Sewell v. MFA Mutual Insurance Co.

10 Citing cases

  1. Jones v. Freese

    743 S.W.2d 454 (Mo. Ct. App. 1988)   Cited 8 times
    In Jones, 743 S.W.2d at 456, and Sewell, 597 S.W.2d at 290, the courts indicated that negligent driving and erratic driving are not synonymous terms.

    Numerous Missouri cases have addressed the issue of the admissibility of evidence that a driver either had been drinking or was intoxicated. See generally Sewell v. MFA Ins. Co., 597 S.W.2d 284 (Mo.App. 1980). Evidence of actual intoxication is admissible when coupled with evidence of negligence because it bears directly on the issue of negligence.

  2. Parry v. Staddon

    769 S.W.2d 811 (Mo. Ct. App. 1989)   Cited 10 times

    While several Missouri cases discuss the admissibility of evidence that a motorist had been drinking or was intoxicated, our Supreme Court last addressed this issue in Doisy v. Edwards, 398 S.W.2d 846 (Mo. Div. 2 1966). Cheatham v. Chartrau, 237 Mo.App. 793, 176 S.W.2d 865 (Mo.App.S.D. 1944); Boehm v. St. Louis Public Service Co., 368 S.W.2d 361 (Mo.Div. 1 1963); Diener v. Mid-American Coaches, Inc., 378 S.W.2d 509 (Mo.Div. 1 1964); Doisy v. Edwards, 398 S.W.2d 846 (Mo.Div. 2 1966); Hager v. McGlynn, 518 S.W.2d 173 (Mo.App.W.D. 1974); Bohn v. James, 573 S.W.2d 448 (Mo.App.E.D. 1978); Sewell v. MFA Mutual Insurance Co., 597 S.W.2d 284 (Mo.App.S.D. 1980); Bentley v. Crews, 630 S.W.2d 99 (Mo.App.E.D. 1981); Lauderdale v. Siem, 725 S.W.2d 897 (Mo.App.E.D. 1987); Miller v. Eaton, 733 S.W.2d 31 (Mo.App.E.D. 1987); Jones v. Freese, 743 S.W.2d 454 (Mo.App.E.D. 1987); Broderson v. Farthing, 762 S.W.2d 548 (Mo.App.W.D. 1989). In Doisy, the plaintiff alleged error in the exclusion of a police officer's testimony that he smelled liquor on the defendant's breath.

  3. Broderson v. Farthing

    762 S.W.2d 548 (Mo. Ct. App. 1989)   Cited 7 times

    Certain general principles applicable to the issue presented need first be recounted to supply the background for a statement of the facts. In Missouri, it has generally been held that in an action to recover damages for injuries sustained in a motor vehicle accident, evidence of intoxication of a party is admissible as a circumstance to be considered along with the other facts in evidence in determining the question of negligence. Jones v. Freese, 743 S.W.2d 454, 456 (Mo.App. 1987); Sewell v. MFA Mut. Ins. Co., 597 S.W.2d 284, 288 (Mo.App. 1980). Evidence of the mere drinking of alcohol, however, as opposed to actual intoxication is admissible only when coupled with evidence of erratic driving, Jones, 743 S.W.2d at 456; Boehm v. St. Louis Pub. Serv. Co., 368 S.W.2d 361, 372 (Mo. 1963); Cheatham v. Chartrau, 237 Mo.App. 793, 800-01, 176 S.W.2d 865, 868 (1944), or some other circumstance from which it might be inferred that defendant had an impaired physical condition at the time of the collision.

  4. Stegan v. H. W. Freeman Const. Co., Inc.

    637 S.W.2d 794 (Mo. Ct. App. 1982)   Cited 18 times
    In Stegan v. H.W. Freeman Const. Co., Inc., 637 S.W.2d 794 (Mo.App. 1982), in an Old Warson situation, the plaintiff's verdict-directing instruction was patterned on MAI 25.03. It did not, however, contain paragraph Fifth of MAI 25.03 dealing with giving defendant notice.

    Because defendant failed to set forth the challenged instruction in its brief in accordance with Rule 84.04(e), it has not preserved the point for appellate review. Sewell v. MFA Mut. Ins. Co., 597 S.W.2d 284, 290 (Mo.App. 1980). Furthermore, since the record on appeal does not contain defendant's suggested verdict director, we cannot determine whether it would have properly instructed the jury.

  5. Rodriguez v. Suzuki Motor Corp.

    936 S.W.2d 104 (Mo. 1997)   Cited 127 times   1 Legal Analyses
    Holding that the trial court erred in excluding evidence that several witnesses had consumed wine before being involved in an automobile collision

    The court invoked the "other circumstances" exception to infer impairment. 597 S.W.2d 284, 290 (Mo. App. 1980). Likewise, in Parry, supra, a test showing a blood alcohol content below the legal limit was admissible because failure to take evasive action was not erratic driving, but was other circumstances inferring impairment.

  6. Stewart v. Kirkland

    929 S.W.2d 321 (Mo. Ct. App. 1996)   Cited 8 times
    In Stewart v. Kirkland, 929 S.W.2d 321, 323 (Mo. App. 1996), the court stated, after having stated that fraud is never presumed, that if the evidence presented at trial is as consistent with fraud as it is with honesty, the transaction will be deemed honest with all doubt resolved in favor of good faith.

    As the instructions complained of were not set forth in the argument portion of Defendant-Appellant's brief, as required by Rule 84.04(e), the alleged instruction error was not preserved for appellate review. Twin Bridges Const. Co., Inc. v. Ferner, 700 S.W.2d 534, 537 (Mo.App. 1985); Sewell v. MFA Mut. Ins. Co., 597 S.W.2d 284, 290 (Mo.App. 1980). We proceed then to whether a submissible case of fraud was made.

  7. Krenski v. Aubuchon

    841 S.W.2d 721 (Mo. Ct. App. 1992)   Cited 27 times
    In Krenski v. Aubuchon, 841 S.W.2d 721 (Mo.App. E.D. 1992), overruled on other grounds by Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104 (Mo. banc 1996), Amy Krenski was injured in a two-vehicle collision where she was the operator of one of the vehicles.

    Although Defendant failed to comply with Rule 84.04(e) by not setting out the relevant instruction in the argument portion of his brief, we will gratuitously examine this point. See Sewell v. MFA Mutual Ins. Co., 597 S.W.2d 284, 290 (1980). The jury instruction at issue contained the language of MAI 14.02 (1978 Revision), which states, "The phrase `yield the right of way' as used in these instructions means a driver is required to yield to another vehicle which enters the intersection first."

  8. Peck v. Jadwin

    704 S.W.2d 708 (Mo. Ct. App. 1986)   Cited 9 times

    A gratuitous examination of Instruction D in light of the record discloses no prejudicial error. Defendants' second point has no merit. Sewell v. MFA Mut. Ins. Co., 597 S.W.2d 284, 290[4] (Mo.App. 1980). The judgment is affirmed.

  9. Bentley v. Crews

    630 S.W.2d 99 (Mo. Ct. App. 1982)   Cited 13 times
    In Bentley, plaintiffs brought a wrongful death action against the Executrix of the Estate of Herbert A. Mahler. An automobile accident gave rise to the cause of action.

    In the present case, even if it were assumed that Fair's blood alcohol was relevant to show Fair was driving while intoxicated, there still would not be a single operative fact to support an inference that Fair's intoxication would cause him to drive erratically or to support the additional inference that his inferred erratic driving caused the collision. Thus, evidence of Fair's blood alcohol concentration was not relevant, Doisy v. Edwards, 398 S.W.2d 846, 849-50 (Mo. 1966); Bohn v. James, 573 S.W.2d 448, 449 (Mo.App. 1978); Cheatham v. Chartrau, 237 Mo.App. 793, 176 S.W.2d 865, 868 (1944); see Sewall v. M. F. A. Mutual Ins. Co., 597 S.W.2d 284 (Mo. App. 1980), and the trial court's ruling was correct. Judgment affirmed.

  10. Samnee v. Home Serv. Propane

    617 S.W.2d 463 (Mo. Ct. App. 1981)   Cited 1 times

    By disdaining to set forth the language of the challenged instructions anywhere in its brief, defendant is in gross violation of Rule 84.04(e) and has preserved nothing for review relating to instructional error. Sewell v. M.F.A. Mutual Insurance Co., 597 S.W.2d 284, 290 (Mo.App. 1980); East v. Landmark Central Bank Trust Co., 585 S.W.2d 222, 225 (Mo.App. 1979). However, serendipity graces defendant in that its point that a directed verdict should have been given is viable and meritorious.