Kopp v. Pennoyer

723 S.W.2d 528, 1986 Mo. App. LEXIS 5118
CourtMissouri Court of Appeals
DecidedDecember 30, 1986
DocketNo. 51241
StatusPublished
Cited by1 cases

This text of 723 S.W.2d 528 (Kopp v. Pennoyer) 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
Kopp v. Pennoyer, 723 S.W.2d 528, 1986 Mo. App. LEXIS 5118 (Mo. Ct. App. 1986).

Opinion

SNYDER, Chief Judge.

This is an action for damages for personal injuries and property damage which arose out of an accident involving three vehicles. A counterclaim was filed by the original defendant, Pennoyer. He also filed a third party petition against Rutherford. After a jury trial and verdict, judgment was rendered for the plaintiff Kopp on his petition and on defendant Pennoyer’s counterclaim. On the third party petition Pennoyer obtained judgment against Rutherford. The jury assessed the fault 99% to Pennoyer and 1% to Rutherford.

Pennoyer appeals, alleging the trial court erred by giving instruction number 11, MAI 4.01. He contends the instruction should have been modified in accordance with Note on Use No. 3 to MAI 4.01 by [530]*530including a description of the event which gave rise to the lawsuit. Appellant also alleges the trial court erred by overruling his objections to the reading of the deposition of plaintiffs doctor and to the doctor’s testimony that plaintiffs injuries “could possibly” be permanent. The points are denied and the judgment is affirmed.

On a bitter cold winter night in January of 1984, plaintiff Kopp left his employment at a shoe company in Ironton, Missouri, to drive home. He had a problem with his car overheating which caused him to stop twice at the side of the road, the second time at the end of a driveway near a mailbox, on the right side of the northbound lane, parallel with the highway.

Rutherford was a co-worker of Kopp who followed Kopp after they left the shoe company. As Rutherford passed the Kopp car sitting on the side of the road, he saw Kopp’s car lights flashing. Rutherford drove on by, turned around in a driveway, and drove back, parking his car, also on the right side of the northbound lane, facing Kopp’s parked vehicle. Rutherford’s car was off the road and in line with the Kopp vehicle.

There was some conflict in the evidence on the question whether the vehicles were completely off the road, but this was resolved in plaintiff’s favor by the jury.

There was a small hill crest about a quarter of a mile south of the location of the parked automobiles. Pennoyer, driving north on the highway, came over the crest of the hill, saw what he took to be the bright lights of an automobile in his lane, drove to the right, and collided with the rear of Kopp’s automobile which was driven into Rutherford’s automobile.

Kopp was injured, sustaining a cut on his forehead and soft tissue injuries to his shoulder and neck. Pennoyer had applied his brakes causing skid marks on the road up to the point of the collision of the right front of his automobile with the left rear of Kopp’s.

Kopp also sustained lacerations to his knees. He was treated by Dr. Gerald Roberts. It is unnecessary to this opinion to go into the details of the treatment.

In appellant’s first point he complains that the trial court’s failure to modify MAI 4.01, Instruction Number 11, to describe more specifically the occurrence from which the alleged damages arose, was error. Appellant bases his argument on evidence of a lower back injury incurred by respondent Kopp in February of 1984 when he bent over, and another work-related injury which he sustained about one year later. The point is not well taken.

Appellant objected to the trial court’s submission of instruction number 11, a version of MAI 4.01, modified only to name the plaintiff, but unmodified to describe the occurrence giving rise to the damages claimed by respondent. Appellant did not specifically point out the problem highlighted by Note on Use No. 3 to MAI 4.01, nor did he request a clarification or a modification of the instruction. Appellant was more specific in raising the objection in his motion for judgment notwithstanding the verdict, or in the alternative, for a new trial.

Failure to raise the issue during trial or to request the modification may be considered in determining whether a variation from MAI is prejudicial. Hudson v. Carr, 668 S.W.2d 68, 71-72 [5] (Mo.banc 1984).

Assuming, but not deciding, that the trial court erred in instructing the jury with MAI 4.01 unmodified to describe specifically the occurrence giving rise to respondent’s injuries, the error, if any, was not prejudicial.

The automobile accident happened on January 18, 1984. This was the occurrence mentioned in the evidence, but there was evidence of two other occurrences. Approximately a month after the automobile collision, respondent Kopp testified he hurt his lower back in bending over at home. He said that he had problems with his lower back but it was not related to the accident and that he was not asking for damages for that injury. He was treated once for the lower back injury. In April of 1985 he suffered an accident at work.

[531]*531The only possible connection between the lower back injury and the injury to his shoulder and neck which was caused by the collision was indicated by his affirmative response to a question on cross examination in which he was asked whether he was careful about how he moved his shoulder or neck because of the lower back injury.

Appellant’s closing argument was directed almost exclusively to the liability question and not to the evidence of the other occurrences on which he relies so heavily in his brief. He mentioned the lower back pain a month after the collision, but the doctor testified this was not related to the accident. Appellant’s counsel in closing argument said, “We also have the overlay of underlying lower back pain right after-wards and then trying to claim all this time off, even though he suffered from severe low back pain a month after which the doctor said wasn’t related to this.”

Respondent’s counsel emphasized throughout the trial that respondent was not claiming any damages for the lower back injury and there was no probative evidence that there was any connection between the injuries sustained to his neck, head, and shoulder in the automobile collision and the injury sustained from bending over which occurred a month later.

Although appellant objected to the instruction, no modification was offered. The failure to offer modification may be considered in determining whether a variation from an MAI instruction is prejudicial, especially when the court gives the text instruction in express terms and the deviation consists of a failure to modify it. Hudson, 668 S.W.2d at 71-72 [5].

Appellant also cited Hudson v. Carr but it supports respondent’s position more than it does appellant's.

Appellant relies as well on Thweatt v. Haefner, 539 S.W.2d 734 (Mo.App.1976). In Thweatt, plaintiff sought damages for injuries she sustained in an automobile collision, but the case is distinguishable, because in Thweatt there was a very serious question whether any one of three later occurrences produced or contributed to the injuries for which plaintiff sought damages. Id. at 735.

In the case under review, respondent's counsel repeatedly stated respondent was seeking relief only for the injuries to his neck and shoulder arising from the automobile collision with appellant. There was no evidence to support appellant’s claim that the jury was confused over the word occurrence because of the other incidents.

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Bluebook (online)
723 S.W.2d 528, 1986 Mo. App. LEXIS 5118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kopp-v-pennoyer-moctapp-1986.