Berten v. Pierce

• Decision Date: 24 September 1991
• Docket Number: No. WD,WD
• Citation: Berten v. Pierce, 818 S.W.2d 685 (Mo. App. 1991)
• Parties: Sharon K. BERTEN and Jackie D. Berten, Respondents, v. Jack L. PIERCE, et al., Appellants. 44022.
• Court: Missouri Court of Appeals

Page 685

818 S.W.2d 685

Sharon K. BERTEN and Jackie D. Berten, Respondents, v. Jack L. PIERCE, et al., Appellants.

No. WD 44022.

Missouri Court of Appeals Western District.

Sept. 24, 1991.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 29, 1991.

Application to Transfer Denied Dec. 17, 1991.

Errol D. Taylor, St. Joseph, for appellants.

Thomas R. Summers, St. Joseph, for respondents.

Before TURNAGE, P.J., and KENNEDY and BRECKENRIDGE, JJ.

KENNEDY, Judge.

Defendants Jack L. Pierce, et al., members of a farming partnership, appeal from judgments based upon jury verdicts of $50,000 in favor of plaintiff Sharon Berten on her claim for personal injuries, and $10,000 for Jack D. Berten, Sharon's husband, on his claim for loss of consortium.

Sharon Berten alleges she was injured in two different accidents caused by the negligence of the defendant in allowing their hogs to be in the public road. The first of the two accidents occurred April 16, 1986, when Mrs. Berten, on her way home from work in her automobile, struck a hog in the road. The second accident was August 2, 1986. This time, Mrs. Berten, on her way to work in her automobile, drove her car into a ditch at the side of the road and struck an embankment to avoid striking hogs, allegedly defendants', in the roadway.

The injury claimed by Mrs. Berten to have resulted from the accidents is the aggravation of an earlier back injury, which she had sustained in January, 1985, when another car had struck from the rear a car in which she was riding as a passenger. As a result of the earlier injury, she was off work approximately six months, returning to work in July, 1985. She worked at a farm implement dealership. Her employment involved, among other duties, lifting heavy farm implement parts.

Defendants say there was no medical evidence Sharon Berten's injuries were caused by the collisions shown in evidence. From that premise they argue the court erred in denying their claim for judgment n.o.v., and also erred in giving the verdict directing instruction and the damage instruction which hypothesized the causal relationship between the April 16 and the August 2 incidents and Sharon's injuries. Specifically, they say there was no expert medical testimony making the connection, and that the jury without expert medical evidence could not find causation.

We have concluded, upon a review of the testimony, that plaintiffs made a submissible case of causation by the aid of the "sudden onset" doctrine. That doctrine holds that causation may be inferred by a lay jury, without expert evidence, where the obvious symptoms of the injury follow the trauma immediately, or with only short delay, and the injury is the kind that is normally sustained in the kind of trauma being considered. The lay jury by its common sense and experience may reliably find that the injury occurred as a result of the trauma. Rech v. AAA Plumbing Co., 798 S.W.2d 194, 195-96 (Mo.App.1990); Harrison v. Weller, 423 S.W.2d 226, 230 (Mo.App.1967). The most obvious cases for the application of the doctrine are those where a person is involved in a violent accident and sustains a broken bone, or an open wound. DeMoulin v. Kissir, 446 S.W.2d 162, 165 (Mo.App.1969). It has also been applied in cases of back pain. Pruneau v. Smiljanich, 585 S.W.2d 252, 255 (Mo.App.1979); Sita v. Falstaff Brewing Corp., 425 S.W.2d 487, 490 (Mo.App.1968).

Sharon testified--we use her own words as nearly as possible--she was involved in a car wreck in January, 1985. Her daughter's car, in which she was riding, had been rear-ended by another car. She sustained an injury like a whiplash injury. She hit her head. She had severe headaches and a lot of back pain and for some reason it went down into her legs and she had a lot of trouble walking. She was off work six months. She was treated by Dr. Lancourt, an orthopedic specialist. After six months she returned to work, but for the first month she did not lift more than 20 pounds. After that she was freed from restrictions. At the time of the first of the hog incidents on April 16 she still had problems from time to time--occasional headache, maybe neck strain--but her condition was good. She was able to do her job, including lifting heavy parts. She was not hurting.

Then on April 16 she was driving home when, coming over a hill, near defendants' farm, she came upon a big hog in the road. She put her brakes on, but ended up hitting the hog before she got the car to a stop. She hit the steering wheel hard. She was all shook up. It was a terrible feeling. She was sick, she was hurting. She sat there for a while. Then she drove on to her home. She lay down on the bed. The pain didn't subside. She called her 28-year-old daughter, Pam. Pam came to Sharon's house and after they had waited for a while, Pam took her to the emergency room at Heartland East Hospital. Sharon was x-rayed and released, after being told to see her physician the next day. She returned home, hurting all over, especially the upper part of her back. The next day she saw Chiropractor Dr. Mackey who manipulated her bones, worked on her body. She was still hurting. After a number of treatments by Dr. Mackey--several each week--she started feeling better, but it wouldn't last. In September, 1986, she stopped going to Dr. Mackey because she couldn't afford it. She paid him $1824. The pain was always there, it never left.

There was a period of months when she was without medical care. She then went to Dr. Paulson. Her condition was worsening. She couldn't do her work or her household chores. Dr. Paulson found she had fibroid tumors, which she knew, and real bad anemia. She was having trouble swallowing, which was aggravated by spasms in her back. After the lapse of some further time, she went to see Dr. Escobar in May, 1987. He had her on some therapy, but mainly medication. In October, 1987, she had a myelogram in the hospital. From the myelogram she developed a form of meningitis. She was off work until February. (This was the first time she had missed any work since the hog incidents.) On October 19, 1987, Dr. Betsy McClure began treating Sharon, and continued to treat her up to time of the trial. Dr. McClure was the only physician who testified. She testified she had treated Sharon for back pain mainly, and anemia due to medication that she had tried to use to control her back pain. The back pain was in the upper area, between the shoulder blades.

The foregoing evidence is sufficient to bring a substantial part of plaintiff's injuries within the "sudden onset" rule. With reference to her condition immediately before colliding with the hog on April 16, 1986, Sharon testified: "My condition was good ... I did [have problems resulting from January, 1985, automobile accident], but, you, know, occasional headache, maybe neck strain, but my condition was good." She testified that she was able to do her job, including lifting heavy tractor and farm implement parts. She apparently had been getting no medical care since her release from medical supervision the preceding August. She testified to the severe pain that followed immediately after her abrupt stop in her unsuccessful attempt to avoid collision with the hog. That pain then follows a clear and uninterrupted evidentiary track throughout much of the case.

Defendant presented no medical evidence.

Some of plaintiff's symptoms and conditions in evidence could very likely not be related to the hog collision...