Briggs v. Baker

• Citation: 631 S.W.2d 948
• Decision Date: 06 April 1982
• Docket Number: No. WD,WD
• Parties: Patty L. BRIGGS, Appellant, v. Danny L. BAKER, Respondent. 32249.
• Court: Court of Appeal of Missouri (US)

Page 948

631 S.W.2d 948

Patty L. BRIGGS, Appellant, v. Danny L. BAKER, Respondent.

No. WD 32249.

Missouri Court of Appeals, Western District.

April 6, 1982.

Robert G. Smith, Smith & Elson, Robert Devoy, Brookfield, for appellant.

Stockard, Andereck, Hauck, Sharp & Evans, Terry M. Evans, Jack Peace, Earl W. Brown, III, Trenton, for respondent.

Before SOMERVILLE, C. J., Presiding, and WASSERSTROM and KENNEDY, JJ.

SOMERVILLE, Chief Judge.

This appeal was prompted by plaintiff's (hereinafter referred to as Mrs. Briggs) loss of a $15,000.00 verdict in a jury tried automobile negligence case which occurred when the trial court sustained defendant's (hereinafter referred to as Baker) motion for new trial.

The accident out of which Mrs. Briggs' claim for personal injuries arose occurred at approximately 3:30 P.M. on March 15, 1974, within the corporate limits of Brookfield, Missouri, a third class city. At the time in question Mrs. Briggs was sitting in the back seat of a 1968 Ford Mustang driven by her son, Dewain Briggs. A friend of Dewain's was sitting in the right front seat. The 1968 Mustang was travelling south on Livingston Street in Brookfield, Missouri, at a speed of approximately 15 miles per hour and approaching the intersection of Livingston and Wood Streets. There was a "yield" sign at the southwest corner of the intersection posted against eastbround traffic on Wood Street approaching the intersection. Baker was travelling east on Wood Street in a 1967 Pontiac Tempest. Baker stopped at the "yield" sign, looked towards the north, then towards the south, then straight ahead, and pulled out into the intersection. According to Baker, when he looked to the north the 1968 Ford Mustang was approximately one block north of the intersection. According to Dewain Briggs, the 1968 Pontiac Tempest pulled out "right in front" of him. Dewain Briggs hit the brakes, sounded his horn, and swerved to his left. The 1968 Ford Mustang laid down skidmarks approximately thirteen feet in length leading up to the point of impact which occurred in the upper right corner of the southwest quadrant of the intersection. The right front corner of the 1968 Ford Mustang collided with the left rear corner of the 1968 Pontiac Tempest.

According to Mrs. Briggs, the force of the impact threw her "forward" and "backward", and she was "pinched between two seats". Following the collision, Mrs. Briggs was helped from the 1968 Ford Mustang by her son. At the scene she complained that her "back was hurting". At the time of the accident, Mrs. Briggs, her son, and the other passenger in the 1968 Ford Mustang were planning to go to Chillicothe, Missouri, where her son intended to do some shopping. Immediately following the accident, the group went on to Chillicothe, Missouri, in an automobile belonging to Mrs. Briggs. After a short stay in Chillicothe, they drove to Carrollton, Missouri, where Mrs. Briggs went to the office of Dr. H. M. Wagaman, a chiropractor, for examination and treatment. Mrs. Briggs was never hospitalized as a result of the automobile accident.

Drs. Wagaman and Dixon appeared as expert medical witnesses on Mrs. Briggs' behalf at the trial. Dr. Wagaman diagnosed Mrs. Briggs' injuries as "soft tissue damage of the cervical area", "sublaxation of the first, second and third cervical vertebrae, lateral displacement of the first dorsal vertebra, and displacement of the right and left illium". Dr. Dixon, a chiropractor in Brookfield, Missouri, who subsequently treated Mrs. Briggs essentially confirmed the diagnostic findings of Dr. Wagaman. Drs. Wagaman and Dixon both testified that Mrs. Briggs had sustained permanent injuries. Dr. Wagaman was described by Mrs. Briggs as "their family doctor". Throughout a period of several years prior to March 15, 1974, Mrs. Briggs, on various occasions, had received chiropractic treatments from Dr. Wagaman "from one end of her spine to the other."

Plaintiff's Exhibits 3, 4, 7, 8, 9, and 11 were identified by Mrs. Briggs as bills she received from, respectively, Dr. Robinson, a chiropractor in Chillicothe, Missouri, Howell, a medical doctor in Brookfield, Missouri, Walk, a chiropractor in Chillicothe, Missouri, Bonnett, a chiropractor in Chillicothe, Missouri, Wright, a chiropractor in Marceline, Missouri, and Yowell, a chiropractor in Kirksville, Missouri. None of the doctors just mentioned testified at the trial. Mrs. Briggs' testimony concerning the various exhibits was exceedingly sparse. As a practical matter, it was limited to the fact that she had gone to said doctors on various occasions sometime after March 15, 1974, and had personally paid the bills they submitted. She did not testify that she went to any of them for treatment or services in connection with any injuries she claimed to have received in the accident or that she made any complaints to any of them regarding any injuries she purportedly received in the accident. Moreover, she did not testify as to the type or nature of any treatment or services that any of the doctors heretofore mentioned rendered. Counsel for Baker objected to Plaintiff's Exhibits 3, 4, 7, 8, 9, and 11 when they were offered into evidence on, among other, grounds that no foundation had been laid and that no evidence was introduced to show that the services of the various doctors and the respective bills submitted by them were reasonably incurred in connection with any injuries she claimed to have sustained in the accident of March 15, 1974. The objection was overruled, and the controversial exhibits were admitted into evidence.

Mrs. Briggs testified that she was still suffering from "headaches", "stiff neck", "back pain", "tender-thighs", and that her hands would "go to sleep". Baker called two medical doctors as expert witnesses on his behalf, one of whom testified that on the basis of his examination of Mrs. Briggs and various x-rays he found no evidence of any injuries or the sequelae of any injuries, and the other of whom testified that the only thing he found on examining Mrs. Briggs was some limitation of motion in the cervical area which was not permanent in nature.

In her petition, Mrs. Briggs pleaded special and general damages. As grounds of actionable negligence, Mrs. Briggs alleged that Baker failed to "keep a careful lookout", and, additionally, that he violated Section 6.53(c) of the Municipal Code of Brookfield, Missouri, regarding the right of way at intersections controlled by "yield" signs. The ordinance just mentioned was offered and admitted into evidence at the behest of Mrs. Briggs over an objection by Baker that it had not been validly enacted.

Baker's answer consisted of a general denial, coupled with affirmative allegations that Mrs. Briggs and her son were engaged in a "joint venture and common enterprise" at the time in question, and that certain negligent acts of her son, all of which were imputable to her, directly and proximately caused any injuries or damages she sustained. Mrs. Briggs' verdict directing instruction (MAI 17.02 and 11.03) disjunctively submitted that Baker "failed to keep a careful lookout" or "failed to yield the right of way".

This appeal, at the very outset, takes an ill-starred course as no grounds were specified by the trial court in its order sustaining Baker's motion for new trial. According to Rule 84.05(b), when a trial court grants a new trial without specifying of record the ground or grounds upon which the new trial is granted, "the presumption shall be that the trial court erroneously granted the motion for new trial and the burden of supporting such action is placed on the respondent." (Emphasis added.) Rule 84.05(b) further provides: "In such event if the appellant serves on the respondent a statement requesting that respondent prepare the original brief on or before the time when the record on appeal is filed, the respondent shall file the original brief and reply brief, if any, and serve them within the time otherwise required for the appellant to serve briefs."

Unfortunately, Mrs. Briggs, appellant herein, failed to serve Baker, respondent herein, with a statement requesting reversal of the order of briefing as provided by Rule 84.05(b), with the end result that Mrs. Briggs filed the original brief on appeal. Mrs. Briggs, in her brief, attempts to separately negate all twenty-one grounds assigned by Baker in his motion for new trial. Fortunately, Baker, in his brief, in shouldering the burden of supporting the action of the trial court in granting the new trial absent specificity as to the grounds for doing so, relies on only five of the twenty-one grounds asserted in his motion for new trial, thereby considerably narrowing the issues on appeal.

Disposition of this appeal neither demands, nor do the exigencies of time permit, this court to write on each of the five points relied on by Baker in his brief. One point quickly surfaces which alone, as subsequently demonstrated, justified the action of the trial court in granting a new trial. Namely, Baker's contention that the trial court erred in overruling his objection to Plaintiff's Exhibits 3, 4, 7, 8, 9, and 11 because no evidence was introduced that the services reflected by the various exhibits were reasonably necessary to treat or alleviate any injuries Mrs. Briggs claimed to have received in the accident. One other point relied on by Baker warrants being addressed for guidance of the parties on retrial, to wit, whether the city ordinance pleaded by Mrs. Briggs, and offered and received in evidence, was admissible in view of Baker's objection that it had not been validly enacted. Insofar as all remaining points are concerned, the parties have the benefit of the respective briefs and it is assumed that they will be guided accordingly on retrial.

Baker's contention that the trial court erred in admitting Plaintiff's Exhibits 3, 4, 7, 8, 9, and 11 over his objection will now be addressed in greater detail. As previously...