Clark v. Portman, 23465

• Decision Date: 02 April 1962
• Docket Number: No. 23465,23465
• Citation: 357 S.W.2d 728
• Parties: Vicki CLARK, Pro-Ami, Respondent, v. Harry PORTMAN, Appellant.
• Court: Missouri Court of Appeals

Page 728

357 S.W.2d 728

Vicki CLARK, Pro-Ami, Respondent, v. Harry PORTMAN, Appellant.

No. 23465.

Kansas City Court of Appeals, Missouri.

April 2, 1962.

Watson, Ess, Marshall & Enggas, Darrell L. Havener, Robert B. Olsen, Clayton Rhoads Smallcy, Kansas City, for appellant.

Michael F. Mahoney, James W. Humphrey, Jr., George T. O'Laughlin, Kuraner, Freeman, Kuraner, Oberlander & Lamkin, Kansas City, for respondent.

BROADDUS, Judge.

This is an action for damages for personal injuries. Plaintiff recovered a verdict in the sum of $10,000 and defendant has appealed.

Inasmuch as defendant does not contend that plaintiff did not make a submissible case there is no need to set forth the evidence in detail. The accident out of which this action arises occurred the evening of November 5, 1959, after dark, near the intersection of 9th & Central Streets in Kansas City, Missouri. The plaintiff was a passenger in a 1952 Plymouth automobile driven by a Miss McGonigle south on Central after a right turn from 9th Street. The McGonigle car was hit on the left front fender by the right front bumper of the defendant's Cadillac automobile, which was also going south on Central after turning left from 9th Street.

Defendant's first contention is that Instruction No. 1 given at plaintiff's request is erroneous for the reason that it failed to hypothesize facts which required a finding that the accident occurred according to plaintiff's theory and evidence. The instruction reads as follows:

'The Court instructs the jury that if you find and believe from the credible evidence that on November 5, 1959, plaintiff was riding as a passenger in a 1952 Plymouth automobile being driven by Miss Ann McGonigle and that plaintiff was at all times exercising ordinary care for her own safety, if so, and that the said Plymouth automobile made a right turn from 9th Street to go south on Central Street, and that the defendant turned his Cadillac automobile to the left from 9th Street to go south on Central and that thereafter the said Cadillac collided with the side of the left front fender of said Plymouth and that as a direct result of said collision plaintiff was injured and that prior to said collision the defendant negligently failed to exercise the highest degree of care to keep a careful and continuous lookout for vehicles in motion at and near 9th and Central and in particular the automobile in which plaintiff was riding, and defendant was thereby negligent, if you so find, and that as a direct result of such failure said collision occurred, then, if you so find, your verdict, must be in favor of plaintiff on plaintiff's petition.'

In no respect does the instruction violate the rule set forth in Hooper v. Conrad, 364 Mo. 176, 260 S.W.2d 496, the case chiefly relied upon by defendant. The instruction hypothesized the 'essential facts' as suggested by Judge Hyde in the concurring opinion in that case.

In the recent case of Asher v. Griffin, 342 S.W.2d 255, 259, the St. Louis Court of Appeals refers to the Hooper case and its predecessors, Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541, Knight v. Richey, 363 Mo. 293, 250 S.W.2d 972 and Kick v. Franklin, 342 Mo. 715, 117 S.W. 284, and says: 'The above cases are not to be construed as requiring a submission of evidentiary facts not necessary or essential to a finding upon the issue or issues specifically submitted.' (Emphasis ours.)

There is no contention by defendant that the instruction was not supported by the evidence. Defendant's position is, on the contrary, that there was more evidence as to the happening of the accident than appeared in the instruction. A party is entitled to submit instructions based upon evidence which favors his theory of the case, notwithstanding such evidence may conflict with evidence offered by the opposing party. Highfill v. Brown, 340 S.W.2d 656, 661 (Mo.Sup.).

Defendant asks 'When 'prior to said collision' did he fail to maintain a propor lookout?' Our Supreme Court announced long ago that 'it ought, therefore, be sufficient to authorize a verdict if a jury finds that a party was negligent in failing to keep a proper lookout and that such negligence resulted in a collision or damage.' Nelson v. Evans, 338 Mo. 991, 93 S.W.2d 691, 693. There can be no doubt that the duty of the defendant was to keep a careful, continuing and vigilant lookout. Therefore the requirement of the finding of causation supplies the 'when' for defendant's failure to keep a continuing lookout. McCarty v. Sebben, 331 S.W.2d 601, 603 (Mo.Sup.). We find no prejudicial error in the instruction.

Defendant next contends that the court erred in permitting plaintiff's witness, Dr. Jacobs, to state his diagnosis and give his opinion of plaintiff's condition for the reason that his diagnosis and opinion were not based solely upon her present complaints but upon her past medical history.

An examination of the transcript reveals that Dr. Jacobs repeatedly stated on both direct and cross-examination that it was not necessary to have plaintiff's past history to diagnose a post-traumatic neurosis or to form his opinion that plaintiff has permanent brain damage. At no place in his testimony did the doctor testify to, or recite the patient's account of her past history. The only complaints related by the doctor as made to him were plaintiff's complaints of her then present and existing physical sensations and mental and emotional upsets. While it is true that a doctor may neither recite the patient's past history nor testify as to a diagnosis based on such, it is equally true that a doctor may testify to a diagnosis made, or which could have been made without regard to past history. Cruce v. Mobile and Ohio R. Co., 361 Mo. 1138, 1148, 238 S.W.2d 674, 679, 680. The contention lacks merit.

Defendant's third contention is that the court erred in admitting plaintiff's evidence respecting medical expenses not paid by her, for the reason that plaintiff was an unemancipated minor and plaintiff's next friend, her mother, alone had the cause of action for such expenses.

Defendant in his brief states that he 'makes no objections to the admission of testimony by plaintiff and physicians treating her as to the portions of the fees for such treatment which the plaintiff herself has paid out of her own funds.' Defendant did not object to Dr. Feierabend's or Dr. Jacobs' statement of the future cost of medical aid or to Dr. Jacobs' statement of the cost of his treatment to the time of trial. The only expenses about which the defendant is complaining then are $73 owed to Dr. Huffman, $125 owed to Dr. Reister and $75 owed to Dr. Feierabend. Plaintiff paid $100 to Dr. Huffman and $75 to Dr. Reister.

In any event the error, if any, was harmless since in the instruction on the measure of damages the jury was not asked to award plaintiff damages for medical care and expenses.

In the case of Dent v. Springfield Traction Co., 145 Mo.App. 61, 69, 70, 129 S.W. 1044, 1047, the plaintiff pleaded that she had paid $250 for medical attention. She proved that she had only incurred liability for medical expenses in the amount of $250. The Court held that there was no error in admitting evidence of the medical expenses incurred, saying, the trial court: '* * * in giving instructions for the plaintiff, limited the recovery of damages to such sum as would reasonably compensate plaintiff for her pain and suffering, and gave no direction to the jury that they should allow any sum whatever for medicines and medical attention * * *. Under the instructions actually given to the...