Lewis v. Hubert

• Decision Date: 31 December 1975
• Docket Number: No. KCD,KCD
• Citation: 532 S.W.2d 860
• Parties: Samuel M. LEWIS and Minnie B. Lewis, husband and wife, Plaintiffs-Appellants, v. Mary M. HUBERT and Ben O. Haskell, Defendants-Respondents. 27064.
• Court: Missouri Court of Appeals

Page 860

532 S.W.2d 860

Samuel M. LEWIS and Minnie B. Lewis, husband and wife Plaintiffs-Appellants, v. Mary M. HUBERT and Ben O. Haskell, Defendants-Respondents.

No. KCD 27064.

Missouri Court of Appeals, Kansas City District.

Dec. 31, 1975.

Motion for Rehearing and/or Transfer Denied Feb. 9, 1976.

Application to Transfer Denied March 8, 1976.

Jerome W. Seigfreid, Edwards, Seigfreid, Runge & Hodge, Inc., Mexico, for plaintiffs-appellants.

Scott O. Wright, Brown, Wright, Willbrand & Burditt, Columbia, for defendant-respondent Mary M. Hubert.

Hamp Ford, Jones, Knight & Ford, Columbia, for defendant-respondent haskell.

Before WASSERSTROM, P.J., and SHANGLER and DIXON, JJ.

SHANGLER, Judge.

This action for damages comes in two counts and arises from an intersection collision. Count I is a claim by Minnie B. Lewis against Mary M. Hubert, her host driver, and Ben O. Haskell, the other driver. Count II is a claim by Samuel M. Lewis for the loss of the consortium of his wife. The jury awarded Minnie B. Lewis $5000 against the defendant Hubert but found for the defendant Haskell. The jury found against the husband on his claim for loss of consortium.

On this appeal, the plaintiffs claim that numerous trial errors resulted in an inadequate award of damages for the wife and the denial of recovery to the husband.

The incidents of the event are not in dispute. The collision occurred during the forenoon of March 22, 1969, at the intersection of State Highway 22 and Allen Street in Centralia, Missouri. The plaintiff was a passenger in the automobile driven north on Allen Street by her sister-in-law, the defendant Hubert. That movement was governed by a stop sign. As she approached Highway 22 at from 10 to 15 miles per hour, Ms. Hubert (who had traveled that way many times before) was aware of the intersection and the traffic sign but because of cars parked along the shoulder of Allen Street and beyond the corner to the east, her view was hampered, and so continued at undiminished speed into the intersection and collision without prior stop or sight of the Haskell car. She was charged with careless and reckless driving to which she entered a plea of guilty.

The defendant Haskell was westbound on Highway 22 at between 35 and 40 miles per hour. He was about 50 feet from the intersection when he first saw the Hubert car in motion in the vicinity of the stop sign on Allen Street. Haskell then realized the Hubert car would not comply with the traffic stop, so he applied his brakes, swerved to the right, but did not avoid an impact. The Haskell front came into collision with the Hubert right front wheel. Haskell did not sound his horn; he contended there was no time. At impact, each car was travelling 10 to 15 miles per hour. Haskell estimated that two seconds elapsed between his first sight of the Hubert car and the collision. This evidence was confirmed by two witnesses.

The plaintiff Minnie Lewis was past her 72d birthday at the time of the casualty. She had no memory of the collision; but her last recollection was her presence in the Hubert car some distance south of the highway.

The chief of police of the municipality, H. F. Smith, was called to the scene. He found both women lying on the highway pavement, where they had been thrown by the impact. He marked the debris from the collision at six feet north of the centerline of Highway 22. The Haskell car had laid down 27 feet of skid marks. His investigation concluded that the stop sign was visible to a northbound driver notwithstanding cars parked along the east shoulder of Allen and beyond.

The plaintiff Minnie Lewis claimed multiple injuries from the accident, including a recurrent facial melanoma and other disabilities. The defendants concede injury, but limited to a cerebral contusion, hematoma on the right side of the face and fractures of the seventh and eighth ribs on the right side.

A preliminary contention for review is that the trial court improperly overruled the motion of plaintiffs for directed verdict against the defendant Hubert in the face of evidence of negligence uncontroverted and absence of proof that appellants were contributorily negligent. The error assigned in the motion for new trial recites: The Court erred in refusing to grant plaintiffs' motion for directed verdict against Defendant Mary M. Hubert. That motion was submitted to the trial court without argument or elaboration and summarily denied. The respondent Hubert contends that such a scant allegation of error, without a definite objection either at the trial or on the motion for new trial, violates the governing rules and preserves nothing for review. We deny review of the point on that basis. ¹ Beyer v. Pick, 428 S.W.2d 1, 3 (Mo.App.1968); Rules 78.07 and 78.09.

The salient assertion of the plaintiffs is that they are aggrieved because the judgments, which returned inadequate damages to the wife and denied them altogether to the husband, was the result of a jury bias induced by evidence of income erroneously received and evidence of treatment and care expenses erroneously excluded.

One of the elements of the damages claimed by plaintiff Minnie Lewis was that her collision-induced injuries prevented her from baking cakes, an avocation she practiced for thirteen years at a gross profit of $150 per week. On cross-examination the defendant Hubert undertook to impeach this claim of loss:

Q. Now, Mrs. Lewis, you didn't show anything on your income tax returns for sale of these cakes, did you?

A. No.

Q. Your income tax returns, you filed a joint return with your husband?

A. Yes.

Q. Your return for 1971_ _

MR. SIEGFRIED (Counsel for plaintiff): Just a minute. We object to this. The return is the best evidence. I don't know what Mr. Wright is attempting to show.

THE COURT: Well, the objection will be overruled. I haven't heard the question. Ask your question, Mr. Wright.

(Proceedings followed outside the hearing of the jury.)

MR. SIEGFRIED: If the question turns out, 'Your income tax shows'--and I take it there is going to be a figure here with regard to income and I think that the best evidence would be the return itself so that we would have some knowledge of what counsel is going into on the return.

THE COURT: Well, the objection will be overruled, until I hear the question.

Q. And in your joint return for 1971 it shows gross income of $19,768.49; is that right?

A. I don't know.

Q. Does that sound about right?

A. I suppose so, but I don't know anything about it.

Q. Was there any portion of that income on that--did you show any income for baking these cakes?

A. No, because I asked the people in Centralia about that and they said as long as I baked in my home it was a hobby and I didn't have to put it in.

The defendant Hubert then turned her inquiry to other facets of the case and when she had concluded, the defendant Haskell, in turn, had the plaintiff on cross-examination. The witness was then excused and the jury released until the next morning. In that posture of the proceedings, counsel for the plaintiffs pressed his objections:

MR. SIEGFRIED: Your Honor, I'd like to renew my objection to counsel using the income tax returns which were not introduced in evidence, eliciting information from them without showing the materiality of the information, going into matters that were not gone into on direct examination and not the proper subject of cross-examination and at this point and based upon this, this improper method of offering evidence to the jury to prejudice their minds against this particular plaintiff, I'd like to ask the court for a mistrial.

THE COURT: Well, the objection--and the Court will adhere to its ruling that it previously gave in this matter and request for a mistrial will likewise be denied. The Court recalls the question dealt with whether she had or had not made a report of the income derived from baking which was opened up on direct examination by your inquiry of her in that regard. It appears to the Court to be a legitimate cross-examination to go into the question of whether this income was or was not reported on her tax return.

MR. SEIGFREID: But the total income of those people as shown on their income tax return has no relevancy or materiality in this case and could do nothing more and was for no other purpose than to prejudice this jury's mind. We object to it and think a mistrial should be granted for allowing such evidence to be elicited, first of all, just by way of cross-examination, and secondly, by failure to adhere with the best evidence rule which would have shown that at least a portion of this income was from farm rental and certainly this whole thing had nothing to do with the materiality of this particular lawsuit, what the earnings of these people are jointly has absolutely nothing to do with this lawsuit; * * *

THE COURT: The objection will be overruled and the request for mistrial will be denied.

The Court also notes at no time when the jury was present was there any request made to strike that portion of the answer from the jury's consideration or to admonish the jury not to consider it, and that the request for a mistrial has been made at this time, sometime after the particular situation occurred.

THE COURT: Again, Mr. Seigfreid, if you wish to make a request to the Court tomorrow morning that the Court instruct the jury to disregard that portion of the question, the Court will consider it at that time. (Emphasis supplied.)

In this court, the plaintiffs complain that the evidence of income from rents and royalties during years 1970 and 1971 were irrelevant to any issue and that the jury bias induced against them by this misimpression of affluence should have been redressed by the grant of a mistrial. The defendants respond that this objection, which came for the first time after the jury had been excused for the day, was not seasonable, and that in any event, the grant or denial of a mistrial was a matter of sound judicial...