Wilkerson v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 14 May 1974
• Docket Number: No. 9366,9366
• Citation: 510 S.W.2d 50
• Parties: Alice WILKERSON, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 50

510 S.W.2d 50

Alice WILKERSON, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Respondent.

No. 9366.

Missouri Court of Appeals, Springfield District.

May 14, 1974.

James C. Bullard, Dalton, Treasure & Bullard, Kennett, for plaintiff-appellant.

James F. Ford, Ford, Ford & Crow, Kennett, for defendant-respondent.

HOGAN, Chief Judge.

This is an action upon the uninsured motor vehicle provisions of an automobile insurance policy issued by defendant State Farm Mutual Automobile Insurance Company to plaintiff's husband, Silas Wilkerson. Plaintiff obtained a jury verdict in the amount of $5,500. The trial court ordered a new trial on all issues 1) for error in giving Instruction No. 3, plaintiff's verdict directing instruction; and 2) for error in admitting plaintiff's testimony that she was the mother of five children. Plaintiff appeals.

Both parties have misjudged the posture of this case on appeal, and some preliminary comment concerning the scope of our review seems appropriate. In this court, plaintiff has limited herself to a discussion of the order granting a new trial; defendant, on the other hand, has concentrated on the submissibility of plaintiff's case, maintaining that the trial court should have sustained its alternative aftertrial motion to set aside the verdict and enter judgment in accordance with its motion for directed verdict. We agree with plaintiff's assertion that the assignments of error directed to Instruction No. 3 in defendant's motion for new trial are not specific, and would probably preserve nothing for review on appeal, but plaintiff is mistaken in her assumption that the specificity requirements of former Rule 70.02, V.A.M.R., (applicable when this case was tried) and Rule 79.03 restrict the power of the trial court to correct its own errors. Those rules apply only to appellate review, and neither they nor Rule 75.01 limit the trial court's authority to consider and rectify trial error during the 90 day period following the timely filing of an authorized aftertrial motion. Woods v. Kansas City Club, 386 S.W.2d 62, 63--65 (Mo. banc 1964); White v. Metropolitan Life Ins. Co., 218 S.W.2d 795, 798(2) (Mo.App.1949). If the merits of the appeal depended solely upon the propriety of the order granting a new trial, we would review that action to determine from the law and the facts whether the trial court exercised a sound judicial discretion. Woods v. Kansas City Club, supra, 386 S.W.2d at 64(2); Coit v. Bentz, 348 S.W.2d 941, 945--946(8) (Mo.1961). In this case, however, we are not limited to considering the correctness of the order granting a new trial, as plaintiff seems to assume. Defendant filed a motion for directed verdict at the close of plaintiff's evidence, stating as grounds therefor that the evidence showed plaintiff to be guilty of contributory negligence as a matter of law, and more generally, that plaintiff had failed to make a submissible case on any pleaded theory. This motion was renewed at the close of all the evidence, and the same contentions as to submissibility and contributory negligence were preserved in defendant's alternative motion for new trial or for judgment n.o.v. The trial court ruled on both aftertrial motions, granting a new trial for the reasons indicated but denying the motion for judgment n.o.v. We may therefore consider all of the contentions proply raised or assigned in all aftertrial motions, including whether or not defendant was entitled to a directed verdict. State ex rel. Hickory County v. Davis, 302 S.W.2d 892, 898(9) (Mo.1957); Hughes v. St. Louis Nat'l League Baseball Club, 359 Mo. 993, 996--997, 224 S.W.2d 989, 991--992(1--3) (4, 5), 16 A.L.R.2d 904, 907--908 (banc 1949). Because trial errors are immaterial if plaintiff made no submissible case, Osborn v. McBride, 400 S.W.2d 185, 188(1) (Mo.1966), we will first consider defendant's intricately specific assertion that plaintiff was guilty of contributory negligence as a matter of law because she suddenly turned left without first ascertaining that she could do so with reasonable safety.

The casualty which gave rise to this controversy occurred on Dunklin County Route 'Y'. Route 'Y' is a two lane asphalt surface road, 22 feet wide; it runs generally north and south. Plaintiff was driving south on Route 'Y', 'going down to a neighbor's house . . . to buy some produce.' To get where she was going, plaintiff had to turn left across the road into the neighbor's driveway. Either as she was turning or preparing to turn left, plaintiff's vehicle was struck from behind by another automobile driven by one Richard Jenkins. Plaintiff sustained personal injuries, but the nature and extent of those injuries are not in issue here.

Testimony received without objection from an investigating officer indicated that the accident happened about noon on a clear summer day. The officer fixed the 'point of impact' in the west (southbound) lane of the road, approximately 14 feet north of the neighbor's driveway. The rear part of plaintiff's automobile was struck; as the officer put it, 'there was extensive damage to the rear bumper, the trunk area, the undercarriage portion of the rear of the vehicle.' Plaintiff's car could not be driven from the scene of accident. The left front end and the left front side of the overtaking or passing vehicle--the Jenkins car--was damaged. The officer was permitted to testify without objection that the Jenkins vehicle left 59-foot skidmarks leading up to the point of collision. In the officer's 'best judgment', the road was straight and level for more than half a mile north of the place where the vehicles collided. Additionally, the officer testified on cross-examination: 'Q. Did (plaintiff) tell you how far she had progressed into the turn at the time of the impact? . . . A. Mrs. Wilkerson stated that she had just attempted or was starting to attempt to make the left turn when the impact occurred. . . . Q. Explain what you mean, she had just started or she had turned, what did she say in that respect? A. To the best that I recall, Mrs. Wilkerson stated that the left front portion of her vehicle had not crossed the center line as yet. Q. She told you that there at the scene? A. Yes, sir.' (Emphasis added.)

Plaintiff also had the evidence of her passenger, who, in brief, testified that plaintiff was already 'in the process' of turning when she was struck from behind. Plaintiff's left turn signal had been flashing 'I'd say ten or fifteen seconds' before plaintiff started to turn. Being asked where plaintiff's car was when it was struck, this witness answered: '(Plaintiff) was in the process of turning, so she'd have to be almost kind of getting to the center of the highway in her turn.' Pressed as to her 'best judgment' concerning 'how much' of the plaintiff's vehicle was in the 'left lane' when the collision happened, the witness answered 'about half.' (Emphasis added.)

Mr. Jenkins was called by the plaintiff. He was asked to tell the jury 'generally how (the) wreck happened'. His answer was, 'Well, we were running along about--between 60 and 70 miles an hour, and I was setting (sic) there, you know, thinking about passing (plaintiff), and my mother was following me, I had stopped at my mother's house and had breakfast, and she was following me back out to the house to have lunch, and I glanced in the mirror to see where she was at, and, too, I'm thinking about passing, and just as I looked back, why, there (plaintiff) was, stopped or almost stopped in front of me.' When Jenkins looked back to see if his mother was following, plaintiff's vehicle was 'approximately 150 feet' ahead of him. When he resumed his lookout ahead, plaintiff was 60 feet in front of him. Jenkins had 'laid down' skid marks, and had assisted the investigating officer when the officer measured the skid marks. Upon trial, Jenkins '(didn't) know how long the skid marks were, but (the investigating officer) said from where I applied my brakes to where I was stopped was 59 feet, I believe he said.' Jenkins hit the rear of plaintiff's automobile, in 'his' lane of traffic.

Jenkins went over the accident again on cross-examination. As he approached plaintiff's car, he was 'thinking' about passing. He approached at 'between 60 and 70' miles per hour. As he proceeded south before the accident, plaintiff was going about as fast as he was. When he became aware that plaintiff was going to turn, he 'shut down' his brakes; his 'first thought was to go on and go around her, and then (he) seen (sic) she was turning, and then (he) tried to go back in behind her.' Jenkins saw no signal from plaintiff. He had reduced his speed greatly at the time of collision, he said; at the time his vehicle struck plaintiff's car he 'wasn't going over ten or fifteen miles an hour at the most.'

Plaintiff testified in her own behalf. Being asked what kind of work she did, plaintiff answered, 'I do all the housewife duties, I have five children, and I take care of those.' Formal objection was made to this more or less voluntary statement, but after a conference out of the hearing of the jury, the trial court denied defendant's motion to declare a mistrial because of plaintiff's statement about her children.

Plaintiff was also asked by counsel to describe the casualty 'in (her) own words', and she began by responding, 'Well, I guess maybe 150 feet or something before I got ready to turn off I turned my signal on, and as I was making my turn this car hit me.' Plaintiff also testified about her injuries, but it is her testimony concerning the accident which defendant stresses. We shall therefore set forth illustrative parts of plaintiff's cross-examination verbatim. Having posed several questions concerning plaintiff's injuries, counsel for defendant sought to develop the facts of the accident. Plaintiff testified that before she slackened her speed in preparation for her turn, she was going ...