Ransom v. Adams Dairy Co.

• Decision Date: 15 January 1985
• Docket Number: No. 47558,47558
• Citation: Ransom v. Adams Dairy Co., 684 S.W.2d 915 (Mo. App. 1985)
• Parties: Mary Etta RANSOM, a widow individually, and Clarence Lamont Ransom, a minor, Andre Maurice Ransom, a minor, Marvin Lavelle Ransom, a minor, Felicia Renee Ransom, a minor, Timothy Quinton Ransom, a minor, Lydell Lamar Ransom, a minor, Derrell (NMN) Ransom, a minor, Terrance Ramon Ransom, a minor, all by and through their next friend, Mary Etta Ransom, Plaintiffs-Appellants, v. ADAMS DAIRY COMPANY, d/b/a Velvet Freeze, C.A.S. Enterprises, Inc., and Alfred (NMN) Stewart, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 915

684 S.W.2d 915

Mary Etta RANSOM, a widow individually, and Clarence Lamont Ransom, a minor, Andre Maurice Ransom, a minor, Marvin Lavelle Ransom, a minor, Felicia Renee Ransom, a minor Timothy Quinton Ransom, a minor, Lydell Lamar Ransom, a minor, Derrell (NMN) Ransom, a minor, Terrance Ramon Ransom a minor, all by and through their next friend, Mary Etta Ransom, Plaintiffs-Appellants, v. ADAMS DAIRY COMPANY, d/b/a Velvet Freeze, C.A.S Enterprises, Inc., and Alfred (NMN) Stewart Defendants-Respondents.

No. 47558.

Missouri Court of Appeals,

Eastern District,

Division One.

Jan. 15, 1985.

Stephen Joseph Nangle, Clayton, for plaintiffs-appellants.

James E. Whaley, Leo V. Garvin, St. Louis, for defendants-respondents.

SATZ, Presiding Judge.

On the morning of December 31, 1978, Clarence Ransom (Ransom) entered an ice cream, confectionary store and was shot to death by the operator of the store, defendant Alfred Stewart (Stewart). Ransom's widow and children sued Stewart and the owner of the ice cream franchise, defendant C.A.S. Enterprises, Inc. (C.A.S.), for the wrongful death of Ransom. ¹

At the close of plaintiffs' case, the trial court sustained defendant C.A.S.'s motion for a directed verdict. The jury later returned a verdict for defendant Stewart against plaintiffs. Judgment was entered accordingly. We affirm.

We first address plaintiffs' appeal from the judgment in favor of defendant Stewart. To do so, we use only the evidence and inferences favorable to Stewart and disregard that which is unfavorable. See, e.g., Affiliated Foods, Inc., v. Strautman, 656 S.W.2d 753, 763 (Mo.App.1983).

On December 31, 1978, defendant Stewart was shoveling snow off the sidewalk in front of the Velvet Freeze store he operated. Decedent Ransom, on his way home from a relative's house, entered the store, mumbling about someone being the devil. He walked past the customers in the store and entered a back storeroom. Believing Ransom was acting unusually, Stewart followed Ransom into the store and asked Ransom to come out of the back. Ransom came out of the storeroom area, yelled at Stewart that Stewart was the devil and that one of them was going to heaven that morning.

Ransom then grabbed a young female customer from behind and, after telling her he was not going to hurt her, released her. He then shuffled into, grabbed or hit a male customer. Both customers feared for their safety. At this point, Stewart told Ransom to leave his customers alone and get out of the store. Ransom turned and rushed toward Stewart, proclaiming Stewart was "nothing but the devil." Stewart told Ransom to get back and pulled out a gun. Ransom said: "Shoot, I don't care." Stewart shot Ransom in the head.

Additional evidence showed that, in 1975, Ransom was confined to the hospital for about three months for mental problems, and that, in early 1978, he was again confined for about three months for similar mental problems. After discharge from the hospital, he was on medication as an out-patient.

Plaintiffs complain the trial court improperly permitted inquiry into prior, specific violent acts of the decedent Ransom. The inquiry, plaintiffs argue, interjected Ransom's character into evidence and, thus, prejudiced plaintiffs. We disagree.

The issue of Ransom's violent acts was initially raised by defendants in an extended pre-trial conference and was repeatedly raised throughout this protracted trial. Explicitly stating its awareness of the possible prejudice that could be worked by the admission of such evidence, the trial court was equally explicit in stating that Ransom's medical history was relevant for the limited purpose of showing his ability or, rather, inability to earn an income. The court consistently maintained this position and, when appropriate, rejected inquiry into any specific acts of violence.

This issue, however, arose again during cross-examination of Ransom's widow, and, after extended discussion at the bench, the court permitted Stewart's counsel to ask Ransom's widow one limited question: whether Ransom became violent "when he didn't take his medication." Apparently, unexpectedly, she, in effect, denied Ransom was violent when off his medication. The court then permitted counsel to cross-examine her further. In response to additional questions, she testified that if she had previously said Ransom had intentionally set their house on fire, she was now saying it was an accident, that on the occasion of the fire, Ransom did "sling" furniture around and that she did take the children to another part of the house to protect them from him.

We find no abuse of discretion here. Evidence which tends to prove or disprove a fact in issue is relevant and, therefore, admissible. E.g., Arie v. Intertherm, Inc., 648 S.W.2d 142, 154 (Mo.App.1983) . In a wrongful death action, the decedent's contribution to the support of his dependents is an essential issue and, thus, among other facts, his health and earning capacity while alive are relevant. Grothe v. St. Louis-San Francisco Ry., 460 S.W.2d 711, 718 (Mo.1970). The trial court, here, correctly permitted Ransom's widow to be questioned about Ransom's history of breakdowns and treatment. See, e.g., Spalding v. Robertson, 357 Mo. 37, 206 S.W.2d 517, 523 (1947); Kribs v. Jefferson City Light, Heat, & Power Co., 199 S.W. 261, 263 (Mo.App.1917). Moreover, after she denied that Ransom became violent when not on medication, the court's carefully considered decision to permit inquiry into specific acts of violence was not an abuse of its considerable discretion to determine the appropriate scope of cross-examination. See, e.g., Shepard v. Harris, 329 S.W.2d 1, 12 (Mo. banc 1959); Gant v. Hanks, 614 S.W.2d 740, 744 (Mo.App.1981). Furthermore, evidence admissible for one purpose may be admitted even though it may be improper for other purposes. Martin v. Yeoham, 419 S.W.2d 937, 950 (Mo.App.1967). Thus, if requested, plaintiffs may have been entitled to an instruction limiting the use of the acts in question to the issue of Ransom's ability to earn income, Thigpen v. Dodd's Truck Lines, Inc., 498 S.W.2d 816, 818 (Mo.App.1973). Plaintiffs did not make this request and, therefore, cannot now be heard to complain on appeal. Id. at 818.

Plaintiffs also contend the trial court erred in submitting an unmodified version of the self-defense instruction, MAI 32.11. As submitted, the instruction reads:

"Your verdict must be for defendant Alfred Stewart if you believe:

First, defendant Alfred Stewart had reasonable cause to apprehend and did apprehend great bodily harm from decedent, and

Second, defendant Alfred Stewart did not create the situation which caused his apprehension, and

Third, the shooting of decedent was in defense against this apprehended great bodily harm, and

Fourth, defendant Alfred Stewart used only such force as was reasonable and necessary."

Plaintiffs contend the first paragraph of the instruction should have been modified to include the phrase "imminent danger of death" and, thus, read: "defendant Alfred Stewart had reasonable cause to apprehend and did apprehend imminent danger of death or great bodily harm...." Without this modification, plaintiffs argue, the instruction withdrew the issue of the excessiveness of the force used. We disagree.

MAI 32.11 lists three optional phrases to be used in the first paragraph of the instruction, with a note that the phrase appropriate to the force used is to be selected. None of the three include the words plaintiffs urge should be included. ²

Plaintiffs cite Martin v. Yeoham, 419 S.W.2d 937, 950 (Mo.App.1967) for the proposition that "[u]nder Missouri decisions the existence of reasonable cause for apprehension of mere bodily injury is not sufficient to justify a shooting in self-defense. There must be reasonable cause of apprehension of imminent danger of death or great bodily harm." (Emphasis theirs) In the instant case, however, apprehension of "mere bodily injury" was not submitted to the jury. Apprehension of "great bodily harm" was submitted. By use of the disjunctive "or", the Court in Martin, equated apprehension of "great bodily harm" with apprehension of "imminent danger of death" and, thus, either apprehension would justify "a shooting in self-defense." Id. at 950. Understandably, subsequent to the Martin case, this court held there is no error in not including the phrase "imminent danger of death" in the self-defense instruction in issue, MAI 32.11. See Moore v. Smith, 657 S.W.2d 664, 667 (Mo.App.1983).

Plaintiffs next contend the trial court erred in precluding them from using Stewart's alleged history of drug abuse to impeach Stewart's credibility. We disagree.

At trial, plaintiffs' counsel made an offer of proof based upon the alleged records of Stewart's drug treatment at the St. Louis State Hospital Drug Abuse Clinic. According to counsel, these records show: (1) Stewart had a long history of treatment for drug abuse and an even longer history of drug use, (2) Stewart had a "dirty urine sample" on January 1, 1979, one day after the shooting in question, and (3) on January 3, 1979, in response to his drug counselor's inquiry about the dirty urine sample, Stewart responded he had used "illicit drugs because he was sick and medication didn't hold him." To give relevant meaning to this showing, counsel told the trial court that he could produce an expert who, based upon this showing, would testify that Stewart's ability to perceive, recall and relate was seriously impaired. The court found the expert's name was not timely given to opposing counsel, prohibited the use of the expert and, therefore, overruled the offer of proof and sustained defense counsel's objection to the admissibility of this evidence.

Having failed with this argument, plaintiffs' counsel then argued that the facts in Stewart's treatment record were admissible without accompanying expert testimony. More specifically, he argued and now...