Cook ex rel. Cook v. Willis

885 S.W.2d 791, 1994 WL 579687
CourtMissouri Court of Appeals
DecidedOctober 24, 1994
DocketNo. 19116
StatusPublished
Cited by6 cases

This text of 885 S.W.2d 791 (Cook ex rel. Cook v. Willis) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cook ex rel. Cook v. Willis, 885 S.W.2d 791, 1994 WL 579687 (Mo. Ct. App. 1994).

Opinions

PARRISH, Judge.

This is an appeal from a judgment for defendant Glenda Willis in a negligence action. Plaintiff Ronald Cook III (Ronnie), by his father, Ronald Cook, Jr., as next friend, sought recovery in Count I for personal injuries he sustained as a result of being struck by an automobile driven by defendant. In Count II, plaintiff Ronald Cook, Jr., sought recovery for medical expenses incurred for Ronnie as a result of his personal injuries.

Plaintiffs allege the trial court erred in rulings it made on objections to questions asked during voir dire; in refusing to admit in evidence parts of defendant’s deposition offered by plaintiffs; and in overruling plaintiffs’ objection to part of defendant’s closing argument. This court finds plaintiffs’ claim of error with respect to the trial court overruling their objection to part of defendant’s closing argument well taken. The judgment is reversed and the case is remanded for new trial.

On the afternoon of August 16, 1989, defendant, a neighbor of Ronnie’s grandmother, Joan Cook, was driving her automobile in a westerly direction along Crow Street, the street that ran by Mrs. Cook’s residence in Webb City, Missouri. She was traveling at a speed of 20 or 25 miles per hour.

Mrs. Cook and Ronnie’s mother were sitting on the sidewalk in front of the house. Ronnie and his sister, Jessica, were playing nearby. Ronnie was 20 months old at the time. Mrs. Cook’s vehicle, a Ford van, was backed into a driveway at the house. The back of the van was about 2 feet from Mrs. Cook’s house. The front-bumper was about 3 feet from the street. Ronnie was running back and forth around the van playing peekaboo with Tina Cook, his aunt.

Defendant drove past Mrs. Cook’s house and waved. Mrs. Cook waved back. “A second or two” later, Mrs. Cook heard a thump. Ronnie had been struck by defendant’s automobile.'

When defendant waved to the people in front of Mrs. Cook’s house, she turned her head to look at them. After waving, she again looked forward. She did not see Ronnie until after her car had struck him. Defendant stopped her car and got out of it. Ronnie was on the street by the curb.

Ronnie was taken by ambulance to St. John’s Hospital in Joplin. Later that evening he was transferred to Freeman Hospital. Ronnie was released from Freeman Hospital August 18, 1989.

Defendant filed a third-party petition against Jeannie Cook, Ronnie’s mother, alleging that she was negligent in providing care and supervision of Ronnie at the time he was injured; that she failed to take measures to prevent him from going into the street and coming into contact with defendant’s vehicle. The third-party petition sought contribution or indemnity from Jeannie Cook in the event judgment would be entered against defendant.

At the close of all evidence, third-party defendant moved for directed verdict on the third-party claim. The trial court granted the motion and entered directed verdict in favor of third-party defendant Jeannie Cook on defendant’s third-party claim against her.

During closing argument, after the trial court entered its directed verdict on the third-party claim against Ronnie’s mother, [793]*793defendant’s attorney told the jury defendant had not seen Ronnie before the accident. He added:

But even so, even if she had seen a child over next to the house running around, they say the back of the van, he’s still west of her. She can’t see him; she doesn’t know where he is. She’s doing 20 miles an hour, which again, at least in Joplin, is what you’re required to drive through the school zone. What else was she supposed to do? Stop?
The parents want to say this is all [defendant’s] fault. But they were right there, they knew the kid was running around. They knew that she was coming—

Plaintiffs’ attorney objected to the argument on the basis that the issue of parents’ fault had been removed from the case by the trial court’s directed verdict in favor of Ronnie’s mother on defendant’s third-party claim. The trial court overruled the objection and told defendant’s attorney to proceed.

Defendant’s attorney added: “All you had to do was call his name and he put the brakes on.” He explained, “And I would suspect that your common sense tells you that lots of little kids, when they’re 12 and 16 and 18 months, 20 months, they mind pretty good when they hear them name.”

Plaintiffs assert by their Point III that the trial court erred in overruling the objection to defendant’s closing argument because the argument pursued a defense “outside the scope of the [trial] court’s instructions.” Plaintiffs contend the effect of the trial court overruling their objection was to permit defendant to erroneously tell the jury that Ronnie’s parents were liable for his injuries and resulting damages; that this was contrary to the directed verdict dismissing the third-party claim.

Defendant counters that her argument did not propose that fault be cast on Ronnie’s parents. She contends her attorney’s closing argument suggested that if Ronnie’s mother was unable to see the child, defendant was equally unable to see him; that, therefore, the injuries Ronnie sustained were not due to defendant’s negligence. This court does not glean that meaning from defendant’s attorney’s statements.

Defendant’s attorney told the jury, “The parents want to say this is all [defendant’s] fault. But they were right there, they knew the kid was running around.” The attorney suggested that the parents should have called the child’s name, that this would have stopped him from entering the street and have prevented the accident.

This court construes the meaning of defendant’s argument to be that the fault lay with the parents; that they were at fault in not watching the child and calling out to him. The argument suggests that the cause of the accident was failure of the parents to take action rather than the negligence of defendant.

Defendant’s argument was improper in two respects. It spoke of the parents’ presence at the scene of the accident, although the evidence was that the father was not there — the only parent who was there was Jeannie Cook, Ronnie’s mother. It further argued an issue that the trial court had ruled, by directing a verdict on the third-party claim, was not supported by the evidence.

The field of jury argument is broad. However, it is not so broad as to permit an attorney to go beyond the record or the issues framed by the jury instructions. It is not permissible to urge prejudicial matters or a defense that the law does not support. Carrel v. Wilkerson, 507 S.W.2d 82, 85 (Mo.App.1974).

In this case the issue for the jury to decide was whether defendant was negligent. The jury was not asked to decide if Ronnie’s mother (or his father) was negligent. By directing a verdict in favor of Ronnie’s mother in defendant’s third-party claim, the trial court decided, as a matter of law, that the evidence did not support a defense or claim that Ronnie’s injury was her fault.

The error claimed in Point III was sufficiently raised by plaintiffs’ objection when the argument was made at trial and in them motion for new trial. The trial court oyer-ruled the objection and thereby tacitly approved defendant’s contention that the acci[794]*794dent was the fault of Ronnie’s parents.

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Bluebook (online)
885 S.W.2d 791, 1994 WL 579687, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-ex-rel-cook-v-willis-moctapp-1994.