Brown v. Kansas City

• Decision Date: 03 March 1958
• Docket Number: No. 22690,22690
• Parties: Pearl A. BROWN, Appellant-Plaintiff, v. KANSAS CITY, Missouri, Respondent-Defendant.
• Court: Missouri Court of Appeals

Page 360

311 S.W.2d 360

Pearl A. BROWN, Appellant-Plaintiff, v. KANSAS CITY, Missouri, Respondent-Defendant.

No. 22690.

Kansas City Court of Appeals, Missouri.

March 3, 1958.

Rex Parr, Kansas City, for appellant.

Benjamin M. Powers and Thomas J. Conway, Jr., Kansas City, for respondent.

CAVE, Judge.

Plaintiff's petition alleged personal injuries resulting from a fall on the sidewalk. Trial to a jury resulted in a verdict in favor of the plaintiff in the amount of $5,000. Defendant filed motion for new trial which was sustained because of error in plaintiff's damage instruction, which authorized a recovery for permanent injuries. Plaintiff perfected her appeal and seeks to have the judgment reinstated. This court has jurisdiction. Secs. 3 and 13, Article V of the Constitution, V.A.M.S., and Sec. 477.040 RSMo 1949, V.A.M.S.

The only issue presented on appeal is whether the court error in sustaining the motion on the assigned ground.

Plaintiff testified that on the afternoon of June 7, 1950, she was walking along the sidewalk and stepped in a hole and fell to the pavement, injuring her left ankle and her left hand, wrist and arm. A bystander called a taxicab which took her to the office of Dr. Oglevie. She said he took two or three X-rays, but gave no treatment. He did not testify and the X-rays were not in evidence. She left Dr. Oglevie's office and went to see Dr. K. P. Jones. He suggested that she go to Research Hospital for emergency treatment. She did so, and Dr. Vilmer took X-rays and bandaged her ankle, and put her left hand in a cast. Dr. Vilmer did not testify, nor were his X-rays or the hospital records introduced. The only evidence relative to her injuries comes from plaintiff.

This accident occurred on June 7, 1950, but the case was not tried until January 21, 1957, almost six and a half years after the fall.

With reference to the ankle, plaintiff testified it was 'just sprained * * * never was in cast * * * just bound'; and at the trial she said, 'My ankle is all right' She also stated that her left wrist and thumb were broken and that Dr. Vilmer placed them in a cast and a pin in the thumb. She wore the cast and pin about two months. In describing the pin, she said it 'extended out, I should judge, about four inches'. Evidently this was a brace of some kind, and not the usual 'pin' used in some fractures.

Prior to her injury, plaintiff had worked as an extra at the telephone switchboard at the Commonwealth and Dixon Hotels, just relieving other girls when they would be off for a day or two, or on a vacation; and also did some typing at the Commonwealth. She had been averaging about $25 a week. She gave up the typing because 'I can't type with any speed * * * it gets stiff on me.' Presumably she means the hand. She did return to her work as an extra telephone operator and made $10 or $15 a week, dependent on the number of operators who wanted off; and she has also engaged in sewing and repair work. At the time of the trial, she said her hand and thumb would still get stiff at times, were weak, and she couldn't pick up anything that was heavy. 'Dr. Vilmer gave me hot oil treatments' for a time; and 'then I went to the whirlpool baths out at the Rehabilitation and still go there'. She had not visited Dr. Vilmer or any other physician for two or three years prior to the trial.

Defendant introduced the employment records of the Dixon Hotel for the years of 1949-50 and 51. These records disclose that the plaintiff had earned $893.83 in 1949; $854.38 in 1950; and up to June 20, 1951, her earnings were $426.14. Her employment was terminated at that hotel on June 20th, but it was not due to any physical disability. Plaintiff admitted these amounts were substantially correct. Thus it appears that she earned, on an average, substantially the same amount at the Dixon Hotel after the accident as she had prior thereto.

It is the settled law that a trial court has a wide discretion in passing on a motion for new trial, and where such a motion is sustained, the appellate court will be liberal in upholding the trial court's action. However, this discretion is limited to questions of fact and matters affecting the determination of issues of fact. De Maire v. Thompson, 359 Mo. 457, 222 S.W.2d 93; Gedville v. Mahacek, Mo.App., 231 S.W.2d 305. It is also true that an appellate court will be more liberal in sustaining an order granting a new trial than it might be in reversing a judgment on the same ground on appeal. Tennison v. St. Louis-San Francisco Ry. Co., Mo., 228 S.W.2d 718; and Warren v. Kansas City, Mo., 258 S.W.2d 681. In the instant case, the trial court was passing upon the sufficiency of the evidence to support the submission of permanent injuries; thus it was a factual issue, and we must determine whether its discretion was abused.

The question of the sufficiency of evidence to support an instruction for permanent injury is fully discussed by the court en banc in Weiner v. St. Louis Public Service Co., Mo., 87 S.W.2d 191, 192, wherein it is said: "To justify a recovery for apprehended future consequences, there must be such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury. To say of a thing it is permanent means that it will continue regardless of a contingency or fortuitous circumstance.' * * * Proof of a condition which may cause future trouble is not necessarily proof of a permanent injury, the former may persist after the trial, but not continue to exist permanently while the latter is a physical or mental impairment or disability which will last throughout life, and there is a distinction between damages which may reasonably result in the future and damages allowable as for a permanent injury. * * * To recover damages for permanent injury the permanency of the injury must be shown with reasonable certainty and while absolute certainty is not required mere conjecture or likelihood, or even a probability, of such injury will not sustain the allowance of damages therefor.'

In State ex rel. Kansas City Public Service Co. v. Shain, 350 Mo. 316, 165 S.W.2d 428, 431, it is said: 'It is not common knowledge that fractures of bones * * * are permanent injuries. In some such cases the injuries are of a nature that the medical experts consider the condition permanent. * * * In other cases of that nature the doctors do not consider the injuries permanent. * * * So we conclude that as a general rule fractures of bones * * * are not injuries...