Bailey v. Kershner
| Decision Date | 08 July 1969 |
| Docket Number | Nos. 8814,8818,s. 8814 |
| Citation | 444 S.W.2d 10 |
| Parties | Alma BAILEY, Plaintiff-Respondent, v. Karl KERSHNER and LeClaire Brothers Transfer, Inc., Defendants-Appellants. |
| Court | Missouri Court of Appeals |
B. B. Turley, Routh & Turley, Rolla, for appellant, Karl Kershner.
Northern, Williams, Smallwood & Williams, Rolla, for appellant, LeClaire Bros. Transfer, Inc.
Philip M. Moomaw, Moore & Moomaw, Rolla, for respondent.
On the morning of August 20, 1967, defendant Karl Kershner, accompanied by seventy-year-old Harold L. Bailey, was driving his automobile east on Highway 72 and turning left into Sephendale Court in Rolla, Missouri, when it was struck from the rear by an eastbound milk truck owned by defendant LeClaire Brothers Transfer, Inc. Fearful lest the application of brakes would propel him and his passenger into the windshield, Kershner disdained all efforts to stop, and guided his vehicle on a counterclockwise orbit until it came to a halt south and west of its starting point. In the course of this circutous journey, Mr. Bailey fell from the car and was discovered, conscious but contused, upon a lawn northeast of the collision site. Mr. Bailey expired eleven days after the accident (August 31, 1967), and his widow instituted this wrongful death action to secure $25,000 in damages from the defendants. They jury allotted her $10,000. Piqued by their plight, defendants appealed and, as a matter of chief insistence, urge that plaintiff did not make a submissible case because there was no substantial evidence Mr. Bailey's death resulted from the injuries he sustained in the accident, and that the trial court erred in not sustaining their motions for a directed verdict.
Citing Myers v. Karchmer, Mo., 313 S.W.2d 697, 701--702(4), and Rule 79.03, 1 plaintiff suggests the refusal of the court nisi to direct a verdict is not properly here for review because defendants only referred generally to this alleged error in their motions for a new trial and one of the defendants in his brief, under 'Points Relied On,' alludes to the proposition by a conclusion contrary to the requirements of Rules 83.05(a)(3) and (e).
A defendant offering a directed verdict motion authorized by Rule 72.01 and § 510.280 is required by Rule 79.01 and § 510.210 to acquaint the trial court with 'his grounds therefor' either orally or in writing. 2 Defendant LeClaire's motion for a directed verdict was for the stated 'reason that there is no evidence showing that Plaintiff's husband's death was the direct and proximate result of any negligence of said defendant,' and, at the request of defendant LeClaire, the court instructed the jury to find for the defendant 'if you do not believe that Plaintiff's husband died as a direct result of the negligence of said defendant.' Of course, the burden was on plaintiff to prove, without resort to speculation, that the cause of death was the charged negligence of the defendants, 'and the test on causal connection is whether the facts show that absent the charged negligence the injury would not have been sustained.' James v. Sunshine Biscuits, Inc., Mo., 402 S.W.2d 364, 375(2, 3). Defendant LeClaire's motion for a directed verdict and the proffered instruction given advised the trial court of the particular reason the motion was being made and satisfied the requirements of Rule 79.01 and § 510.210. The issue of submissibility here involved is not peculiar to a single defendant, but is a common factor in the case which cannot be bifurcated and applied to one without the other also being affected. In such circumstances, the efforts of one defendant may atone for deficiencies displayed by the other. Although Rule 79.03 provides that 'Allegations of error, in order to be preserved for appellate review, must be presented to the trial court in a motion for a new trial,' it additionally recites that 'Where definite objections or requests were made during the trial in accordance with Rule 79.01 * * * a general statement in the motion of any allegations of error based thereon is sufficient.' Having found that the trial court was sufficiently advised of the reason for the directed verdict motions and that the requirements of Rule 79.01 were satisfied, it follows that a general statement in the motion for a new trial concerning the averred error of the trial court in refusing to direct a verdict fulfilled the conditions of Rule 79.03. Notwithstanding the statement of points in defendant Kershner's brief is subject to plaintiff's criticism, the brief of defendant LeClaire fully states 'why it is contended' and 'wherein and why' the trial court's refusal to direct a verdict is 'claimed to be erroneous,' and the arguments made by both defendants, as evidenced by plaintiff's brief, were sufficiently adequate to enable plaintiff to identify the issue and answer defendants' contentions. Cf. Mills v. Keasler, Mo., 395 S.W.2d 111, 112(1). There having been a substantial compliance with the rules and statutes, we deem the action of the trial court in denying defendants' motions for a directed verdict to be properly here for our consideration and review.
Defendants offered no testimony, so all the evidence was produced by plaintiff, which included the only medical witness, James D. Butts, M.D., who had attended and treated the decedent since August 1962. Mr. Bailey had been suffering with generalized arteriosclerosis for several years before the collision, and had experienced a cerebral vascular accident or stroke in about 1953 which caused a partial paralysis of his right side and throat. Dr. Butts defined 'cerebral vascular accident' as 'a broad category of any accidental damage to any of the blood vessels in the cerebrum' such as 'a cerebral thrombosis, a ruptured blood vessel or a ruptured aneurism,' and stated that 'frequently with a break of a blood vessel, or thrombosis, or something, that (the blood) pressure will go up real high.' The doctor testified that a person with arteriosclerosis who has once experienced a stroke is more prone or susceptible to another cerebral vascular accident than the normal, healthy person, and that a person with arteriosclerosis 'does not need' as much injury or trauma to produce a stroke as would a person in good health. In 1963 or 1964 Mr. Bailey 'had a spell with his heart' which plaintiff said 'hospitalized him (for) a few months' time.' Dr. Butts had treated him for 'high blood pressure, arteriosclerotic hypertension (and) for myocardial insufficiency, primary disease of the cardiovascular system.' It was at the time 'of a previous hospitalization' that Dr. Butts had prescribed nitroglycerin pills for Mr. Bailey which plaintiff recounted he took 'if he was emotionally upset or excited.' There was also evidence Mr. Bailey had been operated 'for a duodenal ulcer,' and after the 1953 stroke he was involved in an accident while a pedestrian when 'some hotrod caught his heel as he stepped up on the curb.'
Immediately following the August 20, 1967, accident, Mr. Bailey was taken to a Rolla hospital and examined by Dr. Butts. His blood pressure was 260 over 90, and he 'had some contusions and abrasions of the low back and in the region of the right hip,' X-rays showed 'osteoporosis with no recent fracture' and the '(h)eart and lungs and neurological examination didn't appear to be changed too much from what (Dr. Butts had) previously known about him.' The doctor could not reclaly any complaints of head pains, but said the patient 'had a bruise of the forehead and a black eye * * * that developed (in) two or three days.' Concerning the elevated blood pressure and its cause, Dr. Butts said, (Our emphasis.) 3
Upon admission to the hospital as a patient, Mr. Bailey By the afternoon of the accident date Mr. Bailey continued to improve, his blood pressure remained normal, 'he appeared to become more like his old self,' he was resting well and eating well. Then on the 28th until he died on August 31, 1967. The death certificate prepared by Dr. Butts in part states as follows:
to the terminal disease condition given in Part I (a) Multiple bruises and
abrasions . . . 20b. DESCRIBE HOW INJURY OCCURRED . . . Auto accident
8/20/78." 4
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