Barlow v. Thornhill, 59073

• Citation: 537 S.W.2d 412
• Decision Date: 05 May 1976
• Docket Number: No. 59073,59073
• Parties: Billy J. BARLOW and Laverne Barlow, his wife, Appellants, v. Douglas J. THORNHILL and Wieton W. Pierce, Respondents, and Woodrow M. Lewis, Defendant.
• Court: United States State Supreme Court of Missouri

Page 412

537 S.W.2d 412

Billy J. BARLOW and Laverne Barlow, his wife, Appellants, v. Douglas J. THORNHILL and Wieton W. Pierce, Respondents, and Woodrow M. Lewis, Defendant.

No. 59073.

Supreme Court of Missouri En Banc.

May 5, 1976.

Rehearings Denied June 14, 1976.

Roland A. Wegmann, Richeson, Roberts, Wegmann, Gasaway, Stewart & Schneider, Hillsboro, for appellants.

Evans & Dixon by Eugene K. Buckley, St. Louis, for respondents.

BARDGETT, Judge.

Plaintiffs-appellants Billy and Laverne Barlow sued respondents Thornhill, Pierce, and Lewis for damages resulting from two rear-end collisions. The jury verdict was in favor of Billy Barlow and against Thornhill and Pierce in the sum of $63,000 and in favor of defendant Lewis. The jury found against Laverne on her consortium claim. Following judgment, the trial court set aside Billy's judgment against respondent Thornhill in accordance with Thornhill's trial motion for directed verdict. The court granted Pierce a new trial for error in Billy's damage instruction and granted Laverne a new trial on all issues against Pierce.

Plaintiffs appealed to the Court of Appeals, St. Louis District, which by opinion affirmed the trial court's judgment.

On application of plaintiffs-appellants, this court ordered the cause transferred. Art. V, sec. 10, Mo.Const., as amended S.Ct. Rule 83.03.

On July 23, 1971, plaintiff Billy Barlow was a passenger seated in the right rear seat of defendant Lewis's car which was going west on Highway 40 in St. Louis county. Highway 40 at the place where the collision occurred has two lanes westbound and two lanes eastbound with a median strip between them. The Lewis car was in the inside, or southern westbound lane. Lewis was going to turn left in a crossover in order to go back east on the highway. He had slowed down to about 5--10 m.p.h. when his car was struck in the rear-end by defendant Thornhill's car. The Thornhill car then slid sideways to the north and struck a Mr. Klingert's car which was also westbound and in the outside right, or northernmost lane. The impact between Thornhill and Lewis was light. It dented Lewis's rear bumper and trunk. Lewis's car proceeded into the median and stopped headed west. Thornhill's car came to a stop across the westbound lane and then proceeded into the median. Klingert's car went north--to its right--and stopped either all the way off the pavement or with about the rear half of the car on the right-hand westbound lane. Klingert and Lewis said Klingert's car was all the way off the pavement.

After the above-mention collisions occurred, the drivers and some of the passengers got out of their cars and began exchanging information while standing in the median. It began raining so they got into the Lewis and Thornhill automobiles with Billy Barlow returning to the rear seat of the Lewis car. Within a few minutes, the Pierce car, which was westbound, struck the Thornhill car and then hit the rear-end of the Lewis car. This impact threw Barlow about inside the car and after he got out of the car he was vomiting and had trouble breathing. This last collision took place 10 to 15 minutes after the initial collision.

As to the last collision, defendant Pierce testified he was westbound in the right-hand or northern lane; that he saw the Klingert car stopped partially onto that lane of traffic and the Lewis car was partly onto the left or southern westbound lane; that he, Pierce, turned left a bit to go between the cars and applied his brakes; that he skidded into the Thornhill car and, continuing on, collided with the rear of the Lewis car. Defendant Pierce and officer Leavitt, who investigated the collisions, testified the Klingert car was partially on the pavement. Klinger's car was not driveable and remained in its original stopped position until towed away, and this was after officer Leavitt arrived on the scene.

Mr. Barlow described the first collision as a 'light impact', that he was not thrown around in the car by it, and immediately following that collision he was excited but he was not aware of any physical pain at that time. He described the second collision as more severe and it was after this collision he felt discomfort and physical pain.

Following the last collision, Mr. Barlow had difficulty breathing, was vomiting, and had pain in his rib cage. He was taken from the accident scene to St. John's Hospital where he was X rayed, given a prescription, and told to see his family doctor and was sent home. The next day he had pain in his back from the neck down and pain in his ribs. He went to work on Monday but could not do his job because of pain in his back and because his feet and legs had become swollen. The next day, Tuesday, July 27, 1971, he saw Dr. Glen Calvin, a general practitioner. Mr. Barlow's initial complaints were swelling in his hands, arms and legs; headaches, neck pain, back pain, and severe pain on bending or stooping. The doctor observed the swelling and found muscle spasm in Barlow's neck, mid-thoracic area and lower back. Mr. Barlow made 137 visits to Dr. Calvin's office as of May 29, 1973, one month prior to trial.

In answer to a hypothetical question, Dr. Calvin testified that in his opinion the complaints of Mr. Barlow and the injures found by Dr. Calvin were caused by both collisions. He testified he could not attribute the injuries to either the first or second collisions nor separate the effects of the two collisions with respect to causation of the injuries. In his opinion, the injuries were caused by both collisions. The doctor was asked to assume that following the first collision there was no immediate onset of symptoms and then asked if this would indicate that no injury was sustained in the first collision. The doctor answered that, in his opinion and based on his experience, most patients who have sustained that type of trauma are symptom-free for awhile, in the absence of lacerations, etc., and that trauma of that kind does not ordinarily produce spasm for 48 to 72 hours. In Dr. Calvin's opinion, Mr. Barlow was still disabled and unable to work as of trial time. On cross-examination, the doctor testified that he had no way of knowing whether or not the first collision, without the second collision, would have produced the same symptoms.

Mr. Barlow was hospitalized at Deaconess Hospital from August 7 to August 21, 1971, under the care of a Dr. Manganaro. The diagnosis was cervical sprain, thoracic sprain, lumbar sprain, contusion of the soft tissue with injury, right thorax. Subsequently Mr. Barlow was examined and treated at Mayo Clinic, Rochester, Minnesota, and a report was sent to Dr. Calvin, which was read into evidence. Mayo's diagnosis was post-traumatic syndrome and tinea cruris, pedis, and manus. No objective evidence of any neurologic impairment was found nor was there objective evidence of spinal cord disease or cervical or lumbar radiculopathy. A psychiatrist at Mayo believed Mr. Barlow was demonstrating a conversion reaction.

Dr. Walter Moore, a specialist in neurology and psychiatry, examined Mr. Barlow in August 1972 and testified as to Barlow's complaints, his examination, finding, and diagnosis. He found nothing organically abnormal with the patient from a neurological standpoint. Dr. Moore's diagnosis was a post-traumatic psychoneurosis with conversion reaction, marked traumatic fixation with total invalid reaction, all of which the doctor explained to the jury.

In answer to a hypothetical question, Dr. Moore testified that the two collisions were the effective precipitating cause of the psychiatric condition of Mr. Barlow. He was questioned with respect to the causative effect of the first and second collision. The doctor testified the patient's condition was caused by a combination of the two collisions and ascribed very little weight to the relative severity of the two saying that a man does not have to have a severe physical accident to develop a severe neurosis. When asked if he could separate the two collisions with respect to the neurosis the doctor answered, 'I would say it is one accident and the other and there were two factors there one acting right close to the other and they both were a summational effect.'

On cross-examination, Dr. Moore was further questioned concerning the two collisions as follows:

'Q. Well, if Mr. Barlow himself felt that his injuries and that his complaints were due to the second accident rather than the first . . . that he was hurt in the second accident and not from the first, under those circumstances would you say that his psychosis resulted from the second accident rather than from the first? A. I couldn't--I would say that most likely it did, it being a more perpetrating factor, yes sir.'

Further cross-examination was as follows:

'Q. Doctor, do I understand your conclusion based upon reasonable medical certainty in this case however was that whatever psychiatric problem you found resulted from both accidents? A. I would say it did from both accidents. One acting as a stimulus and the other an aggravating--a superimposed trauma to it. Q. In other words, Doctor, had the first accident not occurred isn't it true that it is quite likely that no psychological problems that you found would have resulted in the second accident? A. I can't answer that question. Q. You can't differentiate between the two? A. No, sir, I cannot.'

Plaintiffs' case was submitted on rearend collision and following too closely as to Thornhill and on rear-end collision as to Pierce by separate instructions against each defendant and each instruction required a finding that the negligence of the particular defendant caused one of the collisions and combined with the acts of the other defendant to cause injury to plaintiff Billy Barlow.

Each defendant submitted and the court gave instructions conversing both negligence and damage. Defendant Pierce also submitted and the court gave a contributory negligence instruction...