Gant v. Scott
| Citation | 419 S.W.2d 262 |
| Decision Date | 18 July 1967 |
| Docket Number | No. 32637,32637 |
| Parties | Eunice GANT, Plaintiff-Appellant, v. Thomas SCOTT, Jr., Defendant-Respondent. |
| Court | Court of Appeal of Missouri (US) |
Eaker & McGuire, Clayton, Sam Weber, St. Louis, for plaintiff-appellant.
Markus & Maue, Louis S. Czech, Clayton, for defendant-respondent.
Plaintiff sought damages of $7,500.00 from defendant for personal injuries alleged to have been sustained in a collision between her automobile and a car driven by defendant on May 12, 1964, in the 300 block of Natural Bridge Road in City of St. Louis. Defendant sought damages of $15,000.00 for personal injuries and property damages on his counterclaim. Trial to a jury resulted in a verdict and judgment in favor of defendant on plaintiff's claim and in favor of defendant and against plaintiff on defendant's counterclaim in sum of $4,500.00 for personal injuries and $500.00 property damages. After an unavailing Motion for New Trial plaintiff has perfected her appeal.
Defendant has filed a motion to dismiss the plaintiff's appeal for failure to comply with Civil Rule 83.05(a) and (c), V.A.M.R. It is found that there is no such violation of the Rule which would justify dismissal of the appeal.
A statement of the facts as to the details of the accident is unnecessary as the only points presented by plaintiff on this appeal concern (1) the sufficiency of the evidence to establish a causal connection between the accident and the permanent injuries of defendant submitted to the jury and (2) that the verdict was excessive. When the collision occurred defendant bounced off the steering wheel and his right knee struck the car keys in the dash and broke the skin. He had pain in his chest, lip and right knee. He was taken to Homer G. Phillips Hospital for emergency treatment and thereafter went to his family physician, Dr. Kloecker, who treated him for over a year. Dr. Kloecker then sent him to Dr. Burst, an orthopedic specialist, who operated on the knee.
Defendant was off work for two weeks after the accident as his right knee was stiff, swollen and painful. During this period he could not bend his knee when sitting and used a support to walk. The swelling stayed for two or three weeks and after that the knee had swelling once or twice a week and it would be tender and sore and have a throbbing pain when the knee would swell.
Defendant went back to work about two weeks after the accident. His knee continued to bother him as it swelled quite often. His work required him to stand and he had to lift doors which weighed about 75 pounds. He was off work with regularity because of swelling in his knee and his family doctor gave him a knee guard to wear but when the knee swelled he would have to remove it. Defendant testified he was off work for seventy-seven days due to his knee swelling and hurting. Defendant testified he never had trouble with the knee prior to the accident on May 12, 1964.
Plaintiff introduced medical records of a Dr. Lansche and Dr. Piccione which stated that defendant was injured on July 21, 1964, while at work when he tripped over a floor mat and twisted his right leg. 'His right knee, which he injured in an auto accident on 5/20/64, and which never completely healed, was re-injured when he fell this morning.' Another record showed defendant injured at work on 9/4/64 'bumped right knee on a box and knee is painful * * * knee swollen and tenderness is present, walking aggravates pain in knee.'
Defendant testified that on July 21, 1964 Defendant further testified that on September 4, 1964 'I was walking through the same aisle where I work, my knee gave out, I had about a two foot clearance, and it struck the--a box in the aisle there.'
Defendant was referred by his family physician to Dr. Burst who first saw defendant about May 19, 1965. Defendant complained of his right knee going out of place and dates this complaint going back to the automobile accident in May, 1964. That about a month after, he fell over a mat and had locking and swelling of the knee at that time and then had repeated episodes after that. That it went out of place about eight times or so and had some buckling of the knee. Dr. Burst advised defendant to either live with this condition or have surgery. Defendant decided to wait but then had surgery performed in July, 1965. Dr. Burst found 'a typical bucket-handle tear' of the cartilage and removed the torn portion which was locked inside the knee. Dr. Burst testified that this undoubtedly had been causing the difficulty and it would cause the locking and buckling as defendant had complained. Dr. Burst testified in response to a hypothetical question as to whether the automobile accident in May, 1964, was a competent producing cause of this injury to the knee: 'Yes, it could be', and in assuming the same facts stated that the condition would be permanent.
Plaintiff contends that the expert testimony of Dr. Burst that the collision could be the cause of the permanent injury to defendant's knee did not constitute substantial evidence sufficient to submit the issue of permanent injuries to the jury. Plaintiff apparently contends that the permanent injury to defendant's knee could have resulted from defendant's falling at work on July 21, 1964, or on September 4, 1964, and that in view of Dr. Burst's testimony it was speculative as to whether or not it caused the injury. The cases cited by plaintiff apply the rule that expert testimony that a condition might or could have resulted from an accident, when standing alone and without other facts, is not substantial evidence from which a jury could find cause and effect. Bertram v. Wunning, Mo.App., 385 S.W.2d 803, 806; Kiger v. Terminal Railroad Association of St. Louis, Mo., 311 S.W.2d 5, 14; Immekus v. Quigg, Mo.App., ...
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