Lineberry v. Shull, WD
| Decision Date | 04 June 1985 |
| Docket Number | No. WD,WD |
| Citation | 695 S.W.2d 132 |
| Parties | Cheryl LINEBERRY, Plaintiff/Appellant, v. Bill SHULL and Vickie Smith, Defendants-Third Party Plaintiffs-Respondents, and Clifford Frock and Dorothy Frock, Third-Party Defendants-Appellants. 35945. |
| Court | Missouri Court of Appeals |
J. Kirk Rahm, Sedalia, for appellant Lineberry.
Donald G. Stouffer, Marshall, for appellants Frock.
David P. Macoubrie, Chillicothe, for respondent Shull.
Jack Lukehart, Brunswick, for respondent Smith.
Before LOWENSTEIN, P.J., and NUGENT and BERREY, JJ.
Plaintiff, Cheryl Lineberry, and her parents, third-party defendants, appeal from a verdict in favor of defendants and third-party plaintiffs, Bill Shull and Vickie Smith. Plaintiff complains of the court's actions concerning voir dire, direct examination of plaintiff's expert, examination of defendant's expert, and the amount of time allowed her by the court for closing argument. We affirm the judgment in favor of defendants which renders the issues raised by third-party defendants moot.
On July 18, 1974, Cheryl Frock, now Cheryl Lineberry, was a passenger in a car operated by defendant Vickie Smith. Her vehicle was struck by one operated by defendant, Bill Shull, in the intersection of two gravel roads. The force of the collision threw Ms. Smith into plaintiff who was thereby thrown against the passenger door.
Ms. Lineberry was treated for a cerebral concussion at St. Joseph Hospital. Upon her release, the treating physician, Dr. Gregory Pucci, stated in his report that she would make a full recovery.
On November 22, 1974, plaintiff's parents, Clifford and Dorothy Frock, executed a release in favor of defendants for any claims they had arising from the accident and a separate agreement to indemnify defendants for any damages Cheryl might eventually recover. The Frocks remembered being paid for the releases but not the amount.
In 1977, plaintiff suffered a series of seizures and was diagnosed as having epilepsy.
She brought suit against defendants alleging that their negligence caused the 1974 collision and that the concussion she suffered in that accident caused her epilepsy. Defendants brought a third-party action against the Frocks on their indemnity agreement seeking indemnification for any damages awarded plaintiff and their costs and attorney's fees in defense of Cheryl's actions.
The case was tried to the jury which returned a verdict for defendants. The jury also found in favor of third-party plaintiffs but awarded them no damages.
Plaintiff raises a number of points on appeal concerning the court's conduct of the trial. For the sake of brevity, we combine the statement of facts and the discussions of the many legal issues plaintiff has raised.
Plaintiff's first point pertains to her counsel's voir dire of the jury. He attempted to ask the veniremen whether any of them had a preconceived belief that epilepsy can only result from heredity. Defendant objected and the court instructed plaintiff to substitute the word "seizures." Plaintiff argues that the court's action was prejudicially erroneous.
The trial court has considerable discretion in the control of voir dire, including the control of specific questions. State v. Scott, 515 S.W.2d 524, 527 (Mo.1974). That discretion will not be disturbed unless the record reveals manifest abuse and a real probability of harm. Id. We are not persuaded that this is a case of manifest abuse presenting a real probability of harm. Counsel was allowed to ask the essence of the desired question; as plaintiff's evidence shows, the most significant symptom of epilepsy is a seizure. Anyone with a preconceived belief that seizures are only due to heredity would in all likelihood believe epilepsy could only stem from heredity. Plaintiff's reliance upon Littell v. Bi-State Transit Development Agency, 423 S.W.2d 34 (Mo.App.1967), is misplaced. There the court held that it was reversible error for the trial court not to allow the defendant to ask on voir dire whether any juror had a fixed opinion against the idea that plaintiff could only recover if defendant was negligent. Defense counsel was not allowed to ask any form of the question at all. Here, plaintiff's attorney was allowed to ask the essence of his question.
Plaintiff's next point of error concerns Bill Shull's counsel's voir dire of the jury. In the course of his questioning, defendant's counsel stated that plaintiff had to prove her case by a preponderance of the evidence. He then characterized that burden as a "substantial burden." Plaintiff's attorney objected to the characterization and asked that the court admonish the jury to disregard the statement or declare a mistrial. The court instructed defense counsel to confine himself to asking the jury whether they could follow the instructions. The court refused the requested admonishment in order not to draw the jury's further attention to the statement.
Plaintiff finds reversible error in the court's failure to instruct the jury to disregard counsel's characterization. As we have already explained, the court has wide discretion in its conduct of voir dire. State v. Scott, supra, 515 S.W.2d, at 527. Plaintiff's objection was sustained and the court in the proper exercise of its discretion wisely chose not to further emphasize the matter to the jury.
Plaintiff's third point is that the court erred in limiting her attorney's direct examination of her expert witness, Dr. Pucci. Plaintiff asked the witness whether brain concussions "sometimes" cause epilepsy. The doctor answered, "That's correct." The court sustained defendant's late objection to plaintiff's use of the word "sometimes." We agree with plaintiff that her counsel's question and Dr. Pucci's answer were unobjectionable. An expert's view of possibility or probability is often helpful and proper. Kimmie v. Terminal R.R. Ass'n, 334 Mo. 596, 66 S.W.2d 561 (1933); Gant v. Scott, 419 S.W.2d 262, 265 (Mo.App.1967). In this instance, however, plaintiff's counsel was immediately allowed to put his question in the form of a hypothetical, and the witness answered that a "direct relation" existed between plaintiff's cerebral concussion and her epilepsy.
Plaintiff's attorney continued his examination of Dr. Pucci and asked him if Cheryl's condition was permanent. The witness responded, "I think so." The court overruled defense counsel's objection to the doctor's use of "I think," but the court instructed the witness not to use words that might be speculative such as "I think so." Plaintiff argues that the court presented a hostile attitude towards the witness by its statement.
We agree with plaintiff that the use of the word "think" or "guess" by an expert witness does not render his testimony inadmissible if he intended to express his opinion or judgment. Wray v. Schwitzer Co., 615 S.W.2d 646, 648 (Mo.App.1981); Hinrichs v. Young, 403 S.W.2d 642, 646 (Mo.1966).
The court correctly overruled defendant's objection and allowed the answer to stand. We have thoroughly read the record and can find no evidence of the court's hostility to the witness. In fact, the court seemed to be trying to help the witness in his testimony. The court's admonishment was unnecessary since use of "think" is not necessarily destructive of the witnesses testimony, but the court did not display any hostility to plaintiff's witness.
Plaintiff also argues that the court's hostility to Dr. Pucci is further shown by its solicitous treatment of defendant's expert, Dr. Gale, during plaintiff's cross-examination of the witness. She points to several instances of allegedly prejudicial error in the court's rulings on plaintiff's cross-examination. We find no prejudicial error in the court's actions and do not find the court's treatment of the witness solicitous.
Plaintiff sought to have Dr. Gale admit that he only does medical examinations for defendants. The doctor refused to respond as desired and answered that he does examinations for parties on both sides of lawsuits. The court allowed the witness to answer as he wanted. Plaintiff argues that the court's rulings advised the jury that plaintiff's counsel was harassing the witness. The court is vested with broad discretion in its control of cross-examination, Myers v. City of Palmyra, 431 S.W.2d 671, 679 (Mo.App.1968), and counsel cannot argue with the witness by his questions during cross-examination. Eddings v. Keller, 400 S.W.2d 164, 174 (Mo.1966). Here counsel appears to have been arguing with the witness, and the court's action was proper. Furthermore, counsel was allowed to ask his question repeatedly, he just did not receive the answer he wanted.
Plaintiff's counsel then attempted to impeach the doctor's credibility with an allegedly prior inconsistent statement. He asked the doctor if he did three to four times more examinations for defendants than for plaintiffs. The witness at first responded, Counsel then attempted to ask the witness about his testimony in a 1981 trial where the doctor apparently testified that he...
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