McElhiney v. Mossman

• Court: Missouri Court of Appeals
• Writing for the Court: SMITH; GARY M. GAERTNER, P.J., and STEPHAN
• Citation: McElhiney v. Mossman, 850 S.W.2d 369 (Mo. App. 1993)
• Decision Date: 30 March 1993
• Docket Number: No. 61161,61161
• Parties: Julie McELHINEY, Appellant, v. Paul MOSSMAN, et al., Respondents.

Page 369

850 S.W.2d 369

Julie McELHINEY, Appellant, v. Paul MOSSMAN, et al., Respondents.

No. 61161.

Missouri Court of Appeals,

Eastern District,

Division Three.

March 30, 1993.

G. William Wynne, Coggan R. Mills, Clayton, for appellant.

Richard P. Dorsey, Reginald P. Bodeux, Maryella Kelly, Timothy R. Huff, Niedner Ahlheim, Bodeux & Dorsey, St. Charles, Mark Burns, Burns, Marshall & Burns, Clayton, for respondents.

SMITH, Judge.

Julie McElhiney appeals from a jury verdict determining her to be the driver of an automobile involved in a one car accident which resulted in the death of Paul Mossman and paralyzing injuries to her. We affirm.

Mossman's parents brought a wrongful death action against McElhiney. McElhiney brought a suit for personal injuries against the defendant ad litem for Paul Mossman. The actions were consolidated for trial. The only issue presented to the jury was which of the two, Mossman or McElhiney, was the driver of the automobile. The jury returned a unanimous special verdict finding McElhiney to be the driver.

The accident occurred early in the morning on Hackman Road in the City of St. Charles. The automobile speed was estimated by McElhiney's expert as between 50 and 71 mph., in any case above the speed limit. At the time of the accident the car climbed an embankment, became airborne, rotated clockwise 180? >, and crashed roof down into a tree. Mossman died in the accident and McElhiney was paralyzed. All witnesses at the scene placed McElhiney's body in the driver's portion of the 1981 Toyota Corolla which was her car. Several witnesses testified that her left hand was pinned between the steering wheel and the roof of the vehicle and some witnesses testified that her feet were entangled in the pedals. All witnesses at the scene testified that Mossman's body was in the front passenger compartment of the vehicle. Mossman had a blood alcohol content of .17%; McElhiney's blood alcohol content was .107%. In response to a question in the hospital by a police officer of whether she was driving the car at the time of the accident McElhiney responded "yes".

McElhiney testified that she and Mossman left a bar in her automobile with Mossman driving. She fell asleep as they were leaving the parking lot and remembers nothing further prior to the hospital. McElhiney presented expert testimony by Francis Oldham, a mechanical engineer, that in his opinion while the vehicle was airborne the shell of the vehicle rotated around the occupants causing them in effect to exchange places. He stated that if, in fact, McElhiney's feet were entangled in the pedals that would be inconsistent with his opinion. McElhiney also produced the testimony of Dr. Mary Case, a pathologist, who expressed the opinion that based upon his injuries Mossman was the driver of the vehicle. In the death certificate of Mossman, signed by Dr. Case, she identified Mossman as the passenger in the automobile.

McElhiney raises six claims of error. The first posits error by the trial court in permitting a police officer to testify to the statement made by McElhiney in the hospital that she was driving. McElhiney contends that the statement was made shortly after her arrival at the hospital while she was in a condition where she could not understand a question or formulate an answer which could be relied upon. In Missouri an admission against interest is admissible unless it is shown that due to the circumstances under which the statement was made "the person giving it was under such a mental state that he was unable to narrate facts and events in a way to be relied on; ..." Deffendoll v. Stupp Brothers Bridge & Iron Co., 415 S.W.2d 36 (Mo.App.1967) [1-3]. Whether or not the admission should be excluded on such grounds is a matter of discretion for the trial court. Id. The emergency room doctor testified at trial that he did not believe that at the time the question was asked McElhiney was capable of giving a knowledgeable response. This was because of her pain. The question was posed to her approximately two hours after discovery of the accident. She was at that time capable of telling the doctor where she was hurting. The police officer was given permission by the doctor to ask her the question after the officer had been required to wait for approximately thirty minutes after requesting permission of the doctor. It is a reasonable inference that at that time the doctor believed she was capable of understanding and answering the single simple question the officer proposed to ask. The police officer testified that at the time she gave the answer he had no difficulty understanding the answer and that she looked at him when he talked to her. We find no abuse of discretion in the trial court's ruling. It is for the jury to determine the weight and value to be given to the admission in light of the conflicting evidence of McElhiney's capacity. Brunswick Corporation v. Briscoe, 523 S.W.2d 115 (Mo.App.1975) [5-12].

McElhiney next premises error on the trial court's refusal to allow the emergency room physician who treated McElhiney to testify "to the significance of the chest injuries to the deceased Paul Mossman as well as to the significance of the...