Stewart v. Carron

938 S.W.2d 636, 1997 Mo. App. LEXIS 195, 1997 WL 52275
CourtMissouri Court of Appeals
DecidedFebruary 11, 1997
DocketNo. 68630
StatusPublished
Cited by1 cases

This text of 938 S.W.2d 636 (Stewart v. Carron) 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
Stewart v. Carron, 938 S.W.2d 636, 1997 Mo. App. LEXIS 195, 1997 WL 52275 (Mo. Ct. App. 1997).

Opinion

SIMON, Judge.

James M. Stewart and Julie A. Stewart, plaintiffs, appeal from a jury verdict in favor of Gregory Carrón, defendant, in their action for damages arising out of an automobile accident. In their petition, plaintiffs allege that defendant negligently operated his vehicle by crossing into James’ lane of travel and colliding with him. Further, Julie sought damages for loss of consortium.

In their point on appeal, plaintiffs contend the trial court erred in limiting their “cross-examination of [defendant] about his consuming intoxicating liquor prior to the accident because [defendant] was the only testifying witness to the accident and the court’s ruling deprived [plaintiffs] of [their] basic right to a fair trial by not allowing the jury to weigh [defendant’s] testimony in light of his consumption of alcohol.” In our original opinion we affirmed the judgment of the trial court due to the lack of evidence of erratic driving or other circumstances from which it might be inferred that defendant had an impaired physical condition at the time of the collision. The Supreme Court of Missouri granted plaintiffs’ Application for Transfer and then ordered this case retransferred to the Missouri Court of Appeals, Eastern District, for reconsideration in light of its decision in Kathryn Rodriguez v. Suzuki Motor Corp., f/k/a Suzuki Motor Company, Ltd., et. al., 936 S.W.2d 104 (Mo. banc 1996). We reverse and remand.

The record indicates that at 1:30 a.m. on a Thursday morning, James was alone in his Monte Carlo, driving northbound on Germa-nia Road, a two lane road, in St. Francois County. Defendant was travelling south[637]*637bound, alone in his Chevy Blazer. James’ vehicle had just passed over a one-lane bridge. Subsequently, upon cresting a hill the two vehicles collided. James’ vehicle came to rest in a ditch on the eastern edge of the road, facing in a northerly direction. Defendant’s vehicle came to rest in a ditch on the western side of the road, facing southbound.

Defendant testified that he approached James’ vehicle after the accident, saw that James was trapped in his vehicle, and then ran to a local farm house where he asked the occupants to call for an ambulance.

Approximately one hour after the accident, a Missouri State Highway Patrol Trooper (Trooper) arrived on the scene. He testified at trial, that he observed that the left front and left undercarriage of defendant’s vehicle were damaged. He observed that James’ vehicle had been smashed in and down into the road and suffered damage to its left front, left side, and driver’s compartment.

Trooper testified that upon his arrival to the accident site, he made the following observations: (1) the road is just over 17 feet wide and each of the vehicles were approximately 6 feet wide; (2) leading from James’ car, there was a fresh “gauge” made into the road, located approximately 3 feet from the eastern edge of the road and with a length of approximately 7 feet; and (3) there were no skid marks left at the scene of the accident. Trooper further testified that he was satisfied that “[defendant] was not under the influence of alcohol that in any way caused or created the accident.”

The ambulance crew, who were dispatched to the accident site, noted in the emergency room records, that James was “plus five beers.” At trial, a nurse who initially examined James at the hospital, testified that James had the odor of alcohol on his breath. A medical technologist at the hospital testified that he drew a blood sample from James and then performed a laboratory analysis of the specimen. James’ blood alcohol content (BAC) at 3:30 a.m. was .117. At 4:10 a.m., James was taken by helicopter to Saint Louis University Hospital. Another nurse testified that at 5:20 a.m., James vomited and the emission had the odor of alcohol. The nurse further testified from hospital records that at 5:15 a.m., James’ BAC was .068.

During the pretrial conference, each party presented motions in limine seeking to exclude various items of evidence. Plaintiffs filed two motions in limine seeking to prohibit defendant from introducing any evidence of James’ BAC at or about the time of the accident, its level at the hospital, and evidence of his treatments for alcohol use and depression. Plaintiffs argued that the evidence was inadmissible because there was no direct evidence that James was in any way negligent or in any way operated his vehicle in a “careless manner or was erratic or was on the wrong side of the road or was speeding.” Defendant argued that there would be evidence of James’ erratic driving presented and that his BAC of .117 constituted evidence of intoxication. The trial court denied plaintiffs’ motions.

Defendant filed a multiple count motion in limine seeking to prohibit plaintiffs from asking any questions concerning defendant’s whereabouts prior to the collision and consumption of four beers. Defendant argued that since there was no indication or testimony that he was in any way impaired or had alcohol on his breath or other signs of erratic driving, the evidence was inadmissible. Plaintiffs’ strenuously argued to the court that:

clearly, consumption of alcohol and where [defendant] was before the accident ... are clearly admissible, if not on the issue of impeachment, his ability to observe what he saw, what happened at the scene, ... his ability to observe, his ability to recall ... all are admissible even if he’s had half of a beer.

The trial court sustained the motion reasoning that: “courts have not allowed evidence of simply drinking if it doesn’t rise to the level of intoxication unless it’s coupled with erratic driving.”

At trial, during plaintiffs’ case-in-chief, James testified that he had suffered severe injuries, including head trauma, as a result of the accident. He testified that he had no memory of the accident or events prior to the accident. The last thing James remembered [638]*638was leaving his place of employment approximately one-half hour prior to the accident. Throughout cross-examination, defendant elicited evidence of James’ prior history of alcohol abuse and depression.

Plaintiffs also called Trooper to testify as to the call he received, the scene when he arrived, the position of the cars, the physical shape the vehicles were in and who was present. On cross-examination defense counsel asked Trooper multiple questions as to the physical appearance of defendant. He asked if Trooper smelled alcohol on defendant, if he did any field sobriety tests on defendant, or if he suspected alcohol consumption. Trooper stated that he could not remember specific details about defendant but that he was satisfied that “[he] was not under the influence of alcohol that in any way caused or created the accident.”

During the course of trial, but outside the presence of the jury, plaintiffs asked the trial court to reconsider its prohibition of asking any questions of defendant concerning his use of alcohol prior to the accident for two reasons:

we feel there is evidence of erratic driving on the part of the [defendant and ... two, I feel that the [djefense has waived their objections, if any, by offering testimony of [Trooper] as to the condition of the [defendant, his appearance, breath, eyes, and appearance at the scene.

Also outside the hearing of the jury, plaintiffs made their offer of proof regarding defendant’s drinking:

Q.

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Cite This Page — Counsel Stack

Bluebook (online)
938 S.W.2d 636, 1997 Mo. App. LEXIS 195, 1997 WL 52275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-carron-moctapp-1997.