706 S.W.2d 230 | Mo. Ct. App. | 1986
Defendant appeals from a jury imposed judgment for plaintiff for $25,000 in a personal injury claim arising from an automobile collision. The judgment is affirmed.
The issues relate to the admissibility of evidence. Defendant asserts that the court should not have permitted plaintiff to show evidence of defendant’s intoxication because liability was not contested, nor should the court have admitted the income tax records of plaintiff’s earnings as a commission salesman.
Defendant’s vehicle rear ended plaintiff’s vehicle while plaintiff’s vehicle was stopped for a red light. Defendant was intoxicated at the time. Plaintiff originally alleged
Defendant ad litem argues that because “negligence” was admitted the only issue for determination was the amount of damages. From that premise, the defendant ad litem urges that the evidence of the intoxication of the deceased driver was irrelevant and inadmissible. Defendant ad litem urges cases from other states in support of his position. The authority is collected in an annotation, Annot., 80 A.L.R.2d 1224, 1226 (1961). The defendant principally relies on Fuentes v. Tucker, 31 Cal.2d 1, 187 P.2d 752 (1947), and Eubank v. Spencer, 203 Va. 923, 128 S.E.2d 299 (1962); Fuentes is a death action in which the court pointed out that the damages were in no wise related to the negligence and there was a full and unequivocal admission of liability. The Virginia case is a negligence action but also had an unqualified admission of liability.
The plaintiff points to Ruppel v. Clayes, 230 Mo.App. 699, 72 S.W.2d 833 (1934), for the proposition that a plaintiff is not bound by the admission of his opponent but may prove the admitted fact. The Ruppel case is factually similar to the instant case. The defendant there admitted liability but denied the intoxication. Id. The admission of liability was held not to bar plaintiff’s proof of the pleaded issue of intoxication. Id. at 836. The parties here have treated the issue of defendant’s driving while his blood alcohol content exceeded 10% by weight as a pleaded and denied issue. The record does not satisfactorily show the action of the court on the motion to amend by interlineation or the defendant’s action in refiling the answer, but the defendant does not contend the amendment by interline-ation was not made, nor does he contend that the motion to amend was denied.
Ruppel has been followed and has never been questioned. McKay v. Delico Meat Products Co., 351 Mo. 876, 174 S.W.2d 149 (Mo.1943); Steele v. Goosen, 329 S.W.2d 703 (Mo.1959). The defendant seeks a renunciation of Ruppel and an adoption of the view of the Virginia and California courts. The procedural posture of the instant case is such that the drastic step of refusing to follow Ruppel need not be considered. There is no clear and unequivocal admission of the liability asserted in the pleading. In fact, there is a denial of all but one ground of liability. The issue defendant seeks to raise is simply not present in this case.
Defendant also asserts the trial court erred in permitting the plaintiff to identify and place in evidence the W-2 forms showing plaintiff’s commission income for the years 1980-83. It is the defendant’s position that the plaintiff’s commission income is like profit from a business. Courts have required a stricter level of proof for lost profits than for lost
The judgment is affirmed.
All concur.