Weisbach v. Vargas

• Decision Date: 16 August 1983
• Docket Number: No. WD,WD
• Citation: 656 S.W.2d 797
• Parties: Richard E. WEISBACH and Valerie Weisbach, Respondents, v. Karen J. VARGAS, Appellant. 33750.
• Court: Missouri Court of Appeals

Page 797

656 S.W.2d 797

Richard E. WEISBACH and Valerie Weisbach, Respondents, v. Karen J. VARGAS, Appellant.

No. WD 33750.

Missouri Court of Appeals Western District.

Aug. 16, 1983.

Gregory M. Perlstein, Kansas City, for appellant.

Allan R. Browne and Lester E. Adams, Kansas City, for respondents.

Before WASSERSTROM, P.J., and KENNEDY and NUGENT, JJ.

KENNEDY, Judge.

Defendant appeals from judgments for husband and wife, Richard and Valerie Weisbach, for personal injuries and loss of consortium growing out of an automobile collision between a car driven by defendant Karen J. Vargas and a van driven by plaintiff Richard Weisbach in which his wife Valerie Weisbach was riding as a passenger.

We find no prejudicial error and we affirm the judgment, except as to the judgment for Richard for loss of his wife's services, which we reverse.

The facts of the case are as follows:

Richard and his wife Valerie, late at night, were in a street in Kansas City, Missouri, intending to make a left-hand turn into the parking lot of a convenience store. Their van was struck from the rear by the vehicle driven by defendant Vargas. Richard and Valerie were both injured, and this suit followed.

Richard was awarded $7,500 for his personal injuries and $750 for loss of his wife's services. Valerie was awarded $2,500 for her own injuries and $750 for the loss of her husband's services.

Other facts will appear in connection with the various allegations of error.

I

Defendant first says that the court erred in refusing to give a withdrawal instruction offered by defendant. The refused withdrawal instruction reads as follows: "The issue of plaintiff, Richard Weisbach's claim for lost wages from Ford Motor Company from the date of the accident to the present date is withdrawn from the case and you [are] not to consider such evidence in arriving at your verdict."

The trial developments which prompted defendant's offering the withdrawal instruction, were as follows: Richard testified that he was off his employment as an assembly-line worker at Ford Motor Company for a period of 15 months, and lost wages in the amount of $25,275. He testified that at the time of the accident he had been off work on medical leave for a period of four or five months on account of his diabetic condition, but that by the time of the accident he felt "pretty good," that his medical leave was up on the following Monday after the accident and that he intended to report back on that following Monday. It developed on cross-examination, however, that the medical leave expired a month later, rather than the following Monday, and that the reason he did not return to his employment at Ford was his diabetic condition and his inability to work around gas fumes. There was no connection between the injuries received in the accident and his inability to return to his former job, and there was no loss of Ford wages which could be traced to the injuries received in the accident.

Appellant calls our attention to the Committee's General Comment to Withdrawal Instructions, MAI 34.01 (1981 3d ed.), which describes the office of the withdrawal instruction as follows:

A withdrawal instruction is only to be given when during the course of the trial a false issue, improper evidence, or evidence of an abandoned issue has been injected. The purpose of a withdrawal instruction may be served by the court sustaining a motion to strike and admonishing the jury to disregard the evidence. However, in certain instances, the trial court may determine that such action is inadequate, inappropriate or untimely and that a written instruction is necessary.

The court may properly give a withdrawal instruction when it has received evidence upon an issue which is later abandoned either by choice or by reason of inadequate proof for final submission to the jury. The instruction to be given is that the issue is no longer open for the jury's consideration.

The withdrawal instruction, then, is to avoid misleading and confusion on the part of the jury, because of some spurious issue raised by the testimony. Estes v. Desnoyers Shoe Co., 155 Mo. 577, 56 S.W. 316, 319 (1900). The giving of such a withdrawal instruction is left to the discretion of the trial court. In several cases cited by the defendant for her position, the appellate court has simply determined that the giving of a withdrawal instruction, complained of by the appellant, was discretionary with the trial court, and there was no abuse of that discretion. Temple v. Atchison, Topeka and Santa Fe Railway Co., 417 S.W.2d 97, 99 (Mo.1967); Roberts v. Emerson Electric Manufacturing Co., 362 S.W.2d 579, 582 (Mo.1962); Schmid v. Langenberg, 526 S.W.2d 940, 943 (Mo.App.1975). Defendant cites other cases in which the court's refusal to give a requested withdrawal instruction has been held to be reversible error. They are Womack v. Crescent Metal Products, Inc., 539 S.W.2d 481, 484 (Mo.App.1976); DeMoulin v. Kissir, 446 S.W.2d 162, 166 (Mo.App.1969); Reding v. Reding, 143 Mo.App. 659, 127 S.W. 936, 941 (1910). Without discussing each of those cases and their respective differences from the one before us, we will simply say that in each such case the appellant had presented some spurious issue with a lay jury, uninstructed as to its legal effect, might consider to have significance.

The trial court in the present case apparently believed that Richard's cross-examination testimony had "straightened out" the false or misleading testimony given on direct examination, and that there was no reasonable likelihood that the jury would be in any way confused or misled by his direct examination testimony about the loss of Ford wages. Defendant's attorney in argument reminded the jury of Mr. Weisbach's admissions that the wages lost from the Ford employment were not related to the accident injuries. Indeed it is clear from the jury's verdict--awarding Richard $7,500 damages for his personal injuries--that they did not consider the lost Ford wages as resulting from the injuries sustained in the accident.

We hold that the court's refusal of the withdrawal instruction was not an abuse of discretion, and was not reversible error.

II

Next the defendant argues that the court erred "In Allowing Comments and Evidence Regarding Defendant's Municipal Arrest Following the Accident..."

In his opening statement, plaintiff's counsel said: "and the police took this lady down to the police station and gave her a breathalyzer--"

The court denied defendant's request for a mistrial but sustained the objection and instructed the jury "to disregard the last statement of counsel."

During the presentation of plaintiff's case, the police officer who investigated the accident was testifying to his observations of defendant Vargas's behavior and appearance after the accident, the effect of which was that she was to some extent under the influence of alcohol, so that her ability to drive was slightly impaired. Defendant Vargas objected to his testimony that these observations were made at the police station, and now says that this testimony was erroneously admitted and prejudicial.

There was no evidence how she got to the police station, whether she was arrested, whether she came voluntarily, whether any charges were filed or, if so, what was their disposition. In fact, the police officer, in describing Mrs. Vargas' general appearance, explained: "Normally, when I make those observations, I do that at the station.... I do that where I can see." "It was dark out." There was no evidence of any arrest, any municipal charges, or of any action against Mrs. Vargas.

We are unable to say that the testimony that Mrs. Vargas was at the police station when the police officer made his observations of her appearance was prejudicial to her, and we decline to hold the court was in error in admitting the evidence.

III

Next defendant complains of the admission of testimony of plaintiff Richard Weisbach's preexisting diabetic condition. Apparently defendant's idea is that proof of his preexisting diabetic condition aroused sympathy in the jurors' hearts and inclined them to be generous with Mr. Weisbach, for she cites us to Lewis v. Hubert, 532 S.W.2d 860, 866-867 (Mo.App.1975), where it is written that evidence that a party has children, or evidence of his financial condition, is inadmissible unless it bears upon an issue in the case. The theory of the rule presumably is that the jury's minds may be ruled by a soft-headed sentimentality rather than a dispassionate, scientific assessment of the evidence and the instructions, and so they must be guarded from any evidence which might generate sympathy.

Defendant cites us to no case where the admission of evidence of a plaintiff's preexisting diseases and infirmities has been held to be excludable in a personal injuries case. Ordinarily the defendant considers it to be in his interest to prove preexisting infirmities and diseases, to show that the plaintiff's present condition is attributable in whole or in part to such preexisting condition, and not to the accident under investigation.

Defendant Vargas filed a motion in limine asking the trial court to prohibit mention by plaintiffs in their case of Richard's preexisting diabetic condition. The motion in limine was overruled. When the Weisbachs' counsel mentioned the subject of the diabetes in his opening statement, counsel for defendant objected. The court overruled the objection.

Richard's diabetic condition was mentioned from time to time by various witnesses...