Miller v. Eaton, 51837

• Decision Date: 30 June 1987
• Docket Number: No. 51837,51837
• Citation: 733 S.W.2d 31
• Parties: Michelle Lea MILLER and Janet Shannon, Plaintiffs-Appellants, v. Gregory Lee EATON, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 31

733 S.W.2d 31

Michelle Lea MILLER and Janet Shannon, Plaintiffs-Appellants, v. Gregory Lee EATON, Defendant-Respondent.

No. 51837.

Missouri Court of Appeals,

Eastern District,

Division One.

June 30, 1987.

Dennis E. McIntosh, Farmington, for plaintiffs-appellants.

K. Steven Jones, St. Louis, for defendant-respondent.

KELLY, Judge.

Michelle Lea Miller and her mother Janet Shannon appeal a judgment following a jury verdict in their action against respondent Gregory Lee Eaton for damages sustained in an automobile accident. The jury found in their favor but assessed fifty percent fault for damages under the doctrine of comparative negligence. We affirm.

On February 17, 1984, fifteen year old Michelle Lea Miller (hereinafter Shelly) attended a party at Gruener Ford, a park in St. Francois County. While there, she met and spoke with her two school friends Harley Green and Rick Daniely and also with Gregory, then eighteen, who was home from college for the weekend. She stayed at the party for approximately two hours. Shortly after midnight, Shelly left Gruener Ford in the company of these three individuals and rode with them to Town & Country parking lot. At the lot, Shelly, Gregory and Harley Green changed cars and rode together to Gregory's home in Gregory's Toyota pickup truck. During this ride and the remaining rides described in this case, Gregory drove, Shelly sat in the middle and Harley Green sat in the passenger seat.

Following a brief stop at Gregory's home, the three headed for Shelly's house. Immediately before arriving there, Shelly realized that she had left her purse in a friend's truck. They then rode to the friend's house, retrieved Shelly's purse and began the ride home on Highway H.

As Gregory drove north on the highway through a series of curves, he lost control of the pickup truck. The right tire of the truck dropped off the pavement. When Gregory attempted to steer the truck back onto the highway, the truck overturned. Shelly struck her head and was thrown from the vehicle. An ambulance transported Shelly to a local hospital where she received medical treatment. The injuries sustained in this accident prompted Shelly's lawsuit against Gregory.

At trial, both Shelly and Gregory testified about the events leading up to the accident. Dr. Gary Parker testified about his medical treatment of Shelly in the emergency room. A video tape deposition of Dr. Francis Paletta, a plastic surgeon, was also presented to the jury. Additionally, Shelly introduced evidence of Gregory's blood alcohol content (BAC) level to support her negligence claim.

At the end of the trial, the jury returned a verdict of $30,000.00 in favor of Shelly for her personal injuries and $7,886.00 in favor of her mother for medical expenses. The jury apportioned fifty percent of fault against Shelly. Accordingly, the trial court reduced the amounts awarded by the jury in entering its judgment.

Shelly and her mother assert on appeal that the trial court erred when it submitted the comparative fault instructions to the jury because neither instruction was supported by sufficient evidence. The first disputed instruction submitted to the jury reads:

In your verdict you must assess a percentage of fault to plaintiff Michelle Lea Miller, if you believe:

First, plaintiff Michelle Lea Miller remained in defendant's automobile knowing that defendant was intoxicated to the extent that defendant's driving ability was impaired, and

Second, plaintiff Michelle Lea Miller was thereby negligent, and

Third, such negligence and the impaired driving ability of defendant directly caused or directly contributed to cause any damage plaintiff Michelle Lea Miller may have sustained.

The second disputed instruction is identical to the one listed above with the exception that it pertains to the damages suffered by Janet Shannon. Both instructions conform with MAI 32.05.

In determining whether given instructions are supported by sufficient evidence, the evidence must be viewed in the light most favorable to the party offering it. Finninger v. Johnson, 692 S.W.2d 390, 394 (Mo.App.1985). A mere scintilla of evidence or speculative deductions and conclusions will not support submission of an instruction; sufficient evidence is required. Id. at 393 [4, 5].

Applied to the present case, appellants contend that the evidence whether Gregory's intoxication impaired his driving ability and whether Shelly knew or should have known the extent of this impairment was insufficient to support the instructions given. We disagree. Our review of the record reveals that the evidence sufficiently supports the instructions on comparative negligence.

Appellants assert that the evidence of Gregory's BAC level and his testimony that he drank whiskey prior to the accident insufficiently support the first paragraph in each instruction concerning whether intoxication impaired Gregory Eaton's driving ability. They contend that additional evidence, such as erratic driving, is needed to warrant the instructions. Because no additional factors were introduced, they conclude that the trial court erred in submitting these instructions.

Appellants rely chiefly on the cases of Doisy v. Edwards, 398 S.W.2d 846 (Mo.1966) and Bentley v. Crews, 630 S.W.2d 99 (Mo.App.1981). In Doisy, the court held that testimony of the smell of alcohol on defendant's breath by itself was insufficient to support an inference that defendant was in an impaired condition at the time of the collision. Doisy, 398 S.W.2d at 849-50 . In Bentley, we held that even if the defendant was driving while drunk, additional factors were necessary to support an inference that intoxication impaired his driving ability. Bentley, 630 S.W.2d at 107 .

These cases clearly do require the presentment of additional factors beyond evidence only of intoxication to support an inference of impaired driving ability. However, Bentley and Doisy deal only with the question of admissibility of the evidence, not its sufficiency. Whether the trial court properly admitted the evidence is not the question appellants have presented us; therefore, we need not address admissibility.

On the issue of the sufficiency of the evidence of intoxication, appellants themselves introduced evidence of Gregory's BAC level from a deposition taken prior to trial. His BAC level was .10, ¹ above the legal limit for intoxication under § 577.012.1 RSMo 1986. Gregory had originally sought to exclude this evidence in a motion in limine, but had been overruled. However, by successfully securing the admission into evidence of Gregory's intoxication, appellants risked the possibility that the jury would draw negative inferences from it. Additionally, Gregory testified at trial that he drank alcohol at Gruener Ford and that he drove over the speed limit after leaving the party.

Ordinarily, it is a question for the jury to decide whether intoxication impaired an individual's driving ability and whether the guest passenger knew or should have known of the extent of this impairment. 7A Am.Jur.2d Automobiles and Highway Traffic § 606 (1980). All of this evidence, taken together, created the factual issue whether Gregory's intoxication impaired his driving ability. The trial court properly instructed the jury on the issue of impairment of Gregory's driving ability due to intoxication.

Appellants also challenge the sufficiency of the evidence to support the first paragraph of the instructions regarding the extent of Shelly's knowledge of Gregory's driving impairment. They assert that no evidence established that Shelly knew that Gregory was drinking, much less that he was intoxicated and his driving ability impaired. Without that knowledge, Shelly could not be held negligent for remaining in...