Rutledge v. Baldi

• Decision Date: 12 July 1965
• Docket Number: No. 51020,No. 2,51020,2
• Citation: 392 S.W.2d 244
• Parties: Ray RUTLEDGE and Peggy Rutledge, his wife, Appellants, v. Eleanor BALDI, Respondent
• Court: Missouri Supreme Court

Page 244

392 S.W.2d 244

Ray RUTLEDGE and Peggy Rutledge, his wife, Appellants, v. Eleanor BALDI, Respondent.

No. 51020.

Supreme Court of Missouri, Division No. 2.

July 12, 1965.

Leland C. Bussell, Joe C. Greene, Bussell, Hough & Greene, Springfield, for appellants.

Glenn A. Burkart, Buell F. Weathers, Mann, Walter, Powell, Burkart & Weathers, Springfield, for respondent.

STOCKARD, Commissioner.

Plaintiffs have appealed from a judgment for defendant, entered pursuant to jury verdict in their suit for $25,000 for the wrongful death of their minor son.

David Lee Rutledge, four years of age at the time of his death, was playing in a toy pedal car in the driveway of his home. He rolled backward down the driveway into the street where he was struck by an automobile operated by defendant and sustained injuries resulting in his death.

Plaintiffs contend that the trial court erred in refusing to sustain their motion for a directed verdict at the close of all the evidence on the issue of liability and in refusing to submit the case to the jury on the issue of damages only. They assert that the evidence was undisputed that David was in full and unobstructed view of the defendant, that the defendant failed to see what looking clearly would have revealed, that David, being four years of age, was incapable of contributory negligence, and that 'the evidence of all the witnesses, including that of the defendant, was of such a clear and undisputed character that no question of fact was left for the finding of the jury, and the evidence conclusively showed the defendant to be negligent as a matter of law and that such negligence caused the death of David Lee Rutledge.'

Plaintiffs' motion for a directed verdict filed at the close of all the evidence assigned as grounds therefor, pursuant to Civil Rule 79.01, V.A.M.R., that (1) 'the plaintiffs have proved, by their witnesses and evidence, that the defendant was guilty of negligence resulting in the death of David Lee Rutledge,' (2) the defendant 'has failed to prove any defense to the plaintiffs' charge that she was negligent * * *,' and (3) the defendant 'has failed to prove any contributory negligence on the part of the deceased * * * or any contributory negligence imputable to the plaintiffs herein.' Evidence was presented by the defendant, and neither in her pleadings nor by her testimony or by admission of counsel did she admit negligence or liability. It is obvious, without the need of discussion, that plaintiffs' motion, as worded and presented to the trial court, was properly overruled, and plaintiffs' point could be disposed of on the theory that a trial court is not to be convicted of error on appeal when the ruling made at the trial was correct. However, assuming the reasons now assigned on this appeal in support of the motion by plaintiffs for a directed verdict had been presented to the trial court, the ruling was still correct. The rule is properly and well stated in Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558, 559, as follows: 'In a case where the allegations of the petition are denied by the answer, and the plaintiff offers oral evidence tending to support the allegations of the petition, the defendant is entitled to have the jury pass upon the credibility of such evidence even though he should offer no evidence himself. The court has no right to tell the jury that it must believe the witnesses. The jury, in the first instance, is the sole judge of the credibility of the witnesses and of the weight and value of their evidence, and may believe or disbelieve the testimony of any one or all of the witnesses, though such evidence be uncontradicted and unimpeached.' See also Beezley v. Spiva, Mo., 313 S.W.2d 691, 695; Schaefer v. Accardi, Mo., 315 S.W.2d 230. Plaintiffs rely on and quote from Rogers v. Thompson, 364 Mo. 605, 265 S.W.2d 282, the following statement: 'this general rule is not applicable in unusual situations where defendant in his pleadings or by his counsel in open court admits plaintiff's claim, * * * or where there is no real dispute of the basic facts supported by uncontradicted testimony essential to a claim or an affirmative defense.' Aside from the fact that in the Rogers case the judgment for plaintiff was reversed because of an erroneous instruction, and only one judge concurred in the opinion with four judges concurring in result only (that is, the reversal because of the erroneous instruction) and two judges dissenting, defendant's evidence, or the evidence taken as a whole, did not establish negligence on the part of defendant as a matter of law, but only authorized a finding of negligence by the jury depending upon the facts it found concerning the circumstances of the accident. Whether negligence should or should not have been inferred from the facts of the occurrence, as determined by the jury from a consideration of the credibility of the witnesses, was within the province of the jury and not the court.

We note in passing that plaintiffs argue, in support of another point in their brief, that this is in part a circumstantial evidence case, and that it was necessary 'for the jury to draw two crucial inferences, from the direct facts, in order for them to find for the plaintiffs.' If this argument is correct, it demonstrates that plaintiffs could not have been entitled to a directed verdict. We base our ruling, however, on the reasons previously set forth. The trial court did not err in submitting the issue of liability to the jury.

Plaintiffs also assert error on the part of the trial court in sustaining defendant's objection to testimony of Mrs. Doris Cornwell, a rebuttal witness for plaintiffs. A statement of the circumstances leading up to the objection and ruling is necessary.

Charles Garner, who investigated the accident in his then capacity of deputy sheriff, testified that when he went to defendant's home he found her 'in an extreme state of shock,' and 'most' of the information he received was 'from the father [defendant's husband] and the son [age eleven] that was with Mrs. Baldi at the time of the accident.' He further testified that the son, in the presence of defendant, stated to him that defendant 'was just traveling west in the 900 block there, headed for home, and at a slow speed, 5 to 10 mile an hour, and she heard something, they heard something under the car and didn't know what it was and she looked back in the rearview mirror and seen the child laying in the street, and of course, stopped.' The son also related, according to Mr. Garner, that he and defendant had 'stopped once and was looking at a house on the south side of the street, under construction, and was looking at the homes along the street' at the time 'this occurred.' On cross-examination of defendant she was asked whether 'the reason you didn't see David was because you were looking at the houses on the left as you went up the street,' and she replied that it was not, and that she 'was not looking at the houses.' She further testified that she had not told anyone that she was 'looking to the left at that house and * * * just started up and heard a thump.' Other evidence was to the effect that as defendant was driving toward her home she stopped in front of a driveway to observe some construction work, and then drove westward at a speed of five to ten miles an hour to the point of the accident at plaintiffs' driveway 244 feet distant.

Plaintiffs called Mrs. Cornwell as a rebuttal witness who testified that she went to the scene of accident. The following then occurred:

'Q. I will ask if Mrs. Baldi made any reference to what happened?

'Mr. Burkart: Now, we object to that. That is too general a question and I don't think thus far it is in rebuttal of anything that has been testified to up to now.

'The court: I expect you had better make an offer of proof on that.

* * *

* * *

'Mr. Greene: We offer to prove and intend to prove by this witness that [apparently here there was a change of thought not reflected in the transcript] the foundation has been laid by the testimony, by direct denial by the defendant, Mrs. Baldi, that she told anyone that she was looking to her left. We intend to prove by this witness that she had, at the scene of the accident, said that Mrs. Baldi was stopped at the Harrison house and she had just started up and the accident occurred. [Italics added].

'Mr. Burkart: That doesn't disprove anything that's already been said.

'The court: You offer to prove that she said what this witness is going to testify to?

'Mr. Hough: Yes, sir. Your Honor, Mr. Greene asked Mrs. Baldi on cross-examination if she told anyone that she had stopped to look at the house to the left, and just started up when this accident occurred. Those were the words she used.'

The court then stated that there had been no proper foundation for impeachment, and the witness was excused.

Plaintiffs' contention on this appeal is that the 'offered testimony was an admission [against interest], not merely an impeachment by a prior inconsistent statement,' and therefore, it was prejudicial to exclude it. They cite Ozbun v. Vance, Mo., 323 S.W.2d 771; Nelson v. Tayon, Mo.Sup., 265 S.W.2d 409; Hudlow v. Langerhans, 230 Mo.App. 1160, 91 S.W.2d 629; and Rutledge v. Ballance, Mo.App., 375 S.W.2d 214, to the effect that an extrajudicial admission against the interest of a party is admissible. They also rely on Dorn v. St. Louis Public Service Co., Mo.App., 250 S.W.2d 859, in support of their contention that the wrongful exclusion of such evidence was prejudicial, and State v. Martin, Mo., 56 S.W.2d 137, that such admission, 'being admissible as independent evidence' could be shown without a warning question. We do not question these rulings or the principles there announced. However, in none of these cases, except State v....