Boone v. Richardson

• Decision Date: 19 February 1965
• Docket Number: No. 8347,8347
• Citation: 388 S.W.2d 68
• Parties: Juanita BOONE, Plaintiff-Respondent, v. Evelyn RICHARDSON, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 68

388 S.W.2d 68

Juanita BOONE, Plaintiff-Respondent, v. Evelyn RICHARDSON, Defendant-Appellant.

No. 8347.

Springfield Court of Appeals, Missouri.

Feb. 19, 1965.

Harold D. Jones, Bock & Jones, New Madrid, for defendant-appellant.

Web A. Welker, Welker & Young, Portageville, for plaintiff-respondent.

HOGAN, Judge.

In this action against Evelyn Richardson, Juanita Boone sought to recover $10,000.00 damages for personal injuries, loss of wages and impairment of earning capacity sustained as a result of a collision between the plaintiff's and defendant's automobiles. The collision occurred at an intersection in Portageville, Missouri, on January 31, 1963. Upon trial of the case on January 10, 1964, a jury returned a verdict finding the issues generally for the plaintiff and against the defendant, but assessing plaintiff's damages at the sum of '$0.' The plaintiff subsequently filed a motion for new trial on the issue of damages only, and the defendant filed an after-trial motion for judgment as authorized by Rule 72.02, V.A.M.R. The trial court granted a new trial on the issue of damages only, and denied defendant's motion for judgment. The defendant appeals. The principal questions before us, therefore, are: (1) whether the plaintiff made a submissible case upon the ground or grounds of negligence actually submitted to the jury, Bowers v. Columbia Terminals Co., Mo.App., 213 S.W.2d 663, 667; and (2) whether the jury's verdict can reasonably be construed as a general verdict for the plaintiff with an inadequate assessment of damages so as to authorize the discretionary grant of a new trial on the ground that the verdict was against the weight of the evidence. Underwood v. Brockmeyer, Mo., 318 S.W.2d 192, 193-194[1-4].

The plaintiff, a 27-year-old legal secretary, having been to 'mother's for lunch,' was returning to work about 12:45 p. m. on the day in question. It was a bright, sunshiny day, the visibility was good and the pavement was dry. The plaintiff was driving south on King Avenue, which is described as a 'two-lane blacktop' street. The defendant was driving east on Fourth Street, which is also referred to as a 'two-lane blacktop' street. At the place in question, King Avenue, which runs north and south, is intersected by Fourth Street, an east and west street. King Avenue has been designated as a 'through' street by ordinance, and vehicles proceeding east or west on Fourth Street are required to come to a complete stop before entering onto or crossing King Avenue. The intersection in which the collision occurred is presumably a right angle intersection, and there is a stop sign at the southwest corner of the intersection, according to the defendant, 'maybe half a foot back west of the intersection.'

As Mrs. Boone related the incident, she was going south on King Avenue, wholly in the west (southbound) lane, 'driving about 20.' When she was 'about a fourth of a block' from the intersection, she saw Mrs. Richardson approaching from the west about 'half-a-block' from the intersection, and Mrs. Richardson appeared to be slackening her speed. '* * * I saw Mrs. Richardson's car approaching and it appeared to be slowing.' Assuming that the defendant would stop, the plaintiff proceeded into the intersection without looking further. As the plaintiff got in the 'middle of the intersection, or as I passed her lane of traffic, why, she hit me.' Mrs. Boone testified that her vehicle was struck at the right rear door, damaging the right rear door and panel.

The defendant's testimony was that she stopped at the intersection four or five feet west of the intersection, looked both ways, and 'started to pull out on King.' After she had proceeded three or four feet, she then saw the plaintiff, 'slammed [the] brakes on,' and swerved to the left, attempting to avoid the plaintiff. The defendant's statement was that 'she [plaintiff] was on me and I was on her before I even saw her. * * *' Mrs. Richardson's testimony indicates that her field of vision was clear both to the north and to the south as she entered the intersection. The damage to the defendant's automobile was described as being only 'a few scratches' on the hood and front end.

Though the force of the impact was not sufficient to leave a visible mark on her body, Mrs. Boone maintained that she suffered painful and disabling injuries as a result of the accident. Her evidence was that shortly after the casualty she began having headaches and pain in her shoulders and arms, and that she had sustained an injury to her back. For six or seven months the headaches and neck pain had been severe. At trial time the severity of her symptoms had abated somewhat, but she still had stiffness in her arms and shoulders and 'still [had] headaches also but not as extreme as they were in the beginning.'

Mrs. Boone had consulted a local physician within a day or two of the accident, and he had prescribed medicine for pain, muscle relaxants and tranquilizers. The plaintiff had remained on this medication until midsummer 1963. The plaintiff's evidence was that her husband was in military service and that she had planned to leave her job in Portageville about the end of March 1963, but because of her injuries she had been obliged to quit sooner than she anticipated. During the last few weeks of her employment she had been unable to work full time, and by means of her employer's office records she estimated her loss of wages at $324.00. It was brought out on her cross-examination that after she and her family moved to Charleston, South Carolina, in April 1963, she cared for her two children and her husband, prepared all the family's meals, did all the laundry, and managed their five-room house substantially without assistance.

Two physicians testified concerning the plaintiff's injuries. Dr. James Grable, who appears to have been the plaintiff's family doctor when she lived at Portageville, saw the plaintiff a short time after the accident, and he had diagnosed the plaintiff's injuries as a sprain of her neck and a muscle strain of her back. Upon examination, the plaintiff had given a history of being involved in an automobile accident, but no bone injuries were apparent in her X-rays, and Dr. Grable's treatment had consisted primarily of supportive measures. At first the doctor had prescribed only muscle relaxants and local heat. The plaintiff did not respond satisfactorily and Dr. Grable testified that he had increased her medication in strength and had prescribed a corticosteroid to reduce inflammatory reaction. At a still later date he had prescribed a tranquilizer for Mrs. Boone. Dr. Grable had seen the plaintiff on five occasions between February 2, 1963, and March 26, 1963; after an initial period during which there was no marked improvement, the plaintiff's symptoms had gradually subsided, although when the doctor examined the plaintiff on November 23, 1963, apparently in preparation for the trial, she was still complaining of tenderness about the neck and the left side of the back. At the November examination, the plaintiff had also complained of pain radiating out into her arms, especially the left arm. Dr. Grable had no opinion as to whether the plaintiff's condition was permanent or temporary. He was, however, of the opinion that she had been totally disabled for a period of about two weeks following her accident, and he indicated that in his opinion she was still partially disabled at the time of trial.

The defendant produced a Dr. Raymond Ritter, who had examined the plaintiff at the defendant's request some ten months after the accident. Dr. Ritter's findings were negative as to the existence of any substantial injury on the plaintiff's part. On November 25, 1963, this physician made what he described as a 'complete physical examination' of the plaintiff, and found that she had a full range of motion of her head in all directions, a full range of motion in her arms and hands, and that the contour of her back was normal, which indicated to him that there was no straightening of the contour from muscle spasm. Dr. Ritter's X-ray examination of the plaintiff's spine indicated no abnormality or deformity of the structure, and he concluded by saying that there had been 'no objective sign' of any injury upon his examination, although in his opinion the plaintiff had sustained a sprain of her neck and possibly of her back.

Turning first to the contention that the plaintiff made no submissible case for the jury, our attention is directed to the fact (and we note) that the plaintiff submitted her case both upon primary and humanitarian negligence. However, if the plaintiff made a submissible case on any theory actually submitted, there was no error in refusing the defendant's motion for directed verdict, and the trial court's action in that respect must be affirmed. Nelson v. Wabash Railroad Co., Mo., 300 S.W.2d 407, 409; DeLay v. Ward, 364 Mo. 431, 435, 262 S.W.2d 628, 630; Fuzzell v. Williams, Mo.App., 288 S.W.2d 372, 373. We must, of course, take that view of the evidence most favorable to the plaintiff and give her the benefit of all reasonable inferences that may be drawn from all the evidence, disregarding the defendant's evidence except where it aids the plaintiff's case. Brown v. Wooderson, Mo., 362 S.W.2d 525, 526; Highfill v. Brown, Mo., 340 S.W.2d 656, 658[2-4]; Fenneren v. Smith, Mo., 316 S.W.2d 602, 606, 608. We also note that the defendant has objected--in this court--to two of the instructions given as being misdirection to the jury. We think, however, that we may not consider the defendant's assignments of error directed to the instructions, for the defendant filed no motion for new trial, but only an after-trial motion for judgment. In general, only the submissibility of the plaintiff's case is preserved for appellate review by a defendant's after-trial motion for judgment, Millar v. Berg, Mo., 316 S.W.2d 499, 501-502, and allegations of...