Lawson v. Cooper
| Citation | 475 S.W.2d 442 |
| Decision Date | 06 January 1972 |
| Docket Number | No. 25430,25430 |
| Parties | James W. LAWSON, Plaintiff-Respondent, v. Gary R. COOPER, Defendant-Appellant. |
| Court | Court of Appeal of Missouri (US) |
Walter F. Moudy, Morris, Foust, Moudy & Beckett, Kansas City, for defendant-appellant.
E. J. Murphy, Butler, for plaintiff-respondent.
Defendant has appealed from a judgment entered upon a jury verdict awarding plaintiff $10,000.00 damages for personal injuries suffered in a multiple motor vehicle collision. Defendant raises no appeal issue as to his liability. He complains only that the court erred (1) in receiving certain evidence, (2) in refusing to declare a mistrial because of claimed improper argument by plaintiff's counsel and (3) in refusing to order a remittitur.
The only evidence in the case pertaining to the collision and its cause was produced by plaintiff. Defendant took the stand, but called no other witness on his behalf. He testified that he was rendered unconscious by the accident and remained in that condition for five or six days. He claimed that he had no memory of the accident and could not tell the jury how it occurred. Plaintiff's evidence establishes essential facts as here stated.
Plaintiff James W. Lawson, age 27 years, was engaged in business for himself, hauling mineral fertilizer and crushed rock. For those purposes he owned and used a 1967 Chevrolet two ton truck. On May 26, 1969, the day of the accident, he was hauling crushed rock for the Highway Department from a quarry located west of Butler, Missouri. It was a clear day and the pavement was dry. On his fourth (and last) trip of that day, after loading his truck in the early afternoon, he proceeded to drive it eastward on Highway 52, a two-lane, blacktop, rather hilly highway, with shoulders on each side, flanked by rather deep ditches, and with a posted daylight speed limit of 65 m.p.h. As plaintiff so proceeded he was following, at a distance of 150 to 200 feet, another gravel truck of like nature and load, belonging to and driven by a friend, Larry Ingram. Both trucks were traveling in the right hand (eastbound) lane at a speed of approximately 50 miles per hour.
So approaching the site of the accident (which was imminent) and at a point on the highway about two miles west of Butler, the two trucks were negotiating a long hill of moderate grade. When the lead truck (Ingram's) was some 500 to 600 feet from the hillcrest, a 1966 Chevelle driven by defendant, towing a trailer for transporting horses, suddenly came into view over the hilltop, headed west.
Both plaintiff and Ingram testified that the Chevelle and trailer were traveling at least 80 miles an hour when it crested the hill. When first observed at that point, defendant's Chevelle was on its own (right hand) side of the road, but the horse trailer had swung out to the left side of the car, to the extent that half of it was across the center line. Momentarily, the trailer came back behind the car, but 'whipped' to the right onto the shoulder, and again whipped back across the center line. At that point defendant lost control and 'the whole works, car, trailer and all' started to slide sideways into the left lane, 'stretched clear across the road'. The Chevelle and trailer continued to slide sideways and forward clear across its left side of the road in front of the Ingram truck (which had gotten partly onto the south shoulder) striking it on the right corner of the front end and inflicting substantial damage to it. The impact knocked the trailer loose, and, as plaintiff stated, 'the trailer come on down the highway and hit me.' Plaintiff had attempted to evade the collision by braking and slowing his truck to approximately 20 m.p.h. before the trailer struck it. He also pulled to the right and was able to get the truck's right wheels onto the shoulder before the trailer hit it. The trailer was described as a tandem axle 'two horse' trailer of metal construction, including a metal top. It was not carrying horses but was loaded with several hundred pounds of ground grain for horse feed. The impact of the trailer damaged plaintiff's truck extensively, as well as inflicting substantial personal injuries upon plaintiff, which will be more fully detailed in our discussion of defendant's complaint of the damage award.
Although plaintiff's petition charged defendant with negligence on three grounds, namely, failure to keep a careful lookout, operating his vehicle at excessive speed and driving on the wrong side of the road, plaintiff submitted his case solely on the issue of defendant's excessive speed by an instruction faithfully patterned from M.A.I. 17.01 and 17.03. The measure of damage instruction was M.A.I. 4.01 verbatim. Neither in his motion for new trial nor in his appeal has defendant challenged the submissibility of plaintiff's case or assigned error in the giving of an instruction.
Defendant's first appeal point is a complaint that 'The trial court committed prejudicial error in permitting counsel for plaintiff, over defendant's objections that such evidence was irrevelant and immaterial, to cross-examine defendant concerning alleged acts of operating his automobile at high speeds on dates prior to the accident in question.' Although defendant speaks of 'objections', only one objection was interposed by defendant's counsel in the entire course of defendant's cross-examination by plaintiff's counsel and was directed to the question, 'Well, the fastest speed you had ever driven it was over a hundred miles an hour, wasn't it?'. Defendant's counsel interposed objection as follows: 'If the Court please, I am going to object to this as being irrelevant and immaterial to any issues in this case.' The court overruled the objection. Plaintiff's counsel rephrased the question in slightly different form, asking: 'You had personally driven it over a hundred miles an hour, had you not?' Without further objection, defendant answered, 'More than likely at sometime or other.' Defendant's counsel made no motion to strike the answer or instruct the jury to disregard it. Although the point proper complains only of prejudicial error in the admission of evidence that was 'irrelevant and immaterial', the thrust of defendant's argument of the point is to the effect that the admission by defendant that 'More than likely' he had driven the automobile more than a hundred miles an hour was prejudicial and inflammatory in that it was calculated to poison the minds of the jurors and prejudice them against defendant.
The instant point has not been preserved for review, being founded only upon the general objection that the testimony sought was 'irrelevant and immaterial'. A long line of Missouri decisions has uniformly held that an objection to evidence on the formal ground that it was 'irrelevant, incompetent and immaterial', cannot be considered on appeal. See 2A Mo.Digest, Appeal and Error, k231(2), 232(2). As stated by Judge Hollingsworth in Hoffman v. St. Louis Public Service Co., Mo.Sup., 255 S.W.2d 736, 742, In Thomas v. Wade, Mo., 361 S.W.2d 671, the Supreme Court held that 'a trial court is not to be convicted of error in the admission of evidence for reasons not presented to it at the time.' The reason for such rule is well stated in Galloway v. Galloway, Mo.Sup., 169 S.W.2d 883, as here quoted: 'In the making of objections the trial judge should be apprised of the grounds upon which objections are based that he may rule with intelligent fairness--opposing counsel should be likewise apprised, for, should the grounds specified be deemed valid ones, counsel may then avail of other, but proper, means of adducing the proof.' Further admonition that specific objections must be made during trial is found in Henson v. Pascola Stave Co., 190 Mo.App. 471, 177 S.W. 787, (quoted Browning v. City of St. Louis, Mo.App., 384 S.W.2d 868) where the court stated: Also see O'Neill v. Kansas City, 178 Mo. 91, loc. cit. 100, 77 S.W. 64, 66, wherein the court said: 'When an objection is made to a question propounded to a witness, it should be sufficiently specific to inform the court and opposing counsel of the real point in the objection.'
The case of Luechtefeld v. Marglous, Mo.App., 151 S.W.2d 710, has significant bearing on the point at hand. There, as here, the appellant complained that the trial court erred in permitting opposing counsel to cross-examine him relative to certain matters, over the general objection that the evidence was 'incompetent because not relative to the issues.' The appellant urged for the first time upon appeal that the evidence admitted 'was calculated to prejudice and poison the minds of the jurors.' Declining to rule the question, the court said, ...
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