Blessing v. Boy Scouts of America, WD 30786.

• Decision Date: 13 January 1981
• Docket Number: No. WD 30786.,WD 30786.
• Citation: 608 S.W.2d 484
• Parties: John Dwayne BLESSING, and Mary Alice Blessing, Respondents, v. BOY SCOUTS OF AMERICA-Heart of America Council, a corporation, and Ralph Myron Rosebrook, Appellants.
• Court: Missouri Court of Appeals

608 S.W.2d 484

John Dwayne BLESSING, and Mary Alice Blessing, Respondents, v. BOY SCOUTS OF AMERICA-Heart of America Council, a corporation, and Ralph Myron Rosebrook, Appellants.

No. WD 30786.

Missouri Court of Appeals, Western District.

November 3, 1980.

Motion for Rehearing and/or Transfer Denied December 2, 1980.

Application to Transfer Denied January 13, 1981.

Jack G. Beamer and Lee E. Wells, of McKenzie, Williams, Merrick, Beamer & Wells, Kansas City, for appellants.

Robert L. Shirkey, Kansas City, for respondents.

Before TURNAGE, P. J., and SHANGLER and MANFORD, JJ.

Motion for Rehearing and/or Transfer to Supreme Court Denied December 2, 1980.

MANFORD, Judge.

This is a direct appeal from an order setting aside a jury verdict and granting a new trial upon the basis of error in the admission of evidence. That an appeal will lie from such order, see Rule 81.01. The judgment is affirmed and the cause remanded for trial upon all issues.

In summary, appellants allege the trial court erred in granting respondents a new trial on the basis that it was error to have permitted testimony of respondent John Blessing upon cross-examination; that said respondent had made claim for and had received benefits under the terms of an insurance policy because (a) admission of such evidence was not error as it was competent, relevant and material to the issues of proximate cause, nature and extent of injuries and to the credibility of said respondent; (b) said evidence, being admissible for some purposes but not for all purposes, was properly admitted under respondents' instruction, which limited the purpose and use of such evidence by the jury, and (c) the admission of such evidence was discretionary with the court, and the court thereafter, having declared the admission of such evidence as prejudicial to respondents, misconstrued the law applicable to the admission of such evidence.

Disposition of this appeal turns upon events which occurred after the initial close of the evidence, so a brief recital of the facts giving rise to this action suffices. Respondent, John Blessing, plaintiff below, was a passenger in a motor vehicle which was struck from the rear by a motor vehicle being operated by appellant Rosebrook. Respondents seek recovery for damages as a result of personal injuries received and loss of consortium. Rosebrook was sued jointly with his employer, Boy Scouts of America. The collision occurred October 22, 1975.

Liability was a relatively minor issue at trial, and emphasis by both parties centered upon the claimed injuries and the medical testimony surrounding those claimed injuries.

At the time of the collision, John Blessing was on sick leave from his employment as a school teacher. He had been under medical treatment since 1961 for several complaints. A short time prior to the collision, he had been reassigned to a particular public school. This assignment had made him nervous and upset and in lieu of accepting the assignment, he requested and was granted placement on sick leave.

Following the collision, Mr. Blessing was examined in a local hospital emergency room and was dismissed. Thereafter, he received treatments from a chiropractor which continued until September, 1976. In this same period, he was seen by two medical doctors and a Ph.D. psychologist. Psychological testing, along with various kinds of medicine, was administered to him. On August 3, 1976, the psychologist again tested Mr. Blessing and concluded the test results were partially consistent with multiple sclerosis.

On succeeding dates, Mr. Blessing was admitted to area hospitals and examined. Physical and neurological examinations reflected essentially normal conditions, but his spinal fluid protein count was elevated. Based upon the foregoing examinations, tests, and the discovery of the elevated spinal fluid protein count, Mr. Blessing's medical doctor concluded he suffered from multiple sclerosis as a direct result of the collision of October 22, 1975.

Appellants, upon order of the court, secured an examination of Mr. Blessing. The expert testimony of appellants indicated that respondent did not have multiple sclerosis caused by the collision, that respondent did not suffer from multiple sclerosis at all, that this respondent had actually little neurological defect in his lower extremities (although this respondent claimed complete disability), that respondent John Blessing, if personally motivated, was a good candidate for rehabilitation, that personal motivation is important in rehabilitation and that this respondent's prior medical problems, and not the collision, contributed to his present physical condition.

After a lengthy trial, inclusive of the above-referred-to medical and expert testimony, the evidence was closed. At this juncture, a conference was held between counsel for both parties and the court, outside the presence of the jury, and appellants were permitted to further cross-examine Mr. Blessing. The further cross-examination was permitted over respondents' objection.

The proceedings returned to the courtroom in the presence of the jury. The additional cross-examination proceeded and was directed at determining whether or not Mr. Blessing had been receiving disability payments pursuant to an insurance policy secured through his employer. The policy was referred to as a Salary Protection Plan. This examination revealed that Mr. Blessing had been receiving the benefits, and that the benefits, if based on illness, provided a payment term of one year. The examination further revealed that for accidental disability, the employment insurance coverage provided a payment term of five years. Mr. Blessing testified that shortly following the collision, he made claim under the salary protection coverage for payment based upon accidental injury. The examination further revealed that by this subsequent application, Mr. Blessing was to receive the sum of $400.00 per month for the extended period of five years.

At the outset of this further cross-examination, respondents, in addition to presenting an objection thereto, requested and secured the following cautionary jury instruction from the court:

"THE COURT: All right. This has been discussed out of the hearing. The defendant proposes to prove that he had a policy which pays him for total disability, but pays for a longer period of time if the injury was caused by accident than it would if it was caused by illness. So the Court is admitting this testimony for whatever weight the jury may wish to give it on the question of the plaintiff's credibility or motivation for claiming his injury resulted from an accident, but the Court specifically instructs the jury, they are not permitted, and must not, consider any payment he has received under his insurance policy in mitigation of the damages. That is, they would not deduct from whatever damages, if any, they assess in favor of Mr. Blessing against the defendant. They may not deduct any of these payments.

You may proceed."

The jury returned a verdict in the sum of $5,000 for respondent John Blessing and $500 for respondent Mary Blessing (wife) on her claim of loss of consortium. Respondents filed their motion for new trial. The post-trial motion listed several grounds for new trial, but upon this appeal, only ground number 4 bears any consideration. Number 4 reads:

"4. Prejudicial error was committed by the Court when, over plaintiffs' objections, the Court, at the insistence of the defendants, admitted evidence that John Blessing had a disability insurance policy that paid him $400.00 per month for 60 months as a consequence of the injuries he received on October 22, 1975, which insurance policy premiums had been paid by John Blessing and under the collateral source doctrine should not have been admitted as evidence whereby plaintiffs' damage award was diminished, resulting in bias and prejudice in favor of defendants and against plaintiffs;"

The trial court set aside the verdict and granted respondents' motion for new trial. The court advised counsel for both parties of its ruling by mail, and the pertinent portion of that notice reads as follows:

"I am sorry to have to advise you that I made a mistake in permitting defendant to prove that plaintiff made a claim for disability benefits under an insurance policy.

It is agreed that, even though such benefits cannot be used to reduce damages, the making of the claim may be proven if such proof tends to resolve some other legitimate issue. Stanziale vs. Musick, 370 S.W.2d 261 (Mo.1963) demonstrates that principle. But there, when plaintiff made her claim for sick benefits, she did not claim it was caused by trauma. She said the complaints started on a certain date with no `known cause.' This was inconsistent with her claim at the trial that her complaints resulted from the accident for which she blamed Musick.

By contrast, in our case, plaintiff's claim for the benefits was consistent with his claim in his damage suit. In both instances he claimed his problem was caused by the accident involving defendan

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