Butcher v. Main

• Decision Date: 08 April 1968
• Docket Number: No. 52754,No. 1,52754,1
• Citation: 426 S.W.2d 356
• Parties: Allen L. BUTCHER, Appellant, v. Hiram H. MAIN, Jr., Respondent
• Court: Missouri Supreme Court

Page 356

426 S.W.2d 356

Allen L. BUTCHER, Appellant, v. Hiram H. MAIN, Jr., Respondent.

No. 52754.

Supreme Court of Missouri, Division No. 1.

April 8, 1968.

Sherman Landau, St. Louis, for appellant.

Carter, Fitzsimmons & Brinker, Paul E. Fitzsimmons, Clayton, for respondent Main.

HIGGINS, Commissioner.

Action for $27,500 damages for loss of services and consortium and for medical expenses as a result of injuries sustained by plaintiff's wife in an automobile collision. Plaintiff appeals from verdict and judgment for defendant.

The collision occurred about 3:00 p.m., June 18, 1960, on U.S. Highway 66 bypass, a north-south highway of four lanes, two for traffic proceeding in each direction. Big Bend Boulevard is an east-west road intersecting Highway 66 just south of the collision scene.

Four automobiles were involved in this casualty, all being northbound in the northbound lane immediately adjacent to the center line of Highway 66. According to statements taken by the investigating officer, Olon O'Connor, driver of the lead automobile, stopped his automobile at a point about 200 feet north of Big Bend in order to make a left turn; Madeline Politte Ratchford, next in line, came over the hill at the intersection, saw Mr. O'Connor stop but could not stop, and struck the rear of the O'Connor automobile; Harryetta Butcher, plaintiff's wife, came through the intersection, saw the cars ahead stopping, started slowing her own car, and was struck in the rear by an automobile driven by defendant Main. Mrs. Butcher also collided with the rear of the Ratchford automobile. Defendant came through the intersection and the Butcher car 'stopped in front of me. I applied my brakes but hit her.' Trooper John J. McCue testified from these statements and his examination of physical evidence at the scene that there were no skid marks; that car No. 1 (O'Connor) stopped, waiting to make a left turn off Highway 66 approximately 200 feet north of Big Bend, and was struck in the rear by car No. 2 (Ratchford); that car No. 2 was struck in the rear by car No. 3 (Butcher) and, as car No. 3 was stopping, car No. 4 (Main) struck the rear of car No. 3, forcing a chain reaction effect of cars No. 3 with No. 2 and into No. 1. A northbound motorist, when south of Big Bend, can see 200 feet north of the intersection. None of the occupants of the cars complained to the trooper of injuries, and all four vehicles were driven from the scene.

Appellant contends first that the court erred in denying his motion for directed verdict on the issue of liability because the same collision was in Butcher v. O'Connor, Mo., 401 S.W.2d 490, where, when plaintiff attempted to charge O'Connor, Ratchford, and Main with liability, the court said 'that the proximate cause of her (Mrs. Butcher's) injuries is the fact that defendant Main's car collided with the rear end of her automobile.' 401 S.W.2d l.c. 493(1). He argues 'such ruling * * * is similarly controlling in this present case.'

Butcher v. O'Connor, supra, was remanded generally for a new trial to plaintiff against defendant Main without any direction. All issues, including liability, were thus open issues because the former opinion 'became and, so far as the facts are the same, remained 'the law of the case,' but it is not as to all issues 'res adjudicata.' * * * 'The law of the case' applies where a general principle of law is declared as applicable to the facts of the case. If it is remanded generally all issues are open to consideration on a new trial. The pleadings may be amended or new and controlling facts produced. Often a second appeal presents a totally different case from that appearing on the first appeal.' Creason v. Harding, 344 Mo. 452, 126 S.W.2d 1179, 1183(1).

Appellant charges the court with error 'in rejecting the testimony of the doctors (McCall, Hogencamp, Rush, Stein, and Rosenberg) who treated Mrs. Butcher for the injuries sustained in the collision of June 18, 1960.' He contends there was no proper basis '* * * for excluding the testimony of the physicians who treated her and had personal knowledge of her injuries and physical conditions.' He cites Huffman v. Terminal Railroad Ass'n of St. Louis, Mo., 281 S.W.2d 863, 871(10, 11): 'A physician, in stating his expert opinion on a patient's condition, may testify to what the patient said (an exception to the hearsay rule) concerning his present, existing symptoms and complaints. However, he may not base his opinion upon or testify to statements of the patient with respect to past physical conditions, circumstances surrounding the injury, or the manner in which the injury was received * * *. (And where) the 'history' of pain which the doctor stated as having been related by plaintiff to him was otherwise in evidence * * * objection that 'history' of previous conditions of pain was prejudicially permitted as the basis in part of the physician's opinion must fall.'

There is, of course, no quarrel with this rule, but appellant is beyond help from it because the record fails to show sufficient foundation for the admission of evidence offered through his doctors, and the judge is not shown, therefore, to be guilty of an abuse of discretion in this respect.

The admission or exclusion of expert opinion testimony is a matter within the discretion of the trial court, Eickmann v. St. Louis Public Service Co., 363 Mo. 651, 253 S.W.2d 122, 130(1); and a doctor's opinion, like that of any expert, is in the nature of a conclusion of fact, but it must have a substantial basis in the facts actually established and it cannot be invoked to establish the facts, Craddock v. Greenberg Mercantile, Inc., Mo., 297 S.W.2d 541, 548(9).

Plaintiff was not in the car with his wife and no other witness was offered to show how she may have been injured, if so, in the collision. Mrs. Butcher did not testify in plaintiff's case prior to the offer of any of the doctors' testimony and, after closing, plaintiff reopened his case to read from Mrs. Butcher's deposition 'in view of the fact that we felt it would be better to have this testimony before the jury; otherwise there might be a reflection what her testimony would have been if we had produced her. It is limited to that.'

The reopening was, perhaps, not intended to be limited, but if the ruling was correct at the time it was made the trial court is not to be convicted of error because subsequently there was other testimony which might have resulted in the different ruling if it had been before the court when the ruling in question was made. Gough v. General Box Co., Mo., 302 S.W.2d 884, 888(6).

Dr. McCall testified that he saw Mrs. Butcher June 20, 1960, and diagnosed a cervical sprain or strain of the neck. He saw her again on June 25, 1960, and on October 7, 1960, when she was improved to the extent he discharged her. All this was in evidence. Plaintiff also asked a lengthy hypothetical question of Dr. McCall seeking his opinion that her 'injuries are etiological or causative factors in the woman's complaints.' The question contained assumptions that Mrs. Butcher was struck from the rear 'with such force as to violently jerk her head and neck backward and then forward, and that immediately following that she began to experience pains in her neck, etc.' Under the foregoing authorities the objection to the question due to lack of foundation to support the quoted assumption was properly sustained, the quoted answer was properly stricken, and the offer of the quoted answer properly denied.

Dr. Rosenberg saw Mrs. Butcher December 14, 1960, and last saw her September 27, 1962. She complained to him of pain in her neck and...