Bedenk v. St. Louis Public Service Co.

• Decision Date: 12 December 1955
• Docket Number: No. 1,No. 44865,44865,1
• Citation: 285 S.W.2d 609
• Parties: Anna BEDENK, Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Defendant-Appellant
• Court: Missouri Supreme Court

Page 609

285 S.W.2d 609

Anna BEDENK, Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Defendant-Appellant.

No. 44865.

Supreme Court of Missouri, Division No. 1.

Dec. 12, 1955.

Motion to Modify Opinion and for Rehearing or to Transfer to

Court en Banc Denied Jan. 9, 1956.

Lester F. Stephens, St. Louis, Lloyd E. Boas, St. Louis, of counsel, for appellant.

Orville Richardson, Sherman Landau, St. Louis, Hullverson & Richardson, St. Louis, of counsel, for respondent.

DALTON, Presiding Judge.

Action for damages for personal injuries sustained on account of alleged negligence of defendant. Verdict and judgment were for plaintiff for $8,000 and defendant appealed.

On July 19, 1952, plaintiff, a resident of Livingston, Illinois, was a passenger on defendant's northbound bus in Pine Lawn, St. Louis County, when it stopped to discharge passengers at Grimshaw Avenue and Jennings Road, which was plaintiff's destination. Plaintiff and her five year old daughter attempted to leave the bus by the right rear door. Plaintiff took her daughter's left hand in her right hand and was leading the child ahead of her in getting off the bus. The child was almost out, when the bus door closed on plaintiff's right arm, injuring it and causing plaintiff to lose her grip on the child's hand. The child's foot was caught in the door at the same time, but the main part of the child's body was outside of the bus. The bus pulled up a few feet and the child was killed. Plaintiff's arm was bruised and she was immediately taken to a hospital and, later that day, to her home in Livingston, Illinois. She visited her family physician on the following day. The arm was bruised, swollen and subsequently discolored, light green and yellow. The swelling and discoloration were due to trauma. The bruise on the back and front sides of the arm extended for some two to three inches between the wrist and elbow. Scar tissue, which formed as a result of the trauma, has caused pain. The arm still 'hurts almost all the time.' She alternately has both sharp and dull pains in her arm. She reported this fact to her physician on her first trip to see him. The pain runs from her arm up across her left shoulder and up to her head. There is a marked tremor of the eyelids and of the extended hands. She has a buzzing in the left side of her head. She has 'lots of headaches and pains in her head, in the front part,' and her 'stomach hurts a lot.' She is not able to rest and sleep at night. She thinks a lot and has bad dreams. She has been continuously under the care of her physician since she was injured. There has been no improvement in her condition. An expert in mental and nervous diseases, Dr. James F. McFadden, diagnosed her condition as a functional nervous disease, or neurosis, also called psychoneurosis, resulting from her physical injury under the circumstances shown. Her condition is permanent and she will continue to require medical care.

Previous to her injury plaintiff, age 40, was in good health. She did her own cleaning, her washing and ironing and, also, her general house cleaning in the spring and fall. Her husband did not help her with her work. She had no trouble with her right arm. There were no buzzing, or crawling sensations or headaches. She slept well. She also tended her flowers in the garden and worked in the yard. Since her injury her husband often helps her do the washing, he does a lot of the cooking and helps with the heavy cleaning. She is right handed but now she has to iron 'mostly' with her left hand. The grip in her right hand is weak. Other evidence tended to show that before she was injured she was of a happy disposition, jolly and good natured, but since that time she doesn't feel good and she complains of pains in her arm and head, of headaches, of a crawling sensation and buzzing sound and talks of dreams. Her mental attitude has changed. She does not participate in community life like she did. She is quite forgetful and does not like to go out or be in crowds. She just sits at home and hardly says anything, but complains of her head, stomach and arm. Other facts will be stated in the course of the opinion. The issue of negligence was submitted under the res ipsa loquitur doctrine. There is no contention here that plaintiff failed to make a submissible case for the jury.

Error is assigned on the admission and rejection of evidence, on the opening statement and closing argument of plaintiff's counsel, on the giving and refusal of instructions, on the refusal to strike certain evidence, on the refusal of the court to stay proceeding after plaintiff's evidence was in, on the limitations placed on the scope of the closing argument of defendant's counsel and on an alleged excessive verdict.

Appellant's first assignment is that 'the Court erred in admitting, or refusing to strike after it was admitted, the * * * testimony specifically set out in subparagraphs (A), (B), and (C) below (offered and admitted on the part of plaintiff over the objection of the defendant) for the reasons stated in the individual subparagraphs below. (A) The Court erred in refusing to strike the testimony of Dr. Greenwood concerning plaintiff's nervous (or psychic) condition allegedly existing after a period of two to three months following the accident for the reason that it was proven by the doctor's own testimony not to be the direct result of any injury plaintiff received on the occasion in question.'

Dr. W. R. Greenwood was plaintiff's family physician, a general practitioner at Livingston, Illinois. He treated plaintiff from July 20, 1952, the day following her injury to the date of the trial. Over the objection of defendant he testified at length concerning plaintiff's physical and nervous condition during this period. He attributed a part of her general condition (at the time of his first examination) to her arm injury. He refused to say how much of her nervousness was due to pain in her injured arm. With reference to the cause of her condition, he testified: 'Q. Can you give us your opinion as to what might have been the cause of the condition of nervousness three months after July 19, 1952? A. Yes; in my opinion she was still nervous after the original injury because of the association with this arm and some of the things that had transpired in her life, and this arm was the subjective stimulus in her opinion for all of this emotional upset. Q. That would be psychic? A. In my opinion, yes, that would be.' He also said: 'I think there are two factors with this patient, as I see them, that is causing her to be in the state she is at the present time. Those two factors are: Injury to her arm and the emotional stress and strain due to the loss of this child * * *. I cannot say in percentage how much is due to one and how much to the other. * * *' He further said: 'It is my opinion that the fact she had contact with the child and lost it, that now that was her last contact with this living child, and now there is an association or transference of pain in this arm because of the fact.' Near the close of Dr. Greenwood's testimony, defendant moved the court to strike from the record all of the testimony of the witness 'concerning the psychic disorders from which this woman is said to be suffering at the present time.' (November 8, 1954). The motion was based upon a specific part of the cross-examination of the witness, as follows:

'Q. In your experience as a doctor how long would any condition of nervousness or upset have prevailed in this woman as a result of any injury she might have received to her right arm on that occasion, how long would that condition continue to affect her? A. To a direct injury itself that might go for two or three months. * * *

'Q. So anything you treated her for after September 19, 1952, would have had no relationship to any condition that might have been the result of getting her hand caught in the door? A. I cannot answer that question.

'Q. What do you mean when you say you cannot answer that question? A. Because we know that if there are certain associations with injury then that nervousness and a functional thing in the nervous system may set in * * *

'Q. So, far as that trauma this lady received as a result of getting her hand caught in the door, the direct results of the nervousness would have disappeared at the end of two months? A. Two or three months, if I understand what we mean by nervousness.'

For reasons hereinafter stated, we need not further review the witness's testimony.

Appellant contends that 'Dr. Greenwood's testimony did not show the psychic condition, from which he said plaintiff suffered starting with a period two to three months after the accident to the present time, was a 'direct consequence of the physical injury''; that the burden was on the plaintiff to establish this causative factor; and that 'when Dr. Greenwood's testimony failed to do so it should have been stricken.' Appellant relies upon the general rule as to recovery for mental distress or suffering as stated in Chawkley v. Wabash Ry. Co., 317 Mo. 782, 808, 297 S.W. 20, 29, as follows: 'The rule is that mental distress, suffering, may not be recovered for unless directly caused by a physical injury. The plaintiff could not recover for impairment which the evidence showed to be in her physical and mental condition, unless that particular impairment could be traced directly to the physical shock or physical wounds or bruises inflicted upon her.' And see Trigg v. St. Louis, K. C. & N. Ry. Co., 74 Mo. 147, 153; Porter v. St. Joseph Ry., Light, Heat & Power Co., 311 Mo. 66, 277 S.W. 913, 914; State ex rel. and to Use of Renz v. Dickens, Mo.App., 95 S.W.2d 847, 852. Appellant further says that Dr. McFadden's testimony has nothing to do with the point raised; and that the testimony of Dr. McFadden as to the cause of plaintiff's condition would not cure the error, since a jury might believe Dr. Greenwood and...