Chaussard v. Kansas City Southern R. Co., 26862
| Decision Date | 29 March 1976 |
| Docket Number | No. 26862,26862 |
| Parties | Roger Dale CHAUSSARD and Judy A. Chaussard, Respondents, v. The KANSAS CITY SOUTHERN RAILWAY COMPANY, a corporation, Appellant. |
| Court | Missouri Court of Appeals |
Robert D. Youle, William C. Hopkins II, Kansas City (Lathrop, Koontz, Righter, Clagett, Parker & Norquist, Kansas City, of counsel), for appellant.
Michael J. Albano, Graham, Paden, Welch, Martin & Tittle, Independence, for respondents.
Before TURNAGE, P.J., and WELBORN and HIGGINS, Special Judges.
Appeal from verdicts and judgments of $100,000 for Roger Chaussard for personal injuries and of $25,000 for Judy Chaussard for loss of consortium. The questions are whether the court erred: in admitting Roger's testimony and plaintiffs' exhibits on his future wage loss; in excluding defendant's exhibits on Roger's prospects for future gainful employment; in admitting testimony and an exhibit showing medical and hospital bills paid by Roger's employer for his medical care; and in giving Instructions 7 and 8 on plaintiffs' damages. Affirmed.
Appellant 'make(s) no point upon this appeal that plaintiffs failed to make a submissible case.'
The injury occurred January 7, 1971, at about 10:15 p.m., when Roger Dale Chaussard, operating a fork lift or tow-motor power vehicle, was upon and unloading logs from a railroad flatcar spotted at the roofing plant of his employer, GAF Corporation. Kansas City Southern Railway was then engaged in switching at the GAF plant, and was shoving several cars in front of an engine toward the dead end of the siding track. The flatcar upon which Roger was working was located with its north end about six feet from the bumping post at the end of the siding. Several coupled cars were to the south of the flatcar, and another car was situated to the south of them. This separate car was empty and waiting to be pulled. The string of cars coupled to the engine was shoved against it; the intended coupling failed, and the car rolled to the north and bumped the coupled cars. The flatcar upon which Roger was working was moved between three and fifteen feet according to various estimates. Roger had just placed his fork lift under a load of wood. He flew back against the seat on impact. The flatcar was driven forward into the stopper post and he hit his head on the hoist of his fork lift. The latter action drove the flatcar back again. Roger climbed down from the fork lift and leaned against a bale of paper to avoid falling. When able, he walked to the office and reported the accident. He then left the plant and drove to the Independence Sanitarium and Hospital, stopping once on the way due to pain and illness.
On October 29, 1964, Roger was injured in an explosion of a tar vat at GAF which caused severe burns over much of his head, neck, shoulders, and arms. At the time of injury he also fell a distance of six feet from a ladder or platform. He was hospitalized from time to time during the next five months for treatment of his burns. He suffered also from a severe and chronic back sprain. He was off work for a year, and was rated by Dr. H. B. Overesch to have fifteen per cent permanent disability of the body as a whole. He continued to have discomfort in his back if he worked two consecutive shifts.
On May 15, 1967, Roger was in an automobile accident and suffered a ruptured disc at L4--5 (right) for which he was operated. He was hospitalized from June 26 to July 11, 1967, was off work for four months, and missed some work during the following year. After returning to work he continued to have some back pain but became progressively better.
In April, 1968, Roger received an injury at GAF which resulted in a back sprain and stiff and aching right leg. He did not lose much work time from this injury but wore a back support and shoe life temporarily.
About November 29, 1970, Roger took a fall from a motorcycle after which he suffered from headaches for which he was hospitalized from December 8 to December 15, 1970. He was then off work for two weeks and, upon his return to work, experienced no physical problems as a result of the fall.
From some time in 1969 until the accident of January 7, 1971, Roger performed heavy physical labor, missed no work due to back problems, and was relatively pain free.
Following the occurrence of January 7, 1971, Roger was examined at the Independence Sanitarium and was given medication for pain. He was hospitalized at St. Joseph's Hospital from January 9 through January 23, 1971. He was again hospitalized from February 17 through February 27, 1971, with diagnosis of and operation for disc extrusion at L4--5 (left). He had a normal recovery. Due to financial pressures he returned to work in June, 1971, and performed a job which was not heavy work as he had done previously. He was unable to perform some duties, could not accept overtime, and changed to a less strenuous job. His back continued to bother him.
On November 22, 1971, at GAF, Roger lifted a butane tank and felt sudden back pain. He was hospitalized at St. Joseph's Hospital from November 23 through December 10, 1971, from January 16 through January 20, 1972, and from February 15 through February 26, 1972. On December 2, 1971, he had a third disc operation at L4--5, including a spinal fusion at that site. He progressed well for several weeks, after which there were persistent medical problems and complaints; body jackets were applied on two occasions. He continued to time of trial with complaints, including constant pain for which drugs were taken to the extent of addiction. He did not return to work at GAF.
Dr. Capbell C. McCullough, Jr., an orthopedic specialist, performed the three operations on Roger's back at L4--5. In his opinion, Roger's injuries from the January 7, 1971, KCS switching operation contributed to cause the injury of November 22, 1971, and the problems subsequent to that injury; the November, 1971, injury was 'the straw that broke the camel's back.' Dr. Arnold Schoolman, a neurosurgeon who examined and tested Roger following his January, 1971, injury, expressed the same opinion, and both doctors were of the opinion that Roger was totally and permanently disabled from heavy, physical work.
Roger had an interest in motorcycles, hunting, and fishing. Since his injuries, he has ridden on but one occasion in the block near his home. He has gone hunting rarely and has found it necessary to limit his walking. He has tried bicycle riding and swimming as prescribed therapy during which he continues to experience pain.
Judy Chaussard described her husband's back problems, saying he could no longer lift a sack of groceries, move furniture, or mow the lawn. These limitations were confirmed by two neighbors.
Henry Smith, personnel director at GAF, testified to Roger's work, earnings, and loss of time from the January accident, and identified Exhibits P--32 and P--34, payroll records showing such matters. He also identified P--31 as a file of bills for hospital care and doctors' services for Roger from January, 1971, forward, which, according to Ann Trantham, totaled $7,887.17. Such testimony and Exhibit P--31 were received over defendant's objection.
Roger Dale Chaussard testified to his loss of earnings and identified Exhibits P--23 and P--24 which illustrated his future wage loss calculation as a result of the accident of $264,914.40. Such testimony and Exhibits P--23 and P--24 were received over defendant's objection.
Roger had an interest in learning a home entertainment system trade. He completed half of a 52-week course in 1969 and 1970 at the Electronics Institute. He attended the same trade school from October, 1972, to time of trial, and would graduate in July, 1973, if he completed the course. His grades ranged from A's to C's. He knew the school had placed some of its graduates, but was not at all confident he could find a job in this trade. Glenn Farmer of the Institute testified to Roger's former and current stint as a student at the Institute. He identified Exhibits D--20 and D--21, records of the Institute, and offered in connection with them to testify with respect to Roger's prospects for employment in the field of electronics. Such testimony and exhibits were refused upon plaintiffs' objection that the exhibits were immaterial and irrelevant and that the testimony was speculative.
Dr. William Medlicott, an orthopedic surgeon, examined Roger on behalf of defendant, gave his findings, and expressed his opinion that Roger could return to his work at GAF.
Plaintiffs' damages were submitted by:
'If you find the issues in favor of plaintiff, Roger Chaussard, then you must award the plaintiff such sum as you believe will fairly and justly compensate such plaintiff for any damages you believe he sustained and is reasonably certain to sustain in the future as a direct result of the occurrence of January 7, 1971, and such damages as you believe he sustained in the occurrence of November 22, 1971, if you believe such injuries were either caused or contributed to by the injuries sustained in the occurrence of January 7, 1971.'
'If you find the issues in favor of plaintiff, Judy Chaussard, then you must award her such sum as you believe will fairly and justly compensate her for any damages you believe she sustained as a direct result of the injuries sustained by Roger Chaussard in the occurrence of January 7, 1971, and such damage as you believe she will sustain for the injuries to plaintiff Roger Chaussard in the occurrence of November 22, 1971, if you believe such injuries were either caused or contributed to by the injuries sustained in the occurrence of January 7, 1971.'
Appellant contends (IA) that the court erred in admitting Roger's testimony and Exhibits P--23 and P--24 on his...
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