Mitchell v. Wilson
| Decision Date | 21 April 2016 |
| Docket Number | No. SD 33921,SD 33921 |
| Citation | 496 S.W.3d 579 |
| Parties | Shawn R. Mitchell, Plaintiff–Appellant, v. Loren Keith Wilson and Loren L. Wilson, Defendants–Respondents. |
| Court | Missouri Court of Appeals |
Attorney for Appellants—Michael Moroni of Bloomfield, MO
Attorneys for Respondents—Samuel P. Spain, Matthew B. Lee of Poplar Bluff, MO
Following an accident on April 17, 2007, in which a passenger car driven by Shawn R. Mitchell (“Appellant”) collided with an agricultural tractor driven by Loren L. Wilson (“Respondent”), Appellant filed suit against Respondent and others for the personal injuries Appellant suffered in the accident.1 Appellant alleged that Respondent was negligent in his operation of the tractor and that Respondent's negligence caused Appellant's injuries. A trial to a jury occurred in March 2015. The jury returned a verdict assessing 0% of fault to Respondent and 100% of fault to Appellant.
Appellant appeals from the judgment, and, in six points, claims the trial court erred in (1) denying his motion for a new trial on the ground the jury's verdict was against the weight of the evidence,2 (2) admitting evidence of Appellant's prior convictions for impeachment, (3) instructing the jury on Respondent's contention that Appellant “drove at an excessive speed,” (4) denying Appellant's motion for mistrial during Respondent's closing argument, and (5) denying his motion for a new trial because the trial court's errors identified in clauses (2) through (4) were cumulative and, considered as a whole, required a new trial. Finding no merit in any of Appellant's points, we affirm the trial court's judgment.
Viewed in accordance with our standards of review, the evidence at trial showed the following.
On April 17, 2007, about 1:00 p.m., Respondent was driving a large agricultural tractor on a gravel road. The tractor had dual, rear wheels, and the width of the rear wheels “from one side to the other” was approximately ten feet six inches. As Respondent approached the crest of a hill, he observed dust “fogging up” on the far side of the hill and believed a vehicle was approaching. Respondent slowed down and “got over to the bank as far as [he] could.” Respondent had a “bank” on his side of the road, and the other shoulder was “just grass.” Respondent had his lights and flashers on.
When Respondent saw the vehicle, it was a car and Respondent “thought ... he was coming awful fast.” The “next thing” Respondent knew, he “said oh, he is going to hit me.” Respondent “never heard” or “felt” the collision, and “was out after that.” Respondent estimated the car was traveling “at least 50,” and “was coming right up the middle of the road.” Respondent believed Appellant had room to pass on Appellant's side of the road if Appellant had slowed down. Appellant was driving the car.
Corporal Richard Owens with the Missouri State Highway Patrol investigated the accident. The accident occurred on a “slight downgrade” with “braking skid marks” 176 feet in length. The road was 21 feet wide “at the point of the accident,” and was gravel with “no designated center line.” The “area of impact” was more on the tractor's side of the road. There was about ten feet of the road “open” on Appellant's side of the road. Two white headlights and amber, flashing lights “on top ... were illuminated” on the tractor when Corporal Owens arrived at the accident scene. In the collision, the left, front end of Appellant's car struck the left, rear, dual wheels of the tractor. The impact caused the tractor to rotate in the road and the “left rear dual tires on the tractor” “to be knocked off the tractor,” and the car “had extensive front end damage [with] the front left ... pushed back in.” There “really [is] no way of steering” when you are “on a gravel road and your brakes are locked up.” Corporal Owens “believe[d] if [Appellant's] tires were not locked up, then [Appellant's car] possibly could have been driven on the right side or far enough over to clear both vehicles.”3 Both Appellant and Respondent were taken to the hospital after the accident.
At the time of trial, Appellant had not paid any portion of his medical charges and, except for one medical provider who had obtained a judgment against Appellant, was not being sued or sent collection letters by his other medical providers.4
An exchange occurred on cross examination of Appellant concerning prior convictions:
Respondent requested Instruction No. 9. Instruction No. 9 provided:
Appellant objected to this instruction on the basis there was no evidence he “drove at an excessive speed.”
In his second and third points, Appellant contends that the trial court abused its discretion in permitting Respondent to impeach Appellant with “prior crimes of speeding and driving while suspended” because the impeachment “included references to administrative proceedings and possible municipal convictions” and the impeachment's “tendency to prejudice or mislead the jury far outweighed its probative value.” In order for Appellant to preserve for appellate review his objections to Respondent's impeachment with his convictions:
there must have been an objection made at the time the evidence was sought to be introduced and then carried forward on appeal. Rogers v. B.G. Transit Corp., 949 S.W.2d 151, 153 (Mo.App.S.D.1997). “Moreover, objections to evidence must be specific, must point out the grounds thereof, and are to be determined upon the grounds stated therein.” Id. The scope of the objection may not be broadened or altered on appeal. Id. Parties are prevented from advancing an objection to evidence on appeal that is different from the one presented to the trial court. Id.
Lester E. Cox Medical Centers v. Richards, 252 S.W.3d 236, 239 (Mo.App.S.D.2008). In addition:
[a]n objection to evidence “must be ‘sufficiently clear and definite’ so that [ ] counsel has the opportunity to correct any error and the trial court can correctly rule on the objection.” Refrigeration Industries, Inc. v. Nemmers, 880 S.W.2d 912, 919 (Mo.App.W.D.1994)quoting Reed v. Director of Revenue, 834 S.W.2d 834, 836–37 (Mo.App.E.D.1992).
Id. at 240. Appellant did not raise an objection that the probative value was outweighed by the tendency to prejudice the jury at trial and, as a result, did not preserve that objection for our review.5
As for Appellant's claim that the impeachment included references to administrative proceedings and possible municipal violations, there is no evidence before us to make that determination. Respondent's counsel asked Appellant on cross examination “[w]hat crime or crimes [he had] been convicted of.” When Respondent's counsel asked “you've been convicted of speeding a bunch of times,” Appellant's counsel objected stating The trial court overruled the objection, and Appellant denied he “had a bunch of speeding tickets,” but admitted his license had been revoked on multiple occasions for driving on a suspended license. Appellant's counsel objected to a continuing conversation between Respondent's counsel and Appellant and stated, and asked that the “answer be stricken.” The trial court again overruled the objection, but Respondent's counsel stopped the questions.
Appellant's objections at trial did not include the grounds now urged before us that Appellant's convictions were municipal or administrative convictions. He provided no context for the trial court to believe that the questions were improper because Appellant's convictions were municipal or administrative convictions. His second objection was that the questions did not go to the truth or veracity. As a result, we cannot convict the trial court of error on that basis either.
Points II and III are...
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...preserved because an appellant cannot alter or broaden the scope or nature of her objections asserted at trial. See Mitchell v. Wilson , 496 S.W.3d 579, 583-84 (Mo.App. 2016) ; Blanks v. Fluor Corp., 450 S.W.3d 308, 384 (Mo.App. 2014). Point denied. Judgment affirmed. Nancy Steffen Rahmeyer......