Chilton v. Gorden

• Decision Date: 24 September 1997
• Docket Number: No. 21117,21117
• Citation: 952 S.W.2d 773
• Parties: Charles R. CHILTON, et ux., Plaintiffs-Appellants, v. Glada Irene GORDEN, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 773

952 S.W.2d 773

Charles R. CHILTON, et ux., Plaintiffs-Appellants, v. Glada Irene GORDEN, Defendant-Respondent.

No. 21117.

Missouri Court of Appeals,

Southern District,

Division Two.

Sept. 24, 1997.

Michael D. Holzknecht, Kansas City, for Appellant.

Jerry M. (Jay) Kirksey, Douglas, Lynch, Haun & Kirksey, P.C., Bolivar, for Respondent.

PARRISH, Judge.

Charles R. Chilton and Linda Kay Chilton, husband and wife, (collectively referred to as plaintiffs) brought a negligence action against Glada Gorden (defendant) for damages they contend resulted from an automobile accident involving vehicles driven by Mr. Chilton and defendant. Mr. Chilton sought damages for personal injuries he alleged were sustained in the accident. Mrs. Chilton sought damages for loss of consortium. At trial defendant admitted fault in causing the accident but contested plaintiffs' allegation of damages. A jury found for defendant. Judgment was entered in accordance with the verdict. This court affirms.

The accident occurred June 7, 1991. ¹ Defendant testified:

He pulled up to the stop sign and stopped. And I stopped behind him....

But I was just watching that car to my left and let my foot off the brake. My car moved forward, and it stopped. And I had never seen Mr. Chilton's big blue station wagon sitting there. I just thought that he had just pulled on around--because I guess I had my head turned enough that I just couldn't see the station wagon.

Defendant added, "And anyway, my car stopped. And I thought, what happened? And there I had hit him."

Defendant was asked, "Now, Mrs. Gorden, the accident is your fault?" She answered, "Sure. I mean--I mean, you know--I hit him from the rear end."

Mr. Chilton reported the accident to his office. Personnel there reported the accident to the park board's regional office. Mr. Chilton's supervisor directed him to go to a hospital.

After going to a Wal-Mart store, Mr. Chilton went to the hospital at Bolivar, Missouri. The doctor he saw in the hospital emergency room, Dr. Harris, was the doctor he usually consulted for medical treatment. Mr. Chilton was released from the emergency room and told to follow up with Dr. Harris as needed.

Mr. Chilton sought no further medical treatment for injuries he asserted he sustained in the accident until February 9, 1993, when he consulted Dr. Ron Smith, an orthopaedic surgeon practicing in Bolivar, Missouri. Dr. Smith described his professional affiliation as "an independent contractor under the hire of Citizens Memorial Hospital."

Mr. Chilton told Dr. Smith he had experienced numbness and tingling that radiated down his arm and over the back of his hand. He said the symptoms had persisted for a period of several months. Dr. Smith understood Mr. Chilton to mean he had experienced the symptoms "[f]rom two to six months would be an estimate, two to six--or two to seven months."

Dr. Smith was asked the following questions and gave the following answers concerning Mr. Chilton's numbness and tingling complaints:

Q. Now, Doctor, if you had been told those symptoms of numbness and tingling and the pain had been ever since August of 1991, would that be in your notes?

A. Yes.

Q. If you had been told that these symptoms were ever since an auto accident of June 7, 1991, would that be in your notes?

A. Yes.

Q. If you had been told that the symptoms that were described to you began a year before he had seen you, around February of '92 or whatever, would that be in your notes?

A. Yes.

Q. Okay. Is that in your notes somewhere?

A. No.

Dr. Smith was asked what Mr. Chilton told him concerning trauma. He answered, "I indicated that he had no specific trauma to the head, neck or shoulder region."

On April 6, 1993, Mr. Chilton consulted Dr. Thomas Habiger, a neurologist practicing in Springfield, Missouri. Mr. Chilton had been referred to Dr. Habiger by Dr. Smith.

Dr. Habiger testified at trial by videotaped deposition. He explained the reason for the referral:

The gentleman was having problems with his arm and shoulder and neck, basically pain and some sensory complaints, and Dr. Smith was concerned that he may have a radiculopathy; which is a term we use when a nerve is being compressed or irritated and it causes a certain specific set of complaints. And Dr. Ron Smith doesn't do spine work, so when he develops--when he has patients that don't seem to respond to conservative management he refers them on to neurology, like myself, to evaluate the patient.

Dr. Habiger was asked what Mr. Chilton told him concerning his discomfort. He answered:

Well, he talked about the fact that he was having problems with his right arm and shoulder and neck, and that he had been involved in a motor vehicle accident. I think we listed it here as a year ago from the time of the accident. He was rear-ended and suffered some complaints that took him to the emergency room at Citizens Memorial. He seemed to have some improvement, but then four or five months prior to an evaluation he began noticing increasing or noticing paresthesia into his right hand and arm; and then a few months ago he noted a more significant amount of pain and the problems with feelings of weakness in the arm.

Mr. Chilton told Dr. Habiger he had no previous history of injury or neck or arm problems, but that he did have a history of low back problems with surgery in 1980. Dr. Habiger concluded, "At the time of his examination, his history and exam most likely fit a C7 radiculopathy." He recommended physical therapy and prescribed anti-inflammatory medication.

Dr. Habiger explained, "There was an initial EMG that we did.... The EMG was something that was not grossly positive. In other words, it didn't show a lot of nerve damage at that time which is another thing that sort of led me away from doing a more invasive diagnostic procedure and into doing a more conservative management program." Mr. Chilton was told to contact Dr. Habiger again if he got worse or had no response to the treatment that was prescribed.

Mr. Chilton returned to Dr. Habiger's office May 3, 1993. He reported that he continued to experience pain and his arm remained weak. Dr. Habiger undertook additional diagnostic procedures. He had Mr. Chilton undergo a cervical myelogram and follow-up CT Scan. Dr. Habiger diagnosed Mr. Chilton's ailment as a herniated disc. He referred Mr. Chilton to a neurosurgeon, Dr. Crabtree.

Dr. Crabtree first saw Mr. Chilton May 18, 1993. He reviewed the test results Dr. Habiger had obtained and agreed with the diagnosis of disc herniation. On May 20, 1993, Dr. Crabtree surgically repaired the herniated disc.

Plaintiffs' first allegation of trial court error is directed to defendant's use of transcripts of statements of two of plaintiffs' witnesses, Clay Meyer and Perry Legg, to impeach their testimony. Plaintiffs contend they requested production of the transcripts defendant used; that the trial court erred in not ordering defendant to produce complete transcripts of those statements for plaintiffs.

During cross-examination of both Mr. Meyer and Mr. Legg, defendant's attorney referred to a prior conversation he had with each of them. He showed each of them what was represented as being a transcript of his conversation with the witness. Each witness acknowledged in considerable detail that the statements they previously made, unlike their testimony at trial, were to the effect that Mr. Chilton did not demonstrate symptoms of discomfort in 1991 after the June 7 accident; that Mr. Chilton indicated to them that he was experiencing numbness and pain in his arm sometime in 1992. The witnesses acknowledged that the statements revealed by the transcripts the attorney showed them were different from the answers they gave on direct examination at trial.

Mr. Meyer, a highway patrolman who was a personal friend with whom Mr. Chilton frequently fished, acknowledged having been asked if he talked to Mr. Chilton shortly after the accident; that Mr. Meyer told defendant's attorney, "Well, he mentioned it to me, yes, he was involved in a wreck."

Mr. Meyer was asked, "So when I asked you later on: And if I'm hearing you correctly, the substance of Mr. Chilton's reply to your inquiry was he was okay." Mr. Meyer answered, "Yes."

Plaintiffs contend that they requested defendant's attorney to produce complete transcripts of the statements he obtained from Mr. Meyer and Mr. Legg, and that they requested the trial court to order production after defendant's attorney refused to voluntarily produce the transcripts. The record does not reveal either request.

Defendant's attorney does not agree with plaintiffs' version of what occurred. He claims plaintiffs never asked for a transcript of Mr. Legg's statement; that the only request was for Mr. Meyer's statement. Defendant's attorney contends a request for the transcript of Mr. Meyer's statement was made, off the record, during a lunch break after Mr. Meyer's testimony and the testimony of another witness had been completed.

Plaintiffs' claims and defendant's dispute of them are presented in their briefs. They are not supported by events included in the record on appeal. "The record on appeal must contain all of the record, proceedings, and evidence necessary to the determination of all questions to be presented to the appellate court for decision." In re Marriage of Osborne, 895 S.W.2d 285, 288 (Mo.App.1995). Except where conceded as true by the opposing party, statements asserted in a party's brief that are not supported by the record on appeal supply no basis for appellate review. Nenninger v. Dept. of Social Services, 898 S.W.2d 112, 117 (Mo.App.1995); In re Marriage of Osborne, supra, at 289.

Plaintiffs attempted to circumvent the lack of record supporting their claim by having caused a verbatim record to be made of the argument of the motion for new trial and verbal dialogue between counsel and the trial court during the course of that argument. They point to...