McNabb v. Winkelmann

¶1dissenting.

¶2I respectfully dissent and would reverse and remand the case for a new trial. In this personal injury-negligence case, plaintiffs’ attorney initially asked the investigating officer on direct examination, “Did you smell any odor of intoxicating beverages about Mr. Winkelmann’s breath?” The officer answered, “I detected an odor which I believed to be an alcoholic beverage upon his breath.” On cross-examination, defense counsel then asked the investigating officer, “Was any one given any tickets in this accident?” Plaintiffs’ attorney initially stated: “Your Honor, I object to that. The officer didn’t observe this thing take place, how could he give a ticket. That’s clearly an improper question and counsel "knows that. May we approach the bench on this, Judge?” It is apparent from the record that before the trial judge ruled, defense counsel, well aware that this evidence is not ordinarily admissible stated to the judge it *827was admissible because plaintiffs had improperly opened up the issue of defendant’s drinking. The court then overruled the objection and the officer was allowed to testify that “[cjharges were not filed against either driver.” While it is arguable that plaintiffs’ objection went only to the lack of the officer’s presence at the scene, it is clear to me that by the time the trial court ruled, he expanded that objection to a general one.

¶3Numerous cases hold that a general objection is sufficient if the evidence elicited is wholly inadmissible for any purpose. Meade v. Kansas City Public Service Company, 250 S.W.2d 513, 515 (Mo.1952); Lawson v. Cooper, 475 S.W.2d 442, 446 (Mo.App.1972). I believe that plaintiffs’ point has been properly preserved for appellate review.

¶4It is also apparent that the trial court was aware of the general inadmissibility of this evidence and the court permitted the evidence because it erroneously believed defendant’s argument that plaintiffs had “opened up” this issue.1 It has been the consistent rule in Missouri that evidence that a traffic citation was or was not issued is inadmissible in a negligence case because it is prejudicial and brings before the jury a false issue. Dorrell v. Moore, 504 S.W.2d 174 (Mo.App.1973); Wills v. Towns Cadillac-Oldsmobile Inc., 490 S.W.2d 257 (Mo.1973); Cotton v. Pile, 400 S.W.2d 72 (Mo.1966); See Brown v. Royalty, 535 F.2d 1024 (8th Cir.1976) (applying Missouri Law). Wills, Dorrell and Brownwere all reversed because the officer was allowed to testify no citations were given.

¶5The only possible basis for admission of this evidence is that defendant could use such evidence to impeach the witness’ testimony as to whether defendant had been drinking. However, the question went beyond drinking. The Supreme Court was presented with a similar contention in Wills v. Towns Cadillac-Oldsmobile, Inc., 490 S.W.2d 257 (Mo.1973). There the investigating officer testified that McClary’s speed exceeded the speed limit. On cross-examination, defendant’s attorney asked the officer if McClary was exceeding the speed limit why didn’t he file charges against him. Plaintiff objected but the trial court overruled the objection. In closing argument, defendant’s attorney further stated that McClary was not charged with any traffic violation. In reversing the case on appeal, the Supreme Court stated:

Assuming, but without deciding on this record, that defendant had the right to impeach the officer as to his opinion on speed by asking why he did not cite McClary for speed violation, we conclude that the cross-examination, along with the final argument, did not confine itself to impeaching the officer’s opinion as to McClary’s speed.

¶6490 S.W.2d at 263.

¶7I find this analysis controlling.2 In this case, defendant’s question did not confine itself to whether the officer gave defendant a ticket for a liquor offense, but clearly brought out that defendant was not ticketed for any traffic violation. This invaded the province of the jury.

¶8Here, as in Wills, I believe the error was prejudicial and would grant a new trial.