Sanders v. H & S Motor Freight, Inc.

• Citation: 526 S.W.2d 332
• Decision Date: 29 July 1975
• Docket Number: No. 36229,36229
• Parties: Ray Curtis SANDERS and Betty Sanders, Plaintiffs-Respondents, v. H & S MOTOR FREIGHT, INC., a corporation, Defendant-Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 332

526 S.W.2d 332

Ray Curtis SANDERS and Betty Sanders, Plaintiffs-Respondents, v. H & S MOTOR FREIGHT, INC., a corporation, Defendant-Appellant.

No. 36229.

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

July 29, 1975.

Keyes & Hearne, John L. Hearne, Jefferson City, for appellant.

Gray & Ritter, St. Louis, for respondent.

RENDLEN, Judge.

H & S Motor Freight, Inc., defendant below, appeals the $150,000 judgment entered on a verdict for injuries to plaintiff Ray Sanders. His wife Betty Sanders received a verdict of $30,000 for loss of consortium but filed a voluntary remittitur reducing her award to $17,500 and no appeal is taken from that judgment. The action arose from a two-truck accident, one driven by plaintiff Ray Sanders and the other by defendant's employee Claude Hayes.

We consider three assignments of error: (1) the trial court erred in sustaining plaintiff's objection to defendant's introduction of a photocopied document intended to impeach defendant's own witness; (2) Ray Sanders' judgment was grossly excessive; and (3) the excessive verdict demonstrated bias and prejudice of the jury. Defendant further asserts there was a failure of proof as to Claude Hayes' employment with H & S Motor Freight. This point, not raised in defendant's motion for new trial as required by Rule 78.07, V.A.M.R. (formerly Rule 79.03), is not preserved for appeal and there is no basis for its consideration as plain error. We affirm.

On September 15, 1971, tractor-trailer trucks driven by plaintiff Ray Sanders and defendant's employee Claude Hayes simultaneously attempted to cross a bridge from opposite directions on Highway 52, an eastwest road in Miller County. Plaintiff's truck had passed an automobile driven by John Houston somewhat to the west but had returned to its own lane before reaching the bridge. As defendant's truck entered the bridge it jackknifed four or five feet into plaintiff's lane causing the collision in which the left front of plaintiff's vehicle was struck by the back wheels of the tractor and the left front of defendant's trailer. Plaintiff, rendered unconscious by the crash, did not 'come to' until in the hospital at Jefferson City where he was treated for extensive injuries. Defendant does not challenge the sufficiency of the evidence concerning its driver's negligence but complains of the verdict amount.

The facts giving rise to defendant's first contention of error occurred when its counsel called John Houston as a witness for the defense. Contrary to defendant's expectations, Houston testified plaintiff Ray Sanders was on his proper side of the highway immediately prior to the collision. Counsel, out of the jury's hearing, told the court he had not interviewed the witness prior to trial but had a statement signed by Houston to the effect that Saners' truck was straddling the center line at the time of impact. In view of the contrary testimony, defendant's counsel claimed surprise and requested permission to use the written statement to refresh the witness' recollection, or apparently for impeachment. Still outside the jury's hearing voir dire examination of Houston was undertaken, at which time he was presented a photocopy (defendant's exhibit E--1) and a carbon copy (defendant's exhibit E--2) of the three-page handwritten statement. ¹ During voir dire plaintiff's attorney objected to use of the photocopy (defendant's exhibit E--1) arguing there was no evidence it was taken from the original document. Because there was no explanation of the unavailability of the original, the objection was sustained. The defense continued its interrogation of Houston to establish the authenticity of both exhibits. Though the witness denied having made certain statements appearing in the exhibit, he admitted the signatures were his. It is not clear from the record if Houston, when testifying, was examining the photocopy, the carbon copy or both, but he acknowledged having signed the original. Plaintiff then withdrew his objection to the statement (apparently referring to the carbon copy) but when the jury returned he renewed his objection to the photocopy (defendant's exhibit E--1) which the court again sustained as not the best evidence. Though plaintiff made no objection to admission of the carbon copy (defendant's exhibit E--2), defense counsel did not avail himself of the opportunity to use that exhibit; instead he excused Houston from the stand and in the jury's presence called witness Harold Punches to lay a foundation for the use of the photocopy.

On direct examination by defendant, Punches testified he was branch claim manager with Truck Insurance Exchange, that he hired the investigator who took the original statement of Houston, that the photocopy was a true copy of the original made at the 'Exchange' claims office and the original could not be located. On cross examination Punches stated that 'Exchange' carried the insurance on defendant's truck and had a financial interest in the outcome of the suit, to which defendant made no objection.

Recalling Houston, defendant confronted him with the photocopy and read it into the record. Though permitted finally to use exhibit E--1 for impeachment of its own witness, defendant contends the statement was collateral to the issues on trial and hence did not fall under the best evidence rule per Aviation Enterprises, Inc. v. Cline, 395 S.W.2d 306 (Mo.App.1965). Defendant claimed it was then prejudiced when forced to lay a foundation leading to disclosure of insurance coverage. However, if it is found the trial court erred, the error is reversible only if there is prejudice to the complaining party. Kennedy v. Tallent, 492 S.W.2d 33, 39(9) (Mo.App.1973). We find no such prejudice.

Defendant contends the ruling of the trial court made it necessary to lay a foundation for exhibit E--1; however, defendant was not required to do so in the presence of the jury. Proof of loss or destruction of primary evidence is a question solely for the court and not the jury. Garrett v. Terminal R. Ass'n of St. Louis, 259 S.W.2d 807, 811(1) (Mo.1953); Scrivner v. American Car & Foundry Co., 303 Mo. 408, 50 S.W.2d 1001, 1008(7) (banc 1932). When a question is one of law to be decided by the court, the evidence may properly be submitted out of the hearing of the jury. Hutchinson v. Steinke, 353 S.W.2d 137, 144(6) (Mo.App.1962). Defendant did not request the jury be withdrawn during the testimony of Punches and a party cannot argue as error an incident of his own creation. Benjamin v. Benjamin,370 S.W.2d 639, 643(11) (Mo.App.1963). Whether this was done by mistake or as a matter of trial strategy, defendant opted to examine the witness in the jury's presence. Notwithstanding plaintiff's withdrawal of his objection to defendant's exhibit E--2, defendant elected not to use the carbon copy for impeachment though this would have obviated the necessity of calling Punches. '(A) party will not be heard to complain of alleged error in which, by his own conduct at the trial, he joined or acquiesced.' Benjamin v. Benjamin, supra at 643(11); Taylor v. Cleveland C., C. & St. L. Ry. Co.,333 Mo. 650, 63 S.W.2d 69, 75(15) (1933). Defendant's first assignment of error is without merit.

Defendant next contends the $150,000 verdict is grossly excessive and the trial court erred in overruling its motion for remittitur. There is no precise formula for determining the amount of damages in a personal injury case, but a recovery is measured by that which is 'fair and reasonable compensation' sufficient to provide a livelihood and care and comforts to ameliorate the suffering of the victim. Moore v. Ready Mixed Concrete Co., 329 S.W.2d 14, 30(14) (Mo. banc 1959). The question of excessive jury awards rests on the facts of each particular case, Wren v. St. Louis Public Service Co., 355 S.W.2d 365, 374(14) (Mo.App.1962), giving consideration to the nature and extent of the injuries and losses, plaintiff's age, his diminished earning capacity and changing economic factors, all weighed in light of the ultimate test of fairness and reasonableness. Crane v. Northup, 413 S.W.2d 190, 194 (Mo.1967); Painter v. knaus Truck Lines, Inc., 375 S.W.2d 19, 26(9) (Mo.1964). We also look to other cases involving injuries similar to those suffered by plaintiff so that there is reasonable uniformity as to the amounts of verdicts. Moore v. Ready Mixed Concrete Co.,supra at 31.

'Although an appellate court properly may determine, as a matter of law, whether the verdict under review is in excess of the maximum amount which the evidence in the case would support * * *, the assessment of damages is peculiarly and primarily the function of the jury, whose duty it is to award such sum as reasonably will compensate plaintiff * * * and, the appellate power to interfere with and reduce a verdict is exercised with caution * * * and only where the amount of the verdict is manifestly unjust. * * * In determining whether a verdict is excessive, we do not weigh the evidence but * * * consider it in the light most favorable to plaintiff and the verdict, disregarding defendants' contradictory or unfavorable evidence.' Hart v. City of Butler, 393 S.W.2d 568, 580(19, 20) (Mo.1965).

Plaintiff Ray Sanders, 34 years of age when injured, had experience as a factory worker, general laborer and truck driver. In the accident he suffered a fracture of the mid-shaft of the right femur which was displaced about 2 inches, tearing the surrounding muscle, the peritoneum and causing bleeding in the leg. He also sustained a severe comminuted fracture of the left femur near and into the knee joint through the superior condyle of the femur. This injury was described by the treating and the examining physicians as a complicated multiple fracture with numerous bone fragments. Plaintiff also suffered a dislocation of the distal joint of the left big toe, a pneumothorax or partial collapse of the right lung, rib fractures on the...