 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Banks v. Village Enterprises12/5/2000
ecall is that you told him that Kentucky Fried Chicken would probably pay the bill; isn't that right?
A: Yes.
Q: And you don't really recall him ever asking about the bill?
A: I don't know if he brought it up or I had just told him that.
Q: The only thing you remember is that you told him that?
A: Yes.
On appeal, KFC now contends that Ms. Chowning's testimony was inadmissible because her statement constituted an offer of settlement. We disagree. "Admission or exclusion of evidence lies within the sound discretion of the trial court. We will not reverse a decision unless there is a substantial or glaring injustice." First Nat. Bank of Fort Smith v. Kansas City Southern Ry. Co., 865 S.W.2d 719, 739 (Mo. App. W.D. 1993).
The general rule is that offers of settlement are not admissible against the offeree to demonstrate liability or an admission of liability, because to do so would discourage settlement negotiations. Maugh v. Chrysler Corp., 818 S.W.2d 658, 660 (Mo. App. W.D. 1991). But an offer to pay is not in itself a settlement offer. To show that an offer to pay was part of a valid offer of settlement, and thus inadmissible, the party seeking to exclude it must show that it was made as part of an advance-ment of opposing claims by the parties, and was part of a negotiation of mutual concessions by both parties. Id.
We applied this rule in Maugh, in which Chrysler Corporation offered a customer who had purchased a damaged vehicle a new one. Noting that Chrysler had said that " articipation in this program is entirely voluntary," and further that the Maughs would "not be expected to sign any releases of any kind," 818 S.W.2d at 659, Maugh found that Chrysler merely made a gratuitous offer to replace the damaged car, and not an offer to "settle" or "compromise," because it did not contemplate any mutual concessions. Id. at 661. There was no evidence that Chrysler had asked anything of the plaintiffs, and no request of forbearance of suit was in evidence. Id.
Here, similarly, there is no indication that mutual concessions were contemplated by the parties when the statement in question was made. To the contrary, Ms. Chowning testified that she could not recall whether Mr. Banks raised the issue of payment of his bills, that she just recalled his bringing in the cord to show her what he had choked on, and that she told him that KFC would probably pay his hospital bill. Her testimony thus did not support KFC's argument that her comment was part of settlement negotiations, and KFC offered no other evidence that the comment was part of settlement negotiations. The trial court thus did not err in failing to exclude the comment on this ground.
Finally, we note that, once the court ruled that the question about Ms. Chowning's comment to Mr. Banks was asked and answered, KFC itself brought up the issue during its cross-examination of Ms. Chowning, and further failed to object when counsel for Mr. & Mrs. Banks asked additional questions on the issue in its re-direct examination. KFC thus affirmatively waived any error in permitting the Banks' counsel to question Ms. Chowning about what she had said to Mr. & Mrs. Banks. See Tate v. Department of Social Services, 18 S.W.3d 3, 7 (Mo. App. E.D. 2000) ("A party cannot complain on appeal about an alleged error in which that party joined or acquiesced at trial").
By so ruling, we do not mean to suggest that the trial court could not have prohibited counsel for Mr. & Mrs. Banks from asking Ms. Chowning about her statement that KFC would probably pay Mr. Banks' hospital bill. This comment does not appear to be relevant to any is
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Missouri Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|