U.S. Fire Ins. Co. v. Madesco Inv. Corp., 39434
Decision Date | 31 October 1978 |
Docket Number | No. 39434,39434 |
Citation | 573 S.W.2d 442 |
Parties | UNITED STATES FIRE INSURANCE CO., Respondent, v. MADESCO INVESTMENT CORPORATION, Defendant. . Louis District, Division Three |
Court | Missouri Court of Appeals |
Portman & Portman, Paul F. Black, Greg S. Kessler, St. Louis, for defendant.
Daniel J. McMichael, Fitzsimmons & Fitzsimmons, Inc., Clayton, for respondent.
This bailment case arose from the theft of an insured automobile while in the custody of defendant-bailee, operator of a parking lot. Plaintiff-insurer paid the owner for his loss and sued as his subrogee, alleging defendant had negligently permitted the theft. A jury so found and defendant has appealed from the ensuing $9,000 judgment.
Plaintiff's insured parked his car in defendant's lot at Fourth and Delmar in downtown St. Louis. The lot became crowded and to permit exit of another car, defendant's employee moved the insured car to the street, placed the ignition key over the sun visor and left the door unlocked. Within fifteen minutes the car had been stolen.
The only issue raised here concerns the trial court's restriction of defendant's cross examination of a plaintiff-witness.
Plaintiff presented a police officer who testified about the contents of the police report concerning the theft. On cross examination defense counsel put two questions to the officer:
The trial court sustained plaintiff's objections to both questions. Defendant's brief fails to show the relevance of the two questions, but of more critical importance is defendant's failure at trial to make an offer of proof; that is fatal to his only point relied on.
In Thayer v. Sommer, 356 S.W.2d 72(11-12) (Mo.1962) the court held: To the same effect, see Hays v. Western Auto Supply Company, 405 S.W.2d 877(1, 2) (Mo.1966).
Defendant acknowledges this principle but relies on the narrow exception announced in Miller v. Kamo Electric Cooperative, Inc., 351 S.W.2d 38(4) (Mo.App.1961). That case held no offer of proof was necessary after the trial court has ruled broadly that evidence of a particular class of offered evidence was inadmissible. No such broad ruling was made here. The exception does not negate defendant's duty to show the trial court what the witness' answers would have been and how that would be relevant and material. By defense counsel's silence he has failed to lay the necessary basis for error.
We now consider plaintiff's motion for an award of damages for frivolous appeal under Rule 84.19, declaring: "If an appellate court shall determine that an...
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