Conlon v. Roeder
| Decision Date | 11 September 1967 |
| Docket Number | No. 52330,No. 1,52330,1 |
| Citation | 418 S.W.2d 152 |
| Parties | Maureen CONLON, a Minor, by Mary Ann Conlon, Her Next Friend, Respondent, v. Mae ROEDER, Appellant |
| Court | Missouri Supreme Court |
Padberg & Raack, Godfrey P. Padberg, St. Louis, for respondent.
Derrick & Holderle, St. Louis, for appellant.
HIGGINS, Commissioner.
Maureen Conlon, age 6, was injured August 16, 1962, in a collision between a 1959 Chevrolet operated by her great aunt, Mae Roeder, and a tractor-trailer unit owned and operated by Atlas Electric Company. Trial March 14--16, 1966, resulted in a directed verdict for Altas Electric Company and verdict and judgment for plaintiff for $16,000 damages against Mae Roeder.
At the time of collision Mrs. Roeder was taking her grandnieces, Maureen and Jean Conlon, to their home after visiting her over the weekend. Jean was in the front seat; Maureen was in the rear. Mrs. Roeder was northbound on Halls Ferry Road in St. Louis County, Missouri, intending to turn left into Highway 140. The Atlas tractor-trailer unit was eastbound on 140 approaching the intersection from Mrs. Roeder's left. There was a stop sign controlling traffic on Halls Ferry Road crossing or entering Highway 140. Mrs. Roeder, driving about 40 miles per hour, did not remember stopping for the stop sign or looking to her left as she approached before entering 140, and she never saw the truck prior to the collision. The tractor-trailer struck the Chevrolet at the rear door on the driver's side, causing the Chevrolet to spin around and come to rest at the northwest corner of the intersection with its rear upon the curb.
The Atlas driver died prior to trial. Plaintiff was 10 years old at trial and she could not remember anything about the accident except sitting in a chair in a filling station at the scene.
Mrs. Roeder testified that Maureen was thrown from the car to the pavement when the car spun around. When the car came to a stop she went to Maureen and picked her up. She was 'covered by blood.' Plaintiff's mother first saw her sitting in the filling station.
Plaintiff, accompanied by her mother and defendant, was taken by ambulance to St. Louis County Hospital. Its record, among other things, stated:
'History As below. ? unconscious
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'P.E. Lac malas area--deep extending into nasal
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cavity 1 1/2" Lac. eyelid
'Diagnosis ' ' ' '
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'Treatment Transferred to Barnes Hosp. Dr. M. Fryer.'
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At Barnes emergency room Dr. Minot P. Fryer, a specialist in plastic surgery, closed plaintiff's wounds. The mother counted approximately 40 stitches in the check laceration and the same number in the eyelid laceration. Dr. Fryer later removed the stitches and saw plaintiff some five times following the accident at six-month intervals. He described the cheek injury at trial at a transverse laceration of the left cheek extending into the ala or corner of the nose. It measured 2 1/2 in length by 1/8 in width. The scar was deep and extended down into the fat of plaintiff's face. The eyelid scar measured 10 millimeters by one millimeter and was visible when the eyelid was closed. Dr. Fryer felt that the cheek scar could be improved by a revision which would require cutting and removing the deepest scar and approximating the edges together for a finer scar. This surgery would require four or five days' hospitalization. Both scars are permanent. The larger scar is redder than surrounding skin and is more noticeable with summer tanning. The discoloration probably will persist and revision will not change the length of the scar.
On July 23, 1963, while at home standing next to her mother, plaintiff had an experience in which A neighbor, Jean Backowski, witnessed this incident. According to her, Maureen stood by her mother and was twitching and her eyes 'went back in her head. * * * when we got to her on the floor, you know, she was still sort of unconscious.'
In February, 1964, Peter T. Conlon, Jr., plaintiff's father, heard Jean Conlon scream that Maureen had fainted,
Maureen had never fainted prior to the accident, and had been an 'easy-going' happy child. Following the accident she went to first grade and did well, but in the second grade she changed, complained of dizziness, stayed home from school, and became difficult. Prior to the accident she enjoyed swimming; after the accident she became afraid of water.
Dr. David Mendelson, a neurologist, saw plaintiff February 25, 1964, upon referral by plaintiff's pediatrician, Dr. Ebel. Dr. Mendelson obtained history and complaints from plaintiff's mother, examined plaintiff, and ordered X rays and an electroencephalogram. The tracing 'demonstrated a mild, abnormal, slow EEG which I thought, in view of her clinical history, may relate to the convulsive basis for the child's complaints.' A second EEG tracing made September 17, 1965, was normal.
Dr. Mendelson testified that convulsive disorders can be caused by trauma and that it is not unusual to have a period of eleven months (from August 16, 1962, to July 23, 1963) between the trauma and initial faint. In response to hypothetical questions, he gave an opinion based upon a reasonable degree of medical certainty that plaintiff 'had some type of convulsive disorder directly related to the injury experienced' in the collision of August 1962. On cross-examination he stated this conclusion to be based on 'reasonable probability.' On cross-examination Dr. Mendelson also stated that in addition to the hypothesis given, he was aware that plaintiff had been in an accident in which she was thrown from a car and received injuries to her head. He also considered a history of being unconscious following the accident and concluded from that also that plaintiff had received a blow to her head. He stated that one is not rendered unconscious from a blow other than to the head. He wrote in his report that in his opinion plaintiff had experienced a cerebral concussion, which term described the effects on the brain of a blow to the head.
Dr. Fryer 'didn't make a note of it at the time, but I do know she was examined for head injury' while in emergency at Barnes Hospital. He testified that plaintiff 'could have a severe brain injury, and it might not be anything visible,' and Dr. Mendelson stated that 'one can receive a fatal blow to the head without any external evidence.'
At the conclusion of Dr. Mendelson's testimony, defendant moved to strike the testimony and, at the conclusion of all the evidence, requested Instruction A, refused by the court, which would have withdrawn any issue of brain damage from the jury. Appellant contends (Point II) that the court erred in refusing her motion to strike because Dr. Mendelson failed 'to connect the fainting spells or convulsive seizures with any injury the plaintiff sustained,' and (Point I) that the court erred in refusing Instruction A because Dr. Mendelson 'failed to connect the brain damage with any injury sustained by the plaintiff on August 16, 1962, and his opinion as to brain damage was based on the fact that plaintiff sustained a blow to the top of the head followed by a period of unconsciousness, which facts are not supported by the evidence.'
Appellant's argument is that the hypothetical question giving rise to Dr. Mendelson's opinion that plaintiff sustained brain damage as a result of the accident submitted only the facts of two fainting spells or seizures; that he admitted considering other factors such as the accident, and that the plaintiff had sustained a blow to the top of the head accompanied by a period of unconsciousness; that if there had been no blow to the head or unconsciousness, his opinion would have been different; and that there was no credible evidence of the blow or unconsciousness. Appellant cautions that an 'expert's opinion must not be a mere guess or conjecture but must be based upon facts and adequate data, and the opinion must (be) * * * supported by competent evidence,' Harp v. Illinois Central Railroad Co., Mo., 370 S.W.2d 387, 391(2); that the facts upon which such an opinion is based must measure up to legal requirements of substantiality and probative force and cannot be based on unproven assumption. Craddock v. Greenberg Mercantile, Mo., 297 S.W.2d 541, 548(11, 12); Gaddy v. Skelly Oil Co., 364 Mo. 143, 259 S.W.2d 844, 849(11); that 'where the opinion (of a physician) is based partly on the facts in evidence and partly on facts related by the patient to the doctor which are not in...
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