Whisenand v. McCord, WD

• Decision Date: 30 March 1999
• Docket Number: No. WD,WD
• Citation: 996 S.W.2d 528
• Parties: Trudy WHISENAND, Appellant, v. Vernon T. McCORD, Respondent. 55899.
• Court: Missouri Court of Appeals

Page 528

996 S.W.2d 528

Trudy WHISENAND, Appellant, v. Vernon T. McCORD, Respondent.

No. WD 55899.

Missouri Court of Appeals Western District.

March 30, 1999.

Motion for Rehearing and/or Transfer to

Supreme Court Denied June 1, 1999.

Application for Transfer Denied

Aug. 24, 1999.

James O. Turner, St. Joseph, for appellant.

Joseph W. Elliott, St. Joseph, for respondent.

Before JAMES M. SMART, Jr., Presiding Judge, Judge FOREST W. HANNA and Judge LAURA DENVIR STITH.

LAURA DENVIR STITH, Judge.

Plaintiff/Appellant Trudy Whisenand ("Plaintiff") appeals from a judgment entered on March 24, 1998, on a jury verdict in favor of Defendant/Respondent Vernon T. McCord ("Defendant") on her claim for personal injuries arising out of an accident in which Defendant's vehicle struck the open driver's side door of her vehicle as she leaned into her vehicle through that door. Plaintiff's sole point on appeal is that the trial court abused its discretion when it allowed defense counsel, in closing argument, to discuss the negligence and causal responsibility for the accident of persons not parties to the lawsuit. Finding no error, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On November 22, 1989, at approximately 10:30 p.m., Plaintiff, her husband, Roger Muff, and his daughter, Kathy Muff, left a McDonald's restaurant in St. Joseph, Missouri. They drove north on Highway 169 in a small pickup truck driven by Ms. Muff. The truck began "cutting out" just north of St. Joseph, so Ms. Muff pulled the vehicle off the road and six to eight inches onto the shoulder of the two-lane highway.

Leonard Henderson was also traveling north on Highway 169 when he passed the stalled vehicle. He turned his pickup truck around and came back to offer his assistance. He testified that at first he stopped in the southbound lane to offer help, and then pulled his car off on the shoulder of the southbound lane, roughly even with the stalled vehicle, with his headlights on.

At about this same time, Plaintiff walked around to the driver's side of the stalled vehicle and opened the door so she could try and start the engine while her husband was working under the hood. At her husband's direction, Plaintiff turned off the headlights and hazard lights to save power for the battery. She did not get all the way into the vehicle, but instead stood in the northbound lane of the highway in front of the driver's side door, and, with the door open, leaned into the pickup to try and start the engine.

It was at this point that Mr. McCord, the Defendant, approached from the south in his Kenworth tractor-trailer, heading north on Highway 169. Defendant testified that the light shining from Mr. Henderson's headlights prevented him from seeing Plaintiff standing next to the stalled truck until he got near the two stopped vehicles. Once he was close enough to see Plaintiff he did not have time to veer or brake, so he attempted to steer between her vehicle and that of Mr. Henderson. He testified that the space available to pass was narrow because Plaintiff's door blocked part of the northbound lane, and because Mr. Henderson's truck was, in fact, still blocking part of the southbound lane, and was not pulled all the way onto the shoulder as Mr. Henderson later claimed. Defendant was unable to successfully steer his tractor-trailer between the two other vehicles. As he passed them, he struck the open door of the stalled vehicle, causing Plaintiff's injuries.

Plaintiff sued Mr. McCord, alleging he was negligent in "allowing his tractor-trailer semi to protrude over onto the shoulder of his lane of travel, sideswiping the stalled motor vehicle and grazing plaintiff." Mr. McCord denied his fault. Neither party brought in Mr. Henderson (the driver of the third vehicle) as a party.

The evidence at trial was as set out above. During closing argument, defense counsel argued that Defendant was not negligent and did not cause the accident, and that it was caused by others. He also argued that Mr. Henderson's truck was partly blocking the southbound lane so that there was insufficient room for the Defendant to pass between the two vehicles. Plaintiff's counsel objected to this argument on the grounds that it was an attempt to place fault on "ghost" defendants, since Mr. Henderson was not a party. His objection was overruled. The jury returned a verdict for Defendant finding Plaintiff to be 100% at fault. Plaintiff appeals.

II. THE TRIAL COURT DID NOT ERR IN ALLOWING DEFENDANT TO ARGUE THE NEGLIGENCE AND CAUSAL FAULT OF OTHERS

Plaintiff's sole point on appeal is that the trial court erred in allowing defense counsel to use closing argument as a means of interjecting the negligence of persons not parties to the lawsuit. The point arose at trial as follows:

Def. Counsel: I can tell you what caused this accident. What caused this accident were three people who left late at night -

Pl. Counsel: Your Honor -

The Court: Yes, sir.

Pl. Counsel:--I'm going to object to that because the only Defendant in this case - you can't argue about ghost Defendants. If he wanted those people in the case, he could have brought them in. They're not in the case. He's only entitled to discuss the negligence of the parties.

The Court: I appreciate that. Your objection is overruled. It's closing argument.

Def. Counsel: The reason this accident happened is because three people got in a small pickup truck and they headed north out of St. Joseph late at night. And that pickup stalled, the engine was cutting out, and it came to rest on the edge of 169, part of that pickup still being on 169 ...

Later defense counsel further stated:

Def. Counsel: ... The safest thing would have been to do - would have been to move that pickup well off the road, which did not happen....

... Now let me tell you something about Mr. Henderson. I didn't talk to Mr. Henderson first, Mr. Turner did. And he talked to him right after this accident. Now you can make whatever sense that you want of Mr. Henderson's testimony, but Mr. Henderson knew that he was sitting in that south bound lane with his lights on, without his flashers on, without flashing his headlights to warn the oncoming traffic that he saw, he might have been in a lawsuit. So I would suggest to you that Mr. Henderson had a motive, very clear, to try to get himself off that road - and that's exactly what he tried to do ...

... But you will not hear from me again. And just keep in mind what I've argued. Keep in mind, most importantly, the evidence....

Plaintiff asserts that this argument by defense counsel constituted an improper attempt to convince the jury to allocate fault to Mr. Henderson rather than to Plaintiff or Defendant, and that such an attempt to lay blame on a nonparty was disapproved in Cook v. Willis, 885 S.W.2d 791 (Mo.App.1994). ¹ While Plaintiff is correct that Cook held that the trial court in that case had erred by allowing defendant to argue the negligence of the injured plaintiff's parents during closing arguments, Cook also made clear that this ruling was limited to the particular facts of that case. Specifically, the court held that defense counsel's arguments about the parents' presence at the scene of the accident were improper because only the mother had been present at the scene. In addition, prior to defense counsel's argument, the trial court had directed a verdict on the third-party claim that the mother was negligent, finding it was not supported by the evidence. Because of the directed verdict for the mother, the court held that defense counsel was not entitled to argue the mother's negligence, for counsel's arguments were based on both a misstatement of fact and a misstatement of law, in that the "effect of the argument, and...