Hood v. Heppler
| Decision Date | 11 December 1973 |
| Docket Number | No. 34929,34929 |
| Citation | 503 S.W.2d 452 |
| Parties | Melvin Eugene HOOD, Plaintiff-Appellant, v. John Herman HEPPLER, Defendant-Respondent. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
Melvin D. Benitz, St. Charles, for plaintiff-appellant.
Joseph M. Kortenhof, St. Louis, for defendant-respondent.
This is an action for personal injuries as a result of an automobile collision at a 'T' intersection of St. Charles Rock Road and Industrial Park Drive in St. Louis County, Missouri. Judgment was entered by the Circuit Court of St. Louis County on a jury verdict in favor of defendant.
Plaintiff claims that the trial court erred (1) in the reception of evidence in violation of the 'collateral source rule,' the reception of hearsay testimony and reception of evidence without the proper foundation; and (2) in the giving and refusal of instructions. We have read the transcript and the briefs and find no substantial error. Therefore, we affirm. In view of the issue thus presented we will set out the facts bearing on the same and review the evidence in the light most favorable to defendant.
The accident occurred on May 29, 1969, at or about 5:00 P.M., about one mile east of the old Missouri River bridge at a 'T' intersection of St. Charles Rock Road, a four-lane, east-west highway, each lane 10 feet wide, with a 6 foot shoulder, with Industrial Park Drive, a north-south road, approaching St. Charles Rock Road from the north, but not extending south thereof.
Prior to the accident, plaintiff had just spent about forty-five minutes in a bar where he had drunk one beer. Plaintiff was traveling east on St. Charles Rock Road. When he was about a quarter of a mile east of the bridge, he crossed over into the passing lane (first lane south of the middle line). Westbound traffic was heavy and cars were backed up bumper to bumper for a mile from the bridge to Industrial Park Drive and beyond. As the plaintiff approached Industrial Park Drive, defendant was proceeding southwardly across the westbound lanes of Rock Road. A gap in the westbound traffic had been created and defendant was waved through. As he proceeded across the center line the collision occurred. Plaintiff says he first saw defendant's automobile bumper at the center line when he (plaintiff) was sixty feet west of the point of impact, and at that time he was traveling in the eastbound lane at a speed of 40--45 miles per hour. At the time of the collision plaintiff testified that he had reduced his speed to 30--35 miles per hour. Plaintiff testified that defendant's car was coming out, easing forward, when he first saw it; and finally that defendant was one and one-half to two feet south of the center line when he first saw it. There was no estimate as to the time interval between the time he first saw the defendant and the time of the impact. The reason plaintiff could not have seen defendant's car sooner was because his vision was blocked to the north because of the stopped, bumper to bumper traffic to his left (north). Plaintiff fixed defendant's speed at 2 miles per hour; the impact occurred on defendant's right front bumper and to plaintiff's left rear bumper; that the collision occurred as he attempted to swerve right (southward).
Defendant testified that he was waved through a line of parked cars; that he crept (southwardly) up to the center line and could not see to his right (westwardly) because of the westbound car to his right; that when he was one and one-half feet over the center line, he saw a small car roof, windshield and hood of a car approaching one hundred feet away (westwardly) in the middle or passing lane. He was unable at that time to estimate plaintiff's speed other than it was coming 'pretty fast.' As plaintiff's car went by, it clipped or 'pinged' the front bumper of defendant's car. At impact, defendant estimated plaintiff's speed to be about ten miles per hour; after the 'ping' plaintiff's vehicle went across the highway (southwardly) to a point thirty to thirty-five feet east of Industrial Park Drive, to the shoulder and traveled ten feet on the shoulder, and returned (northwardly) to a head-on collision with a westbound vehicle in the center lane, one hundred feet east of Industrial Park Drive. Defendant says that his car had been stopped for one to five or six seconds at the time of impact; and that he could have avoided the accident by backing up one and one-half feet or one inch.
Regina Neuhaus, a witness for defendant, who was driving westwardly on Rock Road, saw plaintiff's automobile weaving from one side of the eastbound lane to the other. Her best judgment fixed plaintiff's speed at eighty to ninety miles per hour.
Trooper James V. Wheeler testified that plaintiff told him he was traveling at the speed of fifty to sixty miles per hour.
Plaintiff's first claim of error centers around the fact that defendant, over objection, was permitted to show that plaintiff's medical expenses and care were free since he was a veteran in a governmental hospital. Plaintiff argues that since he was a veteran by his service he had earned and was entitled to medical care; therefore it was impermissible for defendant to be allowed to reduce or mitigate damages when the source is wholly independent of plaintiff. Even if we assume that Missouri courts will not allow a tortfeasor to show in mitigation of an injured person's damages benefits received by the injured person from a source wholly independent of and collateral to the tortfeasor, we find in this case plaintiff was not prejudiced by the admission of such testimony. Here, inasmuch as the jury found against plaintiff on the issue of liability and plaintiff's injuries undeniably were substantial, we must conclude that the jury never reached the issue of damages. Robinson v. Richardson, 484 S.W.2d 27, 32 (Mo.App.1972); Mead v. Grass, 461 S.W.2d 708 (Mo.1971). Accordingly, we find no prejudicial error in the respect claimed by plaintiff.
Secondly, plaintiff argues that it was error for the court to permit Officer Wheeler to testify as to the speed recorded on the patrol report. Officer Wheeler testified that he neither made the report nor put the rate of speed of plaintiff's automobile into the report, but he did give the statement of speed to Officer Biele, who prepared the report. In any event, Officer Wheeler finally testified, without either an objection or a motion to strike, that plaintiff told him, immediately after the accident at the hospital, that he was traveling fifty to sixty miles per hour. Therefore, we do not reach plaintiff's claimed error, because the statement made by plaintiff is clearly admissible as an exception to the hearsay rule; i.e., the statement of party-opponent. Stegall v. Wilson, 416 S.W.2d 658 (Mo.App.1967); Wigmore, Evidence, §§ 1048--1087; Morgan, The Rationale of Vicarious Admissions, 42 Harvard L.Rev. 461 (1929). Consequently, we rule this issue against plaintiff.
Third, we take up plaintiff's claim of the insufficiency of the evidence to submit defendant's instruction of plaintiff's excessive speed as the proximate cause of the accident. Questions of proximate causation are for the jury. Buzbee v. Greyhound Lines, Inc., 467 S.W.2d 933 (Mo.1971). To decide whether a defendant's instruction is supported by substantial evidence, we consider the evidence in the light most favorable to defendant and disregard all unfavorable evidence. Janicke v. Hough, 400 S.W.2d 645 (Mo.App.1966).
Applying the above standard to the evidence, we find that plaintiff drove in the lane next to the center line at speeds estimated at eighty to ninety miles an hour, seventy miles per hour, and fifty to sixty miles per hour. Plaintiff himself testified that he had good control over the vehicle and 'could swerve it,' 'could brake it,' and generally 'could handle it.' In Marshall v. Bobbitt, 482 S.W.2d 439 (Mo.1972), the court stated as follows:
'The questions raised on this appeal: whether the case was properly submitted on excessive speed. . . .
Plaintiff said that he first saw defendant's car when he was...
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...625 S.W.2d 880, 882 (Mo.App.1981) (in dicta, found social security, medicare and medicaid to be collateral sources); Hood v. Heppler, 503 S.W.2d 452, 454-55 (Mo.App.1973) (veterans' benefits); Weeks-Maxwell Const. Co. v. Belger Cartage Service, Inc., 409 S.W.2d 792, 796 (Mo.App.1966) (socia......
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...evidence by competent testimony, it is not prejudicial error when those facts are admitted again even though erroneously. Hood v. Heppler, 503 S.W.2d 452 (Mo.App.1973). Harris v. Goggins, 374 S.W.2d 6 (Mo.banc 1963). The local police officer had testified he saw someone run out of the back ......
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