SHAWN R. MITCHELL,                                    )
                                                      )
         Plaintiff-Appellant,                         )
                                                      )
vs.                                                   )                          No. SD33921
                                                      )
LOREN KEITH WILSON and                                )                          Filed: April 21, 2016
LOREN L. WILSON,                                      )
                                                      )
         Defendants-Respondents.                      )

               APPEAL FROM THE CIRCUIT COURT OF STODDARD COUNTY

                                Honorable Robert N. Mayer, Circuit Judge

AFFIRMED

         Following an accident on April 17, 2007, in which a passenger car driven by Shawn R.

Mitchell (“Appellant”) collided with an agricultural tractor driven by Loren L. Wilson

(“Respondent”), Appellant filed suit against Respondent and others for the personal injuries

Appellant suffered in the accident. 1 Appellant alleged that Respondent was negligent in his

operation of the tractor and that Respondent’s negligence caused Appellant’s injuries. A trial to




1
 Appellant’s wife also joined in the suit, but subsequently dismissed her claims without prejudice before trial. The
other defendants were Respondent’s son, who employed Respondent at the time of the accident, and the son’s wife.
Appellant dismissed his claim against Respondent’s daughter-in-law without prejudice before trial.

                                                          1
a jury occurred in March 2015. The jury returned a verdict assessing 0% of fault to Respondent

and 100% of fault to Appellant.

           Appellant appeals from the judgment, and, in six points, claims the trial court erred in (1)

denying his motion for a new trial on the ground the jury’s verdict was against the weight of the

evidence, 2 (2) admitting evidence of Appellant’s prior convictions for impeachment, (3)

instructing the jury on Respondent’s contention that Appellant “drove at an excessive speed,” (4)

denying Appellant’s motion for mistrial during Respondent’s closing argument, and (5) denying

his motion for a new trial because the trial court’s errors identified in clauses (2) through (4)

were cumulative and, considered as a whole, required a new trial. Finding no merit in any of

Appellant’s points, we affirm the trial court’s judgment.

                                          Facts and Procedural History

           Viewed in accordance with our standards of review, the evidence at trial showed the

following.

           On April 17, 2007, about 1:00 p.m., Respondent was driving a large agricultural tractor

on a gravel road. The tractor had dual, rear wheels, and the width of the rear wheels “from one

side to the other” was approximately ten feet six inches. As Respondent approached the crest of

a hill, he observed dust “fogging up” on the far side of the hill and believed a vehicle was

approaching. Respondent slowed down and “got over to the bank as far as [he] could.”

Respondent had a “bank” on his side of the road, and the other shoulder was “just grass.”

Respondent had his lights and flashers on.

           When Respondent saw the vehicle, it was a car and Respondent “thought . . . he was

coming awful fast.” The “next thing” Respondent knew, he “said oh, he is going to hit me.”
2
    Appellant abandoned this claim at oral argument, and we do not address the claim further in this opinion.

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Respondent “never heard” or “felt” the collision, and “was out after that.” Respondent estimated

the car was traveling “at least 50,” and “was coming right up the middle of the road.”

Respondent believed Appellant had room to pass on Appellant’s side of the road if Appellant had

slowed down. Appellant was driving the car.

        Corporal Richard Owens with the Missouri State Highway Patrol investigated the

accident. The accident occurred on a “slight downgrade” with “braking skid marks” 176 feet in

length. The road was 21 feet wide “at the point of the accident,” and was gravel with “no

designated center line.” The “area of impact” was more on the tractor’s side of the road. There

was about ten feet of the road “open” on Appellant’s side of the road. Two white headlights and

amber, flashing lights “on top . . . were illuminated” on the tractor when Corporal Owens arrived

at the accident scene. In the collision, the left, front end of Appellant’s car struck the left, rear,

dual wheels of the tractor. The impact caused the tractor to rotate in the road and the “left rear

dual tires on the tractor” “to be knocked off the tractor,” and the car “had extensive front end

damage [with] the front left . . . pushed back in.” There “really [is] no way of steering” when

you are “on a gravel road and your brakes are locked up.” Corporal Owens “believe[d] if

[Appellant’s] tires were not locked up, then [Appellant’s car] possibly could have been driven on

the right side or far enough over to clear both vehicles.” 3 Both Appellant and Respondent were

taken to the hospital after the accident.




3
  Corporal Owens prepared a diagram of the accident scene that was used by both parties and admitted into evidence
by Respondent. Appellant introduced into evidence a photograph of Respondent’s tractor and Appellant’s car taken
at the accident scene after the accident. The diagram and the photograph were viewed by the jury during the jury’s
deliberations, and, viewed together, appear to show that Appellant had room to pass Respondent on Appellant’s
right.

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        At the time of trial, Appellant had not paid any portion of his medical charges and, except

for one medical provider who had obtained a judgment against Appellant, was not being sued or

sent collection letters by his other medical providers. 4

        An exchange occurred on cross examination of Appellant concerning prior convictions:

        [Respondent’s counsel]: [Appellant], have you ever been convicted of a crime?

        [Appellant]: Yes.

                 ....

        [Respondent’s counsel]: And you’ve been convicted of speeding a bunch of
        times; correct?

                [Appellant’s counsel]: Your Honor, I don’t think that goes to the
        credibility of the witness. I’d object to any misdemeanors or speeding charges.

                 THE COURT: I’m going to overrule the objection and let him proceed.

        [Respondent’s counsel]: Bunch of speeding tickets; right?

        [Appellant]: No.

        [Respondent’s counsel]: No?

        [Appellant]: No, I haven’t had a bunch of speeding tickets.

        [Respondent’s counsel]: Well, you had enough to get your license suspended a
        whole bunch of times; don’t you?

        [Appellant]: Driving on suspended. Get caught driving on suspended again,
        revoked them.

        [Respondent’s counsel]: You had -

        [Appellant]: I still had to -

        [Respondent’s counsel]: - to have -


4
 Appellant’s counsel did not object to Respondent’s counsel’s elicitation of this testimony from Appellant on cross
examination.

                                                         4
       [Appellant]: - get to work.

               THE COURT: One at a time. Let him answer the question.

       [Respondent’s counsel]: Sure.

       [Appellant]: They just kept adding up.

              [Appellant’s counsel]: Your Honor, I object. I think this is improper. It
       doesn’t go to anything, it doesn’t go to the truth or veracity of the witness. It
       doesn’t go to what happened on that day. I’d ask that the -

               [Respondent’s counsel]: I don’t have any further questions.

               [Appellant’s counsel]: - answer be stricken.

               THE COURT: I’m going to overrule the objection. He’s through with his
       line of questioning. Would you like to redirect?

               [Appellant’s counsel]: Yes, Your Honor.

       Respondent requested Instruction No. 9. Instruction No. 9 provided:

       In your verdict, you must assess a percentage of fault to Appellant if you believe:

       First, either:

               Appellant’s automobile was on the wrong side of the road, or

               Appellant drove at an excessive speed, and

       Second, Appellant, in any one or more of the respects submitted in paragraph
       First, was thereby negligent, and

       Third, such negligence of Appellant directly caused or directly contributed to
       cause any damage Appellant may have sustained.

Appellant objected to this instruction on the basis there was no evidence he “drove at an

excessive speed.”

            Points II and III – Impeachment of Appellant with His Prior Convictions




                                                5
         In his second and third points, Appellant contends that the trial court abused its discretion

in permitting Respondent to impeach Appellant with “prior crimes of speeding and driving while

suspended” because the impeachment “included references to administrative proceedings and

possible municipal convictions” and the impeachment’s “tendency to prejudice or mislead the

jury far outweighed its probative value.” In order for Appellant to preserve for appellate review

his objections to Respondent’s impeachment with his convictions:

         there must have been an objection made at the time the evidence was sought to be
         introduced and then carried forward on appeal. Rogers v. B.G. Transit Corp., 949
         S.W.2d 151, 153 (Mo.App. S.D.1997). “Moreover, objections to evidence must
         be specific, must point out the grounds thereof, and are to be determined upon the
         grounds stated therein.” Id. The scope of the objection may not be broadened or
         altered on appeal. Id. Parties are prevented from advancing an objection to
         evidence on appeal that is different from the one presented to the trial court. Id.

Lester E. Cox Medical Centers v. Richards, 252 S.W.3d 236, 239 (Mo.App. S.D. 2008). In

addition:

         [a]n objection to evidence “must be ‘sufficiently clear and definite’ so that [ ]
         counsel has the opportunity to correct any error and the trial court can correctly
         rule on the objection.” Refrigeration Industries, Inc. v. Nemmers, 880 S.W.2d
         912, 919 (Mo.App. W.D.1994) quoting Reed v. Director of Revenue, 834 S.W.2d
         834, 836–37 (Mo.App.E.D.1992).

Id. at 240. Appellant did not raise an objection that the probative value was outweighed by the

tendency to prejudice the jury at trial and, as a result, did not preserve that objection for our

review. 5

         As for Appellant’s claim that the impeachment included references to administrative

proceedings and possible municipal violations, there is no evidence before us to make that

5
  Appellant did not request us to review this point for plain error, and we decline to exercise our discretion to engage
in plain error review. We note, however, that section 491.050 provides, in pertinent part, “any prior criminal
convictions may be proved to affect his credibility in a civil or criminal case[.]” Further, misdemeanor convictions
are admissible for impeachment purposes. See In re Marriage of Daneshfar, 953 S.W.2d 95, 102-103 (Mo.App.
S.D. 1997).

                                                           6
determination. Respondent’s counsel asked Appellant on cross examination “[w]hat crime or

crimes [he had] been convicted of.” When Respondent’s counsel asked “you’ve been convicted

of speeding a bunch of times,” Appellant’s counsel objected stating “I don’t think that goes to

the credibility of the witness. I’d object to any misdemeanors or speeding charges.” The trial

court overruled the objection, and Appellant denied he “had a bunch of speeding tickets,” but

admitted his license had been revoked on multiple occasions for driving on a suspended license.

Appellant’s counsel objected to a continuing conversation between Respondent’s counsel and

Appellant and stated, “I think this is improper. It doesn’t go to anything, it doesn’t go to the

truth or veracity of the witness. It doesn’t go to what happened on that day” and asked that the

“answer be stricken.” The trial court again overruled the objection, but Respondent’s counsel

stopped the questions.

          Appellant’s objections at trial did not include the grounds now urged before us that

Appellant’s convictions were municipal or administrative convictions. He provided no context

for the trial court to believe that the questions were improper because Appellant’s convictions

were municipal or administrative convictions. His second objection was that the questions did

not go to the truth or veracity. As a result, we cannot convict the trial court of error on that basis

either.

          Points II and III are denied.

Point IV – Instruction on Affirmative Defense that Appellant Was Driving at an Excessive Speed

          In his fourth point, Appellant asserts that the trial court erred in submitting to the jury an

instruction requested by Respondent that “hypothesized [Appellant] was driving at excessive

speed” because the instruction was not supported by “substantial evidence.” We reject this point.



                                                     7
                The propriety of the instructions submitted to the jury is a question of law
       that is reviewed de novo. Klotz v. St. Anthony's Medical Center, 311 S.W.3d 752,
       766 (Mo. banc 2010). “Review is conducted in the light most favorable to the
       submission of the instruction, and if the instruction is supportable by any theory,
       then its submission is proper.” Id. As such, a Respondent is entitled to an
       instruction on any theory that the evidence and the reasonable inferences
       therefrom tend to establish. State v. Westfall, 75 S.W.3d 278, 280 (Mo. banc
       2002). Further, instructional errors will be reversed only if the error resulted in
       prejudice that materially affected the merits of the action. Klotz, 311 S.W.3d at
       766.

Hopfer v. Neenah Foundry Company, 477 S.W.3d 116, 123-24 (Mo.App. E.D. 2015). “An

instruction must be supported by substantial evidence. Substantial evidence is evidence which, if

true, is probative of the issues and from which the jury can reasonably decide the case.”

Braniecki v. Mound City Yellow Cab Company, Inc., 861 S.W.2d 683, 685 (Mo.App. E.D.

1993) (internal citation omitted).

       An excessive speed instruction is proper where the record indicates that a party
       was driving at a speed which, under the circumstances, prevented the party from
       avoiding a collision. Knox v. Simmons, 838 S.W.2d 21, 24 (Mo.App.1992). The
       test is whether the speed prevented the driver from avoiding the accident.
       Schneider v. Finley, 553 S.W.2d 727, 730 (Mo.App.1977). . . . Evidence
       supporting an excessive speed instruction may be direct or circumstantial.
       Schneider, 553 S.W.2d at 731.

               ....

       Whether a particular speed is high, dangerous, or excessive depends on the
       conditions of the highway and surrounding circumstances. Schneider, 553 S.W.2d
       at 731; Calvert, 400 S.W.2d at 139. See also Howland v. West, 507 S.W.2d 345,
       348 (Mo.1974).

Braniecki, 861 S.W.2d at 685; see also Smith v. Missouri Highways and Transportation

Commission, 372 S.W.3d 90, 95 (Mo.App. S.D. 2012) (a finding of excessive speed is not

precluded by the fact a vehicle was being driven within the speed limit). In addition:

       “excessive speed may be proved by circumstances, and skidding, when combined
       with surrounding circumstances, may be sufficient to justify the inference of a
       high and dangerous rate of speed.” [Calvert v. Super Propane Corp., 400 S.W.2d

                                                8
        133, 139 (Mo.banc 1966)]; see Dorrell v. Moore, 504 S.W.2d 174 (Mo.App.1973)
        (holding that despite the fact that Respondent was driving within the posted speed
        limit, his speed was excessive for the conditions, which included heavy fog, and
        thus he breached his duty to use the highest degree of care in that his range of
        visibility was limited by the surrounding circumstances); Hill v. Boling, 523
        S.W.2d 867 (Mo.App.1975) (stating that the resting place of the Respondent's
        vehicle is a factor which the jury can use to find excessive speed); Calvert, 400
        S.W.2d at 141 (holding that a submissible case on excessive speed was made
        when the surrounding circumstances were that the road was icy and the
        Respondent's vehicle slid when he applied his brakes).

Crane v. Drake, 961 S.W.2d 897, 901-02 (Mo.App. W.D. 1998).

        In this case, viewed in the light most favorable to the submission of the challenged

instruction, substantial evidence indicated that Appellant, while driving on a gravel road, (1)

approached the crest of a hill that he could not see beyond, (2) skidded 176 feet during which

time he was unable to steer his vehicle because his brakes were applied, (3) struck a large

agricultural tractor with sufficient force that the collision caused the tractor to rotate in the road

and caused the two left, rear wheels of the tractor to be detached from the tractor, and (4) could

have avoided the collision by moving to the right on the road. If believed, this evidence would

have permitted a reasonable jury to find that Appellant was driving at an excessive speed for the

conditions, and the excessive speed prevented Appellant from avoiding the collision. The trial

court properly submitted the challenged instruction to the jury.

        Appellant’s fourth point is denied.

                        Point V – Request for Mistrial in Closing Argument

        In his original closing argument, Appellant’s counsel asserted:

        Now, [Respondent’s counsel] can argue about the medical bills, well, it’s been so
        long, is he going to pay them or not pay them. That doesn’t matter. That’s what
        the bills were. As a matter of fact, [Appellant’s] even been sued on one of the
        bills and if you’ll look at it, it shows the bill has been written off and he was still
        sued on it and got a judgment against him for the amount of bill. Those bills are


                                                   9
       set [sic] out there. There’s no evidence that those bills are not going -- or don’t
       have to be paid.

Subsequently, in counsel for Respondent’s closing argument, the following occurred.

Respondent’s counsel stated, “He’s asking for compensation for medical bills that everybody in

this courtroom knows he’s never going to pay. The court sustained Appellant counsel’s

objection to the statement, but denied a mistrial.

       In his fifth point, Appellant claims the trial court “abused its discretion when it overruled

Appellant’s [] motion for a mistrial” because Respondent’s statement in closing argument that

Appellant was asking to be compensated for medical bills “‘that everybody in this courtroom

knows he’s never going to pay,’” “was not supported by the evidence and was highly

prejudicial.” We find no merit in this point.

        “A mistrial is a drastic remedy, granted only in extraordinary circumstances.”
       State ex rel. Kemper v. Vincent, 191 S.W.3d 45, 49 (Mo. banc 2006) (citation
       omitted). “The trial court's decision to sustain or overrule a motion for a mistrial .
       . . lies within its sound discretion.” In re Brasch, 332 S.W.3d 115, 121 (Mo. banc
       2011) (citing Pierce v. Platte–Clay Elec. Coop., Inc., 769 S.W.2d 769, 778 (Mo.
       banc 1989)). “Absent a manifest abuse of discretion, an appellate court will not
       interfere with the trial court's decision.” Id.

Snellen v. Capital Region Medical Center, 422 S.W.3d 343, 349 (Mo.App. W.D. 2013). An

appellant must also show prejudice sufficient to require a mistrial rather than other less drastic

remedies. State v. Stewart, 296 S.W.3d 5, 12-13 (Mo.App. S.D. 2009).

       This point fails because the jury’s assessment of zero percent fault to Respondent

rendered any claimed error in determining Appellant’s damages nonprejudicial. Appellant failed

to persuade the jury that Respondent should be assessed any fault in the collision. As a result,

any error in closing argument with respect to Appellant’s damages could not have prejudiced

Appellant. Respondent’s statement in his closing argument did not constitute “extraordinary


                                                 10
circumstances” that required the drastic remedy of a mistrial in addition to the remedy granted by

the trial court, and the trial court’s denial of Appellant’s request for a mistrial was not a

“manifest abuse of discretion.”

       Appellant’s fifth point is denied.

                                    Point VI – Cumulative Error

       In his sixth and last point, Appellant contends that the alleged errors asserted in points II

through V were “cumulative” and required a new trial when considered as a whole. As

Appellant notes in his brief:

       “[A] new trial can be ordered due to cumulative error, even without deciding
       whether any single point would constitute grounds for reversal.” DeLaporte v.
       Robey Bldg. Supply, Inc., 812 S.W.2d 526, 536 (Mo.App. E.D.1991). However,
       “[a]ny number of non-errors cannot add up to an error.” Shepherd v. State, 529
       S.W.2d 943, 948 (Mo.App.1975).

Delacroix v. Doncasters, Inc., 407 S.W.3d 13, 39 (Mo.App. E.D. banc 2013). In light of the fact

that we do not find any error in Appellant’s points II through V, there are no errors for us to

review cumulatively.

       Appellant’s sixth point is denied.

       The trial court’s judgment is affirmed.



Nancy Steffen Rahmeyer, J. - Opinion Author

Gary W. Lynch, J. - Concurs

William W. Francis, Jr., J. - Concurs




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