Adelsberger v. Sheehy

• Decision Date: 20 April 1933
• Docket Number: 30305
• Parties: Catherine A. Adelsberger, Administratrix of the Estate of Frank J. Adelsberger, v. William P. Sheehy, Appellant
• Court: Missouri Supreme Court

59 S.W.2d 644

332 Mo. 954

Catherine A. Adelsberger, Administratrix of the Estate of Frank J. Adelsberger, v. William P. Sheehy, Appellant

No. 30305

Supreme Court of Missouri

April 20, 1933

Appeal from Circuit Court of the City of St. Louis; Hon. Charles W. Rutledge, Judge.

Reversed and remanded.

Jones Hocker, Sullivan & Gladney and Willard A McCaleb for appellant.

(1) The verdict below was grossly excessive under the evidence. Clark v. Railway Co., 324 Mo. 407, 23 S.W.2d 174; Gaty v. United Railways, 286 Mo. 521; Potashnick v. Wells, 273 S.W. 779; Steigleder v. Lonsdale, 253 S.W. 487; Shuff v. Kansas City, 282 S.W. 128; Hoffman v. People's Motorbus Co., 288 S.W. 948; Mahmet v. Am. Radiator Co., 294 S.W. 1014; Kleinlein v. Foskin, 13 S.W.2d 648; Faulks v Lehman, 17 S.W.2d 998; Broshears v. Rogers Foundry Co., 11 S.W.2d 1060; Erxleben v. Kastir, 21 S.W.2d 195; Ulmer v. Farnham, 28 S.W.2d 113. (2) Plaintiff's Instruction 1, on the measure of damages, was erroneous in permitting the jury to consider and award damages for permanent injuries. (a) In an action of this kind the proof of permanent injuries must be clear and definite and such as to make it reasonably certain that the alleged injuries will be permanent. Bante v. Wells, 34 S.W.2d 980; Clark v. Railway, 324 Mo. 407; Wilbur v. Railway, 110 Mo.App. 689. (b) The evidence herein was insufficient to establish a permanent injury of any character. Authorities under Points 1 and 2-a, supra. (c) Plaintiff's Instruction 1 gave the jury a roving commission to guess and speculate, in so far as permanent injuries were concerned, and was, therefore, erroneous. Rosenweig v. Wells, 308 Mo. 619; Stahlberg v. Brandes, 299 S.W. 836; Wilbur v. Railway, 110 Mo.App. 690; Pendenville v. Transit Co., 128 Mo.App. 604; Slemman v. Transit Co., 116 Mo.App. 679; Lebrecht v. United Railways, 237 S.W. 112.

B. Sherman Landau for respondent.

(1) All evidence tending to support the verdict must be taken as true. Peterson v. Kansas City, 23 S.W.2d 1049. (2) It is the peculiar province of the jury to determine the extent of plaintiff's injuries and the damages to be assessed therefor. Grott v. Shoe Co., 2 S.W.2d 790; Hoover v. Railway Co., 227 S.W. 77. (3) The trial judge is in a better position to pass upon the reasonableness of the verdict. Meeker v. Union Electric Co., 216 S.W. 933; Rockenstein v. Rogers, 31 S.W.2d 803. (4) The verdict should not be disturbed unless the amount is such as to shock the judicial conscience, or there are indications that the jury was swayed by passion, prejudice, or in some way unduly influenced. Laughlin v. K. C. Southern Ry. Co., 205 S.W. 7, 275 Mo. 459; Manley v. Wells, 292 S.W. 67; Grott v. Shoe Co., 2 S.W.2d 785. (5) Decided cases are not controlling, but merely advisory, on the question of excessiveness of verdict. Kleinlein v. Foskin, 13 S.W.2d 658; Laughlin v. Railway Co., 275 Mo. 459, 205 S.W. 3; Evans v. Explosives Co., 293 Mo. 364, 239 S.W. 487. (6) The verdict is not excessive. Margulis v. Stamping Co., 23 S.W.2d 1049; Messing v. Judge & Dolph, 18 S.W.2d 408; Grott v. Shoe Co., 2 S.W.2d 785; Stein v. Rainey, 286 S.W. 53; Brown v. Railway Co., 286 S.W. 45; Brickell v. Fleming, 281 S.W. 951; Hughes v. Railway Co., 274 S.W. 703; Evans v. Explosives Co., 293 Mo. 364, 239 S.W. 487; Meeker v. Union Electric Co., 216 S.W. 923; Barr v. City of Kansas, 121 Mo. 22.

Frank, P. J. All concur, except Hays, J., not voting, because not a member of the court at the time cause was submitted.

OPINION

FRANK

Action by Frank Adelsberger, plaintiff to recover damages for personal injuries. The trial below resulted in a judgment for plaintiff in the sum of $ 10,000 and defendant appealed. Plaintiff died since the appeal and the cause was revived in the name of Catherine Adelsberger, administratrix of his estate.

Plaintiff was injured in a collision between two automobiles at the intersection of Magnolia and Nebraska Avenues in the city of St. Louis. Appellant concedes its liability to plaintiff for the injuries he received but contends that the damages awarded are grossly excessive, due to the fact that the court by plaintiff's Instruction No. 1 authorized the jury to award damages for permanent injuries, when, in fact, there was no evidence tending to show that any of the injuries received by plaintiff were permanent.

Respondent contends that plaintiff's injuries permanently aggravated his heart disease, while appellant insists that the evidence does not support this contention.

Plaintiff was working for the American Car and Foundry Company as a press punch operator. The collision in which he was injured occurred shortly after noon on Saturday, July 14, 1928. He returned to work on the following Monday and thereafter lost only four days work between the date of the injury and the date of the trial which occurred sixteen months after the injury.

The petition alleges and the evidence shows that plaintiff was afflicted with a heart condition known as "aortic insufficiency" prior to the time he was injured. The contention is that the injury permanently aggravated his heart condition. Dr. Sigoloff, plaintiff's physician and witness, testified that in cases of aortic insufficiency the left ventricle has two volumes of blood to take care of, the blood entering from the left auricle and the blood returning through the defective aortic valve; that in order to overcome this condition, the left ventricle increases in size and thickness to take care of the increased volume of blood; that when it does so, the heart has reached a state of compensation; that aortic insufficiency of the heart will not affect one if the heart is fully compensated until after the muscle weakens, then the chamber enlarges and there is a state of ruptured or failing compensation, in which we get signs of failure of the heart; that plaintiff was in that condition when he was examined just prior to the trial. Dr. Sigoloff further testified that it was possible for a state of ruptured compensation to be caused by physical shock such as one receives in an accident.

It is plaintiff's position that although he was afflicted with aortic insufficiency of the heart prior to his injury, his heart was fully compensated and was not giving him any trouble, but the injury he received in the collision caused a state of ruptured compensation and thereby produced the condition he was in at the time of the trial. The evidence does not support this contention. Dr. Sigoloff examined plaintiff on the day he was injured and found he was afflicted with a heart trouble known as aortic insufficiency, a progressive and incurable disease. He did not testify that plaintiff's heart had reached a state of compensation prior to his injury. Neither did he testify that the heart was in a state of ruptured compensation when he examined him on the day of and after the injury. While Dr. Sigoloff testified that it was possible for a state of "ruptured compensation" to be caused by physical shock such as one receives in an injury, he did not testify that such a thing happened in this case. In other words, he testified as to what could possibly happen in a given case, but he did not venture an opinion one way or the other as to what effect, if any, plaintiff's injuries had upon his heart condition which he had prior to his injury.

Plaintiff testified that he had heart trouble before the injury but it did not bother him; that he did not have shortness of breath before he was injured; that some short time after the accident he noticed heavy breathing; that his present condition was such that if he exerted himself he was very nervous, and short of breath; that exertion tired him very much and his heart caused shortness of breath, discomfort and pain at times; that he was not in that condition prior to the injury, and had not been treated for heart trouble prior thereto.

Plaintiff himself and Dr. Sigoloff were the only witnesses who testified on behalf of plaintiff.

Pursuant to a court order Dr. Jacobson examined plaintiff about a week prior to the trial. Defendant called Dr. Jacobson as a witness. Respondent contends that his evidence tends to show that plaintiff's injuries permanently aggravated his heart condition. The testimony upon which respondent relies follows:

"Q. . . . I will ask you if, in your opinion, given the history of the case, whether the alleged injuries aggravated it or increased it in any way? A. It no doubt aggravated it.

"Q. Now, just what do you mean by that? A. That the excitement and the condition of the heart at the time caused it to be aggravated.

"Q. Would that be just of a temporary character? A. That I would not state."

While Dr. Jacobson testified that the excitement produced by the collision no doubt aggravated plaintiff's heart condition, he declined to say that such aggravation was "just of a temporary character." It clearly appears from other testimony of Dr. Jacobson that his reason for declining to say the aggravation was temporary was because he had no opinion on that subject. He examined plaintiff about one week before the trial. He testified that from his examination of plaintiff he believed that his heart was in a diseased condition before the injury; that from what he found upon his examination, and from the history of the case, plaintiff's condition could have been caused from trauma or from other causes, but he did not arrive at any opinion or judgment about the matter one way or the other.

Dr. Bristow was called as a witness by defendant. Without going into his evidence in detail, it will be sufficient to state that he testified that plaintiff's injuries could not have permanently aggravated the condition of his heart.

It is clear that a jury could not except by pure guess and...