Davis v. Fiske

• Decision Date: 26 February 1979
• Docket Number: No. 29696,29696
• Citation: Davis v. Fiske, 578 S.W.2d 328 (Mo. App. 1979)
• Parties: Charles Alvin DAVIS and Evelyn J. Davis and Gladys E. Bovard, Appellants, v. Jane Leone FISKE, Respondent.
• Court: Missouri Court of Appeals

Page 328

578 S.W.2d 328

Charles Alvin DAVIS and Evelyn J. Davis and Gladys E Bovard, Appellants, v.Jane Leone FISKE, Respondent.

No. 29696.

Missouri Court of Appeals, Western District.

Feb. 26, 1979.

John J. McFadden, Sr., Kansas City, for appellants.

F. Russell Millin, Kansas City, for respondent.

Before HIGGINS, Special Judge, Presiding, PRITCHARD, J., and WELBORN, Special Judge.

ROBERT R. WELBORN, Special Judge.

Action for damages for personal injuries claimed to have arisen from automobile collision.Count I of petition sought $5,000 damages on behalf of Charles A. Davis for loss of services of his wife, Evelyn J. Davis.Count II was by Evelyn Davis for $25,000 damages for her injuries.Count III was by Charles A. Davis for $10,000 damages for his personal injuries.Count IV was by Gladys E. Bovard for $25,000 for her personal injuries.Jury trial resulted in verdict for defendant on all counts.After their motion for new trial had been overruled, plaintiffs appealed.

The issues on this appeal include (1) whether plaintiffs are entitled to a new trial on the grounds that the verdict was contrary to the undisputed evidence; (2) whether defendant improperly injected issue of seat belts into trial; (3) whether plaintiffs are entitled to a new trial because of an unobjected to statement by defendant's counsel in closing argument that "plaintiff must prove they were not negligent;"(4) whether the above claims of error entitle plaintiffs to relief; (5) whether plaintiffEvelyn Davis was improperly prevented from showing of loss of earning capacity as a result of her injuries, and (6) whether the trial court erred in refusing to permit Evelyn J. Davis voluntarily to dismiss her claim after trial had begun.

On February 22, 1971, Charles A. Davis was the driver of, and his wife, Evelyn J. Davis, a front seat passenger, and Evelyn's mother, Gladys E. Bovard, a rear seat passenger in, a Chevrolet station wagon.Davis stopped his vehicle at the intersection of Routes 69 and 45 in Platte County, in observance of a posted stop sign.The stop sign was some 80 feet from the edge of the intersection and when Davis reached that point, he stopped again because of oncoming traffic.Jane L. Fiske was driving a Pontiac automobile behind and in the same direction as the Davis vehicle.She saw the Davis vehicle stop for the stop sign and when she reached the sign, she too stopped.She then went forward and started looking at the traffic.She failed to see that the Davis auto had stopped again and collided with the rear end of the Davis car.

Charles Davis said that the force of the collision caused him to hit his chest against the steering wheel, resulting in soreness to his neck and shoulders.There was evidence of $60 medical expenses on his behalf.He said that his wife was "subconscious" following the collision and an ambulance was called and she was taken to the St. Joseph Hospital Emergency Room.Ms. Bovard said that the force of the collision threw her to the floor and her knee struck the hard part of the back of the front seat and when the car "jolted back it threw my back against the edge of the back seat and kind of jerked me around that way."She stated that her "right knee was bruised and injured and has a knot on it," along with a blood blister on the kneecap.

Ms. Davis testified that, after their car stopped the second time, she remembered only "like an electric shock that went from my head clear down my back and the next thing I know I woke up in St. Joseph Hospital emergency room * * *."Following the accident she suffered back pain which prevented her from doing manual work she had been accustomed to doing before.She lost ten days from her work as a clerk at Panhandle Eastern Pipeline Company, but lost no wages.Her evidence showed physicians', hospital and ambulance expenses of $188.50.

Dr. John T. Skinner, M.D., testified that he saw the three plaintiffs at the St. Joseph Hospital Emergency Room on February 22, 1971.Ms. Davis appeared to be the most seriously hurt.He X-rayed her neck and found no fractures.He looked at Ms. Bovard's swollen and bruised knee and Mr. Davis's chest.On March 5, 1971, he saw Ms. Davis in his office and because of her complaint of lower back pain, he took lumbosacral X rays but found no fractures or dislocations in her back.He stated that in his opinion Ms. Davis had suffered a "cervical neck sprain and a lumbosacral sprain, mainly a sacroiliac sprain."He stated that he found muscle spasms in Ms. Davis's back in 1974 and 1976 examinations and he was of the opinion that she had a permanent back injury.

Both autos were operable after the collision.The rear bumper of the Davis vehicle was dented, the rear door, the tail light and left fender were bent.

Suit was filed April 4, 1975 and the case tried April 11, 1977.

The claim of each of the plaintiffs was submitted on the "rear end" theory, MAI No. 17.16.As to each of the plaintiffs, defendant submitted an instruction conversing damages only (MAI No. 33.02(3)).A jury returned a verdict for defendant on each count.

In this court, appellants first contend that the verdict was the result of bias and prejudice and against the law and the evidence because the undisputed evidence supported the plaintiffs' right to recovery.

In their argument on this point appellants point to no occurrence at the trial which might have caused bias and prejudice toward them.They point to the facts which their evidence, along with the defendant's testimony, would show and draw the "inescapable conclusion" that they were entitled to verdicts in their favor in some amount.

The authorities relied upon by appellants fail to support this conclusion.Appellants have cited numerous cases discussing the elements and theory of the rear end doctrine, such as Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914(1942);State ex rel. Spears v. McCullen, 357 Mo. 686, 210 S.W.2d 68(1948);Witherspoon v. Guttierez, 327 S.W.2d 874(1959), and other cases.These citations would support the conclusion that a submissible case under the rear end doctrine was made by appellants in this case.However, that is not the issue presented by this appeal.

Appellants are here asking for a new trial on the grounds that their uncontradicted evidence entitled them to a favorable verdict.They have, however, overlooked the oft-repeated rule stated in Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558, 559(1-3)(1931):

" * * * The burden was not on the defendant, but was on the plaintiff to make out the case stated in his petition.In a case where the allegations of the petition are denied by the answer, and the plaintiff offers oral evidence tending to support the allegations of the petition, the defendant is entitled to have the jury pass upon the credibility of such evidence even though he should offer no evidence himself.The court has no right to tell the jury that it must believe the witnesses.The jury, in the first instance, is the sole judge of the credibility of the witnesses and of the weight and value of their evidence, and may believe or disbelieve the testimony of any...