyers' counsel, the court reasonably could have believed that the Hemeyers acquiesced in the propriety of the question eliciting this information.Acquiescence in an alleged trial error constitutes a waiver of that error on appeal.

(2)The court did not err in excluding Betty Benson's deposition testimony regarding whether her son, Gary Benson, Jr., was driving at the time of the accident.Because Benson prefaced her testimony with the statement, "I really don't know," her opinion that her son would have been driving if Mr. Hemeyer had been drinking was inherently speculative and conjectural.Because this defect in Benson's testimony could not have been cured by prompt presentation, Cain and Sears did not waive a speculation objection by failing to raise it during the deposition.Therefore, the court did not abuse its discretion in sustaining Cain and Sears' speculation objection at trial.

(3)The court did not err denying Cain and Sears' motion for a judgment notwithstanding the verdict.Viewing the evidence in the light most favorable to the jury's verdict, and disregarding Cain and Sears' contrary evidence, the Hemeyers made a submissible case that Cain had the means and ability to have avoided the accident, and thus failed to keep a careful lookout.

Spinden, P.J., and Newton, JJ., concur.

Patricia Breckenridge, Judge

A jury awarded Judith Hemeyer and Michelle Hemeyer $95,500 in damages for the death of Glen Hemeyer, who was Judith's husband and Michelle's father.Mr. Hemeyer and his passenger, Gary Benson, Jr., were killed when Mr. Hemeyer's pickup truck was struck by a van driven by Thomas D. Cain in the scope and course of his employment with Sears, Roebuck and Company.The Hemeyers appeal the trial court's judgment entered in accordance with the jury's verdict, which had awarded $955,000 in total damages and assessed Mr. Hemeyer 90 percent at fault for the accident, and Mr. Cain and Sears 10 percent at fault for the accident.On appeal, the Hemeyers claim that the trial court erred in allowing a highway patrol officer to offer his opinion as to whether Mr. Cain was being honest and reliable when the officer discussed the accident with Mr. Cain, and in excluding the testimony of Mr. Benson's mother that her son, and not Mr. Hemeyer, would have been driving if Mr. Hemeyer had been drinking.Mr. Cain and Sears cross-appeal, claiming that the trial court erred in denying their motion for judgment notwithstanding the verdict because the Hemeyers did not make a submissible case that Mr. Cain failed to keep a careful lookout.This court finds that (1) the Hemeyers waived their objection to the highway patrol officer's testimony; (2) the testimony of Mr. Benson's mother was properly excluded because it was speculative; and (3) sufficient evidence supported instructing the jury on Mr. Cain's failure to keep a careful lookout.

The judgment of the trial court is affirmed.I.Factual and Procedural Background

On review, this court views the evidence and any reasonable inferences therefrom in the light most favorable to the jury's verdict.Massman Constr. Co. v. Mo. Highways & Transp. Comm'n, 31 S.W.3d 109, 112(Mo. App.2000).On the afternoon of July 11, 1997, Mr. Cain was driving a Sears repair van east on Highway 54.Mr. Cain, who performed repairs and maintenance jobs for Sears, had finished making service calls in the Lake of the Ozarks and Eldon areas and was returning to Jefferson City for another service call.Before Mr. Cain approached the Moreau River Bridge in Cole County, he moved into the left or passing lane.Mr. Cain was travelling approximately 65 miles per hour.Just before Mr. Cain entered the bridge, he looked away from the road and down at the river, where he saw someone fishing.When he resumed looking forward, Mr. Cain saw what he described as a "blue blur" in front of him.The "blue blur" was Mr. Hemeyer's pickup truck, which was also in the left lane.Mr. Hemeyer was travelling approximately 40 miles per hour.Mr. Cain's van struck the rear of Mr. Hemeyer's truck, which caused the truck to enter the median and flip over several times before coming to rest in the passing lane of westbound Highway 54.As the truck was flipping over, Mr. Hemeyer and Mr. Benson were ejected from the truck.Mr. Cain was able to regain control of the van, pull it over to the side of the road, and call the police.

Both Mr. Hemeyer and Mr. Benson died as a result of their injuries from the accident.A blood test performed on the body of Mr. Hemeyer indicated that Mr. Hemeyer had a blood-alcohol content of .329 at the time of the accident.

On April 23, 1999, Mr. Hemeyer's widow, Judith Hemeyer, and their adult children, Michelle Hemeyer and Scott Hemeyer, filed a petition for wrongful death against Mr. Cain, Sears, and Mick D. Wilson, as defendant ad litem for Mr. Benson.In the petition, the Hemeyers alleged, inter alia, that Mr. Cain, acting in the scope and course of his employment with Sears, negligently failed to keep a careful lookout.In their claim against Mr. Wilson, the Hemeyers alleged that Mr. Benson was driving Mr. Hemeyer's truck at the time of the accident, and was negligent in doing so.

In their answer, Mr. Cain and Sears denied all allegations of Mr. Cain's negligence, and denied that Mr. Benson was driving Mr. Hemeyer's truck at the time of the accident.Mr. Cain and Sears, however, filed a cross-claim against Mr. Wilson, as defendant ad litem for Mr. Benson, in which they pleaded, in the alternative, negligence on the part of Mr. Benson if the jury found that Mr. Benson was driving Mr. Hemeyer's truck at the time of the accident.The Hemeyers and Mr. Cain and Sears dismissed their claims against Mr. Wilson prior to the jury trial of this case in April 2000.At the close of the evidence, Scott Hemeyer dismissed his claim against Mr. Cain and Sears.The court instructed the jury on Judith and Michelle Hemeyer's claim that Mr. Cain and Sears were negligent because Mr. Cain failed to keep a careful lookout.The court also instructed the jury that it had to assess a percentage of fault to Mr. Hemeyer if it believed that Mr. Hemeyer was driving the pickup truck at the time of the accident and negligently drove from the right lane to the left lane of the highway when it was not safe to do so, which directly contributed to cause his death.The jury returned a verdict in favor of the Hemeyers, and found the total amount of the Hemeyers' damages, disregarding any fault on the part of Glen Hemeyer, to be $955,000.The jury determined that Mr. Cain and Sears were 10 percent at fault, and Mr. Hemeyer was 90 percent at fault.The court entered judgment on the jury's verdict, and awarded the Hemeyers $95,500 in damages, plus costs.The Hemeyers and Mr. Cain and Sears filed these appeals.II.The Hemeyers' Appeal

A.The Hemeyers Waived Objection to Officer Simmons' Testimony

In their first point on appeal, the Hemeyers contend that the trial court erred in admitting a portion of the testimony of Missouri Highway Patrol Officer Scott Simmons.Officer Simmons, who arrived at the scene of the accident an hour after it had occurred and performed an accident reconstruction analysis, testified on behalf of Mr. Cain and Sears.During his direct examination, Officer Simmons testified that Mr. Cain repeatedly told him that he had just glanced away from the road for no more than one second before looking back at the road and seeing Mr. Hemeyer's truck.Officer Simmons then testified that in the five years that he has been performing accident reconstruction analyses, it is not uncommon for people involved in accidents to be "less than honest" in giving information to the investigating officers.Officer Simmons testified that as a result, it is necessary that he determine whether the people involved are actually giving him honest and reliable information.Counsel for Mr. Cain and Sears then asked Officer Simmons about whether he made such a determination regarding Mr. Cain:

Now, here's Mr. Cain, he's just been in a major accident.He knows that at least one person is dead, maybe more, and he openly tells you that before this accident happened, he took his eyes off the road.Based upon that, did you form a judgment as to whether he was being credible with you?

At that point, the Hemeyers' counsel objected on the basis that the question improperly asked Officer Simmons to state whether Mr. Cain was credible, and that was an issue "for the jury to decide."Counsel for Mr. Cain and Sears responded that the question was proper because Officer Simmons testified that "in doing his job it's necessary that he form...