Lewis v. Wahl, 74382

Citation842 S.W.2d 82
Decision Date24 November 1992
Docket NumberNo. 74382,74382
PartiesSteven LEWIS, Plaintiff-Respondent, v. James Daly WAHL, Defendant Ad Litem for Douglas Travagliante, Deceased, Defendant-Appellant.
CourtUnited States State Supreme Court of Missouri

Arthur F. Clark, St. Louis, for defendant-appellant.

Michael D. Stokes, Henry Robertson, St. Louis, for plaintiff-respondent.


This action for personal injuries by plaintiff Steven Lewis arose out of a collision involving three motor vehicles on Highway FF, a two-lane, north-south highway in Jefferson County. Plaintiff was driving his pickup truck north at a point where the highway curved to his right. As plaintiff entered the curve, defendant Travagliante was driving his pickup truck south and was entering this same curve from the north. Defendant Dulaney was behind the Travagliante vehicle and was also driving south.

Defendant Travagliante was killed in the accident. The only two surviving eyewitnesses were plaintiff and defendant Dulaney. Plaintiff's version of the accident was that when he first saw Dulaney's car it was in the wrong lane (his northbound lane), and it was "really close to the rear end of defendant Travagliante's car, like he was starting to come around him." Plaintiff testified that he was travelling within the speed limit on his proper side of the road when he observed defendant Dulaney in the wrong lane. Plaintiff said he "slammed on the brakes," the wheels locked up, and his car started skidding into the southbound lane where it collided almost head-on with defendant Travagliante's vehicle.

Contrary to plaintiff's testimony, defendant Dulaney testified that, as he entered the curve behind defendant Travagliante, he was in his proper lane and was not attempting to pass. He said both he and Travagliante were going below the speed limit. He testified he heard screeching tires and saw plaintiff's vehicle skating out of control into the southbound lane. Defendant Dulaney crossed the northbound lane and went into the ditch to avoid the collision. Defendant Dulaney testified plaintiff was going "very fast, way beyond the speed limit."

On appeal, defendant James Wahl, defendant ad litem for Travagliante, raises two issues involving impeachment. The first is whether the trial court erred in refusing to allow defendant Dulaney to impeach the plaintiff by showing that plaintiff had been convicted of speeding on a prior occasion. The second issue raised by appellant is his claim that the trial court erred in allowing the plaintiff to impeach defendant Dulaney with an inconsistent statement contained in Dulaney's cross-claim.

The jury returned a verdict finding fault on the part of all three parties and assessed percentages of fault as follows:

                Defendant Dulaney          70%
                Defendant Travagliante     15%
                Plaintiff Lewis            15%

The jury assessed plaintiff's total damages at $430,000. Defendant Dulaney settled with plaintiff after the case was submitted to the jury but before the verdict was returned. The trial court entered judgment for $51,000 in favor of plaintiff against defendant Travagliante. Defendant Travagliante appealed. The Court of Appeals, Eastern District, reversed. This Court granted transfer.


James Daly Wahl, defendant ad litem for defendant Douglas Travagliante, deceased, claims that the trial court erred in refusing to allow defendant Travagliante to impeach plaintiff by showing plaintiff's prior conviction of the misdemeanor of speeding. Plaintiff's offer of proof shows that plaintiff testified at his deposition that, at some time prior to the accident at issue, he received a speeding ticket on Highway 44 from a state trooper, pled guilty and paid a fine. The conviction of speeding was offered as bearing on plaintiff's credibility as a witness.

The statute relied on by the defendant for his position that it was error to exclude the speeding conviction is § 491.050, RSMo 1986, which was last amended in 1981. The statute provides:

Any person who has been convicted of a crime is, notwithstanding, a competent witness; however, any prior criminal convictions may be proved to affect his credibility in a civil or criminal case and, further, any prior pleas of guilty, pleas of nolo contendere, and findings of guilty may be proved to affect his credibility in a criminal case. Such proof may be either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer.

(Emphasis added to identify words added or modified in 1981.) 1

Cases of this Court construing § 491.050 prior to the 1981 amendment consistently held that the statute permitted evidence of any felony or misdemeanor conviction, including traffic convictions, to be proved on the question of witness credibility. State v. Morris, 460 S.W.2d 624, 629 (Mo.1970); Hoover v. Denton, 335 S.W.2d 46, 47 (Mo.1960); State v. Cox, 333 S.W.2d 25, 30 (Mo.1960); Brown v. Anthony Mfg. Co., 311 S.W.2d 23, 28 (Mo. banc 1958); State v. Johnson, 293 S.W.2d 907, 911 (Mo.1956); and State v. Blitz, 171 Mo. 530, 71 S.W. 1027, 1030 (1903). See also State v. Busby, 486 S.W.2d 501 (Mo.1972); State v. Meyer, 473 S.W.2d 374 (Mo.1971); Fisher v. Gunn, 270 S.W.2d 869 (Mo.1954); and Forbis v. Associated Wholesale Grocers, Inc., 513 S.W.2d 760 (Mo.App.1974). Arguably, the 1981 amendment might serve as a basis from which to undertake a new construction of § 491.050. It may also be argued that the 1981 amendment only served to reinforce the pre-1981 construction of the statute. See Citizens Elec. Corp. v. Director of Revenue, 766 S.W.2d 450, 452 (Mo. banc 1989). However, the issue of how the amended statute should be construed need not and is not decided in this case. For the purpose of this opinion, it will be assumed, without deciding, that the trial court erred in excluding the single misdemeanor speeding conviction.

The question of error does not resolve the question of whether reversal is mandated on this claim. By both statute and rule, an appellate court is not to reverse a judgment unless it believes the error committed by the trial court against the appellant materially affected the merits of the action. § 512.160.2; Rule 84.13(b). The exclusion of evidence which has little, if any, probative value is usually held not to materially affect the merits of the case and hence, error in rejecting such evidence is not grounds for reversal. Johnson v. Lee Way Motor Freight, 261 S.W.2d 95, 99 (Mo.1953). The exclusion of a single misdemeanor conviction of speeding that is unrelated to any issue other than witness credibility is of such little consequence that no reversal of a judgment will be made on that basis. The first claim, involving impeachment, is without merit.

In Forbis, supra, the court of appeals reversed a judgment on the basis of a trial court's exclusion of a single speeding conviction, asserting that the exclusion of the conviction was "contrary to the absolute right afforded plaintiff by § 491.050." 513 S.W.2d at 766 (emphasis in original). The court did not consider the equally compelling language of § 512.160.2 and Rule 84.13(b) forbidding appellate courts from reversing judgments for errors that do not materially affect the outcome of a case. To the extent of any inconsistency with the decision here, Forbis is overruled.



A. The Facts of the Impeachment

On direct examination, defendant Dulaney testified that as he entered the curve behind defendant Travagliante they were both going below the speed limit of 55 miles-per-hour. On cross-examination, he repeated that defendant Travagliante "was going 40-50 miles-per-hour on a straight stretch before the curve." Plaintiff then asked defendant Dulaney whether he had ever told anybody that defendant Travagliante failed to stop or slow down and that contributed to cause this collision. Defendant Dulaney answered, "I didn't say that." In response to plaintiff's further cross-examination, defendant Dulaney testified that he was not telling the jury that defendant Travagliante failed to slow down or failed to stop or that his failure caused the collision. He continued his testimony on cross-examination by stating that defendant Travagliante certainly was not driving at a high rate of speed and was not driving at an excessive rate of speed.

Plaintiff's counsel then stated to the court he wished to "refresh the witness's memory" 2 with a cross-claim the witness had filed against defendant Travagliante. Counsel for defendant Travagliante objected, 3 claiming that the pleadings cannot be used to impeach because the parties "have the right to plead in the alternative." The objection was overruled, and plaintiff's attorney was permitted to read the following to the jury:

Defendant Steven Dulaney states that whatever injuries or damages plaintiff may have sustained were directly and proximately caused in whole or in part by the carelessness and negligence of defendant Travagliante in one or more of the following respects: that he carelessly and negligently drove and operated his vehicle at an excessive and high rate of speed for the conditions then and there existing; that he knew or by the highest degree of care should have known that there was a reasonable likelihood of collision in time thereafter to have stopped, swerved, or slackened his speed, sounded a warning, or a combination thereof, but he failed to do so.

Plaintiff's counsel then asked defendant Dulaney whether his lawyer had filed this pleading as a counterclaim on behalf of defendant Dulaney. Defendant Dulaney answered, "I have no idea. This is the first time I have ever heard of it. I did not know that I was counterclaiming. Those certainly are not my statements, sir."

B. Summarizing the Rules from our Prior Cases on...

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