Dorsey v. Muilenburg

• Decision Date: 10 April 1961
• Docket Number: No. 47999,No. 2,47999,2
• Citation: 345 S.W.2d 134
• Parties: Fleeta A. DORSEY, Respondent, v. Rena B. MUILENBURG, Appellant
• Court: Missouri Supreme Court

Page 134

345 S.W.2d 134

Fleeta A. DORSEY, Respondent, v.Rena B. MUILENBURG, Appellant.

No. 47999.

Supreme Court of Missouri, Division No. 2.

April 10, 1961.

Price Shoemaker, Elmer E. Reital, Fred E. Schoenlaub, St. Joseph, for appellant.

J. Dorr Ewing, Joe Beavers, Ewing & Beavers, Maryville, for respondent.

STOCKARD, Commissioner.

About noon on July 7, 1958, while Mrs. Rena B. Muilenburg, appellant, then 82 years of age, was backing her 1941 Chevrolet automobile on HighwayNo. 27 in Hopkins, Missouri, in order to make a left turn into an intersection she had just passed, she struck the left side of a Plymouth automobile being operated by William T. Dorsey, age 62.After two periods of hospitalization Mr. Dorsey died on November 13, 1958.His widow, respondent herein, brought this action for wrongful death and alleged that as the result of the negligence of appellant pre-existing diseases of her husband were aggravated by the injuries received resulting in this death.Appellant has appealed from a judgment in the amount of $8,000 entered pursuant to jury verdict.The notice of appeal was filed on December 9, 1959.

One of appellant's contentions is that the trial court erred in overruling her motion for a directed verdict.Therefore, we must set out the evidence, and because of the nature of the case the statement must be somewhat detailed.

Prior to the accident Mr. Dorsey 'appeared' to be in good health, but he was bothered with what he called asthma and he coughed some.His wife thought is was a cigarette cough.Mr. Dorsey had worked at a filling station and had operated a tank wagon, but he quit that work in 1954 when he was requested to do 'driveway work' because it was 'just a little too hard work for him.'He worked for Dale Ownes during the summer of 1957 feeding livestock and driving a tractor.At the time of the accident and for several months prior thereto he had worked at a feed store.His duties consisted of carrying customers' cream and eggs, and loading and unloading sacks of feed and other merchandise.His work had been satisfactory, and he had not missed any time because of illness.

The accident resulted in but minor damage to the automobiles involved, and Mr. Dorsey suffered no cuts or other visible injuries.The highway patrolman who investigated the accident testified that Mr. Dorsey 'made a brushing against his left arm and said 'it was a little sore."Mr. Dorsey's employer, Orris Fine, arrived at the scene of the accident about twenty minutes after its occurrence and according to him Mr. Dorsey 'was leaning on the front of his car, [and]he had a hold of his arm.'Mr. Dorsey later complained that his neck, back, arm and chest hurt him.Prior to the accident he regularly would go to a restaurant (owned by Mr. Dorsey and his wife and operated by her) with his wife of mornings before he went to his work, but after the accident he could not do so.He'had a very poor appetite' and he'lost interest in life, he just didn't seem to be the same, he couldn't do the things he had done at home.'He also had three 'blackout spells,' and he developed trouble with his feet swelling.He had shortness of breath, his coughing increased and his color got very bad.

The morning following the accident and 'several other times' Mr. Dorsey went to a chiropractor.This doctor did not testify.Mr. Dorsey returned to work at Fine's Feed Store the afternoon of the accident, but was not able to do his work, and his employer told him to 'take the rest of the day off and he finally agreed to go.'Either that afternoon or the following day Myrl Keith purchased some bailer twine at Fine's Feed Store, and Mr. Dorsey said: 'Well, I am going to ask you to carry this out for me. * * * I was in a wreck, my chest is sore and it hurts me.'The following two weeks his employer carried him on the payroll but 'he was off most of the time,' and thereafter he was never able to do his work.

For about ten years Mr. Dorsey had had chronic bronchiectasis and emphysema, and he also had had myocardial degeneration for a shorter period of time.Dr. Clarence W. Kirk, his physician, had prescribed codeine for him to control coughing.Two or three weeks after the accident Mr. Dorsey went to Dr. Kirk 'to see about whether he should continue to work at Fine's Store or not.'He'was weak' and had 'swelling of his feet and ankles.'The doctor prescribed some medicine and advised him he should not be working.In September Mr. Dorsey was having trouble breathing and his feet were swollen.Dr. Kirk then gave him some diurel and some digitalis.On October 7 Dr. Kirk sent Mr. Dorsey to the hospital where he responded 'pretty well for a time.'On the hospital record the diagnosis was stated to be 'Decompensated heart, arthritis cervical dorsal and lumbar' and also 'generalized edema.'He was released from the hospital on October 18, but was readmitted on November 1, 1958.He died on November 13, 1958.The cause of death on the death certificate was stated to be 'Myocardial degeneration' with an interval between onset and death of six weeks.'Bronchiectasis & emphysema' with an onset ten years before death and 'Arthritis Cervical and lumbar spine' for an unknown period were listed as constituting conditions 'which gave rise to the above cause.''Other significant conditions contributing to death but not related to the terminal disease conditions' were stated to be 'Injury in car wreck July 7, 1958.'

Based upon his 'treatment and acquaintance with Mr. Dorsey prior to the accident,' and his 'care and treatment following that day and up until the time of his death,' and 'assuming that Mr. Dorsey complained of an injury to his chest and arm following [the] accident,' Dr. Kirk testified that it was his opinion 'based upon a reasonable degree of medical certainty' that the accident would and did contribute to the death of Mr. Dorsey.He further stated that the fact that there may not have been any visible bruises to the tissues of the arm or chest would not change his opinion.

Dr. Frank Matteson, M.D., was engaged in general practice, but he never examined or treated Mr. Dorsey.He testified that it is not uncommon for one to have 'a heart ailment' in connection with the bronchial trouble of emphysema and bronchiectasis, and that myocardial degeneration is a 'part of the process of aging.'Dr. Matteson examined the hospital records, and in answer to a hypothetical question in which he assumed the information revealed by those hospital records, the facts substantially as previously set out herein, and that Mr. Dorsey stated that he had struck the door of the car in the collision, he testified that it was his opinion 'such an injury' could aggravate or influence the previously existing bronchial condition to the extent that it would precipitate or contribute to that condition so as to be a competent and producing cause of early heart failure and the death of Mr. Dorsey, and he further testified that it was his opinion that it did so in this case.He then explained and gave two reasons for his opinion.The first was that 'any type of injury' to a person of the age of Mr. Dorsey would prevent him from his usual amount of exercise, whether it be in the form of work or otherwise, and that 'very often contributes to a degenerative type disease when you limit the amount of activity or exercise of any individual that is in this age group.'Secondly, 'any injury to any particular part of the body can cause or aggravate degenerative types which is because circulation is probably already impaired to a certain extent, and you have further injury or aggravation of any of those conditions, it can tend to lead to a downhill course, such as a chest contusion can lead to difficulty with the lungs or heart, an injury to a limb can later end up with the lessening of the use of that limb * * *.'These reasons and explanations were further elaborated upon in his direct examination and in cross-examination.

Dr. Duane E. Mitchell, M.D., also answered substantially the same hypothetical question in the same manner, but he was not asked to and did not explain or give his reasons for his opinions.

Appellant's medical testimony was given by Dr. Lucien W. Ide, M.D.He stated that bronchiectasis is one of several diseases of the lungs and is the result of inflammation associated with irritation of the lining of the bronchial tubes; that it is a chronic infection which results in emphysema which is an overexpanded condition of the lungs that makes it difficult for the individual to expand and contract his lungs; and that a symptom which occurs with these diseases is coughing and shortness of breach.He further stated that 'myocardial degeneration' is not an acceptable diagnosis in the present classifications by the American Heart Association because it is not specific enough, but that it 'essentially means heart failure.'Based on the 'bits of evidence that were given in the record, and based upon a history of increasing shortness of breath,' Dr. Ide suggested that Mr. Dorsey 'was ill from heart failure or cardiac decompensation * * * as a result of a degenerative condition of the vessels in the heart muscle, that actually carries the blood supply to the heart muscle,' that 'when people have advanced bronchiectasis and emphysema * * * this contributes to an increased heart load, and increases the progress downhill of heart failure.'He also stated that the hospital record presented 'a rather common picture of an eventual death and two progressive and combined diseases.'Dr. Ide testified that it was his opinion that 'the accident that was described and conditions that * * * resulted in death had no relationship,' and that 'there was no aggravation or no production of those conditions by the described alleged injuries.'Dr. Ide also stated that he could not see how the 'blow' assumed to have been received by Mr. Dorsey in the accident, without evidence of injury to...