Jackson By and Through Jackson v. Jackson, 64101

• Decision Date: 03 May 1994
• Docket Number: No. 64101,64101
• Citation: Jackson By and Through Jackson v. Jackson, 875 S.W.2d 590 (Mo. App. 1994)
• Parties: Jackie Lynn JACKSON, By and Through her Next Friends, Lori JACKSON and John Jackson and Lori Jackson and John Jackson, Plaintiffs-Respondents, v. Frankie JACKSON, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 590

875 S.W.2d 590

Jackie Lynn JACKSON, By and Through her Next Friends, Lori JACKSON and John Jackson and Lori Jackson and John Jackson, Plaintiffs-Respondents, v.Frankie JACKSON, Defendant-Appellant.

No. 64101.

Missouri Court of Appeals,

Eastern District,

Division Three.

May 3, 1994.

Niedner, Ahlheim, Bodeux & Dorsey, Reginald P. Bodeux, Timothy R. Huff, St. Charles, for defendant-appellant.

Ronald L. Boggs, St. Charles, for plaintiffs-respondents.

PUDLOWSKI, Judge.

Jackie L. Jackson(Jackie) brought an action after being injured while visiting her grandmother (defendant) at her home.Jackie suffered a lacerated nerve after a candy dish broke and cut her leg when she attempted to retrieve some candy.A jury returned a verdict for plaintiffs.Defendant raises three points on appeal.We reverse and remand for new trial.

In March, 1990, defendant dropped a lead crystal candy dish after washing it in the sink.The dish was broken between the stem and the remainder of the lid.Defendant allowed the dish to dry and then used Krazy Glue to attach the stem to the lid.According to defendant, she never read the directions for using the Krazy Glue which are provided on the back of the package.

Approximately one month later, Jackie, age six at this time, and her parents visited defendant at her home.When Jackie lifted the candy dish lid to remove some candy, the lid broke from the stem and struck her left leg and she suffered a cut.Jackie's mother placed a bandage on the cut which was bleeding slightly.The cut did not appear to be serious.

In November, 1990, Jackie was taken to the school nurse after cutting her tongue on the playground.After treating Jackie, the nurse noticed Jackie was walking in an unusual manner.The nurse called Jackie's mother and recommended that Jackie be examined by her doctor.An examination revealed that Jackie's peroneal nerve in her left leg was lacerated.Jackie underwent several surgeries to correct the damaged nerve.

Jackie, through her parents as next friends, brought an action against defendant and her husband Arthur Jackson, Jackie's grandfather.Jackie's parents were also named as plaintiffs and sought recovery of Jackie's medical expenses.Prior to trial, plaintiffs dismissed Arthur Jackson from the suit.

Sometime before trial, plaintiffs' counsel purchased a package of Krazy Glue.It is not entirely clear from the record when this purchase took place but it appears to have been a short time before the trial commenced.The trial began on May 20, 1993, approximately three years and two months after defendant repaired the dish with the Krazy Glue.Defendant was called as a witness in the plaintiffs' case in chief.Defendant testified she no longer had the Krazy Glue she used to repair the dish.Plaintiffs offered into evidence the package of Krazy Glue that their counsel purchased.Defendant testified that the front of the package offered into evidence looked similar to the front of the package of Krazy Glue she used to repair the dish.Defendant's counsel objected to the introduction of the back of the Krazy Glue package, upon which the directions for use are provided, because of lack of foundation and the directions were hearsay.The trial court overruled defendant's objection and admitted into evidence the entire package of Krazy Glue.The jury was instructed as follows: "Your verdict must be for plaintiffJackie Jackson if you believe: First, defendant failed to follow manufacturer's instructions [directions] in the use of Krazy Glue on the candy dish lid, and Second, that defendant was thereby negligent, and Third, as a direct result of such negligence Jackie Jackson sustained damage."The jury returned a verdict for the plaintiffs and this appeal followed.

Defendant argues in her first two points that the trial court erred in admitting the Krazy Glue directions for use because these directions constitute inadmissible hearsay and plaintiffs failed to establish a sufficient foundation.We first address plaintiffs' contention that defendant waived her right to contest the admissibility of the Krazy Glue directions.As aforementioned, plaintiffs called defendant during their case in chief and questioned her regarding her use of the Krazy Glue.On cross-examination, defendant's counsel asked her questions which, with the answers, indicated defendant complied with certain provisions of the directions.Defendant did not subsequently testify but did adopt her previous testimony in her case in chief.On appeal, plaintiffs contend the "bolstering" which occurred when defendant's counsel questioned her during plaintiffs' case in chief, defendant's adoption of her testimony given during plaintiffs' case in chief and defendant's failure to object to the front of the Krazy Glue package constitutes waiver.An objection to the admission of evidence is waived when the objector introduces or elicits the same or similar evidence.In re Marriage of Clark, 801 S.W.2d 496, 499(Mo.App.1990).

Defendant did not introduce any directions regarding how to use Krazy Glue and she testified she never read them.Defendant's other testimony merely reflected how she used the Krazy Glue to repair the dish.The fact that defendant's testimony revealed whether she complied with the directions on the package does not constitute the introduction or elicitation of the same or similar evidence.It should also be noted that when a party objects to the admission of evidence and then cross-examines a witness about the matter, the objecting party has not waived the error in admitting the evidence.SeeChester v. Shockley, 304 S.W.2d 831, 835(Mo.1957);McCormick, Evidence § 55(4th ed.1992).Defendant specifically objected to the admission of the back of the Krazy Glue package and the record does not reflect that she waived her right to claim error in its admission.

We next address, in reverse order, defendant's arguments in her first two points.Defendant contends in her second point that plaintiffs failed to establish a sufficient foundation for the admission of the back of the Krazy Glue package where the directions for use are provided.We agree.

The admissibility of demonstrative evidence depends on relevancy, materiality and whether by proper foundation the evidence has been identified and...