Rebecca Ratliff v. Schiber Truck Co.

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
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97-2760
___________
*
Rebecca Ratliff and *
Robert Ratliff, *
*
Plaintiffs/Appellants, *
*
v. * Appeal from the United States
* District Court for the Eastern
Schiber Truck Company, Inc. * District of Missouri.
*
Defendant/Appellee. *
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Submitted: February 12, 1998
Filed: August 5, 1998
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Before WOLLMAN and HANSEN, Circuit Judges, and DAVIS1, District Judge.
DAVIS, District Judge.
Appellants Rebecca and Robert Ratliff are the surviving children of Jane Ratliff.
Appellants commenced this action in the United States District Court, Eastern District
of Missouri, alleging that Gene Baugh, an employee of Appellee Schiber Truck
Company, Inc. (“Schiber”), wrongfully caused the death of their mother. On April 22,
1
The HONORABLE MICHAEL J. DAVIS, United States District Judge for the
District of Minnesota, sitting by designation.
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1997, a jury returned a verdict finding decedent Mrs. Ratliff 100% at fault and Schiber
0% at fault for the auto accident that caused her death. After the jury rendered its
verdict, Appellants moved the district court for a new trial. By written order, the
district court2 considered the arguments of counsel and denied their motion for a new
trial, finding the verdict was not against the clear weight of the evidence. The district
court was also unpersuaded that a new trial was warranted because of asserted errors
committed by the district court. Appellants now appeal the district court’s denial of
their motion for a new trial.
I.
On July 28, 1995, Jane Ratliff was driving a car, traveling northbound in the right
lane of Highway 61, a four lane highway in Pike County, Missouri. Her brother,
Robert Selim, was a passenger in the car. Ahead of her in the right lane was a
commercial tanker truck owned by Schiber and driven by one of its employees, Gene
Baugh. As she approached the Schiber truck, Mrs. Ratliff entered into the left lane to
pass it. Once she moved into the left lane, she observed another vehicle, in the same
left lane, traveling southbound directly toward her. To avoid a head-on collision with
the wrong way driver, Mrs. Ratliff attempted to return to the right lane. However, at
that point, Mr. Baugh had stopped, or substantially slowed down, the truck in the right
lane.3 As a result, when Mrs. Ratliff attempted to return to the right lane, she collided
with the truck, and suffered fatal injuries.
Appellants commenced this wrongful death action against Schiber, alleging that
2
The Honorable E. Richard Webber, United States District Court, Eastern
District of Missouri, Northern Division.
3
There is a factual dispute as to whether Mr. Baugh actually had stopped the
truck at the time of the accident, or whether the truck was still moving, albeit at only
5 m.p.h.
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Schiber proximately caused or contributed to the death of Mrs. Ratliff, because of the
negligence of Gene Baugh in stopping the truck in the right lane of the highway. In its
defense, Appellee argued Mr. Baugh was not negligent, and that in fact the accident
was caused as a result of Mrs. Ratliff’s excessive speed. The matter was tried before
a jury on April 21 and 22, 1997. The verdict form provided to the jury directed that the
jury apportion the fault of the accident between Mrs. Ratliff and Mr. Baugh. The jury
returned their verdict, finding Mrs. Ratliff 100% at fault.
II.
A verdict will stand if it is supported by substantial evidence. Purchal v.
Patterson, 762 F.2d 713, 715 (8th Cir. 1985). A new trial may be granted where the
verdict is against the clear weight of the evidence or to prevent injustice. Fireman’s
Fund Ins. Co. v. Aalco Wrecking Co., Inc., 466 F.2d 179, 186 (8th Cir. 1972) cert.
denied Aalco Wrecking Co., Inc. v. Fireman’s Fund Ins. Co., 410 U.S. 930 (1973).
Courts cannot reweigh the evidence and set aside a jury verdict because the jury could
have drawn different conclusions or inferences or because the court feels that other
results are more reasonable. Id. (citing Tennant v. Peoria and Pekin Union Ry, 321
U.S. 29, 35 (1944)). Great deference is accorded the district court ruling on a motion
for new trial, and will be reversed only upon a strong showing of abuse. Shaffer v.
Wilkes, 65 F.3d 115, 118 (8th Cir. 1995).
At trial, Appellants offered the testimony of Ruth Freeman. Ms. Freeman is a
truck driver that was also traveling northbound on Highway 61 on the date of the
accident. Ms. Freeman testified that she was not too far ahead of Mr. Baugh and Mrs.
Ratliff when she noticed a cream colored Ford Fairmont driven by an older woman
traveling southbound in the left, northbound lane. Ms. Freeman maintained her speed
and passed the wrong way vehicle. After the vehicle passed, she heard the accident
and stopped to phone for the police and an ambulance.
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Mrs. Ratliff’s brother, Robert Selim, also testified at the trial as a witness for
Appellants. Mr. Selim testified that he and his sister were traveling to Des Moines,
Iowa for a family reunion. He stated that on the day of the accident, the weather was
clear. Shortly before the accident, Mr. Selim testified that as their car approached the
Schiber truck, Mrs. Ratliff moved into the left lane in order to pass the truck. He could
not recall how fast his sister was driving at that time.
Appellants also called Bruce Becker, a trooper with the Missouri Highway
Patrol, as a witness at trial. Trooper Becker was on duty the day of the accident and
was called to the scene. Because Mrs. Ratliff’s car had left skid marks, he and
Corporal Murphy took measurements at the accident scene to determine placement and
dimensions of skid marks, gouge marks and the final resting places of the Ratliff
vehicle and the Schiber truck. Trooper Becker also testified that he spoke with Mr.
Baugh at the scene, who stated that he had stopped his truck after seeing the wrong
way driver. Trooper Becker also testified regarding Missouri statute section 304.019,
which provides, in part, that “no person shall stop or suddenly decrease the speed or
turn a vehicle from direct course or move right or left upon a roadway until that
movement can be made with reasonable safety.” Trooper Becker also testified that the
speed limit at the scene was 40 m.p.h., as it was a construction zone.
Finally, Appellants’ expert in the field of accident reconstruction, Francis
Oldham, testified that in his opinion, the accident was primarily caused because Mr.
Baugh stopped the trailer truck in response to the wrong way driver while remaining
in the right lane of the highway. Mr. Oldham opined that if Mr. Baugh had continued
to drive at 40 m.p.h., the accident would not have occurred because Mrs. Ratliff would
not have had to pull out to pass the truck, or if she did pull out to pass, she would have
seen the wrong way driver sooner and would have had more room to swerve and brake
before coming into contact with the Schiber truck. Based upon the skid marks as
measured by the state patrol, Mr. Oldham opined that Mrs. Ratliff was traveling
between 46 and 53 m.p.h. when she began to skid and that the distance between the
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wrong way vehicle and Mrs. Ratliff had to be at least 180 to 200 feet.
On cross-examination, Mr. Oldham admitted that although his report identified
Mr. Baugh as negligent, the wrong way driver was also negligent and contributed to the
accident. Mr. Oldham also admitted that his calculations established that Mrs. Ratliff
was exceeding the speed limit at the time of the accident, and that her excessive speed
“probably contributed to some degree” to the accident. Counsel for Appellee asked Mr.
Oldham if he had read the report of Sergeant Gray, a Missouri Highway Patrol trooper,
who had prepared the report on the basis of his investigation of the accident. At that
point, counsel for Appellants asked to approach the bench, and there submitted his
objection to any reference to Sergeant Gray’s report on the basis that Sergeant Gray
was not going to be called as a witness. The district court overruled the objection on
the basis that Mr. Oldham had reviewed Sergeant Gray’s report when Mr. Oldham
wrote his report. Counsel for Appellees then asked Mr. Oldham the following:
MR. PLEGGE: Are you aware that Sergeant Gray said in his report that
in summary if Jane Ratliff’s vehicle had been traveling at the
posted speed limit of 40 miles per hour, the driver would
have been able to slow down and move back into the driving
lane missing vehicle number two and the wrong-way driver,
are you aware of that opinion he gave?
MR. OLDHAM: Yes.
In its case-in-chief, Appellee submitted the deposition testimony of the driver of
another vehicle, Mr. Henke. Mr. Henke was traveling behind Ms. Ratliff when the
accident occurred. Mr. Henke testified that he first observed Mrs. Ratliff’s vehicle
when she passed him in the left hand lane. Mr. Henke testified that he was traveling 58
m.p.h. on cruise control, and estimated that Mrs. Ratliff was traveling at approximately
65-70 m.p.h. when she passed him. He testified that after she passed him, he observed
Mrs. Ratliff return to the right hand lane. Shortly thereafter, he observed the Schiber
truck for the first time after he came over a small crest in the road. When he first
noticed the Schiber truck, Mr. Henke testified that its flashers were on,
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and that the truck was coming to a stop. At that time, Mrs. Ratliff was approximately
200 yards behind the truck, still traveling at a rate of 65-70 m.p.h., when she swung into
the left lane to pass the truck. Mr. Henke testified that he also swung into the left lane
to pass the Schiber truck and at that time, saw the wrong way driver. He also observed
that the Schiber truck’s door was open and that the driver was “waiving his hands trying
to stop somebody.” Mr. Henke further testified as follows:
[Mrs. Ratliff] just turned right, and then just ran right into the left rear bumper of
the truck. And that car bounced. I don’t know how high, but it was higher than
the tanker because I saw the complete under side of that vehicle in the air, and
then bounced back about ten feet.
(Dep. Tr. 16-17). Mr. Henke testified that Mrs. Ratliff did not apply her brakes as she
attempted to move back into the right hand lane, and was therefore traveling at
approximately 65-70 m.p.h. when she hit the Schiber truck.
Appellee also called the driver of the Schiber truck, Gene Baugh, as a witness.
Mr. Baugh testified that at the time of the accident, he was traveling in a construction
zone, and that one or two miles into the construction zone he first saw the wrong way
driver in the northbound left hand lane of Highway 61. He testified that he then looked
into his rear-view mirror and saw Mrs. Ratliff traveling northbound in the left hand lane.
He then put on his flashers, slowed the truck’s speed, and waved his arms out of the
window in an attempt to warn the driver of the vehicle traveling in the wrong lane, or
the driver of the car behind him. Mr. Baugh stated that his flashers were on for
approximately ten seconds before impact, and that the truck was moving slow, and
probably less than five m.p.h.
Appellants argue that the verdict, apportioning 100% fault to Ms. Ratliff, is
against the great weight of the evidence as the jury was presented with evidence which
establishes three contributing factors to the accident - the wrong way vehicle, Mr.
Baugh’s negligence in slowing his truck in the right lane, and Ms. Ratliff’s excessive
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speed. Appellants argue that the evidence presented at trial supports a finding of
negligence per se against Schiber, as Mr. Baugh violated Mo.Rev.Stat. § 304.019.
Section 304.019 provides as follows:
No person shall stop or suddenly decrease the speed of or turn a vehicle from a
direct course or move right or left upon a roadway unless and until such
movement can be made with reasonable safety and then only after the giving of
an appropriate signal in the manner provided herein.
(1) an operator or driver, when stopping, or when checking the speed of
the operator’s vehicle, if the movement of other vehicles may reasonably
be affected by such checking of speed, shall extend such operator’s arm
at an angle below the horizontal so that the same may be seen in the rear
of the vehicle;
***
(4) The signals herein required shall be given by means of the hand and
arm or by a signal light or signal device in good mechanical condition . .
. however, when a vehicle is so constructed or loaded that a hand and arm
signal would not be visible both to the front and rear of such vehicle then
such signals shall be given by such light or device.
Every sudden and abrupt stop of an automobile is not, in and of itself, proof of
negligence, “but only that such a stop will constitute negligence if there is no emergency
shown to justify it, and it is made in disregard of the presence of vehicles following so
closely behind that they may be unable to avoid a collision.” Matthews v. Mound City
Cab Co., 205 S.W.2d 243, 248 (Mo.App. 1947).
Appellee, in opposition to Appellants’ claim of negligence on the part of Mr.
Baugh, presented evidence and argument that Mrs. Ratliff was speeding, and that her
excessive speed was the proximate cause of the accident. Where the speed of a driver
prevented the driver from avoiding a collision, such speed may be the proximate cause
of the accident. Marshall v. Bobbitt, 482 S.W.2d 439, 442 (Mo. 1972).
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We find that substantial evidence exists to support the jury’s finding that Mr.
Baugh was not negligent. In support of their finding that Mr. Baugh did not violate
Mo.Rev.Stat. § 304.019, evidence was presented establishing the existence of an
emergency situation; namely an individual was driving south in the left, northbound lane
of Highway 61. Evidence was also presented in the form of Mr. Henke’s and Mr.
Baugh’s testimony that Mr. Baugh complied with Section 304.019 by slowing or
stopping the truck, turning on the truck’s flashers and by waving his arms out of the
window in response to the emergency situation presented by the wrong way driver. Mr.
Baugh, Trooper Becker and Mr. Henke all testified that there was no paved shoulder
and from this evidence the jury could infer it was reasonable for Mr. Baugh to react as
he did. Appellants argue that Appellee did not rebut the expert opinion of Mr. Oldham,
but the jury was free to accept or reject the expert testimony of Mr. Oldham.
Obviously, the jury rejected Mr. Oldham’s opinion that Mr. Baugh was negligent.
There is also substantial evidence to support the jury’s finding that Mrs. Ratliff
was 100% negligent. Mr. Henke testified that Mrs. Ratliff was traveling at
approximately 65-70 m.p.h. when she passed Mr. Henke’s vehicle, and that he did not
observe her slowing down as she passed the Schiber truck. Trooper Becker testified
that the speed limit at the site of the accident was 40 m.p.h. Appellants’ expert, Mr.
Oldham, testified that he calculated Mrs. Ratliff’s speed at the beginning of her skid
mark to be 46-53 m.p.h. Mr. Oldham also admitted that Mrs. Ratliff’s excessive speed
contributed to the accident, and that if she had been driving within the speed limit, the
accident would not have been the same.
From this evidence, a reasonable jury could conclude that Mr. Baugh complied
with Missouri law when he slowed or stopped the truck in response to the wrong way
driver, and that Mrs. Ratliff’s speed was the proximate cause of the accident.
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III.
Appellants also assert as an additional basis for a new trial, that the district court
erred in allowing counsel to cross-examine Mr. Oldham as to Sergeant Gray’s report.
Appellants argue that because Sergeant Gray did not testify at trial, discussion of the
report he created was impermissible hearsay.
Generally, a trial court has broad discretion in the matter of regulating cross
examination, and the exercise of such discretion will not be reversed absent an abuse
of that discretion. Palmer v. Krueger, 897 F.2d 1529 (10th Cir. 1990). Once expert
testimony has been admitted, the rules of evidence then place “the full burden of
exploration of facts and assumptions underlying the testimony of an expert witness
squarely on the shoulders of opposing counsel’s cross-examination. Newell Puerto Rico,
Ltd. v. Rubbermaid Inc., 20 F.3d 15, 20 (1st Cir. 1994). It is thus the burden of
opposing counsel to explore and expose any weaknesses in the underpinnings of the
expert’s opinion. Id. at 21 (citation omitted).
The district court allowed counsel to cross-examine Mr. Oldham with regard to
Sergeant Gray’s report because Mr. Oldham had read the report prior to preparing his
own report. (Tr. 70). Appellee asserts a similar issue was addressed in Vodusek v.
Bayliner Marine Corp., 71 F.3d 148 (4th Cir. 1995). In Vodusek, the trial court had
allowed counsel to cross-examine a testifying expert as to another non-testifying
expert’s opinion. On appeal, the Fourth Circuit held that the trial court did not abuse
its discretion in allowing such examination, even though the other expert’s opinion was
not placed into evidence, where the testifying expert had reviewed such other opinion
and had rejected it. Id. at 157. Appellants attempt to distinguish Vodusek by arguing
that Sergeant Gray was not an expert, nor could he be qualified as one, and that Mr.
Oldham did not testify that he relied on or rejected Sergeant Gray’s opinions.
Appellants’ attempt to distinguish Vodusek is not persuasive. Whether or not
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Sergeant Gray was an expert is not the relevant inquiry. What is relevant is whether
Sergeant Gray’s report is a document of the type reasonably relied upon by accident
reconstructionists in forming their opinions. Fed.R.Evid. 703. Given the fact that Mr.
Oldham reviewed both Sergeant Gray’s and Trooper Becker’s reports, it appears such
documents are of the type generally relied upon. In addition, while Mr. Oldham did not
specifically testify that he rejected Sergeant Gray’s conclusion, such testimony was not
necessary. Clearly, Mr. Oldham rejected Sergeant Gray’s conclusion that Mrs. Ratliff
’s negligence caused the accident. Although counsel, on cross-examination, did not ask
Mr. Oldham why he rejected Sergeant Gray’s opinion, Mr. Oldham was given the
opportunity to do so on re-direct. Trial Tr. 71-72.
We believe that the district court did not err by permitting counsel to cross-
examine Mr. Oldham concerning the report of Sergeant Gray. Mr. Oldham admitted
that he had read the report prior to submitting his own report. Therefore counsel was
free to cross-examine the expert as to all documents he reviewed in establishing his
opinion. Newell Puerto Rico, Ltd. 20 F.3d at 21.
IV.
Appellants also argue they are entitled to a new trial because the district court
limited counsel to only twenty minutes for voir dire. Such limitation, Appellants argue,
prevented them from effectively and intelligently exercising their peremptory challenges
and challenges for cause.
Voir dire was initially conducted by the district court, asking the entire panel the
following questions: whether anyone knew the parties or their counsel, whether anyone
knew any of the potential witnesses, whether anyone had served previously on a jury,
whether they or any relatives had been involved in litigation as a party to a lawsuit,
whether any life experience would prevent anyone from being fair to the parties,
whether anyone had any prejudice against a plaintiff seeking money damages, whether
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anyone had a problem with the burden of proof as a preponderance of the evidence, and
whether anyone would hold it against an attorney for making an objection. The district
court then allowed counsel for the parties twenty minutes each to conduct further voir
dire.
Courts have broad discretion in determining what questions will be asked during
voir dire. Labbee v. Roadway Express, Inc., 469 F.2d 169, 172 (8th Cir. 1972).
“However, the substance of voir dire examination is subject to the right of the parties
to have an impartial jury and the questioning must in general attempt to preserve that
right.” Id. (citation omitted). The record establishes no objection to the way in which
voir dire was conducted. Absent an objection, the reviewing court will only review for
plain error to determine if the limitation was so prejudicial as to cause a miscarriage of
justice. Fleming v. Harris, 39 F.3d 905, 908 (8th Cir. 1994). “Under plain error review,
an error not identified by a contemporaneous objection is grounds for reversal only if
the error prejudices the substantial rights of the [Appellants] and would result in a
miscarriage of justice if left uncorrected.” Id. Given the questions asked of the jury
panel by the district court, and the questions asked by counsel, we find no plain error.
V.
At trial, the district court precluded any opinion testimony from Mr. Oldham that
Mr. Baugh was negligent because he did not leave the roadway and pull off on to the
shoulder. In their offer of proof to the district court, Appellants provided that if allowed
to testify, Mr. Oldham would state that had Mr. Baugh “moved his vehicle to the right
even as little as 5 feet and certainly if he had gotten his vehicle completely off the right
lane . . . the accident could have been avoided and, yes, it would have been negligence
for the tractor trailer driver to have failed to have done that.” (Tr. 5). The basis for
the district court’s ruling was that under Missouri law there is no such duty. (Tr. 4-5).
Appellants argue that Missouri law does indeed impose such a duty and refers to
Missouri model instruction 17.04 - which provides that a motorist has a duty
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to swerve, if there was enough time to do so to avoid an accident.
Missouri law does impose a duty on motorists to “stop, swerve, slacken speed
or sound a warning when he or she knows or by the exercise of the highest degree of
care could have known that there was a reasonable likelihood of collision in sufficient
time to take such preventative measures.” Hollis v. Blevins, 927 S.W.2d 558, 564 (Mo.
Ct. App. 1996). The duty to swerve arises when a driver knew or should have known
the collision would likely occur. Id.
Appellee does not dispute that, under certain circumstances, a driver has a duty
to swerve to avoid a collision. Appellee argues, however, that in this case, the issue is
not whether Mr. Baugh could have swerved to avoid the accident between Mrs. Ratliff
and the truck. Rather, the issue is whether Mr. Baugh should have driven off of the
highway onto the shoulder to either avoid a collision between the truck and Mrs. Ratliff
or a collision between the wrong way driver and Mrs. Ratliff. It is Appellee’s position
that driving onto the shoulder does not constitute “swerving.”
“Swerve” is defined as: [t]o turn aside abruptly from a straight or direct course.
WEBSTER’S II, NEW RIVERSIDE DICTIONARY (Office Ed. 1984). Consistent
with this definition, Missouri case law on the duty to swerve addresses factual situations
in which the evasive conduct contemplated is an abrupt change of direction by one party
to an accident. In Hollis, an accident occurred when a driver in the eastbound lane
abruptly entered a lane of westbound traffic, and was hit by a car traveling westbound.
Evidence at trial established that at the time the eastbound driver swerved into the
westbound lane, the two cars were approximately four car lengths apart. Id. at 565.
One of the issues at trial was whether the westbound driver had the time and ability to
swerve, to avoid the accident. These facts suggests quick, abrupt evasive action would
have been necessary to avoid collision. Similarly, in Morgan v. Toomey, 719 S.W.2d
129 (Mo. Ct. App. 1986), the defendant was driving through a parking lot when he hit
plaintiff, who was standing next to a car. Plaintiff had argued
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that defendant had a duty to swerve to avoid the accident, and his failure to swerve was
negligent. The evidence at trial established that at the time it became apparent that the
plaintiff would be hit by defendant’s car, there was only two feet separating them. Id.
at 137. These facts also suggest that the evasive action considered had to have been
quick and abrupt.
Hollis and Morgan also illustrate that the duty to swerve is triggered only
where the driver perceives that swerving will assist him or her in avoiding a collision,
not to assist others from colliding.
In this case, the Appellants argue that Mr. Baugh should have moved the truck
over five feet or onto the shoulder upon seeing the wrong way driver and Mrs. Ratliff
on a potential collision course. We agree that these facts do not trigger the duty to
swerve on behalf of Mr. Baugh. Accordingly, we find that the district court did not
abuse his discretion in precluding Mr. Oldham from testifying that Mr. Baugh had a duty
to drive onto the shoulder to avoid a collision between the wrong way driver and Mrs.
Ratliff.
VI.
Finally, Appellants argue a new trial is warranted because the district court erred
in allowing counsel for Appellee, during his closing argument, to inject his personal
opinion as to the outcome of the case, improperly raised an insurance question regarding
the unidentified wrong way driver, and argued that Appellants had a pecuniary motive
for bringing the action against Appellee. Appellants argue such statements were
prejudicial and warrant a new trial.
“Trial courts are invested with broad discretion in controlling closing arguments,
and we will reverse only if the trial court abused that discretion.” United States v.
Macklin, 104 F.3d 1046, 1049 (8th Cir. 1996)(citation omitted). Where an issue is not
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properly preserved on appeal, we will review only for plain error. Dillon v. Nissan
Motor Co., Ltd., 986 F.2d 263, 269 (8th Cir. 1993).
The challenged portion of the closing argument is as follows:
MR. PLEGGE: Secondly, we have the wrong way driver. There’s no
question that driver was going the wrong way. Mr. Oldham
told you there’s no doubt that the driver was negligent and
that negligence contributed to cause the accident. So we
have two drivers who admittedly were negligent and they sue
Mr. Baugh who in my opinion I think the evidence supports
was the only driver that didn’t do anything wrong.
Now ask yourselves, “Why did they do this?” Well, I think
the evidence is clear because you can’t sue a driver who you
don’t know. You can’t sue the unidentified driver. You
can’t make any money doing that. You can’t sue.
MR. MARKS: Your Honor, this case does not involve the unidentified
driver and there are no instructions concerning that and this
is improper argument.
THE COURT: Overruled. It is argument. Overruled.
(Tr. 149).
Counsel are given wide latitude in arguing inferences from the evidence
presented. Titsworth v. Powell, 776 S.W.2d 416, 422 (Mo. Ct. App. 1989). At the
same time, counsel must not “go beyond the evidence and issues drawn by the
instructions or urge prejudicial matters or a claim or a defense which the evidence and
issues drawn by the instructions do not justify . . .” Id. “In ruling on the propriety of
final argument, the challenged comment must be interpreted in light of the entire record
rather than in isolation.” Id.
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Appellants did not object, at trial, to the statement in which counsel injected his
opinion as to Mr. Baugh’s negligence, therefore the issue can only be reviewed for plain
error. Dillon, 986 F.2d at 269. In this case, the evidence supports the argument that
Mr. Baugh was not negligent. We therefore find no plain error in counsel injecting his
personal opinion that Mr. Baugh was not negligent in this case.
We also find that the trial court did not abuse its discretion in permitting counsel
to argue that one cannot sue an unidentified driver. While counsel’s statements may not
have been entirely correct4, it was argument that was supported by the record. In
addition, the statement did not prejudice Appellants because their own expert prepared
a report opining that only Mr. Baugh was negligent, but the expert testified on cross-
examination that the negligence of the wrong way driver was “self-evident.” (Tr. 59).
See Shelley v. St. Louis Public Service Co., 279 S.W.2d 182 (Mo. App.
1955)(argument in defendant’s closing that it was unfair not to sue one driver involved
in accident, was not prejudicial where plaintiff repeatedly referred to the absent driver
as being ‘probably’ negligent, and a ‘no good so-and-so’).
Finally, we find the district court did not abuse its discretion in allowing counsel
for Appellee to argue that money was the motive for suing Schiber.
Improper statements that are addressed by the objecting party, which limit or eliminate
any prejudice, will not justify reversal. Throckmorton v. St. Louis-San Francisco Ry
Co., 179 F.2d 165, 170 (8th Cir.) cert. denied 339 U.S. 944 (1950). Appellants
addressed counsel’s statements regarding any pecuniary motive in their rebuttal. (Tr.
161) .
4
Appellants assert that they can, and have, sought uninsured motorist coverage.
So, while there is truth to the fact that you cannot sue an unidentified driver, it is not
correct to state that “you can’t get money” from an unidentified driver.
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The order of the district court denying Appellants’ motion for a new trial is
affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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