Donley v. Hamm

• Decision Date: 12 November 1936
• Docket Number: 34251
• Citation: 98 S.W.2d 966
• Parties: DONLEY v. HAMM
• Court: Missouri Supreme Court

98 S.W.2d 966

DONLEY v. HAMM

No. 34251

Supreme Court of Missouri, First Division

November 12, 1936

William R. Schneider, of St. Louis, for appellant.

Eagleton Waechter, Yost, Elam & Clark, of St. Louis, for respondent.

OPINION

HYDE Commissioner.

This is an action for damages for personal injuries. Plaintiff was injured while he was stopping his automobile for a street intersection, when defendant's truck, coming behind him did not stop. This truck struck plaintiff's car and drove it against another car in front of him with considerable force. Plaintiff had a verdict for $ 10,000. Defendant has appealed from the judgment entered thereon.

Defendant does not contend that plaintiff failed to make a jury case, and does not claim that there was any error in the court's rulings or instructions. Defendant does assign error in permitting counsel for plaintiff to make an improper argument and in ignoring defendant's objection thereto. However, all the record shows that was said or done about this alleged improper argument was as follows:

'Mr. Schneider: If the Court please, I object to that. If Mr. Eagleton means that, I think this case should be dismissed at this time.

'Mr. Eagleton: I think you understand what I mean. I understand what I mean.

'The Court: Proceed.'

This was not sufficient to preserve anything for appellate review. The objection was general and stated no ground therefor. It was in a conditional form and no specific action of the court was requested. When the court said 'proceed.' no further objection, motion, or request was made, and there was no exception saved either to any ruling or to failure to rule. See Osby v. Tarlton, 336 Mo. 1240, 85 S.W.2d 27; Klaber v. Lahar (Mo.Sup.) 63 S.W.2d 103; Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950; Whittington v. Westport Hotel Operating Co., 326 Mo. 1117, 33 S.W.2d 963; Waeckerley v. Colonial Baking Co., 228 Mo.App. 1185, 67 S.W.2d 779; Ternetz. v. St. Louis Lime & Cement Co. (Mo.Sup.) 252 S.W. 65.

Defendant further contends that the verdict of $ 10,000 was grossly excessive. Plaintiff was injured on Saturday, June 3, 1933. He was immediately taken to the City Hospital, where his injury was diagnosed 'as a sprained neck.' After treatment there, he 'went home in the street car.' His neck continued to cause pain, and on Monday he called his family physician, Dr. Brennan.

The evidence showed that plaintiff was 33 years of age when injured and had good health. He worked an egg route, from which he had been earning from $ 18 to $ 22 per week for about 5 months. He had previously been employed as a life insurance salesman, at which he earned about $ 30 per week. A plaster cast was kept on plaintiff's neck and back for about 6 weeks. He then wore a leather collar continuously for about 2 months after the removal of the cast, and thereafter undertook to discard it. He would do without it whenever he was working, but because of resulting pain would wear it in the evening after his day's work. He did not resume work until 8 months after the accident. He 'thought' he could have done certain light work 2 months earlier, if he could have found such employment, but he did not do so. When he did resume work, he inspected motor parts for automobiles for about 3 weeks, earning $ 22 per week, but, because he had pains in his neck and back, gave up this work. After 2 weeks' rest, during which time he continuously wore the brace or collar, he obtained work as a door to door solicitor for a dry cleaning establishment, at about $ 15 a week. After 5 weeks, he quit that work when he got a job driving a truck with another cleaning establishment. During the 5 weeks he did this door to door solicitation, plaintiff was bothered by some pain in his neck, but he could get some relief by massage when he got home in the evening. After driving the truck for a week, plaintiff was forced to give up that work because of the pains in his neck and back, and thereafter did no further work, and upon advice of Dr. Brennan, continued to wear the leather brace or collar for his neck continuously, until the time of trial. Dr. Brennan described plaintiff's condition, at the time he first saw him, as follows:

'He had contusions and abrasions of both legs in the region of the knees; he had a contusion of the posterior part of the neck, a contusion of the cervical vertebrae, and a contusion of the back in the region of the seventh and eighth; he had a fracture of the lamina of the sixth cervical vertebra, and a contusion of the chest wall on both sides. * * *

'Q. What part of the vertebra did you say had this crack in it? A. The left lamina.

'Q. Well, what is the lamina? A. Small bony process that helps -- that surrounds the spinal cord and supports the spinous and transverse processes of the cord -- I mean, of the spine itself. * * * I guess you would call it a linear fracture. * * * A linear fracture is a small line, or a small line like fracture through a bone.'

Dr. Brennan sent plaintiff to a hospital where, after X-ray pictures were taken, he put a cast on plaintiff's neck and back. The X-ray, taken by Dr. Peden, showed 'a fracture through the sixth cervical vertebra on the left side. * * * It is not through the body of the vertebra; it is through one of the little processes which is posterior, which surrounds the spinal cord.' The first X-rays were taken on June 5th and 6th. A final picture was taken on July 28th, after the cast had been removed. Dr Peden said: 'It hadn't healed. I thought it had undergone some healing. * * * Bones of the neck don't heal nearly as rapidly as bones, for instance, of the leg or other parts of the body. I have seen bones of the cervical spine take at least a year before the man could be considered out of danger.' He also said that there was no misalignment of the bones and that the fractured bone was 'in good position.'

Dr. Brennan further testified: 'After the cast was removed I would see him maybe once a week, and then later on maybe once in two weeks. * * * We had a collar made out of a sort of hard leather material, which gave him some support to his neck and head. * * * I used heat, locally, to the neck. * * * It tends to heal injured tissues. * * * I had him use alcohol massages at home, primarily, rest, and periodically advised him if his neck bothered him to put on the collar. * * * When I saw him, I guess it was a month ago, he complained of a great deal more pain in his neck. * * * He had some limit of motion in his neck, and with the history of pain, that is the reason why I advised the collar again. * * * There are several factors. One is the actual fracture of the lamina, the second the injury to the underlying tissues, namely, the muscles, and the nerves, and those are the big things that are causing pain, especially the nerves, I would say. * * * I would say that the -- I am not sure whether the bone is healed yet or not. * * * The last picture we took showed it was healing. * * * He has a small amount of anesthesia -- I mean, partial anesthesia -- over the margin of the shoulder here. * * * Doesn't feel objects on his skin on this side of his shoulder as he did on some other places in his body. * * * In other words, the feeling over here, the sensation, wasn't as good.'

Dr Pernoud, who examined plaintiff just before the trial, a year after he was injured. testified: 'This whole area around the ear, left side of the neck, top of the left shoulder, clear out to the point of the shoulder, was partially numb as compared to the other side, and this numbness occurred in the nerve distribution area of the sixth and seventh cervical nerves that come out between...