Lewis v. Wahl

842 S.W.2d 82, 1992 Mo. LEXIS 134, 1992 WL 340931

• Court: Supreme Court of Missouri
• Decided: November 24, 1992
• Docket: 74382
• Status: Published

Opinions

PER CURIAM.

This action for personal injuries by plaintiff Steven Lewis arose out of a collision involving three motor vehicles on Highway FF, a two-lane, north-south highway in Jefferson County. Plaintiff was driving his pickup truck north at a point where the highway curved to his right. As plaintiff entered the curve, defendant Travagliante was driving his pickup truck south and was entering this same curve from the north. Defendant Dulaney was behind the Travag-liante vehicle and was also driving south.

Defendant Travagliante was killed in the accident. The only two surviving eyewitnesses were plaintiff and defendant Dula-ney. Plaintiff’s version of the accident was that when he first saw Dulaney’s car it was in the wrong lane (his northbound lane), and it was “really close to the rear end of defendant Travagliante’s car, like he was starting to come around him.” Plaintiff testified that he was travelling within the speed limit on his proper side of the road when he observed defendant Dulaney in the wrong lane. Plaintiff said he “slammed on the brakes,” the wheels locked up, and his car started skidding into the southbound lane where it collided almost head-on with defendant Travagli-ante’s vehicle.

Contrary to plaintiff’s testimony, defendant Dulaney testified that, as he entered the curve behind defendant Travagliante, he was in his proper lane and was not attempting to pass. He said both he and Travagliante were going below the speed limit. He testified he heard screeching tires and saw plaintiff’s vehicle skating out of control into the southbound lane. Defendant Dulaney crossed the northbound lane and went into the ditch to avoid the collision. Defendant Dulaney testified plaintiff was going “very fast, way beyond the speed limit.”

On appeal, defendant James Wahl, defendant ad litem for Travagliante, raises two issues involving impeachment. The first is whether the trial court erred in refusing to allow defendant Dulaney to impeach the plaintiff by showing that plaintiff had been convicted of speeding on a prior occasion. The second issue raised by appellant is his claim that the trial court erred in allowing the plaintiff to impeach defendant Dulaney with an inconsistent statement contained in Dulaney’s cross-claim.

The jury returned a verdict finding fault on the part of all three parties and assessed percentages of fault as follows:

Defendant Dulaney 70%

Defendant Travagliante 15%

Plaintiff Lewis 15%

The jury assessed plaintiffs total damages at $430,000. Defendant Dulaney settled with plaintiff after the case was submitted to the jury but before the verdict was returned. The trial court entered judgment for $51,000 in favor of plaintiff against defendant Travagliante. Defendant Tra-vagliante appealed. The Court of Appeals, Eastern District, reversed. This Court granted transfer.

I.

USE OF A SPEEDING TICKET TO IMPEACH PLAINTIFF LEWIS

James Daly Wahl, defendant ad litem for defendant Douglas Travagliante, deceased, claims that the trial court erred in refusing to allow defendant Travagliante to impeach plaintiff by showing plaintiffs prior conviction of the 'misdemeanor of speeding. Plaintiffs offer of proof shows that plaintiff testified at his deposition that, at some time prior to the accident at issue, he received a speeding ticket on Highway 44 from a state trooper, pled guilty and paid a fine. The conviction of speeding was offered as bearing on plaintiffs credibility as a witness.

The statute relied on by the defendant for his position that it was error to exclude the speeding conviction is § 491.050, RSMo 1986, which was last amended in 1981. The statute provides:

Any person who has been convicted of a crime is, notwithstanding, a competent witness; however, any prior criminal convictions may be proved to affect his credibility in a civil or criminal case and, further, any prior pleas of guilty, pleas of nolo contendere, and findings of guilty may be proved to affect his credibility in a criminal case. Such proof may be either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer.

(Emphasis added to identify words added or modified in 1981.)¹

Cases of this Court construing § 491.050 prior to the 1981 amendment consistently held that the statute permitted evidence of any felony or misdemeanor conviction, including traffic convictions, to be proved on the question of witness credibility.' State v. Morris, 460 S.W.2d 624, 629 (Mo.1970); Hoover v. Denton, 335 S.W.2d 46, 47 (Mo.1960); State v. Cox, 333 S.W.2d 25, 30 (Mo.1960); Brown v. Anthony Mfg. Co., 311 S.W.2d 23, 28 (Mo. banc 1958); State v. Johnson, 293 S.W.2d 907, 911 (Mo.1956); and State v. Blitz, 171 Mo. 530, 71 S.W. 1027,1030 .(1903). See also State v. Busby, 486 S.W.2d 501 (Mo.1972); State v. Meyer, 473 S.W.2d 374 (Mo.1971); Fisher v. Gunn, 270 S.W.2d 869 (Mo.1954); and Forbis v. Associated Wholesale Grocers, Inc., 513 S.W.2d 760 (Mo.App.1974). Arguably, the 1981 amendment might serve as a basis from which to undertake a new construction of § 491.050. It may also be argued that the 1981 amendment only served to reinforce the pre-1981 construction of the statute. See Citizens Elec. Corp. v. Director of Revenue, 766 S.W.2d 450, 452 (Mo. banc 1989). However, the issue of how the amended statute should be construed need not and is not decided in this case. For the purpose of this opinion, it will be assumed, without deciding, that the trial court erred in excluding the single misdemeanor speeding conviction.

The question of error does not resolve the question of whether reversal is mandated on this claim. By both statute and rule, an appellate court is not to reverse a judgment unless it believes the error committed by the trial court against the appellant materially affected the merits of the action. § 512.160.2; Rule 84.13(b). The exclusion of evidence which has little, if any, probative value is usually held not to materially affect the merits of the case and hence, error in rejecting such evidence is not grounds for reversal. Johnson v. Lee Way Motor Freight, 261 S.W.2d 95, 99 (Mo.1953). The exclusion of a single misdemeanor conviction of speeding that is unrelated to any issue other than witness credibility is of such little consequence that no reversal of a judgment will be made on that basis. The first claim, involving impeachment, is without merit.

In Forbis, supra, the court of appeals reversed a judgment on the basis of a trial court’s exclusion of a single speeding conviction, asserting that the exclusion of the conviction was “contrary to the absolute right afforded plaintiff by § 491.050.” 513 S.W.2d at 766 (emphasis in original). The court did not consider the equally compelling language of § 512.160.2 and Rule 84.-13(b) forbidding appellate courts from reversing judgments for errors that do not materially affect the outcome of a case. To the extent of any inconsistency with the decision here, Forbis is overruled.

II.

USE OF PLEADING TO IMPEACH DEFENDANT DULANEY WITH AN INCONSISTENT STATEMENT

A. The Facts of the Impeachment

On direct examination, defendant Dula-ney testified that as he entered the curve behind defendant Travagliante they were both going below the speed limit of 55 miles-per-hour. On cross-examination, he repeated that defendant Travagliante “was going 40-50 miles-per-hour on a straight stretch before the curve.” Plaintiff then asked defendant Dulaney whether he had ever told anybody that defendant Travagli-ante failed to stop or slow down and that contributed to cause this collision. Defendant Dulaney answered, “I didn’t say that.” In response to plaintiff’s further cross-examination, defendant Dulaney testified that he was not telling the jury that defendant Travagliante failed to slow down or failed to stop or that his failure caused the collision. He continued his testimony on cross-examination by stating that defendant Travagliante certainly was not driving at a high rate of speed and was not driving at an excessive rate of speed.

Plaintiff’s counsel then stated to the court he wished to “refresh the witness’s memory”² with a cross-claim the witness had filed against defendant Travagliante. Counsel for defendant Travagliante objected,³ claiming that the pleadings cannot be used to impeach because the parties “have the right to plead in the alternative.” The objection was overruled, and plaintiff’s attorney was permitted to read the following to the jury:

Defendant Steven Dulaney states that whatever injuries or damages plaintiff may have sustained were directly and proximately caused in whole or in part by the carelessness and negligence of defendant Travagliante in one or more of the following respects: that he carelessly and negligently drove and operated his vehicle at an excessive and high rate of speed for the conditions then and there existing; that he knew or by the highest degree of care should have known that there was a reasonable likelihood of collision in time thereafter to have stopped, swerved, or slackened his speed, sounded a warning, or a combination thereof, but he failed to do so.

Plaintiffs counsel then asked defendant Dulaney whether his lawyer had filed this pleading as a counterclaim on behalf of defendant Dulaney. Defendant Dulaney answered, “I have no idea. This is the first time I have ever heard of it. I did not know that I was counterclaiming. Those certainly are not my statements, sir.”

B. Summarizing the Rules from our Prior Cases on Impeaching with a Pleading

It would be helpful to summarize the various rules this Court has adopted in the past concerning the use of pleadings to impeach with an inconsistent statement or as an admission.⁴ It is clear under our cases that a pleading filed by an attorney on behalf of his client is a statement of the client for purposes of using the pleading as an inconsistent statement. Helton v. Huckeba, 276 S.W.2d 78, 82 (Mo. banc 1955); Lawson, Admissibility of Pleadings into Evidence in Missouri, 27 Mo.L.Rev. 258, 260 (1962). If the client did not have knowledge of the pleading or did not expressly authorize his attorney to file it, he may inform the jury of this fact as an explanation for the inconsistency between the pleading and his testimony, but this explanation is for the jury to consider and does not bear on admissibility. Id. It is said to go to weight and not admissibility.

In considering the admissibility of pleadings as an inconsistent statement, we have generally distinguished between abandoned pleadings and pleadings from other eases on the one hand, and pleadings which are live and active in the present lawsuit on the other. Because the cross-claim used by plaintiff to impeach defendant Dulaney was not abandoned and was a live, active pleading at the time it was used for impeachment, we need not consider whether and to what extent the rules for the use of pleadings may differ with respect to abandoned pleadings or pleadings from other cases.

Of course, active pleadings in the present case, as in any ease, function in their traditional manner for their normal purpose in the lawsuit by limiting the issues in dispute. In Wehrli v. Wabash R.R. Co., 315 S.W.2d 765 (Mo.1958), cert. denied, 358 U.S. 932, 79 S.Ct. 321, 3 L.Ed.2d 304 (1959), a FELA case for injuries to a signal maintenance man who was injured when his railroad motor car collided at a crossing with an automobile travelling on the highway, the claim of negligence was based upon the fact that the motor car was insulated, so it did not activate the crossing signals. Plaintiff was allowed to read from his petition a paragraph which was admitted by defendant’s answer describing the crossing and the fact that defendant established, operated and maintained protective electric signal devices at the crossing for the purpose of preventing collisions between railway equipment and private automobiles. This was a proper use of the pleadings because it informed the jury that these issues were not in dispute and, for purposes of this trial, the parties were precluded from maintaining a contrary or inconsistent position. This is simply the use of the pleadings to perform their primary function in the ease. Wehrli, 315 S.W.2d at 733.

There are two basic limitations on the use of pleadings as an inconsistent statement which are potentially applicable in this case. First, pleadings consisting of legal conclusions may not be used; only statements of operative facts may be used. Wors v. Glasgow Village Supermarket, Inc., 460 S.W.2d 583, 590 (Mo.1970); Macheca v. Fowler, 412 S.W.2d 462, 465 (Mo.1967); Giannone v. United States Steel Corp., 238 F.2d 544, 548 (3rd Cir. 1956).

Second, inconsistent pleadings may not be used to impeach. Rule 55.10 authorizes the pleading of inconsistent claims or defenses. Where the trial testimony of a party supports one version of an inconsistent pleading, allowing the opponent to impeach with a corresponding inconsistent allegation of the pleading would, at the least, inhibit the utilization of Rule 55.10. Therefore, inconsistent pleadings may not be used as impeaching statements. This rule is logical as well as practical because inconsistent statements in a pleading are, by definition, only conditionally asserted to be true, i.e., one or the other is true, not necessarily both. Where the facts in the pleading were asserted under these circumstances, testimony which conforms to one fork of the inconsistent allegation but not to the other is, in fact, not inconsistent.

The issue then becomes a matter of identifying what types of pleadings will be viewed as inconsistent under this rule. Johnson v. Flex-O-Lite Mfg. Corp., 314 S.W.2d 75 (Mo.1958), establishes and demonstrates two types of inconsistent pleadings which may not be used for impeachment.⁵ First, where there are multiple defendants, a party’s pleading cannot be used against one defendant to impeach that party’s testimony against another defendant. A plaintiff is entitled to plead that the negligence of each defendant was the sole cause of plaintiff’s damage. Such a pleading is inconsistent because if any single defendant were the sole cause of the injury, then the negligence of the other defendants would not be causal. Under the rule prohibiting the use of inconsistent pleadings to impeach, a party alleging negligence against two or more defendants whose testimony at trial evidences only the negligence of a single defendant may not be impeached by the use of his pleading alleging that the other defendants caused the injury. Thus, where the defendant pleads the negligence of defendant A and the negligence of defendant B were each the sole cause of the accident, the plaintiff’s testimony at trial indicating that the cause of the accident was the negligence of defendant A may not be impeached by his pleading alleging that the negligence of defendant B was the cause of the accident.

In Macheca v. Fowler, 412 S.W.2d at 464-466, there was a four-car chain collision accident in which each car rear-ended the ear ahead of it. The plaintiff was in Car No. 3; the defendant was in Car No. 4. The plaintiff previously had filed petitions against the drivers of Car No. 1 and Car No. 2 alleging they caused the accident by coming to sudden, unsignaled stops. Plaintiff’s claims against the drivers of Car No. 1 and Car No. 2 previously had been dismissed. The Court held that plaintiff, whose testimony implicated the fault of the driver of Car No. 4 as the cause of the accident, could not be impeached by his prior pleadings against the drivers of Car No. 1 and Car No. 2. The Court stated:

The failure of his charges against the other two defendants did not defeat his right to continue to assert against the defendant here the matters alleged as negligence on this defendant’s part. Plaintiff had the right to try his case on the issues made against this defendant without regard for the charges previously made against the two involuntarily dismissed defendants.

Macheca, 412 S.W.2d at 465. The Court quoted from Wigmore, which assesses the rationale for this rule to essentially what amounts to a mechanical pleading rule:

“[T]he object of each set of pleadings or counts is to raise and to define the separate issues, and any use of the one to aid the other would to that extent defeat this object and prevent the trying of the issue made.

“ * * * It is a purely artificial rule, an exception to principle, and is rendered necessary solely by the peculiar theory of common-law pleading; for its fundamental object is ‘to separate the law from the facts, and to narrow the latter down to a single issue,’ and the statute permitting multiple pleas did not and could not destroy the primary scheme of keeping each issue independent for the purpose of submission to the jury. Thus, in order to secure for each of these issues an independent investigation, it becomes necessary, during that trial, to ignore, artificially, the existence of the other series of pleadings in the same cause.” IV Wigmore On Evidence, § 1064(2), pp. 48-49.

Id. at 465-66.

In Macheca, the Court relied heavily upon Flex-O-Lite. In Flex-O-Lite, plaintiff, who was injured in a head-on collision involving three vehicles, sued the driver of the car in which plaintiff was riding, the driver of the oncoming automobile and the owner of a truck that was passing the vehicle in which plaintiff was a passenger. Plaintiff alleged each defendant was negligent. One of the issues in the lawsuit was whether the passing truck or the oncoming automobile first collided with the vehicle in which plaintiff was a passenger. At trial, plaintiff’s driver testified that the first contact was with the passing truck. The Court refused to allow plaintiff’s driver to be impeached with an allegation in his answer that the collision was caused solely by the negligence of the driver of the oncoming car.

This rule is not limited to joint defendants but applies to any multiple party circumstance, such as the present case where defendant Dulaney claimed in his answer that plaintiff caused the accident and in his cross-claim that defendant Tra-vagliante caused the accident. These allegations in these pleadings may not be used to impeach defendant Dulaney.

Flex-O-Lite also holds that where a party alleges disjunctive specifications of negligence, each such specification of negligence is an alternative to the other and may not be used to impeach. In Flex-O-Lite, plaintiff’s petition claimed that the driver of the automobile in which plaintiff was a passenger was negligent in operating his automobile at a high and dangerous rate of speed under the circumstances; that he failed to keep his automobile under control; and that he failed to stop his automobile. Even though plaintiff’s ultimate testimony in Flex-O-Lite failed to assert fault on the part of the driver of the vehicle in which plaintiff was a passenger, he may not be impeached with the disjunctive claims of negligence set forth in his petition. In so ruling, we said, “Proof of an averment, made hopefully or with undue optimism at pleading time, sometimes fails to develop at the trial, but a party is not required to prove every fact issue alleged, ... under pain of being impeached and discredited.” Flex-O-Lite, 314 S.W.2d at 80. This aspect of Flex-O-Lite is really an acknowledgment that in pleading disjunctive allegations of negligence or fault, we recognize that the pleader is merely stating that at this early stage of the litigation, it is an expectation and hope that the evidence will show negligence or fault in one or more of the following respects; there is really no assertion that all or even any of the allegations will ultimately prove to be true. Failure of the pleader’s testimony to live up to the expectations of his pleading is not an inconsistency and may not be used to impeach. This limitation on the use of a pleading to impeach is not limited to pleadings against multiple parties; it is equally applicable to pleadings against a single party.

On the other hand, Flex-O-Lite, discusses Hoffman v. Illinois Terminal R.R. Co., 274 S.W.2d 591, 594 (Mo.App.1955), which amply demonstrates a circumstance where a pleading may be used to impeach the pleader’s testimony. If there is a significant deviation between the pleader’s pleading and his testimony on a purely factual allegation, this inconsistency may be shown for impeachment purposes. In Hoffman, the plaintiff pled in his petition that he was thrown from the defendant’s bus to the pavement, but in his testimony he said he was thrown from the front door of the bus into a telephone pole, which dazed him and caused him to strike a building with his left hip. This inconsistency is a basic factual allegation concerning what happened at the time of the accident and was proper for impeachment. In Macheca, 412 S.W.2d at 466, this Court discussed this exception to the exclusionary rule demonstrated by Hoffman and recognized in Flex-O-Lite. In Richardson v. Wendel, 401 S.W.2d 455, 460 (Mo.1966), this Court allowed the plaintiff to be impeached with her petition against the ambulance driver in a lawsuit where she also sued the driver of another vehicle which collided with the ambulance. The pleading, which alleged that the siren on the ambulance was on and that the traffic signal was red, was contrary to her testimony.

In summary, the general rule is that you can use a pleading to impeach. The exceptions are that (1) you cannot impeach with legal conclusions and (2) you cannot impeach with an inconsistent pleading which includes (a) alternative allegations against multiple parties or (b) disjunctive specifications of negligence or fault against any party.

C. Defendant Dulaney was Improperly Impeached

The cross-claim was improperly used in the present case to impeach defendant Dulaney both because it was an inconsistent pleading against joint parties and because it consisted of disjunctive specifications of negligence and legal conclusions alleging negligence and causation. Since plaintiff’s and defendant Dulaney’s respective versions of the events were in direct contradiction to each other and because they were the only witnesses to the accident, each such witness’s credibility and believability was pivotal in the outcome of the case. Under these circumstances, this error in the impeachment of defendant Du-laney was prejudicial.

The judgment is reversed and the cause is remanded for a new trial.

ROBERTSON, C.J., COVINGTON, HOLSTEIN and BENTON, JJ., and SMART and KENNEDY, Special Judges, concur. THOMAS, J., concurs in part and concurs in result in part in separate opinion filed. PRICE and LIMBAUGH, JJ., not sitting because not members of the Court when case was submitted.

1 . The word "crime” in the first clause had previously read "criminal offense.” The words “however, any prior criminal convictions” previously read "but the conviction.” The remaining italicized words were all new in 1981. See § 491.-050, RSMo 1978.

2 . Plaintiffs counsel incorrectly described the process he was engaging in as refreshing recollection, which, done properly, would require that the witness first indicate that he had some lack of memory. The witness would then be shown the writing to read silently and then asked if, having refreshed his recollection, he now had an independent recollection as to the speed of defendant Travagliante's vehicle. If the witness acknowledged his recollection had been refreshed, he would then be asked to testify from his independent refreshed recollection concerning the speed of the vehicle. In this instance, plaintiffs counsel actually was laying a foundation for impeachment of the witness with an inconsistent statement by confronting the witness with that statement on cross-examination.

3 . Plaintiff has not raised the issue of whether defendant Travagliante has standing to raise the issue on appeal of whether defendant Dulaney was improperly impeached. Because defendant Dulaney was not only a party but was also a witness whose testimony was favorable to Tra-vagliante, it would appear that defendant Tra-vagliante was entitled to object and raise on appeal the issue of whether this witness, whose testimony was favorable to him, was improperly impeached. Usually, the objection that a party is improperly impeached is raised by the impeached party, but in this instance since defendant Dulaney settled with plaintiff while the jury was out, he is not a party to this appeal. Nevertheless, it would appear that defendant Travagliante was entitled to raise this issue on appeal.

4 . Generally, the same principles which are applicable in determining when a pleading may be used as a statement of the pleader for purposes of impeachment, also are applicable in determining when a pleading may be used as an admission under the hearsay rule. If the pleader is a witness in the case in which the pleading is sought to be used, then the statement contained in the pleading, if it otherwise qualifies, can be used as a prior inconsistent statement. If the pleader is a party in the case in which the pleading is being offered, then if it is offered by a party opponent, it qualifies as an admission under the hearsay rule. If the pleader is both a party and a witness and his testimony is inconsistent with the prior pleading, then the pleading likely qualifies as both an inconsistent statement and an admission under the hearsay rule.

5 . This Court’s opinion in Johnson v. Flex-O-Lite Mfg. Corp., 314 S.W.2d 75 (Mo.1958), generally describes the type of statements contained in a pleading which may not be used to impeach as statements which "do not possess the characteristics inherent in admissions against interest." While this characterization is true, it is not very helpful in identifying such statements. It is merely a truism which arises out of the proposition that the same rules which control the use of pleadings for impeachment purposes also control the use of pleadings as an admission under the hearsay rule. The rules discussed herein were disclosed by a careful study of the specific nature of the statements rejected as impeaching statements in Flex-O-Lite.