Rotundo v. Fischlowitz

• Decision Date: 10 June 1968
• Docket Number: No. 2,No. 52468,52468,2
• Citation: Rotundo v. Fischlowitz, 428 S.W.2d 581 (Mo. 1968)
• Parties: Henry ROTUNDO, Appellant, v. Bernard FISCHLOWITZ and Midwest Consultants, Inc., Respondents
• Court: Missouri Supreme Court

Page 581

428 S.W.2d 581

Henry ROTUNDO, Appellant, v.Bernard FISCHLOWITZ and Midwest Consultants, Inc., Respondents.

No. 52468.

Supreme Court of Missouri, Division No. 2.

June 10, 1968.

Lawrence E. Ehrhart, Clayton, for plaintiff-appellant.

Evans & Dixon, Ralph C. Kleinschmidt, St. Louis, for defendants-respondents.

PRITCHARD, Commissioner.

Defendants received a jury's verdict and the judgment of the court in plaintiff's $200,000 claim for personal injuries.The vehicle operated by defendant Fischlowitz struck plaintiff-pedestrian at or about the center of Jefferson Avenue in St. Louis, Missouri, causing the injuries of which plaintiff complains.

Plaintiff's points here are three.The first relates to his contention that the court erroneously permitted defendants to inquire as to his wealth and financial income, as matters not in issue, not controverted, and which were highly prejudicial to plaintiff.Defendants say they were entitled to inquire as to the source of plaintiff's income (as shown by his income tax returns), and even if the matter was an improper inquiry no prejudicial error occurred because it related to the issue of damages, and by its verdict the jury did not reach that issue.

Plaintiff next says that the court erred in permitting defendants to rehabilitate their impeached police officer witness who read into evidence self-serving and highly prejudicial hearsay statements and conclusions upon which the officer had not been impeached and which were not admissible.Defendants say this matter is harmless because the criticized testimony was first admitted without objection, and also that it is permissible to rehabilitate the witness with prior consistent and relevant statements.

By his third point, plaintiff states that the verdict 'was so clearly against the overwhelming weight of the evidence as to indicate it was the result of bias and prejudice on the part of the jury.'Defendants say the verdict was fully supported by the evidence, and that this court will not weigh the evidence, and the jury's verdict in this circumstance is conclusive.Defendants' position is certainly correct and the third point may be disposed of first.Plaintiff argues that there were four eyewitnesses, three of whom he did not know, who testified that he was standing on the (double) center line when he was struck by defendants' vehicle.In separate instructions (M.A.I. 17.15 and 18.01modified) against each individual defendant, plaintiff submitted his case under the humanitarian doctrine upon defendants' negligent failure to stop, swerve or sound a warning and thus avoid the injury to plaintiff.Defendants' evidence, contrary to that of plaintiff, was that he suddenly stepped backward into defendants' path.Defendants conversed plaintiff's humanitarian submission by InstructionNo. 5 (M.A.I. 29.06(2)).The case is one of the jury's province to resolve the basic issue of plaintiff's position on the street.It has resolved that issue under the evidence and the instructions and determined that plaintiff's version (and that of his witnesses) is not correct one.Ordinarily, this court will not weigh the evidence on appeal from jury-tried cases.Roberts v. Emerson Electric Manufacturing Company, Mo., 338 S.W.2d 62, 68(5, 6);Elliott v. Wescoat, Mo., 336 S.W.2d 649, 652(4--7);Mullis v. Thompson, 358 Mo. 230, 213 S.W.2d 941, 945(7).This matter was for the trial court, and plaintiff's motion for new trial, raising the issue of the weight of the evidence, was overruled.Rollins v. Postlewait, Mo., 358 S.W.2d 828.There is nothing in the record to demonstrate what plaintiff contends to be a vital distinction between the verdict being against the weight of the evidence and a verdict so clearly against the weight of the evidence as to indicate it was the result of bias and prejudice.(SeeTaylor v. St. Louis Public Service Co., Mo., 303 S.W.2d 608.)The more detailed facts below set out and the points below discussed do not support such a distinction.In Boschert v. Eye, Mo., 349 S.W.2d 64, the jury found for plaintiff and awarded him only $150, the amount of his medical expenses, as damages, an amount held to be so disproportionately small as to indicate passion and prejudice, especially in view of plaintiff's serious, undisputed injuries the result of an unprovoked striking.Brown v. Moore, Mo., 248 S.W.2d 553, also involved inadequate damages upon uncontradicted evidence.Greer v. McCrory, Mo.App., 192 S.W.2d 431, held merely that plaintiff's verdict was not excessive, and that there was no part of plaintiff's evidence which the trial court or jury should not have believed as a matter of law.These cases cited by plaintiff do not aid him, and Point III is ruled against him.

Nora E. Hunt, her husband Dale and his twin brother Dell, with two children had crossed Jefferson to its center line from the corner of Wittemore, north of where the accident occurred about 180 feet.Nora, Dale and Dell each substantially testified the same, that they saw that plaintiff was standing on the center of Lafayette, between the yellow dividing lines, when he was struck.Defendants' vehicle swerved toward the center line as it approached.Prior thereto the vehicle was 10 inches to a foot from the center line.Dale testified foot from the center line.Dale testified (to the east) of a step or a step and a half.Then plaintiff stepped forward when defendants' vehicle was 2, 3 or 4 car lengths away.Dell testified plaintiff stepped back 20 to 30 seconds before the collision, but was still on the center line when hit, having stepped forward 15 to 20 seconds before the accident occurred.In his statement given to the police officer, Dell did not say anything about plaintiff stepping forward again.

Plaintiff's testimony was that he was standing between the yellow lines of the center of Jefferson waiting for heavy southbound traffic to pass when he was hit.Virgil Roberts, in whose station wagon plaintiff was riding to attend the funeral of Roberts' father, testified that he did not see the accident, but Patrolman Kuester, who investigated the same, testified that Roberts had told him that he(meaning plaintiff) had stepped backward into the...