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MYERS v. RIES



NOTICE: This slip opinion is subject to
revision and may not reflect the final opinion adopted by the
Court.


MYERS

v.

RIES


Opinion
Missouri Court of Appeals Eastern District

Case Style: Tom Myers, Plaintiff/Appellant, v. Gerald Ries,
Defendant/Respondent

Case Number: ED74884

Handdown Date: 11/16/99

Appeal From: Circuit Court of the City of St. Louis, Hon.
Jimmie M. Edwards

Counsel for Appellant: David M. Zevan

Counsel for Respondent: Harold L. Whitfield

Opinion Summary:
Tom Myers, plaintiff, appeals from a judgment entered on a jury
verdict
which apportioned fifty percent fault to plaintiff and fifty
percent to
defendant, Gerald Ries, in an action for negligence arising out
of an
automobile-motorcycle collision.
JUDGMENT AFFIRMED.
Division One Holds: The trial court did not abuse its discretion
in
permitting defendant’s counsel to read to the jury for
completeness
purposes selected portions of plaintiff’s counsel’s examination
of
defendant from defendant’s deposition during his case in chief.
Plaintiff
has not substantiated any trial court error and the jury’s
finding as to
plaintiff’s damages is not the result of bias, passion or
prejudice.

Citation:

Opinion Author: Paul J. Simon, Judge

Opinion Vote: AFFIRMED. G. Gaertner, P. J. and Dowd, J.,
concur.


Opinion:

Tom Myers, plaintiff, appeals from a judgment entered on a
jury verdict
apportioning fifty percent fault to plaintiff and fifty percent
to
defendant, Gerald Ries, in an action for negligence arising out
of an
automobile-motorcycle collision.
On appeal, plaintiff contends the trial court erred in allowing
the
defendant’s deposition testimony to be read to the jury in
violation of
Rule 57.07, during defendant’s case-in-chief, and ruling against
plaintiff’s motion for new trial regarding the percentage of
fault and/or
additur because the verdict was against the manifest weight of
the evidence
and resulted from bias, passion, or prejudice. We affirm.
The record, viewed in the light most favorable to the verdict,
reveals that
on September 25, 1990, plaintiff was operating a motorcycle
northbound on
Gustine Avenue at the intersection of Alberta when his motorcycle
and
defendant’s automobile collided. Gustine Avenue is a two-way
street,
divided by a wide, grass median, with one lane on either side. At
the
intersection of Gustine and Alberta, there is a paved break in
the median.
There are no traffic controls at the intersection. As a result of
the
accident, plaintiff suffered a fractured collarbone, concussive
head
injury, bleeding into the urine, dislocated thumb, ruptured left
eardrum
and inner ear concussion, most of which had healed by the time of
trial.
However, as a result of the injury to his ear, plaintiff suffered
permanent
hearing loss and severe headaches, vertigo, loss of equilibrium,
impaired
ability to work, past and future lost wages, past and future
medical
expenses and pain and suffering.
At trial in April 1998, plaintiff testified that as he approached
the
intersection, northbound on Gustine, he saw defendant’s
automobile,
southbound, on the other side of the median. When he was fifty
feet away,
he noticed the automobile stop near the intersection of Alberta.
He then
saw the automobile turn onto the opening in the median at Alberta
and stop
before entering the northbound lane of Gustine. Plaintiff
testified he was
thirty feet from the intersection at this time. As plaintiff
neared the
intersection, he stated he was traveling between 20 to 25 miles
per hour.
He decelerated when he first saw defendant’s automobile because
he was
uncertain as to what defendant would do. However, when he noticed
that
defendant’s automobile was stopped at the intersection, he
accelerated,
thinking that defendant would remain stopped. As plaintiff
reached the
intersection, defendant began making a left turn onto Gustine.
Plaintiff
saw defendant’s automobile coming into his lane on Gustine, so he
hit his
brakes and veered to the right, but was unable to avoid the
collision.
Plaintiff was knocked unconscious and testified that he had no
recollection
of the collision.
The record indicates that defendant was not present at trial and,
pursuant
to Rule 57.07, plaintiff read to the jury the following selected
portions
of plaintiff’s counsel’s examination of defendant from
defendant’s
deposition:

Q: What is your address now?
A: My address is 4249 Michigan.

* * *

Q: Okay, do you remember this particular
accident?
A: No, Sir.
* * *
Q: As far as — all right, are you saying you don’t remember
this
accident at all, don’t remember anything about it?
A: Practically nothing.
* * *
Q: Okay, why was the police officer taking something down?
Why
were you talking to him?
A: Because when I heard a thump, I was already on Alberta.
* * *
Q: Do you think that the motorcycle driver was going too
fast? Is
that what you’re telling me?
A: I can’t tell you that.
* * *
Q: All right. Do you know whether or not before you made this
left turn onto Alberta from Gustine, do you know whether or
not
you came to a complete stop?
A: I always do so I can look.
Q: All right.
A: Then I go right away.
Q: All right.
A: The faster I get away from there the better off I am.
* * *
Q: Do you remember telling the police officer that you were
trying to make a left turn on Alberta when you accidentally
struck the motorcycle? Do you remember telling the police
officer
that?
A: I never told the police officer that.
* * *
Q: All right. As far as you know — this is regarding an
optometrist.
Q: As far as you know, he says you are fine and you don’t
need
any glasses?
A: No, I need glasses to read.

After plaintiff finished reading portions of the
deposition, the trial
court offered defendant’s counsel the opportunity to read
portions of the
deposition for "completeness purposes only," but he
declined to do so at
that time.
Officer Sharp of the St. Louis Police Department, who responded
to the
accident, testified that he arrived at the scene approximately
seven
minutes after the accident. He interviewed plaintiff and
defendant and
recorded their statements in his report. Officer Sharp testified
that his
report stated that defendant said "he was driving south on
Gustine,
attempting to make a left turn onto Alberta. While making his
left turn, he
accidentally struck [plaintiff's motorcycle]. [Defendant] stated
that he
was at a complete stop before making his left turn and did not
see any
traffic coming." Officer Sharp further testified that his
report indicated
plaintiff said "all he could remember was that he was
driving north on
Gustine when, out of nowhere, he was struck."
Plaintiff also presented the deposition testimony of Walter
Lemann, M.D.
and the videotaped deposition testimony of James E. Benecke, M.D.
Both Dr.
Lemann and Dr. Benecke testified that as a result of the
accident,
plaintiff sustained a damage to the left ear, which resulted in
permanent
hearing loss, loss of equilibrium, and vertigo. Further, they
agreed that
further surgery to correct the loss of equilibrium is an option
for
plaintiff.
Regarding his injuries, plaintiff testified that he suffered
impaired
ability to work, past and future medical expenses and pain and
suffering.
The record reveals that the uncontroverted testimony was that
plaintiff
suffered present medical damages amounting to $6,075.40, future
medical
damages estimated to be between $12,000.00 and $15,000.00, and
lost wages
of $11,559.62 for a total of $29,625.02 to $32,635.02.
During defendant’s case, counsel was allowed, over plaintiff’s
objection,
to read to the jury for completeness purposes the following
selected
portion of plaintiff’s counsel’s examination of defendant from
defendant’s
deposition:

Q: Would you state your name for the record,
sir?
A: Gerald, G-E-R-A-L-D — and I use the initial J — my last
name
is Ries, R-I-E-S.
Q: Mr. Ries, do you still live on Hydraulic Avenue in the
City of
Saint Louis?
A: No, sir.
Q: What address is your address now?
A: My address is 4249 Michigan.
Q: Is that a house or an apartment, sir?
A: That’s an apartment.
Q: Okay. Is there an apartment number there?
A: Yes.
Q: Do you know what that is?
A: It’s apartment 401.
Q: Four-oh-one, okay. How long have you lived there on
Michigan?
A: I live on Michigan approximately about seven years.
Q: Okay. Are you a married man?
A: I’ve been married for over forty years. My wife just
passed
away last September.
Q: Sorry to hear that, sir. You live by yourself at that
address
then?
A: Yes, sir.
Q: Okay. How old of a gentleman are you?
A: I’m seventy-four.
* * *
Q: Do you remember telling the police officers that you were
trying to make a left turn on Alberta, and when you did, you
accidentally struck the motorcycle? Do you remember telling
the
police officer that?
A: I never told the police officer that.

Defendant presented no other evidence.
During closing arguments, plaintiff requested that the jury
return a
verdict finding defendant one hundred percent at fault and
awarding damages
to plaintiff in the amount of $350,000. That same day, the jury
returned a
verdict finding the amount of plaintiff’s damages to be
$40,000.00 and
assessing fifty-percent fault to plaintiff and fifty-percent
fault to
defendant. The trial court then entered a judgment in accordance
with the
jury’s verdict, awarding plaintiff $20,000.00. Plaintiffs filed a
motion
for new trial alleging:
1. The jury verdict rendered in this case was an inconsistent
verdict in
that said jury assessed plaintiff Tom Myers to be 50 percent at
fault for
the accident, which is the subject of this lawsuit.
2. The judge erred in admitting evidence from defendant Gerald
James Ries’
deposition into evidence, and such admission was a prejudicial
error.
3. The jury verdict was inconsistent in that plaintiff’s medical
bills and
damages produced at trial without objection well exceeded the
amount of the
jury verdict.

The record on appeal includes the verdict form signed by the
jurors, but
does not include the verdict directing instructions, nor
defendant’s answer
to plaintiff’s petition.
In his sole point on appeal, plaintiff contends the trial court
erred in
allowing the defendant’s deposition testimony to be read to the
jury during
defendant’s case in chief in violation of Rule 57.07 during
defendant’s
case-in-chief and ruling against plaintiff’s motion for new trial
regarding
the percentage of fault and/or additur because the verdict was
against the
manifest weight of the evidence and resulted from bias, passion,
or
prejudice.
Plaintiff’s point fails to comply with Rule 84.04 in that it does
not state
specifically why the trial court erred in allowing defendant’s
counsel to
read from defendant’s deposition or how plaintiff was prejudiced.
Further,
it contains an allegation that the trial court erred in ruling on
a motion
for new trial and/or additur, which should have been enumerated
and argued
as a separate point. However, in the interest of resolving the
case on the
merits, we address plaintiff’s point.
Plaintiff’s point addresses Rule 57.07 as amended June 1, 1993,
which is
the rule that was in effect during trial, and our review is
limited to that
version of the rule. However, Rule 57.07 was amended May 15,
1998,
effective January 1, 1999 and substantial changes were made.
The decision whether to admit deposition testimony is largely
within the
discretion of the trial court. Steenrod v. Kiplisch Hauling Co.,
Inc., 789
S.W.2d 158, 170 (Mo.App.E.D. 1990). On review, we accord the
trial court
broad discretion in ruling on the use of depositions. Id.
Plaintiff’s point fails to state why the trial court erred in its
ruling as
to defendant’s deposition. We glean from plaintiff’s brief and
the record
that plaintiff, relying on this court’s holding in Nachtweith v
Maravilla,
861 S.W.2d 164 (Mo.App.E.D. 1993), contends that the trial court
abused its
discretion in allowing defendant’s counsel to read portions of
defendant’s
own deposition during his case, claiming that Rule 57.07(a)(2)
limits use
of a party’s deposition by an adverse party and that defendant’s
counsel
waived his right to read from defendant’s deposition for
completeness
purposes. Further, plaintiff contends that even if the trial
court did not
err in allowing defendant’s counsel to read from defendant’s
deposition
during his case, it abused its discretion by allowing defendant’s
counsel
to read the portions that he selected.
Plaintiff’s reliance on Nachtweith is misplaced. In Nachtweith,
defendant’s
counsel was permitted, over plaintiff’s objection, to read
excerpts from
the deposition of a former defendant physician without first
laying the
foundation for admission of the deposition as required by Rule
57.07. While
Nachtweith holds that a party must prove the unavailability of a
witness
prior to admission of his/her deposition under Rule 57.07(a)(3)
or that the
deposition is that of an adverse party pursuant to Rule
57.07(a)(2), that
is not the issue in this case.
Here, plaintiff read portions of defendant’s deposition pursuant
to Rule
57.07(a)(2) because the defendant was an adverse party and the
question is
whether the trial court abused its discretion in allowing
defendant’s
counsel to read portions of defendant’s deposition for
completeness
purposes during his case. The general rule is that once a party
reads a
portion of a deposition, under Rule 57.07, the opposing party may
read some
or all of the remaining deposition in explanation. Steenrod, 789
S.W.2d at
170. However, plaintiff argues that the reading of the deposition
for
completeness purposes should have been done immediately after
plaintiff
read from defendant’s deposition and that it was prejudicial
error to allow
defendant’s counsel to read from defendant’s deposition during
his case.
The parties have not directed us to nor have we found any
Missouri cases on
point. However, we note that Rule 57.07 essentially tracks Rule
32 of the
Federal Rules of Civil Procedure (FRCP) and we look to rulings on
the
Federal Rule for guidance. Carmody v. St. Anthony’s Medical
Center, 829
S.W.2d 654, 657 (Mo.App.E.D. 1992). In Haddigan v. Harkins, 441
F.2d 844,
(3rd Cir. 1970), a wrongful death and survival case, after
allowing
Haddigan’s counsel to read into the record seventeen separate
portions of
Harkin’s deposition, counsel for Harkin argued that he was
prejudiced on
the liability portion of the case by the trial court’s failure to
require
Haddigan’s counsel to read all relevant part’s of Harkin’s
deposition in
Haddigan’s case. The Third Circuit Court of Appeals found that,
pursuant to
32 FRCP, the trial judge exercised appropriate discretion in
allowing
plaintiff’s case to proceed and allowing the reading of the
desired parts
of deposition later in the trial. Id.
Here, the record indicates that defendant was not present at
trial and
plaintiff was allowed to read portions of defendant’s deposition
into
evidence during his case, pursuant to Rule 57.07. After
plaintiff’s counsel
finished, the trial court provided defendant’s counsel the
opportunity to
read from the deposition for "completeness purposes
only." He declined to
do so at that time, but during his case in chief, sought to read
from the
deposition. Plaintiff’s counsel objected, in part claiming that
defendant’s
counsel had waived the right. After considering the arguments and
reviewing
the relevant portions of defendant’s deposition, the trial court
overruled
plaintiff’s objection and allowed defendant’s counsel to read
selected
portions for completeness purposes. Under these circumstances,
the trial
court did not abuse its discretion in allowing the case to
proceed and
permitting defendant’s counsel to read from defendant’s
deposition during
his case in chief in that the ruling was not clearly against the
logic of
the circumstances then before the trial court and was not so
unreasonable
and arbitrary that the ruling shocks the sense of justice and
indicates a
lack of careful, deliberate consideration. House v. Missouri
Pacific
Railroad Co., 927 S.W.2d 538, 540 (Mo.App.E.D. 1996).
We next address plaintiff’s argument that the trial court
committed
prejudicial error in allowing defendant’s counsel to read into
evidence the
following portion of defendant’s deposition for completeness
purposes:

Q: Do you remember telling the police officers that you
were
trying to make a left turn on Alberta, and when you did, you
accidentally struck the motorcycle? Do you remember telling
the
police officer that?
A: I never told the police officer that.

Here, the record clearly indicates that this excerpt is the
portion of the
deposition which plaintiff read into evidence during his case in
chief.
This portion is cumulative and not prejudicial.
Plaintiff also complains that the trial court committed
prejudicial error
in allowing defendant’s counsel to read to the jury for
completeness
purposes the following selected portion of plaintiff’s counsel’s
examination of defendant from defendant’s deposition because the
statements
adversely affected the issue of damages, implying inability to
pay, and are
a call for sympathy:

Q: Would you state your name for the record, sir?
A: Gerald, G-E-R-A-L-D — and I use the initial J — my last
name
is Ries, R-I-E-S.
Q: Mr. Ries, do you still live on Hydraulic Avenue in the
City of
Saint Louis?
A: No, sir.
Q: What address is your address now?
A: My address is 4249 Michigan.
Q: Is that a house or an apartment, sir?
A: That’s an apartment.
Q: Okay. Is there an apartment number there?
A: Yes.
Q: Do you know what that is?
A: It’s apartment 401.
Q: Four-oh-one, okay. How long have you lived there on
Michigan?
A: I live on Michigan approximately about seven years.
Q: Okay. Are you a married man?
A: I’ve been married for over forty years. My wife just
passed
away last September.
Q: Sorry to that, sir. You live by yourself at that address
then?
A: Yes, sir.
Q: Okay. How old of a gentleman are you?
A: I’m seventy-four

We disagree. Plaintiff’s counsel admitted in oral argument
that the
"insurance question" was asked during voire dire and
the remainder of the
portion of the deposition is substantially the same testimony
which
plaintiff’s counsel read or is explanatory of such testimony.
Therefore,
the trial court did not err in allowing defendant’s counsel to
read these
portions of defendant’s deposition.
Next, we address plaintiff’s argument that the trial court erred
in denying
plaintiff’s motion for new trial regarding the percentage of
fault and/or
additur because the verdict was against the manifest weight of
the evidence
and resulted from bias, passion, or prejudice. We note that
plaintiff’s
point seems to challenge the sufficiency of the evidence on both
liability
and damages. Since the record does not include defendant’s answer
nor the
verdict directing instructions we will not assume the grounds on
which the
case was submitted to the jury. Therefore, we will not review
plaintiff’s
point regarding the percentage of fault.
Further, plaintiff argues that the evidence supports a verdict
exceeding
the $20,000.00 in damages he was awarded and that the trial court
should
have granted his motion for new trial and or additur. A new trial
is only
available upon showing that trial error indicated prejudice in
the jury,
and the amount of verdict by itself is not enough to establish
that verdict
was result of bias, passion and prejudice. Bodimer v. Ryan’s
Family
Steakhouse, 978 S.W.2d. 4, 9 (Mo.App.E.D. 1998). Plaintiff has
not
substantiated any error. The record reveals that the
uncontroverted
evidence shows plaintiff’s damages to be $6,075.40 present
medical damages,
between $12,000.00 and $15,000.00 future medical damages, and
lost wages of
$11,559.62 for a total of $29,605.02 to $32,635.02. Further, the
record
indicates that the jury found plaintiff’s damages to be
$40,000.00, but
that he was awarded only $20,000 because the jury also found
plaintiff to
be fifty-percent at fault. Clearly, the jury’s finding as to
plaintiff’s
damages was supported by substantial evidence. Point denied.
Judgment affirmed.
Separate Opinion:
None

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