Simpson v. Johnson's Amoco Food Shop, Inc. , 36 S.W.3d 775 ( 2001 )

CRAHAN, Judge.

Fannie Simpson (“Plaintiff’) appeals the judgment entered upon a jury verdict in favor of Johnson’s Amoco Food Shop, Inc. (“Defendant”) in her action seeking to recover for personal injuries suffered in a fall on Defendant’s premises. We affirm.¹

The only witnesses who testified in this case were Plaintiff, her doctor and Defendant’s owner, Ronald Johnson (“Johnson”), all of whom were called by Plaintiff. A party is bound by the uncon-tradicted testimony of that party’s own witnesses, including that elicited on cross-examination. Eidson v. Reproductive Health Services, 863 S.W.2d 621, 626 (Mo. App.1993). When a party calls a witness who comes within the adverse witness rule, the party is bound by that witness’s testimony on direct examination if the testimony is uncontroverted or the only testimony on the subject; however, an adverse witness’s testimony on cross-examination is not binding on the calling party. Id.

At approximately 6:30 p.m. on July 14, 1996, Plaintiff went to Defendant’s food shop to buy a newspaper. She had patronized the store at least once a week for twenty years. It had been raining most of the day and a light drizzle was falling. Plaintiff parked her car and walked into the store. There were no other cars on the lot. Upon determining the store was out of newspapers, Plaintiff left the store to return to her car. Shortly after she stepped off the curb, her right foot slipped and Plaintiff fell, severely injuring her ankle. Although she had not noticed any puddles before her fall, immediately afterward she noticed she was sitting in a basketball-sized puddle of water that had an oily sheen on the top of it. Nothing obstructed Plaintiffs view of the area where she fell. Although Plaintiff testified that the area where she fell was deteriorated, she was unable to identify any area of deterioration on a photograph. The lot had been paved less than two years before the fall and was power-washed twice a month.

After she fell, Plaintiff eventually attracted the attention of one of the two clerks on duty, who had been in a stockroom when she was inside the store. At Plaintiffs request, the clerk called an ambulance and brought her some ice to put on her ankle until the ambulance arrived.

On direct examination, Johnson testified that he had a policy of spreading a substance called “oil dry” to soak up any oily substance in the event of a spill. None was put down on the date in question. He identified a checklist to be utilized by employees regarding maintenance procedures to be performed during each shift, including an examination of the exterior of the premises. According to Mr. Johnson, the procedures would have been done during the first shift, from 7:00 a.m. to 3:00 p.m., but he had no knowledge of whether they had been performed during the second shift when the accident occurred. Johnson was not present at the time of the fall and the employees on duty never told Johnson they had witnessed the fall.

In her only point on appeal, Plaintiff claims the trial court erred when it refused to allow her to draw an adverse inference, during the rebuttal portion of her closing argument, from the failure of Defendant to produce the two employees working at the time of her fall.

The trial court is accorded broad discretion in ruling on the propriety of closing arguments and will suffer reversal only for an abuse of discretion. Anderson v. Wittmeyer, 895 -S.W.2d 595, 599 (Mo. App.1995). However, when counsel for one side undertakes to comment on the failure of his opponent to call a witness, review has been stricter. Morrissey v. Morrissey, 935 S.W.2d 715, 718 (Mo.App. 1996). Courts are wary of phantom testimony introduced through argument rather than from the witness stand. Id. The failure of a party to call a witness who has knowledge of facts and circumstances “vital to the case” generally raises the presumption that the testimony will be unfavorable to the party failing to offer the testimony. Kelly by Kelly v. Jackson, 798 S.W.2d 699, 701 (Mo. banc 1990). Where such a witness is not equally available to both parties, it is prejudicial error for the trial court to prevent the party to whom the witness is not equally available from requesting the jury to draw an adverse inference from the failure of the opposing party to produce the witness. Piper v. Missouri Pacific R. Co., 847 S.W.2d 907, 910 (Mo.App.1993). “Equal availability” depends on several factors including: (1) one party’s superior knowledge of the existence of the witness; (2) the nature of the testimony that the witness would be expected to give in light of his previous statements or declarations, if any, about the facts of the case; and (3) the relationship of the witness to the party. Kelly by Kelly, 798 S.W.2d at 701 (citing Hill v. Boles, 583 S.W.2d 141, 145-46 (Mo. banc 1979)).

Plaintiff concedes in her brief that the names of the employees were disclosed to her in discovery. Thus, both parties were aware of their existence. Johnson’s testimony, elicited by Plaintiff, indicates that neither employee ever told him they witnessed the fall or even knew exactly where she fell. Thus, there is no indication of what testimony they could be expected to give that would be material to the issues.

Plaintiff claims the two employee witnesses were not equally available to her by virtue of their employment relationship and, as such, she was entitled to argue the adverse inference created by Defendant’s failure to call these witnesses. In Leehy v. Supreme Exp. & Transfer Co., the Missouri Supreme Court indicated that even if an employer-employee relationship exists, the employee is not necessarily more available to the employer. 646 S.W.2d 786, 790-91 (Mo. banc 1983); Farley v. Johnny Londoff Chevrolet, 673 S.W.2d 800, 805 (Mo.App.1984); Routh v. St. John’s Mercy Medical Ctr., 785 S.W.2d 744, 747 (Mo. App.1990). Instead, the balancing test enunciated in Hill v. Boles to determine “equal availability” operates in place of this presumption. Leehy, 646 S.W.2d at 797 n. 4; Kelly by Kelly, 798 S.W.2d at 702.

Defendant claims Plaintiff was not entitled to draw an adverse inference from Defendant’s failure to call the two employees because she did not demonstrate that they had knowledge of facts and circumstances vital to the case. We agree. The rule assumes that the witness has knowledge of facts and circumstances “vital to the case.” Id. Plaintiffs own evidence, elicited on direct examination of Johnson, established that neither of the employees had ever indicated to him that they saw the fall or even knew exactly where Plaintiff did fall. Although Plaintiff testified as to the actions of the employee witnesses on the day of her fall, she merely alleged that they had knowledge regarding the general condition of the premises. Absent some indication that the employees saw the fall or Plaintiff pointed out to them what caused her to fall, their knowledge of the general condition of the lot and whether the required inspections were performed is not material to any issue in the case. Id.; Goodman v. Firmin Desloge Hosp., 540 S.W.2d 907, 913-14 (Mo.App.1976). Indeed, in the cases relied on by Plaintiff, the record indicated that the witness-employee had knowledge of material facts vital to the case. See Routh, 785 S.W.2d at 748-49; Wehrkamp v. Watkins Motor Lines, Inc., 436 S.W.2d 698, 715-16 (Mo. 1969). The trial court did not err when it refused to allow Plaintiff to draw an adverse inference from the failure of Defendant to produce the two employees working at the time of her fall.

The judgment is affirmed.

MARY RHODES RUSSELL, C.J., Concurs. CHARLES B. BLACKMAR, Sr. J., dissents in Separate Opinion.

1 . On August 22, 2000, a three-judge panel of this court issued a majority and dissenting opinion affirming the judgment in this case. The dissenting judge transferred the case to the Missouri Supreme Court pursuant to Rule 83.03. On December 27, 2000, the Missouri Supreme Court entered an order retransfer-ring the case to this court. The original opinions of this court are now readopted and reissued.