Hudson v. Whiteside

• Decision Date: 19 December 2000
• Citation: 34 S.W.3d 420
• Parties: (Mo.App. W.D. 2000) . Jeanette Hudson, Respondent, v. John Whiteside, Appellant, v. William G. Hudson, Defendant. WD57718 Missouri Court of Appeals Western District Handdown Date:
• Court: Missouri Court of Appeals

34 S.W.3d 420 (Mo.App. W.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Jeanette Hudson, Respondent, v. John Whiteside, Appellant, v. William G. Hudson, Defendant.

WD57718

Missouri Court of Appeals Western District

Handdown Date: 12/19/2000

Appeal From: Circuit Court of Callaway County, Hon. Edward D. Hodge

Counsel for Appellant: Clarence W. Hawk

Counsel for Respondent: Danieal H. Miller and Daniel R. Dunham

Opinion Summary: John Whiteside, defendant ad litem and legal representative of Verne Walters, deceased, appeals the $200,000 judgment against him and in favor of Jeanette Hudson for personal injuries Ms. Hudson sustained in an automobile collision with Mr. Walters.

AFFIRMED.

Division I holds:

(1) The physician's limited references to insurance in the videotaped deposition Ms. Hudson played for the jury did not warrant a mistrial. There is no indication that Ms. Hudson injected the references to insurance in bad faith or that Mr. Whiteside was prejudiced by the references.

(2) The trial court did not err in submitting Ms. Hudson's claim for failure to keep a careful lookout. Ms. Hudson presented sufficient evidence that Mr. Walters saw or could have seen the Hudsons' car in time to have avoided the collision. Contrary to Mr. Whiteside's claim, Ms. Hudson did not need to establish that Mr. Walters had the time, distance and ability to take action to avoid the collision because Mr. Walters created the danger by acting as he did, rather than by failing to act after the danger should have been realized.

(3) The trial court did not err in submitting Ms. Hudson's claim for failure to yield the right-of-way. Evidence that Mr. Walters could see 1,125 feet in the direction of the Hudsons' car, Mr. Walters was still stopped at the stop sign when Mr. Hudson was only 20 feet from the intersection, and Mr. Hudson was traveling with the flow of traffic in a 35 miles-per-hour zone, combined with the fact that a collision occurred, was sufficient to create a question for the jury regarding whether the Hudsons' car presented an immediate hazard requiring Mr. Walters to yield at the stop sign.

Opinion Author: Patricia Breckenridge, Judge

Opinion Vote: AFFIRMED. Holliger, P.J., and Smart, J., concur.

Opinion:

John Whiteside, defendant ad litem and legal representative of Verne Walters, deceased, appeals the $200,000 judgment against him and in favor of Jeanette Hudson for personal injuries Ms. Hudson sustained in an automobile collision with Mr. Walters. On appeal, Mr. Whiteside claims he was entitled to a mistrial because one of plaintiff's witnesses, a physician who had examined Ms. Hudson at Mr. Whiteside's request, mentioned that insurance companies hire him to perform medical examinations. Mr. Whiteside also argues the trial court should not have instructed the jury on failure to keep a careful lookout and failure to yield the right-of-way because Ms. Hudson did not make a submissible case on those claims. Because this court finds that Mr. Whiteside was not prejudiced by the physician's references to insurance, and Ms. Hudson made a submissible case on both of her negligence claims, the judgment of the trial court is affirmed.

Factual and Procedural Background

On August 19, 1989, Ms. Hudson was a passenger in a car driven by her husband, William Hudson. The Hudsons were traveling to the Lake of the Ozarks. While driving south on Highway 5, they approached an intersection with Lake Road 5-35. The traffic on Lake Road 5-35 had a stop sign at the intersection, but the traffic on Highway 5 did not have a stop sign. Mr. Hudson was moving with the flow of traffic on Highway 5, where the speed limit was 35 miles per hour, but he had kept a little distance between his car and the car in front of him. When the Hudsons were about 20 feet from the intersection, Mr. Hudson saw Mr. Walters' car on Lake Road 5-35, stopped at the stop sign at the intersection of Lake Road 5-35 and Highway 5.¹

Mr. Hudson next saw Mr. Walters' car after the Hudsons' car had entered the intersection. At that point, Mr. Walters' car was in the intersection, and was two to five feet in front of the Hudsons' car. Neither Mr. Hudson nor Ms. Hudson saw Mr. Walters' car until it was directly in front of their car. Mr. Hudson slammed on his brakes, but was not able to stop in time to avoid hitting the passenger-side door of Mr. Walters' car. The collision totaled the Hudsons' car.

After the accident, Mr. Walters told an officer that he did not see the Hudsons' car coming. From where Mr. Walters had been stopped at the stop sign on Lake Road 5-35, he had an unobstructed view of 1,125 feet in the direction from which the Hudsons' car was traveling. It was misting rain at the time of the accident; however, the rain was not heavy enough to affect visibility.

After the accident, Ms. Hudson suffered pain in her neck, shoulder, and back for which she consulted numerous doctors over the years. Her treatment included two operations on the nerves in her shoulder and a subsequent surgery to remove a catheter that was no longer functioning. Despite the surgeries and treatment, Ms. Hudson continues to experience pain in her neck, shoulder, head, and back, which has caused her to limit or discontinue certain activities at home and at her job with the Missouri School for the Deaf.

On August 12, 1994, Ms. Hudson filed a petition against Mr. Walters and Mr. Hudson seeking damages for the injuries she sustained as a result of the accident.² Ms. Hudson dismissed her claims against Mr. Hudson prior to trial. After the first trial in January 1997, the jury returned a verdict in favor of Ms. Hudson for $3500, upon which the trial court entered its judgment. Because the trial court had erroneously refused to admit into evidence certain hospital and doctor bills Ms. Hudson had incurred in seeking treatment for her pain after the accident, however, this court reversed the trial court's judgment and remanded it to the trial court for a new trial. See Hudson v. Whiteside, 966 S.W.2d 370 (Mo. App. 1998).

The case was retried in March 1999. During the second trial, Mr. Whiteside moved for a mistrial after a physician, who had examined Ms. Hudson at Mr. Whiteside's request, said in his videotaped deposition that "it so happens, it's gravitated that the -- that the insurance company defense people have sought me out more than plaintiffs' people have." Mr. Whiteside argued that the physician's statement injected insurance into the case in violation of the court's order sustaining Mr. Whiteside's motion in limine prohibiting any mention of Mr. Walters' insurance coverage. The court stated that it would reserve ruling on Mr. Whiteside's mistrial motion until after the jury's verdict to see if the jury came back with a verdict for Mr. Whiteside.

At the close of the evidence, the court instructed the jury on Ms. Hudson's alternative theories that Mr. Walters was negligent for failing to keep a careful lookout, or that Mr. Walters was negligent for failing to yield the right of way. The jury returned a verdict in favor of Ms. Hudson in the amount of $200,000. At that time, the court granted Mr. Whiteside's motion for a mistrial.

After granting the mistrial motion, the trial judge recused herself. The new trial judge subsequently denied Ms. Hudson's motion for judgment upon the jury's verdict and for rescission of the mistrial order. This court, however, issued a preliminary writ of mandamus and prohibition after Ms. Hudson filed a petition asserting that the trial court had no authority to grant a mistrial after the jury returned its verdict, relying on this court's holding in Duckett v. Troester, 996 S.W.2d 641, 646 (Mo. App. 1999) (holding that the purpose of a mistrial is to halt proceedings due to prejudicial error, and once the trial is concluded, the trial court cannot grant a motion for a mistrial). State ex rel. Hudson v. Roper and Hodge, WD 57371 (Mo. App. June 29, 1999) (order granting preliminary writ of mandamus and prohibition). The preliminary writ ordered the trial court to take no further action in the case, other than to rescind its order granting a mistrial and enter its judgment on the jury's verdict, which the trial court did.

In response to the trial court's rescission of the mistrial order and entry of judgment on the jury's verdict, Mr. Whiteside filed a motion for judgment not withstanding the verdict and, in the alternative, for a new trial. The trial court denied the motion. Mr. Whiteside filed this appeal.

References to Insurance Did Not Warrant a Mistrial

Mr. Whiteside's first point alleges error in the introduction of statements made by a physician, Dr. Francis Walker, in his videotaped deposition that Ms. Hudson played for the jury. Dr. Walker, a neurological surgeon who had examined Ms. Hudson at Mr. Whiteside's request, was deposed to preserve his testimony for trial. At two times during his deposition, he testified that he was most often hired by defense attorneys and insurance companies, rather than by plaintiffs' attorneys. The first occasion occurred when Dr. Walker was being cross-examined by Ms. Hudson regarding the nature of his employment with Medex, a medical examinations and testing center. During the cross-examination, the following colloquy took place on page 39, line 19 to page 40, line 24:

19 Q -- is that your job in conjunction with Medex

20 is to do examinations for lawyers like Mr. Hawk,

21 correct, sir?

22 A Or insurance companies, yes.

23 Q Sure. And basic -

24 A That is correct.

25 Q Okay. And basically, in terms of your

1 examinations for the -- for either of those two

2 entities, the attorneys that tend to hire you are

3 defense lawyers, correct, sir?

4 A About 90 percent, yes, sir.

5 Q Okay. So basically obviously you're doing

6 work for a insurance company which doesn't represent the

7 claimant, correct, sir?

8 A I believe that's...