Oventrop v. Bi-State Development Agency

• Decision Date: 25 March 1975
• Docket Number: 35904,BI-STATE,Nos. 35903,s. 35903
• Citation: Oventrop v. Bi-State Development Agency, 521 S.W.2d 488 (Mo. App. 1975)
• Parties: Emma June OVENTROP, Plaintiff-Appellant-Respondent, v.DEVELOPMENT AGENCY, Defendant-Respondent-Appellant, and James Hudson, Defendant-Respondent. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 488

521 S.W.2d 488

Emma June OVENTROP, Plaintiff-Appellant-Respondent, v. BI-STATE DEVELOPMENT AGENCY, Defendant-Respondent-Appellant and James Hudson, Defendant-Respondent.

Nos. 35903, 35904.

Missouri Court of Appeals, St. Louis District, Division Three.

March 25, 1975.

Hullverson, Hullverson & Frank, E. Lemoine Skinner, III, St. Louis, for appellant.

Boas, Schneider & Walsh, John D. Schneider, St. Louis, James E. Godfrey, Inc., Samuel T. Vandover, St. Louis, for respondent.

GUNN, Judge.

We consider cross appeals of plaintiff Emma June Oventrop and defendant Bi-State Development Agency arising out of injuries incurred by Mrs. Oventrop in two separate falls on Bi-State buses. Defendant-respondent James Hudson was alleged to have been the catalyst for Mrs. Oventrop's first fall. The appeals center on the trial court's action in striking the testimony of a Bi-State driver and thereafter granting a new trial to Bi-State on the issue of liability on the basis that the trial court had erred in directing the testimony to be stricken. We affirm the trial court in part and reverse in part and remand for a new trial on all issues.

On October 20, 1969, as Mrs. Oventrop prepared to alight from a Bi-State bus, the bus stopped abruptly and Mrs. Oventrop was thrown to the floor and subsequently complained of injury to her left shoulder, right hip and lower back. Bi-State claimed that the sudden stop was made necessary when defendant Hudson, who had parked his auto at the curb, allegedly threw open his automobile door and exited from his auto on the street side in the path of the bus.

On May 14, 1971, while still under a doctor's care for treatment of her shoulder, hip and back, Mrs. Oventrop was in the process of alighting from a Bi-State bus when, once again, the bus came to a sudden stop throwing Mrs. Oventrop against the fare box. Bi-State's defense to the second incident involving Mrs. Oventrop was that an automobile traveling in front of the bus had stopped suddenly to avoid colliding with another car which had moved out from the curb into the lane of oncoming traffic. Mrs. Oventrop's evidence was that a thoracic outlet syndrome had developed from the two incidents and that an operation for the removal of her first rib had been performed in order to alleviate her disability; however, at time of trial she still complained of some physical difficulties and discomfort as a result of the two falls.

Mrs. Oventrop filed suit against Bi-State for $7,500 in each of two counts for injuries sustained as a result of the two falls. She also sued Hudson for $7,500 for allegedly having opened the left door of his parked vehicle in violation of a City ordinance into the path of the Bi-State bus in which Mrs. Oventrop was a passenger, requiring the bus driver to make an emergency stop and thereby causing Mrs. Oventrop's first fall on October 20, 1969. Hudson denied having opened an automobile door in the path of the bus or doing anything which would have triggered Mrs. Oventrop's fall.

The critical issue upon which our dedision turns is the controversy surrounding the testimony of William White, the driver of the Bi-State bus in which Mrs. Oventrop fell on October 20, 1969. It was Mr. White's testimony that he was traveling about 15 miles per hour in heavy evening traffic in the lane next to parked cars. When his bus approached the rear end of a car parked at the curb, the car door suddenly opened into the path of the bus necessitating an emergency application of the bus brakes. When bus passengers called out that a woman had fallen in the bus, Mr. White pulled the bus to the curb, assisted the woman who had fallen, called a Bi-State dispatcher, passed out investigation-information cards to passengers and discussed the accident with a policeman at the scene. He also gave information on the accident to a Bi-State supervisor whom he did not know. Mr. White also wrote Mrs. Oventrop's name and address on a card and noted that a Chevrolet Caprice, bearing license number K8H--373, was the car that had its door opened in the path of the bus. The Chevrolet was identified as belonging to defendant Hudson. Mr. White made out a report of the accident and filed it with the Bi-State office. In his discovery deposition taken in May, 1971, approximately one and a half years after the first accident, Mr. White denied having personally gathered information concerning the Chevrolet Caprice. Answers given in the deposition identifying who had written down the information relating to the car allegedly causing the accident were thus contradictory to Mr. White's trial testimony that he was the one who had supplied the information concerning the Chevrolet Caprice. The explanation given by Mr. White for his inconsistent testimony was that he had not had the benefit of his report at the time of his deposition, one and a half years after the accident; that he had not seen the reports nor had his memory refreshed by them until shortly before the trial, nearly four years after the report had been made. Added to the variance in Mr. White's deposition and direct testimony was Bi-State's answer to an interrogatory requesting the name of the person identifying Mr. Hudson's vehicle as the one causing the bus to stop abruptly. The answer to the interrogatory stated: 'unknown Bi-State driver pointed out to supervisor, name of supervisor unknown.' ¹

Seizing upon the discrepancy in Mr. White's deposition and trial testimony, Mr. Hudson's counsel moved, after the direct and cross-examination of Mr. White and over the objection of Bi-State's and Mrs. Oventrop's counsel, that Mr. White's testimony be stricken in its entirety. The trial court sustained the motion to strike, and Mr. White's complete testimony was stricken and the jury advised to disregard his deposition. The jury returned a verdict against Bi-State and in favor of Mrs. Oventrop for $5,000 as a result of injury from the first accident, and $10,000 for the second accident. Since the prayer for damages for injuries arising out of the second accident was $7,500, Mrs. Oventrop voluntarily remitted $2,500. The jury found in favor of defendant Hudson. Thereafter, Bi-State filed its motion for a new trial. The trial court sustained Bi-State's motion for a new trial only as to liability on the first accident for the reason that 'the Court erred in misdirecting the jury to strike the entire testimony of witness White called by Defendant Bi-State for the reason as set out in part of paragraph 8(f) of defendant Bi-State's Motion (etc.) for a new trial.' Paragraph 8(f) of Bi-State's motion for a new trial provided:

'f. The action taken by the Court, by its nature, prejudiced the Defendant Bi-State as a party, and made any verdict against Defendant Bi-State as a result of prejudice.'

Bi-State has appealed claiming that since the striking of Mr. White's testimony prejudiced its entire case, the granting of a new trial limited only to the issue of liability on the first injury was too restrictive; that Bi-State should have a new trial as to all issues. Mrs. Oventrop has also appealed the trial court's action in granting Bi-State a new trial and in failing to grant her motion for a new trial against defendant Hudson for the obvious reason that should Bi-State be successful in obtaining a verdict in its behalf on the retrial of the first accident, without Hudson in the case, there would be no party from whom she could recover for injuries arising out of the first accident.

The facts completed, we now discuss the applicable law. It is axiomatic that trial courts are vested with substantial discretion over matters of fact and thus matters affecting the determination of fact issues in ruling on motions for new trial. Hawley v. Merritt, 452 S.W.2d 604 (Mo.App.1970); Union Electric Co. v. Turner, 446 S.W.2d 430 (Mo.App.1969). Further, a trial court has broad discretion to determine whether its ruling during the course of a trial was prejudicial and substantially influenced the verdict and to grant a new on the basis of that determination. Dorrell v. Moore, 504 S.W.2d 174 (Mo.App.1973). And a reviewing court is more liberal in upholding the action of the trial court which has sustained a motion for a new trial than when the trial court has denied such relief. Cook v. Cox, 478 S.W.2d 678 (Mo.1972); Hicks v. Shanabarger, 241 Mo.App. 476, 236 S.W.2d 49 (1951). Thus, our review of the trial court's exercise of its discretion in determining the existence of prejudicial effect in striking testimony is limited to the determination of whether there has been an abuse of discretion in finding prejudice. Cook v. Cox, supra; Blase v. Bi-State Developmant Agency, 503 S.W.2d 463 (Mo.App.1973).

Here, the trial court has determined that Bi-State was prejudiced as a party by the trial court's exclusion of all the testimony of a key witness. The trial court was correct in finding that it erred in striking Mr. White's testimony, as support for the sanction imposed was lacking. The trial court's sanction was too harsh. Rule 61.01, V.A.M.R. authorizes sanctions where there has been a refusal to comply with the rules of discovery and where interrogatories have been answered untruthfully or evasively. Hilmer v. Hezel, 492 S.W.2d 395 (Mo.App.1973), There is no evidence that Bi-State deliberately or intentionally concealed information from the parties which would require the imposition of the sanction of striking Mr. White's testimony. See Laws v. City of Wellston, 435 S.W.2d 370 (Mo.1968); Thomas v. Fitch, 435 S.W.2d 703 (Mo.App.1968). Bi-State's mistake was innocent and the harm, if any, can be undone on retrial. Missouri State Park Board v. McDaniel, 473 S.W.2d 774 (Mo.App.1971). Erroneous exclusion of competent evidence relative to the issues to be considered forms sufficient basis for granting a new trial. Noel v. Roberts, 449 S.W.2d 572 (Mo.1970); Jones v. Atlanta Life Insurance Company, 247 S.W.2d 314 (Mo.App.1952). The...