Seabaugh v. Milde Farms, Inc., No. 73372

• Decision Date: 10 September 1991
• Docket Number: No. 73372
• Citation: 816 S.W.2d 202
• Parties: Linda SEABAUGH, et al., Plaintiffs-Respondents/Cross-Appellants, v. MILDE FARMS, INC., Defendant-Appellant/Cross-Respondent.
• Court: Missouri Supreme Court

Page 202

816 S.W.2d 202

Linda SEABAUGH, et al., Plaintiffs-Respondents/Cross-Appellants, v. MILDE FARMS, INC., Defendant-Appellant/Cross-Respondent.

No. 73372.

Supreme Court of Missouri En Banc.

Sept. 10, 1991.

Stephen C. Wilson, David G. Beeson, Jackson, for defendant-appellant, cross-respondent.

Rebecca McDowell Cook, John L. Cook, Jeffrey S. Maguire, Cape Girardeau, for plaintiffs-respondents, cross-appellants.

HOLSTEIN, Judge.

Defendant appealed and plaintiffs cross-appealed from a judgment entered in the circuit court of Cape Girardeau County arising out of an automobile accident. Following opinion by the Missouri Court of Appeals, Eastern District, this Court granted transfer. Rule 83.03; Mo.Const. art. V, § 10. ¹ Affirmed.

The automobile collision giving rise to this litigation occurred on September 18, 1987, on County Road 316 in Cape Girardeau County. County Road 316 is a gravel road approximately twenty feet in width. Linda Seabaugh was driving her Ford Aerostar van in a northerly direction, approaching a "blind curve" to the right, or east. She was accompanied by her two minor children. At the same time, approaching the curve from the opposite direction was Doug Myers, operating a 1979 Chevrolet C-15 truck owned by defendant Milde Farms, Inc. Myers was employed by Milde Farms. At the curve there are two traveled "ruts" located near the center of the roadway. The two vehicles collided head-on. According to the plaintiff, the oncoming pickup truck was on her side of the road about three feet from the inside edge of the curve when she first saw the truck. Her vehicle was "right at the center" of the roadway. She did not know her exact speed but believed she was traveling "considerably less" than 35 to 40 miles per hour. She claimed the pickup was going "a lot faster than I was going." The drivers of both vehicles applied their brakes, but to no avail. Mrs. Seabaugh's testimony regarding the location of the vehicles was borne out by testimony of the investigating highway patrol trooper. According to him, the skid marks from the Milde Farm vehicle came to within three feet of the east edge of the road at one point and were across the center of the roadway on the curve at the point of the collision. The Seabaugh vehicle's skid marks indicated that its skid began near the center of the roadway and went to the right. As the trooper put it, "Apparently she was traveling on the tracks" when she began to apply her brakes.

Mrs. Seabaugh sustained a break in the neck of the talus, or ankle bone. The ankle injury resulted in surgery, hospitalization, and loss of work. In addition, Mrs. Seabaugh suffered substantial discomfort and limitation of movement in the talonavicular joint, that is, the joint between the foot and ankle.

A petition was initially filed by Mrs. Seabaugh and her children against Milde Farms. Her husband, Dennis Seabaugh, filed a consortium claim. Doug Myers, the driver of the Milde Farms vehicle, was not named in this suit. A counterclaim was filed against Mrs. Seabaugh by Milde Farms for damages to its truck, and a claim for contribution was made against Linda Seabaugh for injuries to the Seabaugh children. The children's claims and the Milde Farms claim against Linda Seabaugh for her fault in causing injury to the children were severed.

On September 27, 1989, trial commenced, lasting two days. On September 28th the cause was submitted to the jury. The jury returned a verdict in favor of Linda Seabaugh, finding her damages to be $100,000 and in addition, found her to be eighteen percent at fault and the Milde Farms driver to be eighty-two percent at fault. The jury found Dennis Seabaugh's damages to be $5,000. The jury returned a verdict in favor of the defendant on its counterclaim, finding its damages to be $2,500. The trial court received the verdicts and entered a reduced judgment against each of the parties based upon their proportionate percentage of fault. From that judgment the defendant appealed and the plaintiffs cross-appealed. Other facts relevant to the issues on appeal will be discussed in conjunction with the points.

I.

The first point relates to the trial court's refusal to grant a continuance when Doug Myers failed to appear on the second day of trial. Some factual background is necessary to discussion of this point. Myers left employment with Milde Farms shortly after the accident. He was deposed on October 13, 1988. At that time he resided in Cape Girardeau. At the deposition, the defendant did not ask any questions of Myers. In the deposition, Myers testified that both he and Seabaugh were in the middle of the road when he first saw her and that he was driving 25 to 30 miles per hour as he approached the curve. He claimed both vehicles were partially in the other's lane at the point of impact. He also admitted to being involved in prior accidents, though he claimed those were not his fault. He also admitted to a prior driver's license suspension due to speeding tickets. Milde Farms was informed of the suspended license prior to this accident. However, nothing in the deposition or the trial transcript ² suggests that Milde Farms was informed of the prior accidents.

On February 23, 1989, Myers was subpoenaed for trial to be held May 25, 1989. In March, 1989, Myers enlisted in the United States Air Force. Myers, through counsel, sought to quash the subpoena pursuant to the Soldiers and Sailors Civil Relief Act. That motion was never ruled. However, the case was not tried in May, but was rescheduled for September, 1989. The defendant made arrangements for Myers to return to Missouri for the trial by purchasing a roundtrip airline ticket. Myers was stationed in the state of Washington. The airline ticket scheduled Myers to arrive in Missouri on September 26, 1989, and to depart St. Louis at approximately 8:00 a.m. on September 28, 1989. Myers was present on the first day of trial.

At about 3:30 p.m. on September 27th, as an accommodation to Myers and counsel for defendant and over the strong objection of counsel for the plaintiffs, Myers was allowed to leave with the understanding that he would be produced the next day by defense counsel. Defense counsel informed the court at that time that he did not intend to use Myers as a witness in his case in chief, although he understood the plaintiffs might wish to call Myers. With those assurances and without being informed that Myers held a ticket on an airplane to depart from St. Louis to the state of Washington the following morning at 8:00 a.m., the trial court permitted Myers to leave. ³

According to defense counsel, his office was informed at about 5:00 p.m. on September 27th that Myers had been in contact with his commanding officer and was told to be back on the airplane as scheduled departing at 8:00 the following morning. Defense counsel had at least one subsequent communication with Myers at 10:30 p.m., when Myers told defense counsel that it was his intent to use the prepaid ticket and leave St. Louis at 8:00 a.m. the next day. Defense counsel did not communicate with the court or other law enforcement officials in an effort to obtain any process to prevent Myers from leaving the jurisdiction.

The trial resumed at approximately 9:00 the next morning. Before commencement of proceedings, defense counsel made first an oral motion and subsequently a written motion under Rule 65. It alleged part of the procedural history discussed above regarding Myers' absence. It also alleged that if present, Myers would testify that prior to his driver's license being suspended, Milde Farms was not told about speeding tickets, that Milde Farms had not been told about Myers' previous automobile accidents, that when Myers first saw the Seabaugh vehicle, the vehicle was in the "driving ruts" and began to skid right, and that his vehicle was traveling "much slower" than that being driven by Linda Seabaugh at the time of the collision. After the oral motion was made and before the written motion had been presented to the court, the trial judge reminded defense counsel that the witness had been dismissed the preceding day as an accommodation to defense counsel, and with the agreement the witness would be present the following day. The trial judge also related the statement of defense counsel that Myers would not be called in the defendant's case. The trial judge then overruled the motion for continuance.

Undaunted by this ruling, defense counsel persisted by asking the court whether the plaintiffs' attorney would admit certain facts that he claimed the witness would testify to under oath, and then asked the court that if the plaintiffs refused to admit such facts, if the court would "reconsider the continuance." At that point, the trial judge noted he was of the opinion that Rule 65 did not apply to applications filed after commencement of trial. The motion was again overruled.

Defendant's point assumes that the trial judge's denial of a continuance was based solely upon his opinion that Rule 65 did not apply after trial commenced. That assumption is incorrect and contrary to this record. From what has been recited, it is clear that the trial court overruled the motion for continuance twice; each time for a somewhat different reason. The first ruling was based in large part upon representations made the previous afternoon when defense counsel had urged that the witness be permitted to leave, with assurances given to the trial judge that the witness's testimony was not going to be used in the defense and the understanding that the witness would be made available to the plaintiffs the following day, should they wish to call him. Defense counsel made these representations with knowledge that the witness had a ticket to depart the state of Missouri at 8:00 a.m. the next day, a fact not disclosed to the court. In addition, after learning the witness intended to use the ticket, defense counsel took no steps to obtain any process...