Davis v. Ball

• Citation: 271 S.W.2d 605
• Decision Date: 04 October 1954
• Docket Number: No. 22114,22114
• Parties: James N. DAVIS, Respondent, v. M. R. BALL, Appellant.
• Court: Missouri Court of Appeals

Page 605

271 S.W.2d 605

James N. DAVIS, Respondent, v. M. R. BALL, Appellant.

No. 22114.

Kansas City Court of Appeals, Missouri.

Oct. 4, 1954.

Barkley M. Brock, Clinton, E. E. Thompson, Sam, Mandell, Kansas City, Popham, Thompson, Popham, Mandell, Trusty & Green, Kansas City, of counsel, for appellant.

Delton L. Houtchens and Vance Julian, Clinton, for respondent.

DEW, Judge.

Plaintiff in this case sued to recover damages for injuries to person and property growing out of a collision with defendant's truck on Missouri Highway 13 on February 29, 1952. Plaintiff received a verdict and judgment for $10,000. Defendant appealed to the Supreme Court of Missouri.

This court was advised by counsel at the oral argument of this appeal that when the appeal was called for oral argument in the Supreme Court, appellant's counsel announced that appellant's only contention on appeal was the excessiveness of the verdict, whereupon that court inquired how much the verdict was claimed to be excessive, to which appellant's counsel replied that about half of it was excessive, and that thereupon the court ordered the appeal transferred to this court. On January 20, 1954, the mandate was issued to the effect that it was 'not affirmatively shown that the amount in dispute exceeds the sum of Seven Thousand, Five Hundred Dollars ($7,500.00) exclusive of costs', and ordering the appeal transferred to this court. Defendant in his brief, although claiming that the verdict was the result of bias and prejudice because grossly excessive, and 'probably more than twice what it should have been had there been proof of causal connection and permanence', does not ask that the judgment be reversed or the cause remanded but that the judgment be reduced.

At the outset of defendant's statement of the facts in his brief, he states: 'We concede that plaintiff made a submissible case on negligence and we make no attack upon his instructions. Our contentions on this appeal are that there was no evidence supporting plaintiff's claims of aggravation, or his claims of permanency, and we contend that plaintiff's verdict of $10,000 is excessive, and so excessive as to establish bias and prejudice on the part of the jury in favor of the plaintiff and against defendant, and to establish that it was based upon bias, prejudice, passion and sympathy on the part of the jury in favor of plaintiff and against the defendant.'

Referring to the defendant's Statement of Facts plaintiff in his brief states: 'Respondent feels that appellant has made a rather exhaustive statement of the case and we can accept this statement as far as it goes but we feel that appellant has not mentioned some evidence which is necessary for a fair evaluation of the evidence. In order not to repeat matters covered by appellant's statement respondent will accept the appellant's statement but here set forth only evidence not covered by appellant in their statement which we feel should be considered in addition to matters covered in appellant's statement.'

We, therefore, set forth below, the defendant's Statement of Facts: 'Mr. Davis was 62 years of age at the time of the accident. He was driving his 1948 Kaiser Frazier automobile south along Highway 13, and was in a curve, to his left when he first saw the Ball truck coming toward him, about 100 feet away. The road was blacktop, and was wet from spitting snow which melted as fast as it was falling. Plaintiff placed the speed of the Ball truck at 55 to 60 miles an hour and stated it was partly over the center line. Plaintiff started to pull off the highway, and the truck turned sideways and skidded, and its rear end struck the left side of plaintiff's car. Plaintiff's neck was jerked and he was knocked out for a few minutes. His head went forward and jerked back. It just snapped and he heard a pop in it. There was no sensation of any pain in his neck right at the time after he gained consciousness. He had no broken bones or skinned places, and so told the highway patrolman who came out shortly after the accident.

'The highway patrolman, Trooper Wayne Allman, testified that he asked Mr. Davis at the scene if he was injured, and that plaintiff said he was not; plaintiff was walking around and Trooper Allman could see no injury and noted that plaintiff apparently had no difficulty in walking, or in moving his head, or talking, that he did not appear in any way dazed or semiconscious, that as far as Trooper Allman could tell, plaintiff appeared to be in complete possession of all his normal faculties and answered all questions asked without difficulty; based upon his experience and judgment, there was about $350 damage to the automobile.

'Mr. Davis drove his car home; after reaching there he noticed that his head and neck were hurting, he took three or four aspirins, and later hooked his tractor up to a lime truck and pulled it around some fields which were awful muddy, he just sat on the tractor and drove it for about a half hour; his pain continued to get worse; the next morning he went down and did some disking, riding his tractor, his neck and head were paining severely; some five days later he went to see Dr. Powell. In the meantime, he had pain in his head and neck, just walked the floor for about four days and did not sleep nights, there was an awful hurting on the back of his neck and his head ached, it was then he decided to go see Dr. Powell. Dr. Powell gave him treatments for two or three weeks; he paid Dr. Powell $12.50 for his services. He did not feel better after his treatment, and he then saw Dr. Barnett, Dr. Powell turned him over to Dr. Barnett; Dr. Barnett treated him for a month or so and plaintiff paid him $48.00 for his treatments. His condition did not improve and he then went to see Dr. Skoog, a Kansas City specialist, where X-rays were taken. He saw Dr. Skoog just once. Dr. Skoog gave him no treatments or medicines; his attorneys recommended that he see Dr. Skoog, it was in April, 1952. Dr. Skoog sent him to Dr. DeWeese, who made X-rays. He paid Dr. Skoog $85.00.

'Next he went to see Drs. Olsen and Wiley, at Appelton City, and was under their care from June to September, 1952, receiving electrical treatments and medicines he does not know the exact number of times he saw them, but paid them $29.50; his neck pains were relieved while they applied a hot pad to it; the pain in his head and neck got worse and he then went to see Dr. Pipkin, an orthopedic surgeon in Kansas City, in October, 1952, to whom he was referred by his attorneys. Dr. Pipkin gave him a rubber collar to wear; he first saw Dr. Pipkin along in the fall and was told to wear the collar from 12 to 18 months; that Dr. Pipkin gave him some medicine, for which he paid him $38.00. Plaintiff testified that all of the charges made by his doctors were reasonable and just; plaintiff testified that he has worn the rubber collar ever since he got it except at mealtime, and in his home in the evenings, that sometimes he retires wearing it.

'There is a gritting, a painful feeling whenever he moves his head, and he gets relief from wearing the collar, it holds his chin up and braces his neck; there has been no relief from his headache during the time he wears it. The medicine he has been taking doesn't seem to give him any relief as far as his neck is concerned and not much as far as his headaches are concerned.

'Plaintiff testified that he was in good health prior to the accident, and had no pains or difficulty of any kind in his neck region or head. His head aches practically day and night and his neck, and he gets no relief, he doesn't sleep very good and aspirins and medicine have given him no relief.

'Plaintiff is a farmer and had done custom baling, corn picking and combining for others. In 1951 he had 60 head of cattle, but since the accident sold them down to 20, his condition interferes with his care of the cattle and livestock. He has planted less acreage of corn and oats since the accident.

'He sees Dr. Pipkin...