Chapman v. King

• Decision Date: 28 October 1965
• Docket Number: No. 8460,8460
• Citation: 396 S.W.2d 29
• Parties: Wilma CHAPMAN, Plaintiff-Appellant, v. Mason H. KING, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 29

396 S.W.2d 29

Wilma CHAPMAN, Plaintiff-Appellant, v. Mason H. KING, Defendant-Respondent.

No. 8460.

Springfield Court of Appeals, Missouri.

Oct. 28, 1965.

A. L. Shortridge, Joplin, for plaintiff-appellant.

Robert E. Seiler, Karl W. Blanchard, Joplin, for defendant-respondent. Seiler, Blanchard & Van Fleet, Joplin, of counsel.

STONE, Judge.

In this jury-tried damage suit for personal injuries resulting from a vehicular collision, plaintiff Mrs. Wilma Chapman had judgment for $500 against defendant Mrs. Mason H. King. On this appeal by plaintiff, her complaints are that the verdict 'was so grossly inadequate as to indicate bias and prejudice of the jury,' that the trial court abused his discretion in refusing to grant plaintiff a new trial on the ground of newly-discovered evidence, and that the court erred in giving defendant's instructions 8, 9 and 10.

The transcript on appeal, as it came to us, raised a question as to our appellate jurisdiction, for the prayer of plaintiff's petition was for damages in the sum of $25,000 and she had judgment for $500. Thus, on the face of the record, our Supreme Court would have been vested with exclusive appellate jurisdiction [Art. V, Sec. 3, Const. of 1945; V.A.M.S. Sec. 477.040] under the general rule that, in the absence of 'exceptional circumstances' [Glore v. Bone, Mo., 324 S.W.2d 633, 634; Combs v. Combs, Mo., 284 S.W.2d 423, 424] such as those which we discussed in Mitchell v. Mosher, Mo.App., 352 S.W.2d 932, the amount in dispute where plaintiff appeals from an allegedly inadequate judgment is the difference between the amount prayed for and the amount of the judgment. Miller v. Harner, Mo., 373 S.W.2d 941, 942(1); Mitchell v. Mosher, Mo., 362 S.W.2d 532, 533(1); Rossomanno v. Laclede Cab Co., Mo. (banc), 328 S.W.2d 677, 679(1). However, in the jurisdictional statement in plaintiff's brief, we were told that 'the amount in dispute is less than $15,000'; and, at the time of submission, plaintiff's counsel stated that his client's claim was limited to $15,000 and, by leave of court and consent of opposing counsel, the prayer of plaintiff's petition was reduced to $15,000. In these circumstances, the amount in dispute is $14,500 and we have appellate jurisdiction. V.A.M.S. Sec. 477.040; Fowler v. Terminal R. Ass'n., Mo., 363 S.W.2d 672, 674-675(5, 6); Davis v. Hilton, Mo.App., 366 S.W.2d 501(1); Davis v. Ball, Mo.App., 271 S.W.2d 605. See Feste v. Newman, Mo. (banc), 368 S.W.2d 713, 715-716(6, 7); Heuer v. Ulmer, Mo., 273 S.W.2d 169.

The collision under consideration occurred shortly before 3:00 P.M. on Tuesday, December 18, 1962, in Joplin, Missouri, at the intersection of 22nd Street, a paved east-and-west street 34 feet in width, and Sergeant Avenue, a paved north-and-south street 30 feet in width. 22nd Street is designated by ordinance as a 'right-of-way street'; and, on the northwest corner of the intersection of 22nd and Sergeant (hereinafter referred to as the intersection), there is a triangular sign bearing the single word 'yield,' facing toward and directed to southbound traffic on Sergeant. Plaintiff, alone in a 1956 Plymouth two-door sedan, was eastbound on 22nd Street en route to a junior high school to pick up her two daughters and take them to a 3:00 P.M. dental appointment. Defendant, likewise alone in a 1959 Mercury four-door station wagon, was southbound on Sergeant en route to a 3:30 P.M. medical appointment. Both drivers were familiar with the intersection. The weather was good and the pavement was dry.

As is usually the case, plaintiff and defendant (the only two witnesses as to the collision) did not view the occurrence through the same glass. Plaintiff's version was that, eastbound at a speed of 15 to 20 miles per hour, she had been 'about one or two car lengths from the intersection' (she estimated a car length at 18 feet) when she first had seen defendant's southbound station wagon approaching the intersection at a speed of 20 to 25 miles per hour; that, as the front end of plaintiff's automobile 'was going into the intersection,' the front end of defendant's station wagon 'was about one car length from [north of] the intersection'; that she had continued to watch the station wagon without changing her course or speed--'I had the right-of-way, that's what--I expected her to slow down'; that plaintiff first had recognized that there was danger of a collision 'after I got out into the intersection about half a car length . . . I realized she [defendant] wasn't going to stop'; but that it then had been too late for plaintiff to avoid the accident so she had continued forward on the same course and at the same speed to the point of impact in the southeast quadrant of the intersection.

Defendant's account was that she had stopped before entering the intersection, 'back from the yield sign a little'; that she had looked to her right or to the west and had seen plaintiff's automobile on 22nd Street more than one-half block west of the intersection, eastbound 'at a moderate rate of speed, [so] that I could have gotten across [22nd] street'; that she then had looked to her left or to the east and had observed a westbound automobile on 22nd Street more than one-half block from the intersection; that she had started forward, thinking that she had 'plenty of time to get across'; but that, as she had moved into the intersection, she had looked to the west again and then had discovered that plaintiff 'had speeded up and was approaching the intersection,' whereupon defendant had applied the brakes on her station wagon but not in time to avoid the accident.

The front end of defendant's southbound station wagon struck the rear half of the left side of plaintiff's eastbound automobile. As a result of the impact, the rear end of plaintiff's automobile was pushed in a counter-clockwise direction and the automobile came to rest, headed north, with the right rear wheel on the curb at the southeast corner of the intersection. Plaintiff (so she said upon trial) was thrown 'against the right-hand door.' Defendant's station wagon stopped in the intersection.

Policeman Bottenfield, who investigated the accident, testified that neither driver had claimed any injury. Before she got out of the automobile, plaintiff admittedly told defendant that she did not think that she was injured; but, when she alighted, a small cut and a bruise on one knee were observed. After a passing motorist had driven her home, plaintiff took a taxicab to the office of L. H. McPike, M.D., her 'family doctor.' Dr. McPike, called as a witness for defendant, stated that plaintiff's only complaints on the day of accident were that 'she was having pain with both knees and her left leg.' He 'cleaned up and dressed . . . lacerations of both knees and . . . a little laceration of the left leg' and then directed plaintiff to a radiologist in another building for X-rays of her knees and left leg, the only 'involved portions of the anatomy.' After the X-rays, she walked six blocks to her home.

Plaintiff made eight visits to the office of Dr. McPike during the period from December 18, 1962, the date of accident, to February 7, 1963. On the second visit, to wit, on December 20, 1962, plaintiff 'complained of some soreness in her left wrist.' On the sixth visit, to wit, on January 25, 1963, she complained for the first time of 'pain in her neck'; but, on the seventh visit, to wit, on February 1, 1963, there was 'no pain in neck.' On the eighth visit, to wit, on February 7, 1963, Dr. McPike 'thought she was well' and dismissed her. Dr. McPike's treatments consisted of 'some muscle relaxants and ultrasonic.' During the entire period she was under the care of Dr. McPike, plaintiff made no complaint to him about her back--'I had so many other things that I didn't,' notwithstanding the fact that (so she insisted upon trial) she had experienced pain in her back continuously during that period of care and subsequently to the time of trial.

After dismissal by Dr. McPike, plaintiff took an undisclosed number of treatments by R. W. Davis, D. C. He was not called as a witness, although plaintiff had talked with him on the day before trial and plaintiff's counsel stated during trial that he was available.

Plaintiff's only medical witness was B. E. DeTar, Jr., M.D., a general surgeon who had examined plaintiff on June 30 and August 5, 1964, but had neither administered nor recommended any treatment. Dr. DeTar found no loss of motion or muscle spasm in plaintiff's back, neck or left knee, although, as 'a matter of judgment' grudgingly conceded to have been predicated upon subjective complaints of pain, he did report areas of tenderness in those regions. Plaintiff's counsel here places primary emphasis upon Dr. DeTar's findings of (1) 'two little areas of spur formation which is an indication of a form of arthritis' in the lumbar back, at 'the fourth lumbar vertebra principally and then the third lumbar vertebra secondarily,' and (2) a 'very tiny' bit of arthritis between the sixth cervical and seventh cervical vertebrae--so 'tiny' that the radiologist did not report it and that Dr. DeTar did not discover it until he was 'reviewing these [X-ray] films and getting ready for today.' The arthritis found by Dr. DeTar 'is the type that is associated either with injury or just ordinary wear and tear and aging of the bones' or, in other words, is either traumatic or developmental. In the doctor's language, 'all you can say is, there is a general indication there might have been some trauma that produced that.' In answer to a long hypothetical question including (among others) the important assumption that, prior to the accident of December 18, 1962, plaintiff 'had never had any pain in her back or neck . . . and that ever since that date she has been having this pain in her neck, left knee and back, the lower back,' Dr. DeTar expressed the opinion that the accident described to him 'could result in the...