Thornton v. Vonallmon
| Decision Date | 17 June 1970 |
| Docket Number | No. 8906,8906 |
| Parties | Freda THORNTON, Plaintiff-Respondent, v. Waymon Gene VONALLMON, Defendant-Appellant, and Keith Mesecher, Defendant. |
| Court | Missouri Court of Appeals |
Stanley A. Grimm, Bradshaw Smith, Rader & Grimm, Cape Girardeau, for defendant-appellant.
Harold L. Henry, West Plains, for plaintiff-respondent.
Plaintiff Freda Thornton sustained injuries when the automobile in which she was riding as a passenger left the road and struck an embankment. She instituted this action to recover damages for her injuries against defendant Vonallmon, who was driving the automobile, and defendant Mesecher, who owned it, but dismissed the action as to Mesecher. Plaintiff has had a verdict and judgment in the sum of $10,000, and the defendant appeals. The assignments of error are that the trial court unduly limited defendant's cross-examination of witness P. D. Baker, Jr., that the court erred in refusing to discharge the jury because of plaintiff's improper argument to the jury, and that plaintiff's verdict-directing instruction was prejudicially erroneous. No claim is made that the verdict is excessive.
Plaintiff's evidence was that on February 17, 1968, she went to a tavern near West Plains, Missouri, went to the bar, and ordered a glass of beer. Shortly thereafter, Baker came in the tavern, joined the plaintiff, and the two drank beer, talked, and played shuffleboard. While they were there, defendant Vonallmon arrived and 'sat down at the far end of the bar.' Inferably, at least, the plaintiff, Baker and Vonallmon remained at the tavern for some time drinking beer, talking, and playing the 'shuffleboard' and pinball machine. Vonallmon left and returned with a late model sports car. Then, according to Baker, Vonallmon 'wanted to take me for a ride * * * I said I didn't care nothing about going (but) he talked me into it and I asked him what was the capabilities of it's speed and he said a hundred and forty miles an hour.' Baker asked if the defendant intended to drive the automobile 'like that,' and Vonallmon promised he wouldn't 'do over forty-five miles an hour.' Baker asked the plaintiff to go along. Plaintiff was hesitant, but Vonallmon promised her 'he wouldn't go over thirty-five so we got in the car.'
Defendant then drove north to a roadside park. He stopped there to left Baker drive the automobile. Baker turned the automobile around and drove south a short distance, but then, according to Baker, 'Gene (Vonallmon) wanted the wheel back and I tried to talk him out of it (but) it was his car * * * (a)nd I just got out and let him drive.' Vonallmon drove carefully for about a mile and then began to drive very fast. Plaintiff testified that she looked at the speedometer and she knew 'it was a hundred and twenty and it was some over that and I couldn't tell you how much more.' Baker could also see the speedometer, and his testimony was that Vonallmon was driving '(b)etween a hundred and fifteen and a hundred and twenty mile an hour.' Both plaintiff and Baker asked Vonallmon to slow down, but he did not respond. 'Maybe thirty seconds' afterward, defendant lost control of the vehicle, it left the road and ran into the bank on the left side.
Mr. Vonallmon was unable to recall having said that the automobile would go a hundred and forty miles an hour, and he testified that he 'never said' that he would drive slowly. His evidence was that he had offered to take Mrs. Thornton and Baker 'for a ride,' and they had accepted. Defendant testified that he drove 'up to the roadside park,' and then '(a) mile, half a mile down (south) on the by-pass.' Baker then drove the car for some distance, and defendant 'took back over' and drove south on Highway 160. The automobile, according to defendant, 'went to going off the shoulder * * * on the right hand side,' and the steering mechanism did not respond when he attempted to turn. Baker said 'get it over,' defendant answered, 'I can't,' and the automobile 'hit the bank about that time.' Defendant said he had had no previous difficulty with the steering mechanism, and he denied that either plaintiff or Baker had asked him to reduce his speed.
The record events to which our attention is called occurred when the defendant attempted to cross-examine Baker concerning his relationship with the plaintiff. Baker was asked how long he had known the plaintiff, and he replied, 'Approximately three years.' Counsel then asked, 'How long have you been going with her?' Plaintiff's counsel objected, not to the form of the question, but on the ground that the inquiry was 'immaterial.' The objection was sustained. Counsel for the defendant then asked to approach the bench and explained that he proposed to ask Baker about his relationship with Mrs. Thornton so the jury might consider Baker's bias and interest in the outcome of the suit. Again plaintiff objected on the ground that 'it would be immaterial,' and the court stated, 'It'll be sustained.' Defendant then asked to make an offer of proof and, outside the hearing of the jury, this discussion followed:
I further offer to prove that he has had dates with Freda Thornton. I further offer to prove that within the last month he has had dates with Freda Thornton. I further offer to prove that for a period from February of this year until the present time, he has had dates and relations with Mrs. Thornton and all these offers are made for the reasons previously indicated.
As briefed, the appellant's first point is that he should have been permitted to cross-examine Baker concerning his interest, relationship and state of feelings toward the plaintiff. He argues that his proposed line of inquiry is authorized by § 491.010, RSMo 1959, V.A.M.S. and, citing such cases as State v. Pigques, Mo., 310 S.W.2d 942, Houfburg v. Kansas City Stock Yards Co. of Maine, Mo., 283 S.W.2d 539, and Rogers v. St. Avit, Mo.App., 60 S.W.2d 698, maintains that the interest or bias of a witness and his relation to or feeling toward a party may always be shown and considered as bearing upon the credit which should be accorded...
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