Robertson v. Cameron Mut. Ins. Co., s. WD
Decision Date | 08 June 1993 |
Docket Number | Nos. WD,s. WD |
Citation | 855 S.W.2d 442 |
Parties | Philip J. ROBERTSON and Patricia A. Robertson, Respondents, v. CAMERON MUTUAL INSURANCE COMPANY, Appellant, and Kaw Transport Company, Respondent. Philip J. ROBERTSON, et ux., Appellants, v. CAMERON MUTUAL INSURANCE COMPANY, Respondent, and Kaw Transport Company, Respondent. 46798, WD 46851. |
Court | Missouri Court of Appeals |
George Edwin Proctor, Jr., Kansas City, for Cameron Mut. Ins. Co.
James D. Boggs, Kansas City, for Philip and Patricia Robertson.
Robert Allen Horn, Kansas City, for Kaw Transport Co.
Before FENNER, P.J., and SPINDEN and SMART, JJ.
Appellant, Cameron Mutual Insurance Company (Cameron), appeals the finding of the Circuit Court of Platte County, Missouri, granting Respondents/Cross-Appellants' Motion for New Trial with regard to Cameron. The trial court found that the jury's verdict in favor of Cameron was against the weight of the evidence. Respondents/Cross-Appellants, Philip and Patricia Robertson (the Robertsons), cross-appeal alleging error on the trial court's part in refusing to sustain an objection made during the closing argument of Respondent, Kaw Transport Company (Kaw), and in approving certain verdict directing instructions.
As a brief background, this personal injury lawsuit arose out of an automobile accident that occurred on June 29, 1989, on Route J in Platte County, Missouri. While driving southbound on Route J from Weston to Platte City, Missouri, the Robertsons' car was struck by a car driven by Deedra Stoneking, who was driving northbound on the same road and had crossed the center line. The Robertsons contended that the negligent operation of a truck was responsible in part for their injuries. The evidence was disputed as to whether the truck was a "phantom vehicle" resulting in liability of the Robertsons' uninsured motorist carrier, Cameron, or whether the truck was operated by Kaw, an I.C.C. regulated carrier. Certain witnesses to the accident had identified a Kaw placard on the truck.
In their amended petition, the Robertsons prayed for judgment against Kaw should the jury determine that the truck was owned and operated by Kaw, and prayed for judgment against Cameron should the jury determine that the truck was an unidentified motor vehicle, or a "hit and run" motor vehicle, as defined by the uninsured motorist provision contained in the policy issued by Cameron to the Robertsons. The trial took place on July 6th and 7th of 1992, and the jury found in favor of both defendants, Kaw and Cameron. On August 25, 1992, the trial court entered judgment in favor of Kaw and Cameron and against the Robertsons.
The Robertsons filed a Motion for New Trial alleging, in part, that the jury's verdict was against the weight of the evidence. The trial court entered an order on September 1, 1992, overruling the Robertsons' motion with regard to Kaw, but sustaining the motion with regard to Cameron. The trial court found that the jury's verdict in favor of Cameron was against the weight of the evidence and that the Robertsons should be granted a new trial with regard to their claims against Cameron. Cameron appeals this finding.
The facts relevant to Cameron's appeal are as follows: The accident described above occurred at approximately 10:00 p.m. on a hilly curve on Route J, a two-lane road. The Robertsons were heading southbound on Route J, and a woman named Audra Leatherbury was driving behind the Robertsons by a few car lengths. Deedra Stoneking was approaching the Robertsons in the northbound lane. Behind Stoneking's vehicle, there were three motorcycles. Dan Harmon was riding the motorcycle closest to Stoneking's vehicle, followed by John Bucher, who was riding with his daughter, Michelle, and Aaron Robinson, who was riding with Bucher's wife, Reta. Alec Johnson, an emergency medical technician, was travelling northbound, a substantial distance behind the motorcycles. Johnson did not actually witness the accident but stopped at the scene of the accident to render assistance.
The cause of the accident is in dispute in that several witnesses testified that a truck caused the accident while Leatherbury claims that no truck was involved and that Stoneking's vehicle just drifted over the center line and struck the Robertsons' vehicle. The testimony adduced at trial included the following: Philip Robertson has no memory of the accident due to amnesia and, consequently, cannot remember whether a truck was involved. He testified that just prior to the accident he and his wife, Patricia, were enjoying a conversation about buying a home and were not aware of other vehicles on the road. Patricia Robertson testified that, as they approached the collision scene, she did not recall who was behind their vehicle or in front of it because she and her husband were engrossed in conversation. Thus, she does not remember whether a truck was involved in the collision.
Deedra Stoneking, in her deposition, 1 stated that she was driving toward Weston on Route J and there was a curve ahead of her. Around the curve, coming toward her, was a truck on her side of the road. She moved out of the way, hit the embankment, and lost control of her car, hitting the Robertsons' car in the other lane. She does not remember seeing the Robertsons' car; all she remembers is that she hit something and was spinning. Stoneking described the truck as having a black cab and silver tanker, but she was unable to see any markings on the truck. According to her testimony, the truck never stopped and just left the scene of the accident.
Audra Leatherbury, a witness to the accident, testified that she was driving just a few car lengths behind the Robertsons' vehicle when she saw Stoneking's vehicle coming northbound and starting to cross over the center line slowly. Leatherbury stated that Stoneking's vehicle veered into the Robertsons' vehicle and that there was no truck in front of the Robertsons' vehicle. She testified that the two cars ended up on opposite sides of the road, with the Robertsons' vehicle turned upside down. She further testified that not only did she not see a truck, but she also did not see any motorcycles. However, Leatherbury stated that, at the scene of the accident, she heard some people talking about a truck. When she said that she never saw any truck, the people looked at her like she did not know what she was talking about.
John Bucher, in his deposition, stated that he and four others were proceeding on Route J on their motorcycles, heading toward Weston. They were a few car lengths behind Stoneking. Bucher stated that, as they approached the curve where the accident occurred, a truck was coming toward them on their side of the road so that they had to go onto the shoulder of the road to avoid being hit by the truck. Robertsons' vehicle, he stated, was coming behind the truck and was hit by Stoneking's vehicle. Bucher, however, was not able to actually see whether the truck ran Stoneking's vehicle off the road because he had lost sight of Stoneking's vehicle for a few seconds.
Bucher described the truck as an "International Eagle pulling a tanker." He stated that there was a big KAW emblem on the tanker. Bucher further described the truck as dark-colored with bright yellow, red, and orange stripes. According to Bucher, he was so close to the truck that he could "reach out and touch it." Bucher also stated that the truck never stopped at the accident.
Both Reta Bucher and Aaron Robinson stated in their depositions that there was a truck coming toward them on their side of the road as they approached the curve where the accident occurred. Reta Bucher stated that she was able to read the KAW emblem on the truck. Aaron Robinson, however, was not able to identify anything on the truck and only remembered that it was a dark tanker truck.
Alec Johnson, the emergency medical technician who was travelling a good distance behind the motorcycles, arrived at the accident scene by happenstance. He testified that about ten to thirty seconds before arriving at the accident scene, he saw a truck coming in the opposite direction. At the accident scene, he remembered telling bystanders that he saw a truck.
Trooper Terry Day, of the Missouri State Highway Patrol, was responsible for investigating the accident. Trooper Day testified that, when he arrived at the scene of the accident, he learned about the existence of a tractor trailer truck from statements taken from witnesses at the scene and statements made by Stoneking. Trooper Day stated that the truck was described to him as "a black conventional truck pulling a silver tank trailer."
As is relevant to Cameron's appeal, the trial court instructed the jury that if they made a finding that the Robertsons sustained injury as a result of a negligently operated truck that was unidentifiable and left the scene of the accident, they must return a verdict in favor of the Robertsons and against the Robertsons' uninsured motorist carrier, Cameron. Alternatively, the jury was instructed that they must return a verdict in favor of Cameron if they did not believe that a truck was involved at all in the accident.
Cameron argues on appeal that the trial court erred in granting the Robertsons' motion for new trial because the jury's verdict in favor of Cameron was not against the weight of the evidence in that the substantial evidence supports the position that Stoneking, an insured driver, was the sole and exclusive cause of the accident and that she was not forced into the Robertson vehicle by a truck. Cameron further argues that the trial court abused its discretion in weighing the same evidence one way for Cameron and another way for Kaw, because the substantial evidence supports the jury's threshold determination that Stoneking was the sole cause of the accident thus relieving both defendants of liability. For the trial court to have granted a new...
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