Strycharz v. Barlow, 66352

• Citation: 904 S.W.2d 419
• Decision Date: 27 June 1995
• Docket Number: No. 66352,66352
• Parties: Bogdan STRYCHARZ and Krystyna Dudkowski, Plaintiffs-Appellants, v. Joseph D. BARLOW, and Defendant Ad Litem for Joseph Dudkowski, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 419

904 S.W.2d 419

Bogdan STRYCHARZ and Krystyna Dudkowski, Plaintiffs-Appellants, v. Joseph D. BARLOW, and Defendant Ad Litem for Joseph

Dudkowski, Defendants-Respondents.

No. 66352.

Missouri Court of Appeals,

Eastern District,

Division Three.

June 27, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 27, 1995.

Application to Transfer Denied

Sept. 19, 1995.

Ray A. Gerritzen, St. Louis, for appellants.

Raymond H. Dickhaner, Hillsboro, for respondent Barlow.

Randall D. Sherman, Hillsboro, for respondent Dudkowski.

DOWD, Judge.

This is an appeal after two verdicts in combined personal injury and wrongful death suits following an automobile accident. We affirm.

The accident occurred on Highway 141, a road without street lights, during the dark evening hours. Defendant Joseph Barlow was traveling south on the highway approximately 55 miles per hour in the inside "fast lane." Joseph Dudkowski was driving a car with a relative visiting from Poland, Plaintiff Bogdan Strycharz, as a passenger. Joseph Dudkowski drove his car from a stop sign on a side street into the highway in an attempt to cross the southbound lanes and turn left onto the northbound lanes. At this time, Defendant Barlow and his wife, who was a passenger, testified a third car was traveling south alongside their car in the right lane. This third car was turning right onto the street from which the Dudkowski automobile had come and obstructed Defendant Barlow's view so that he could not see the Dudkowski automobile as quickly as he may otherwise have. Joseph Dudkowski pulled his car into the path of Defendant Barlow. Defendant Barlow struck the car, killing Joseph Dudkowski. Plaintiff Strycharz suffered a torn medial cartilage of his right knee and a laceration at the top of his head for which he received eleven staples.

Plaintiff Krystyna Dudkowski (Joseph Dudkowski's wife) brought a wrongful death suit against Defendant Barlow and the Defendant Ad Litem for her deceased husband. The trial court sustained the Defendant Ad Litem's motion to dismiss for failure to state a cause of action as to the claim against her deceased husband. Plaintiff Strycharz brought a personal injury suit against both Defendant Barlow and the Defendant Ad Litem for Joseph Dudkowski. Both Plaintiffs' suits were consolidated and tried together. The jury found for Defendant Barlow in Plaintiff Dudkowski's suit apportioning fault at 100 percent to the deceased, Joseph Dudkowski. Regarding Plaintiff Strycharz' claims against Defendant Barlow and Defendant Ad Litem for Joseph Dudkowski, the jury again found Joseph Dudkowski 100 percent at fault and awarded $17,000 against Dudkowski only. Plaintiff Strycharz appeals challenging the adequacy of the $17,000 verdict in his favor. Plaintiff Dudkowski appeals the verdict in favor of Defendant Barlow and the trial court's action in dismissing her wrongful death claim against her deceased husband through the Defendant Ad Litem.

In their first point on appeal, Plaintiffs argue the trial court erred when it excluded evidence of Defendant Barlow's drinking two beers at home prior to the accident. Defendant Barlow consumed two beers within several hours of his family's departure for dinner. Plaintiffs argued the drinking contributed to Defendant Barlow's inability to see their car until it was too late to avoid the accident. The trial court ruled this evidence inadmissible because there was no showing of erratic driving on Defendant Barlow's part. Furthermore, Defendant Barlow did not exhibit any physical signs of intoxication.

We give substantial deference to a trial court's ruling regarding the admissibility of evidence and will not overturn such a decision unless the court abused its discretion. Brown v. Hamid, 856 S.W.2d 51, 56 (Mo. banc 1993). We presume discretionary rulings of a trial court are correct. Anglim v. Missouri Pacific R.R. Co., 832 S.W.2d 298, 303 (Mo. banc 1992), cert. denied, 506 U.S. 1041, 113 S.Ct. 831, 121 L.Ed.2d 701. However, a trial court abuses its discretion when a ruling shocks one's sense of justice, indicates a lack of consideration, and is clearly against the logic of the circumstances. Richardson v. State Hwy. & Transp. Comm'n, 863 S.W.2d 876, 881 (Mo. banc 1993).

Evidence of drinking or intoxication is relevant and should be admitted when evidence exists showing erratic driving or where there is "other evidence" which tends to establish "defendant had an impaired physical condition at the time of the accident." Krenski v. Aubuchon, 841 S.W.2d 721, 727 (Mo.App.E.D.1992). Plaintiffs argue sufficient "other evidence" was presented to the trial court from which it should have admitted the evidence of drinking. We disagree, and the four cases cited by Plaintiffs do not convince us otherwise.

Plaintiffs first cite the case of Stojkovic v. Weller, 802 S.W.2d 152 (Mo. banc 1991), which they incorrectly claim is "exactly like the case at bar." In this case, the defendant's driving was found to be "erratic or worse." Id. at 154. He ran a red light while driving 50 to 55 miles per hour, hit plaintiffs' car in the intersection, left the scene, continued driving at a high rate of speed weaving in and out of traffic, and eventually hit another car. Id. Witnesses observed a very strong smell of alcohol, watery red eyes, slurred speech, dramatic mood swings, and difficulty in walking. Id. One witness stated defendant was "clearly drunk." Id.

The case of Krenski v. Aubuchon, 841 S.W.2d 721 (Mo.App.E.D.1992) is also readily distinguishable. This defendant was speeding by 20 to 25 miles per hour, crossed completely into the opposite oncoming lane of traffic, swerved back into his own lane, then crossed into the parking lane to his right, striking the plaintiff's parked car.

The third case cited by Plaintiffs is also distinguishable. In Parry v. Staddon, 769 S.W.2d 811 (Mo.App.1989), a wife sued for the wrongful death of her husband. Here, a truck was driving slowly in the right-hand lane of a highway with its emergency flashers on. Id. at 813. The flashers were visible for one-quarter of a mile. Id. Other cars went around the truck without difficulty. Id. The deceased, however, continued driving 55 miles per hour and did not attempt to change lanes, slow down or apply his brakes until only an "instant" before he drove into the back of the truck, killing himself. Id. The court found defendant's "failure to brake or swerve, otherwise unexplained" satisfactorily constituted other evidence from which it could be inferred the defendant suffered an impaired physical condition. Id. at 813-814.

Finally, Plaintiffs cite the case of Bilzing v. Wentzel, 726 S.W.2d 787 (Mo.App.1987). In this case, the defendant's vehicle struck the plaintiff's vehicle as she was attempting to cross the street on which he was traveling. Id. at 789. At the intersection where the collision occurred, the defendant was subject to a flashing yellow light and the plaintiff a flashing red light. Id. Plaintiff's vehicle was visible for at least 400 feet, yet defendant kept his foot on the accelerator until impact. Id. at 789. The defendant admitted before the court there was evidence of intoxication. Id. at 790. A witness testified the defendant staggered, slurred his speech, and seemed intoxicated. Id. This same witness also smelled alcohol on defendant's breath. Id.

In the case at hand, no evidence of any physical signs or symptoms of intoxication was before the court, or apparently existed at all. Plaintiffs claim Defendant Barlow's failure to swerve his vehicle constituted evidence of an impaired physical condition. However, his vehicle was not equipped with anti-lock brakes; therefore, he could not steer once the front wheels locked and skid marks began to appear on the roadway. Plaintiffs argue Joseph Dudkowski's vehicle was visible for 900 feet; therefore, Defendant Barlow's failure to see it sooner constitutes evidence of physical impairment. Plaintiffs completely fail to acknowledge evidence that a car was in the lane to the right of Defendant Barlow obstructing his view. The jury apparently found this evidence credible. The weight to be given evidence and resolution of conflicts in testimony are matters properly decided by the jury. Miller v. Gillespie, 853 S.W.2d 342, 344 (Mo.App.E.D.1993). Furthermore, Plaintiffs cite us to two places within the transcript (115, 237) for the proposition the car could be seen for 900 feet. However, the transcript references merely state the intersection is visible for 900 feet. Neither section contains any assertion the Dudkowski vehicle was at the stop sign when Defendant Barlow's vehicle was 900 feet away. Once Defendant Barlow did see the Dudkowski vehicle crossing the highway in front of him, he immediately applied his brakes, skidding into it. We find the trial court did not abuse its discretion in excluding evidence of drinking.

Also within point one, Plaintiffs challenge the trial court's ruling in which it held the testimony of a state trooper and his accident report inadmissible. Plaintiffs claim the trooper would have testified he smelled alcohol on Defendant Barlow's breath, and that he checked a box on the accident report indicating this may have contributed to the accident. Defendant Barlow's attorney disputed this assertion. The report itself was never provided to the trial court, nor to this court, to verify the disputed check mark and comments. Further, Plaintiffs failed to bring in the trooper for questioning when making the offer of proof but merely told the court what the trooper was expected to testify.

Offers of proof "must be specific, and must be definite.... In order to present and preserve an offer of proof the questions must be propounded to a witness who is present and who has taken the stand." Monteer v. Prospectors Lounge, Inc., 821 S.W.2d 898, 901 (Mo.App.1992) (quoting Karashin v. Haggard Hauling & Rigging, Inc., 653 S.W.2d 203, 205 (Mo....