McPherson v. Bi-State Development Agency

702 S.W.2d 129, 1985 Mo. App. LEXIS 3843
CourtMissouri Court of Appeals
DecidedDecember 17, 1985
Docket49148
StatusPublished
Cited by17 cases

This text of 702 S.W.2d 129 (McPherson v. Bi-State Development Agency) 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
McPherson v. Bi-State Development Agency, 702 S.W.2d 129, 1985 Mo. App. LEXIS 3843 (Mo. Ct. App. 1985).

Opinion

PUDLOWSKI, Judge.

Appellant Bi-State Development Agency appeals from a $25,000.00 judgment entered in favor of respondent Iris McPherson. Respondent brought this action under the doctrine of res ipsa loquitur for damages she sustained in a fall while a passenger on appellant’s bus. We affirm.

On the morning of September 30, 1980, respondent boarded appellant’s Kingshigh-way bus on her way to work at Belle and Beau Tailoring where she was employed as a seamstress. As she walked to the rear, the bus jerked and respondent was thrown to her knees. She remained on the floor for a few minutes. She then rose and remained seated until she reached her destination. Once at work, respondent stayed only a couple of hours because she experienced pain in her right thigh and knee.

Respondent returned home on the same bus which she rode earlier. She testified that she reported her fall to the bus driver and that he laughed and failed to make an accident report.

When she reached home, respondent informed appellant’s office of the incident and then sought treatment at the Jewish Hospital emergency room for injuries to her back, right thigh, and knees. Her physician, Dr. Alphonso Hilliard, who treated her approximately ten times for injuries related to the fall, recorded that she suffered from contusions to her right thigh and knee as well as lumbo-sacral muscle strain. Following the incident, respondent was unable to work for about two months. She left her job at Belle and Beau because she knew her employer would be unable to hold her job open while she recovered.

In October or November, 1980, she regained full-time employment as a seamstress at Goldie’s Department Store. During the thirteen to fourteen months she worked at Goldie’s, respondent endured continuous pain. She later left this position to move to Virginia. Since her move, respondent has been unable to return to work as a seamstress because of pain and swelling in her legs. She was still suffering from these ailments at the time of trial.

Before trial, respondent was examined by Dr. Louis Reuter at appellant’s request. Dr. Reuter’s deposed testimony concluded that respondent’s injuries had entirely cleared up. At trial, however, neither appellant nor respondent chose to call Dr. Reuter to testify. Nor did appellant choose to read his deposition into evidence. In respondent’s presentation of rebuttal evidence, the trial court permitted respondent’s counsel to read to the jury appellant’s interrogatory answer which identified Dr. Reuter as its expert witness. During closing argument, respondent’s counsel argued the negative inference raised by appellant’s failure to call Dr. Reuter to testify.

On appeal, appellant raises five issues. First, appellant contends the trial court erred in permitting respondent’s counsel to read appellant’s interrogatory answer concerning Dr. Reuter and to argue the negative inference because Dr. Reuter was equally available to both parties. Second, appellant argues the trial court erred in instructing the jury on future damages because there was insufficient evidence to support an award of future damages. Third, appellant alleges the trial court erred in instructing the jury on lost wages since respondent testified that she voluntarily left her job. Fourth, appellant posits the trial court erred in failing to give MAI3d 18.01 [1965 New] because the ques *131 tion of agency remained in issue. Last, appellant contends respondent’s verdict was not supported by substantial evidence and was excessive and inconsistent with judgments awarded to similarly situated plaintiffs.

In its first point, appellant challenges the trial court’s decision to permit respondent’s counsel to read to the jury appellant’s response to an interrogatory. The response in question identified Dr. Louis Reuter as appellant’s expert witness. On appeal, appellant argues the trial court erred in permitting respondent’s counsel to read appellant’s response and later to comment during argument on appellant’s failure to call Dr. Reuter because the deposition of Dr. Reuter made him equally available to both parties.

Our review of the record establishes that appellant failed to properly preserve this point for purposes of appeal. Objections to the reading of interrogatory answers must be made at the time the answers were read into the record and may not he first raised on appeal. O’Donnell v. General Motors Corporation, 534 S.W.2d 271, 273 (Mo.App.1976).

In the present case, the question of reading the now contested interrogatory response first arose at the close of respondent’s evidence. At the bench, counsel for respondent informed the trial court that he intended to read appellant’s answer which identified Dr. Reuter as appellant’s expert. Appellant’s counsel made no objection but stated that he had yet to put on his evidence. The trial court agreed and told respondent’s counsel he could read the response during rebuttal.

At the close of appellant’s case, respondent’s counsel again informed the court of his intent to read the interrogatory. The trial court questioned respondent’s counsel whether he wanted to read it for the purpose of commenting on appellant’s failure to call Dr. Reuter to testify. Before counsel for respondent could answer, appellant’s counsel stated, “[Respondent’s counsel] can make the comment in his closing argument.” Thereafter, without any objection ever raised, appellant’s interrogatory response was read into evidence. The matter was not preserved for review.

Appellant also complains that the trial court erred in permitting respondent’s counsel to comment during argument on appellant’s failure to call Dr. Reuter. Appellant’s counsel never objected to respondent’s counsel’s remarks at the time the comments were made and thus the matter was not preserved for appeal. Ricketts v. Kansas City Stock Yards of Maine, 537 S.W.2d 613, 616 (Mo.App.1976). Nor need we consider the reading of the interrogatory response and respondent’s counsel’s comments during argument under plain error. Rule 84.13(c). Plain error may not be invoked to excuse the mere failure to timely and properly object. Goodman v. Firmin Desloge Hospital, 540 S.W.2d 907, 917 (Mo.App.1976). The general rule is that where a party does not object to argument he finds improper, he may not object on appeal. Id. Plain error may be used only in those exceptional circumstances where the reviewing court determines that manifest injustice or miscarriage of justice has occurred. Id.

We next address appellant’s second and third points together. Both points arise from the trial court’s submission of instruction eight and its order denying appellant’s motions in limine with regard to future damages and lost wages. Appellant contends there was insufficient evidence (1) to support an award for future damages and (2) to permit the issue of lost wages to go to the jury. We disagree.

In determining whether there was substantial evidence to support the giving of an instruction on future damages, we view the evidence in the light most favorable to the party tendering the instruction. Milam v. Vestal,

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Bluebook (online)
702 S.W.2d 129, 1985 Mo. App. LEXIS 3843, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcpherson-v-bi-state-development-agency-moctapp-1985.