Thienes v. Harlin Fruit Co., 9168

Citation499 S.W.2d 223
Decision Date30 August 1973
Docket NumberNo. 9168,9168
PartiesJames W. THIENES, Plaintiff-Respondent, v. HARLIN FRUIT COMPANY, Defendant-Appellant.
CourtCourt of Appeal of Missouri (US)

William J. Marsh, Kansas City (Popham, Popham, Conway, Sweeny & Fremont, Kansas City, and Farrington, Curtis & Strong, Springfield, of counsel), for defendant-appellant.

Lee E. Wells, McKenzie, Williams, Merrick, Beamer & Wells, Kansas City, for plaintiff-respondent.

STONE, Judge.

In this jury-tried action for damages on account of personal injuries and property damage sustained by plaintiff James W. Thienes in and as the result of a vehicular collision about 1:15 A.M. on September 9, 1966, at a point on U.S. Highway 60 approximately five miles west of Mountain Grove, Missouri, plaintiff had a jury verdict of $16,500 for personal injuries and $350 for property damage, on which judgment for $16,850 was entered. Defendant Harlin Fruit Company, a Missouri corporation, appeals.

Early in the evening of September 8, 1966, plaintiff, a soldier in the United States Army who was then about one month short of his twenty-first birthday, departed from his parents' home at Richards-Gebaur Air Base near Kansas City, Missouri, where his father, a career officer in the Air Force, was stationed at the time. Driving a used 1955 Morris Minor sedan recently purchased by him, plaintiff headed for Fort Benning, Georgia, where he was to enter Officer Candidate School (hereinafter O.C.S.) on September 11. His route took him through Springfield, Missouri, and thence eastward along U.S. Highway 60 to the point of accident, where his Morris Minor was struck from the rear by a 1966 2-ton Dodge van truck owned by defendant and then being driven by its employee, Donald Ray Cox. Shortly thereafter, plaintiff was taken to a hospital at Mansfield, Missouri, from which he was transferred that same morning to Fort Leonard Wood Army Hospital where he was examined and treated for an 'acromioclavicular separation' (in common football parlance, a 'shoulder separation') of the left shoulder, a bruised left knee and 'a scrape on (his) left side.' Plaintiff later had some headaches and dizzy spells but these had ceased long prior to trial. During his stay of some six weeks at Fort Leonard Wood Army Hospital (interrupted by a convalescent leave), plaintiff twice underwent surgery to remedy his shoulder separation, initially for the insertion of a 'Bosworth screw' to hold the affected bones in place and subsequently for removal of that screw after the lacerated ligaments had healed.

In November 1966, after another short convalescent leave, plaintiff was ordered to Fort Benning where he entered O.C.S.; but the physical rigor of this training soon resulted in severe pain in his left shoulder and, after only two or three days, he reported to Martin Army Hospital at Fort Benning, where he remained for some seventeen days. Plaintiff never resumed his O.C.S. training; but, upon discharge from the hospital, he was ordered to Vietnam, where he served about one year in an aviation battalion 'as an office clerk' engaged in 'flight operation orientation'--work for which he had taken a five-week course in 'flight operations training' prior to O.C.S. After his tour of duty in Vietnam, plaintiff was stationed in Germany for five or six months and eventually was granted an honorable discharge on November 8, 1968. The gravamen of plaintiff's case in the trial court, and likewise of his presentation on appeal, has been that, if he had not been injured, he would have successfully completed O.C.S. and been commissioned a Second Lieutenant and, by reason of subsequent 'automatic' promotions to First Lieutenant and Captain, longevity and 'Army-wide' increases in pay and the like, his earnings in military service from the date of accident to the time of trial (a period of more than four years and nine months) would have substantially exceeded his actual earnings during the same period, which consisted of his pay as an enlisted man (he attained the rank of E--5 while in Vietnam) and his salary in his post-military employment as manager trainee of a finance company. Further facts will be developed as required in connection with our consideration of defendant's points relied on.

Dealing initially with those points which, if here honored as presented, might require reversal and remand for retrial on all issues, we first consider defendant's contention that the learned trial judge prejudicially erred in admitting, over timely objection on the ground of hearsay, that portion of plaintiff's exhibit 13, his Army personnel record, which, under the rubric 'Remarks,' stated inter alia: 'Relieved from Infantry OCS for physical reasons, 19 January, 67.' Army Warrant Officer Jack E. Wilson produced exhibit 13, identified himself as official custodian thereof, and testified that said exhibit was plaintiff's permanent service record and that the above-quoted statement was a permanent entry therein 'made by the personnel officer at the time . . . actually made at the time it occurs' and was 'a required entry by the Army regulations.' With the relevance of the statement not questioned, it would appear that a prima facie showing of admissibility of the entry was made within the contemplation of § 490.680, RSMo 1969, V.A.M.S., of the Uniform Business Records as Evidence Act.

However, pointing out that Warrant Officer Wilson 'had no personal knowledge why plaintiff was relieved from Infantry O.C.S. or what the 'physical reasons' referred to in the record were,' defendant's counsel insist that the above-quoted statement in exhibit 13 should not have been received in evidence, citing Winterton v. Van Zandt, 351 S.W.2d 696, 702--703 (Mo.1961), as authority for their supporting argument that '(w)hile the Uniform Business Record Act eliminates, in a general way, any valid objections that a recital is hearsay, the trial court should reject such recital if it appears that the person offering the recital is not a competent witness to testify that the recital is correct.' (All emphasis herein is ours.) What the court actually said in Winterton was 'if it appears that the person making the report would not have been a competent witness to testify that the recitals in the report were correct, such recitals may and should be rejected by the trial court.' 351 S.W.2d at 703. In Winterton, it did so appear that the person making the report would not have been a competent witness to testify that the recitals therein were correct, but in the case at bar it does not so appear. We are of the opinion that the trial court did not err in refusing to exclude the statement here challenged. Tomlin v. Alford, 351 S.W.2d 705, 712(7, 8) (Mo.1961); Young v. Terminal R. R. Ass'n. of St. Louis, D.C., 70 F.Supp. 106, 109--110(6); McCormick on Evidence § 312, p. 729 (2d Ec. 1972). Furthermore, admission of that statement could not fairly be said to have constituted prejudicial error for, although defendant did not concede plaintiff's inability to complete O.C.S. because of his injury, such inability was properly shown by other evidence. Boten v. Brecklein, 452 S.W.2d 86, 96(21) (Mo.1970); Kelly v. Terminal R. Ass'n. of St. Louis, 315 S.W.2d 699, 703(3) (Mo.1958). See McCallister v. Priest, 422 S.W.2d 650, 659--660(15, 16) (Mo. banc 1968).

Defendant also charges that the trial court erred in permitting Officer Wilson to testify concerning certain medals and citations awarded to plaintiff subsequent to his premature departure from O.C.S. because that evidence was speculative, irrelevant and prejudicial. The rationale offered in support of this assignment is that 'had (plaintiff) completed O.C.S., and had he applied and been accepted for flight training thereafter, he obviously would not have been transferred to Vietnam or to an aviation battalion and as an office clerk, when and where the awards were given.' Of course, whether plaintiff would have been so decorated if he had completed O.C.S. was indeed within the realm of speculation, but whether he actually was so decorated was susceptible of objective substantiation. 'Evidence is considered relevant if the fact it tends to establish tends in turn to prove or disprove a fact in issue, or to corroborate evidence which is relevant and which bears on the principal issue.' Charles F. Curry & Co. v. Hedrick, 378 S.W.2d 522, 536(18) (Mo.1964), State ex rel. State Dept. of Public Health & Welfare v. Luster, 456 S.W.2d 600, 604 (Mo.App.1970). Plaintiff's receipt of sundry decorations was not relevant per se, but the evidence pertaining to receipt of certain of those medals and citations might have had some relevancy insofar as they inferentially might have indicated plaintiff's acclimation to and aptitude for military service--that being the stated purpose assigned by plaintiff's counsel in response to the objection of opposing counsel. In any event, it appears that reception of the recorded evidence concerning decorations could not have constituted error 'materially affecting the merits of the action' and that, therefore, the judgment for plaintiff may not be set aside on this ground. Rule 84.13(b), V.A.M.R.

However, since for another reason hereinafter discussed the case must be remanded on the issue of damages, it becomes pertinent and proper to point out that on retrial counsel should not offer, and the court should not admit, evidence concerning such medals and citations as plaintiff received by reason of the naked fact of his entry into service or the situs of a particular assignment, without regard to the quality of his performance (e.g., the National Defense Service Medal, the Vietnamese Service Medal, and others in the category of 'automatic' awards), since such evidence could have no bearing upon plaintiff's acclimation to or aptitude for military service and thus could serve only to mislead the jury. In this connection, it may not be amiss to observe that, near the close of...

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