Jensen v. Walker

• Decision Date: 31 May 1973
• Docket Number: No. 9349,9349
• Citation: Jensen v. Walker, 496 S.W.2d 317 (Mo. App. 1973)
• Parties: Ronald JENSEN and Nancy Jensen, Plaintiffs-Appellants, v. Paul E. WALKER, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 317

496 S.W.2d 317

Ronald JENSEN and Nancy Jensen, Plaintiffs-Appellants, v. Paul E. WALKER, Defendant-Respondent.

No. 9349.

Missouri Court of Appeals, Springfield District.

May 31, 1973.

Donald E. Bonacker, Springfield, for plaintiffs-appellants.

David W. Bernhardt, Bussell, Hough, Greene & Bernhardt, Springfield, for defendant-respondent.

ROBERT LEE CAMPBELL, Special Judge.

Plaintiffs-appellants, husband and wife, filed a negligence action in three counts against defendant-respondent for alleged damages resulting from an automobile collision. For clarifying, the parties hereinafter will be referred to throughout as husband, wife and defendant. This designation and distinction is of vital importance in this decision. Count I was for wife's personal injuries; Count II was for husband's loss of consortium; Count III was for husband's property damage to his automobile. On the first trial, a verdict was rendered in favor of defendant on all three counts. Husband and wife filed a motion for new trial, and the trial court granted husband a new trial on Count III, only, but overruled the motion for new trial of wife and husband as to Counts I and II, respectively. The new trial on Count III by husband again resulted in a verdict for defendant. No appeal was perfected from this judgment, but at this juncture an appeal was properly taken by wife and husband with respect to the original trial of Counts I and II.

Wife's and husband's claims for damages arose out of a collision on August 5, 1969, on North Scenic Street in Springfield, Missouri, involving defendant's automobile and husband's automobile in which wife was a passenger. Defendant was proceeding south on Scenic Street and husband's automobile, with wife therein, was proceeding north on Scenic. Husband made a left turn into Hall's Market in front of defendant's approaching automobile, and husband's automobile was struck at the right rear door by defendant's automobile. Scenic is a two-lane street, each lane being approximately 10 feet wide. The collision occurred at approximately noon, and husband and defendant had clear visibility of each other for 'over 2000 feet anyhow.'

On the original trial of all three counts, the trial court gave at the request of defendant Instruction Nos. 6 and 7 submitting to the jury husband's failure to yield the right-of-way as pleaded in defendant's answer alleging contributory negligence on the part of husband. No instruction defining right-of-way was given or offered by defendant in derogation of Missouri Approved Jury Instructions. The trial court correctly granted husband a new trial on Count III, only, by reason of this error, which resulted in a verdict for defendant as aforesaid. Again, no appeal was taken by husband from such judgment.

Husband and wife thereafter duly perfected their appeal to this court from the judgment rendered against them on Counts I and II and raised four points on appeal. These four points will be disposed of in this opinion, but not necessarily in the order raised. Further facts will be set forth in this opinion as necessary with respect to each point on appeal.

The attorneys for both parties should be highly complimented by this court for the concise and excellent briefs submitted, consisting of extremely thorough arguments with respect to the issues involved in a total of 35 pages for both briefs.

Wife and husband first alleged that the court erred in refusing to permit husband to testify as to recent complaints of present back pain by wife within the last thirty days prior to trial. Inasmuch as the jury ruled against wife and husband on the issue of liability, the jury did not reach the issue of damages, and wife and husband are not prejudiced by the trial court's ruling. Mead v. Grass, 461 S.W.2d 708 (Mo.1971).

Wife and husband also complained that the trial court erred in failing to permit their attorney to rehabilitate Officer Oren M. Cisco of the Springfield Police Department to the effect that Officer Cisco left the scene immediately to give a breathalyzer test to defendant which showed a result of .15%, for the reason that the failure to present such evidence on redirect testimony of the officer for purposes of rehabilitation would explain to the jury the reason for the officer's failure to make a more detailed investigation of the accident scene, which would include detailed measurements of the skid marks allegedly laid down by defendant's automobile at the scene of the collision. In support thereof, husband and wife cite Biener v. St. Louis Public Service Co., 160 S.W.2d 780 (Mo.App.1942). This court is of the opinion that the transcript of testimony at the trial supports the ruling of the trial judge in this respect.

Defendant admitted that he entered a plea of guilty to a charge of driving while intoxicated on the occasion in question. He...