Westlake v. McNamee

• Decision Date: 17 February 1976
• Docket Number: No. 36404,36404
• Citation: 534 S.W.2d 106
• Parties: Samuel B. WESTLAKE, Plaintiff-Appellant, v. John Damian McNAMEE, Defendant-Respondent. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 106

534 S.W.2d 106

Samuel B. WESTLAKE, Plaintiff-Appellant, v. John Damian McNAMEE, Defendant-Respondent.

No. 36404.

Missouri Court of Appeals, St. Louis District, Division Four.

Feb. 17, 1976.

Marglous & Marglous, Clayton, for plaintiff-appellant.

James E. Godfrey, Inc., Samuel T. Vandover, St. Louis, for defendant-respondent.

NORWIN D. HOUSER, Special Judge.

Samuel B. Westlake sued John Damian McNamee for personal injuries and property damages arising out of an automobile collision on September 20, 1972, between the vehicles operated by plaintiff and defendant, based upon negligent failure to keep a lookout, sound a warning any yield the right of way, and excessive speed. McNamee filed a general denial, coupled with an affirmative plea of contributory negligence. The trial jury returned a verdict for defendant.

Westlake appeals from the ensuing judgment against him, posing the single question whether the court erred in its rulings when, during cross-examination of Westlake, counsel for defendant was permitted to elicit from Westlake facts surrounding the occurrence of two other automobile collisions involving Westlake, which occurred in March and July of 1972. Westlake contends that evidence of these other accidents, in which he testified he received no injuries, did not prove or tend to prove, even remotely, any issuable fact, and that under Marrah v. J & R Motor Supply Co., 165 S.W.2d 271 (Mo.App.1942), the admission of the evidence was clearly erroneous and prejudicial. Westlake also contends that this evidence resulted in confusion of the issues and caused him prejudice wholly disproportionate to the value and usefulness of the evidence, citing Conley v. Kaney, 250 S.W.2d 350 (Mo.1952), and complains that reference to these prior accidents was made by defense counsel in closing argument.

Assuming (but neither deciding nor intimating) that it was error to permit cross-examination and argument with respect to the two previous automobile collisions (in which Westlake testified that he suffered no personal injuries), we find no prejudice to the rights of the plaintiff for the reason that the error complained of touched the issue of damages only, an issue never reached by the jury, which found for McNamee on the issue of liability. The issue of liability, i.e., whether McNamee was negligent and whether Westlake was guilty of contributory negligence, a hotly contested issue, was determined against Westlake. We must accept the jury's verdict on this issue, Gardner v. McGee, 505 S.W.2d 452, 453 (Mo.App.1974), and having done so, it is elementary that the jury never got around to consideration of the other issue, namely, that of...