Cobb v. Cosby
| Decision Date | 17 January 1967 |
| Docket Number | No. 32333,32333 |
| Parties | Nide COBB, Jr., Plaintiff-Respondent, v. Robert Earl COSBY, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Eaker, Dempsey & Dempsey, Lloyd E. Eaker and Robert W. Henry, Clayton, for appellant.
Mogab & Hughes, Richard L. Hughes, St. Louis, for respondent.
TOWNSEND, Commissioner.
In this rear-end collision action, plaintiff sues for damages in two counts. Count I alleges personal injuries and diminution in the value of his automobile. Count II grounds his claim upon medical bills incurred in the treatment of his wife and upon loss of consortium. He prays for judgment of $5000 under each count. The wife is not a party to the action and did not appear as a witness.
At the trial the plaintiff testified as to the nature of his personal injuries and as to his pain, starting the day after the collision and continuing sporadically up to the time of trial. He is no longer able to carry paper in boxes, a part of his employment duties, as he did before the accident, because of pain in the lower part of his back. He cannot run or jump 'like I used to * * * the lower part of my back starts hurting.' If he stands or sits in one position for a long time his legs have a tendency to get numb. He testified also regarding the loss suffered in the wrecking of his car resultant upon the collision. Plaintiff's attending physician gave testimony as to his examination of plaintiff, the character of the latter's injuries, his diagnosis and treatment of plaintiff and his professional charges therefor. Five days after his first examination, plaintiff was again examined by his physician; at that time he complained of low back pain and he had a sciatic radiation down both legs to the knee. The physical findings 'revealed sprain and contusions of the cervical and lumbar spine, traumatic and recent.' Two days before trial the doctor found that plaintiff had limited full flexion in bending and there was limitation of motion in straight leg raising. These limitations and pain in the low back were consistent with the trauma reported to the physician upon the first examination almost two years before. Counsel then queried: '* * * do you have an opinion with reasonable medical certainty whether or not Mr. Cobb's present condition, lumbar sprain, is a permanent condition because the back pain has persisted on a steady basis?' Answer: 'Particularly for that reason, it will be two years in May, I will have to assume that it is permanent.'
Plaintiff gave testimony regarding the circumstances of the collision and the consequent conveyance by ambulance of his wife and children to the hospital where they were examined (although plaintiff was not); in a short time--'about an hour or longer'--they were released and allowed to go home. Charges by the hospital totalled $78. The next day his wife 'complained of her neck and her back and her shoulders'. On the second day after the collision both husband and wife went to their doctor's office where both were examined. The court sustained objections to questions put to plaintiff relating to his wife's injuries as it later did to questions put to the physician regarding the wife's complaints and his diagnosis of her condition. However the physician was permitted to testify to the number of times (thirteen) he had seen the wife 'in relation to the accident', his professional fees for her visits including charges for X-rays and his opinion that 'there was a causal relationship between the rear end collision and her condition.' The only evidence offered on the loss of services was plaintiff's testimony that his wife was not able to do the wash by herself as before the collision and that he now helped her with the laundry. Plaintiff's wife was about four months pregnant at the time of the collision and was delivered without difficulty.
At a conference between counsel and Court in chambers, the Court dictated into the record:
The Court gave the verdict directing rear-end collision instruction as found in MAI 17.16 and the general damage instruction, MAI 4.01. Instruction No. 7 embodied MAI 32.02, modified; under Forms of Verdict it read:
'If all of you agree upon a verdict for plaintiff, it may be in the following form:
'We, the jury, find the issues in favor of the plaintiff and assess plaintiff's damages as follows:
For personal injuries $_ _ (here insert the amount or if none write the word 'none').
For property damages $_ _ (here insert the amount or if none write the word 'none').
For loss of services of his wife and medical expenses incurred by him in her behalf $_ _ (here insert the amount or if none write the word 'none').' * * *
THESE FORMS ARE GIVEN FOR GUIDANCE ONLY AND YOUR VERDICT SHOULD BE WRITTEN ON A SEPARATE PAPER, AND NOT ON ONE OF THESE INSTRUCTIONS.'
The jury returned the following verdict:
'We, the Jury, find the issues in favor of the plaintiff and assess the plaintiff's damages to the extent of $2500.00;
Upon appeal, the defendant contends that the giving of Instruction No. 7 was error in that there was no evidence to support the items of loss of wife's services and of her medical expenses and that in any event the judgment cannot be sustained because the verdict did not state the amount awarded for plaintiff's injuries, or the amount for his property damage or the amount for loss of consortium, all matters appropriately preserved by defendant's motion for a new trial.
Defendant's complaint that there was no evidence which justified submission under Count II of the petition cannot be sustained. Clearly the evidence under this head was scanty but as to medical expenses it was quite definite. Insofar as loss of services and medical expenses were lumped together as one item under Instruction No. 7, defendant is precluded from complaining now about such a combination because he acquiesced in the use of that form.
The chief complaint of defendant relates to the failure of the verdict to conform to the requirements of Supreme Court Rule 71.06. That rule provides:
'When both damages for personal injuries and damages to property are allowed by the jury, the verdict shall state separately the amount allowed...
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