Sabbath v. Marcella Cab Co.

• Decision Date: 04 May 1976
• Docket Number: No. 36815,36815
• Citation: 536 S.W.2d 939
• Parties: Annie SABBATH, Appellant, v. MARCELLA CAB COMPANY, Respondent. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 939

536 S.W.2d 939

Annie SABBATH, Appellant, v. MARCELLA CAB COMPANY, Respondent.

No. 36815.

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

May 4, 1976.

Raymond Howard, St. Louis, for appellant.

Ira M. Young, St. Louis, for respondent.

CLEMENS, Presiding Judge.

Plaintiff taxi passenger sued the cab company on the theory of res ipsa loquitur for injuries allegedly received when the cab made 'a sudden and unusual stop and jerk.' The jury found for defendant and plaintiff appeals, asserting numerous trial errors.

According to plaintiff the cab stopped for a red light, started up and then lurched and suddenly stopped, throwing plaintiff to the floor. ¹ Defendant's driver and another passenger testified that when the traffic light turned green the driver tried to move forward, but at that moment the cab's drive shaft broke and fell to the pavement; there was no movement, and of course neither a sudden stop nor jerk.

Defendant's first witness, obviously called out of turn, was an expert in automotive mechanics. Defense counsel asked him a hypothetical question assuming two facts not then in evidence. When plaintiff objected on that ground defense counsel assured the court the two facts would be supplied by defendant's driver. The trial court overruled plaintiff's objection, the question was answered and the driver later testified to the assumed facts. Plaintiff correctly argues that a hypothetical question must be based on facts then in evidence, citing Hamilton v. Slover, 440 S.W.2d 947(9--10) (Mo.1969). However, in view of counsel's assurance the assumed facts would come into evidence, and that they did, there was no prejudicial error. Martin v. Springfield City Water Co., 128 S.W.2d 674(1, 2) (Mo.App.1939).

Plaintiff's second evidentiary point arises from the cab driver's testimony about defendant's policy of performing maintenance on their cabs every two weeks. She contends the testimony was 'hearsay, and self-serving and irrelevant.' The evidence was not irrelevant since it tended to prove a matter in issue--the defendant's due care. Haymart v. Freiberger, 498 S.W.2d 590 (Mo.App.1973).

To violate the hearsay rule the declaration must assert another statement for the truth of the matter stated. State ex rel. State Hwy. Commission v. Kimmell, 435 S.W.2d 354(1--5) (Mo.1968). Plaintiff argues that because the cab driver did not formulate company policy he must have been told of the policy by another; therefore his testimony was based on another's statements, citing Royle Mining Co. v. Fidelity & Casualty Co., 161 Mo.App. 185, 142 S.W. 438 (1912). We disagree. Defendant's maintenance policy was personally known to its driver. He was required to bring his cab in for maintenance every two weeks; he knew the oil was changed and parts were lubricated. Statements based on the witness' personal knowledge are not hearsay. Greene County v. Hermel, Inc., 511 S.W.2d 762(3) (Mo.1974). And, the fact the regular maintenance policy existed is not an excludable self-serving statement. Gibson v. Smith, 422 S.W.2d 321(9--11) (Mo.1968), defines such a statement as 'one made by a party in his own interest at some place and time out of court.'

Plaintiff's last evidentiary complaint stems from defendant's use of its examining doctor's deposition. The trial court gave three reasons for admitting the deposition. The doctor had his office in St. Louis County and resided there; at trial time the doctor was practicing medicine; and defendant had told plaintiff and the court at a pre-trial conference he intended to introduce the deposition, with no objection then being voiced.

Plaintiff relies on Rule 57.07(a)(3) and McFadden v. McFadden, 509 S.W.2d 795 (Mo.App.1974). Rule 57.07(a) declares when a deposition may be used at trial. 'The deposition of any witness who is not present in court may be used by any party for any purpose if the court finds: . . . (c) that the witness is a . . . physician and engaged in the discharge of his . . . professional duty at the time of trial; or . . . (e) that the witness resides in a county other than the one in which the trial is held; . . ..' Rule 57.07(a)(3).

As to (c), McFadden applies because here, as there, 'the record does not indicate that the doctor was engaged in the discharge of his duties on . . . the day that his deposition was offered to the court.'

As to (e), the record indicates--and plaintiff does not dispute--that the doctor's residence at the time of deposition was in St. Louis County. The trial court did not abuse its discretion by presuming the doctor still resided outside the City of St. Louis at trial time. See Boyle v. Crimm, 363 Mo. 731, 253 S.W.2d 149(2, 3) (Mo.1952). And, where the existence of a state of things of a continuous nature is established, a rebuttable presumption arises that they continue to exist. Duckworth v. U.S. Fidelity and Guaranty Co., 452 S.W.2d 280(8, 9) (Mo.App.1970). We hold residence is a condition or status of such a continuing nature as to justify this presumption. So, the trial court did not err in admitting the deposition.

Plaintiff claims trial error in three rulings made during closing argument.

First, plaintiff objected to a defense statement concerning her examining doctor: 'I suggest that in the interim she (plaintiff) has changed lawyers, and her lawyer has advised her--we need some medical testimony down here, and you better have yourself examined so he can testify as to your physical condition.'

'The field or argument to the jury is broad. Although counsel are not permitted to go beyond the issues or urge theories which the evidence does not justify, they are allowed a wide latitude in discussing the facts and arguing inferences from the evidence, even though inferences drawn may appear to be illogical or erroneous.' Arroyo v. Keller, 433 S.W.2d 584(3--6) (Mo.App.1968). The challenged argument was inferential rather than factual. Overruling plaintiff's objection was within the trial court's 'wide latitude in final argument in discussing facts and arguing inferences . . ..' Allen v. Bi-State Development Agency, 452 S.W.2d 288(7) (Mo.App.1970).

Plaintiff also claims error in rulings during her closing argument. Her counsel argued that the sudden stop of the cab had caused the drive shaft to fall from the cab, but there was no evidence of causation. The court told counsel, however, it was not restricting argument that the sudden lurch had caused plaintiff's injuries. Plaintiff has not explained how this limitation prejudiced her case; that was her burden. Redick v. M. B. Thomas Auto Sales, 364 Mo. 1174, 273 S.W.2d 228(13) (1954). We find no abuse of discretion in this ruling.

Also, during plaintiff's closing argument her counsel said: 'Look at Mr. Bryson (the other passenger). Mr. Bryson's sole purpose for testifying was to help Mr. Halsey (defendant's driver)--to use his exact words, he wanted to save Mr. Halsey's job, . . . If the company has that type of character that it wants to fire a man...