Gardner v. Reynolds

• Decision Date: 13 June 1989
• Docket Number: No. WD,WD
• Citation: 775 S.W.2d 173
• Parties: Robert E. GARDNER and Lola M. Gardner, Respondents, v. Billy M. REYNOLDS and Coca-Cola Bottling Company, Appellants. 41043.
• Court: Missouri Court of Appeals

Page 173

775 S.W.2d 173

Robert E. GARDNER and Lola M. Gardner, Respondents, v. Billy M. REYNOLDS and Coca-Cola Bottling Company, Appellants.

No. WD 41043.

Missouri Court of Appeals,

Western District.

June 13, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Aug. 1, 1989.

Application to Transfer Denied Sept. 12, 1989.

Thomas R. Hill, Kansas City, for appellants.

Patrick Burwell Starke, Blue Springs, for respondents.

Before TURNAGE, P.J., and CLARK and FENNER, JJ.

FENNER, Judge.

Appellants, Billy M. Reynolds and Coca-Cola Bottling Company of Mid-America, Inc. (Coca-Cola), appeal a jury verdict against them and in favor of Respondents Robert E. Gardner and his wife, Lola M. Gardner. Appellants filed a Motion for New Trial which was denied by the trial court.

Robert Gardner's claim arose out of an accident involving his automobile and a truck owned by Coca-Cola which truck was driven by its employee Billy Reynolds.

The accident occurred on the morning of July 2, 1986, on Highway 7 in Blue Springs, Jackson County, Missouri approximately 400 feet south of Walnut Street. Highway 7 is the major north-south thoroughfare through Blue Springs. At the location of the accident herein, Highway 7 is a five lane roadway consisting of two northbound lanes and two southbound lanes separated by a left turn lane. The lanes of travel are each twelve feet wide and there are shoulders on each side of Highway 7 which are ten feet wide.

The weather on July 2, 1986, was hot, clear and sunny. Robert Gardner had just turned south onto Highway 7 from Walnut Street at the time of the accident traveling approximately 400 feet on Highway 7 prior to the time of impact. The Coca-Cola truck pulled from the southbound shoulder of Highway 7 and the left front bumper of the truck collided with the passenger side of Robert Gardner's vehicle. The collision caused the Gardner vehicle to spin around ending up in the center lane facing north, the opposite direction Gardner had been traveling.

Robert Gardner was alone in his vehicle at the time of the accident and his cause of action was for injuries he alleged to have received therefrom. Lola Gardner's action was for loss of consortium.

I. VERDICT NOT AGAINST WEIGHT OF EVIDENCE

Appellants raise six points on appeal. Points I and III argue that the verdict in favor of Robert Gardner in the amount of $470,000 was excessive and against the weight of the evidence.

A determination of whether a verdict is against the weight of the evidence is within the exclusive province of the trial court, and on appeal, the Court of Appeals does not weigh the evidence but determines whether sufficient evidence supports the verdict, considering the evidence in the light most favorable to the prevailing party below, giving that party the benefit of all reasonable inferences and disregarding the other party's evidence except as it may support the verdict. Marshall v. Edlin, 690 S.W.2d 477, 479 (Mo.App.1985). The question of whether or not a new trial should be granted on the ground that a verdict is excessive or inadequate is to determine if the verdict is against the weight of the evidence on that fact issue. Bell v. Bell's Estate, 368 S.W.2d 544, 545 (Mo.App.1963).

It is primarily the function of the jury to fix the amount of damages and in overruling a motion for new trial a trial court approves the amount of the verdict. Howard v. Lundry, 591 S.W.2d 193, 201 (Mo.App.1979). The jury's determination of damages should not be disturbed unless the amount is so grossly excessive that it shocks the conscience of the court. Id.

There is no precise formula for determining whether a verdict is excessive; each case must be considered on its own facts with the ultimate test being what fairly and justly compensates plaintiff for the injuries sustained. Firestone v. Crown Center Redevelopment Corp., 693 S.W.2d 99, 108 (Mo. banc 1985).

Considering the evidence in the light most favorable to Robert Gardner supports the trial court's determination that the verdict was not excessive or otherwise against the weight of the evidence.

At the time of the accident, July 2, 1986, Robert Gardner was 75 years old. He had been retired from Remington Arms for approximately twelve years. Before his retirement, Robert Gardner had always been a hard worker, at times working two jobs. Following his retirement he continued to be a very active person. After he retired Robert Gardner worked with his son in his son's water proofing business. His son had contracted malaria in Korea and never seemed to totally recover and so his father would help out when needed. Robert Gardner also worked some at a filling station after his retirement.

At the time of his retirement, at age 63, Robert and Lola Gardner lived in the country on five acres of ground. Between the ages of 63 and 73 Robert Gardner worked on his five acres, he cleared brush by hand, mowed the property, built two small barns and built a fence. He raised quail, pheasants and chickens on the property. He maintained a garden which consisted of a strawberry patch of 28 rows that were each 135-140 feet long. He put a new roof on his house by his own labor. In addition to his outdoor activities, Robert Gardner did most of the household chores including cleaning, laundry and shopping due to the fact that his wife suffered physical ailments including hypertension and severe arthritis.

From the late 1970's until August of 1984, Robert Gardner would walk seven to ten miles a day, starting at 6:00 a.m., picking up aluminum cans along the highway. He would drag a large trash bag of cans he collected behind him as he made his walk.

Robert and Lola Gardner assisted their youngest daughter, Janet Heiple, who was thirty-eight at the time of trial and had lived with her parents off and on until 1984. Janet's son, Brett, also lived with the Gardners from the time he was six months old. In addition to Brett, the Gardners also raised another grandchild who was handicapped. The Gardners raised this grandchild from birth.

Up to the time the Gardners sold their property in the country, Robert Gardner played sports with his children and grandchildren including football, baseball and badminton.

The Gardners sold their property in the country in August of 1984. The property was sold to a developer who had attempted to persuade them to sell for the preceding two years. Robert Gardner's health was not a factor in their moving into town. When the Gardners moved into town, Robert Gardner was not limited in his activities and was not experiencing any health problems. In town Robert Gardner continued to do the yard work and the house work. He planted trees and shrubs and cut down trees with an ax and then used a chain saw to finish the cutting. He built a privacy fence, painted the trim on the house and caulked around the windows. He repaired walls in the house, laid linoleum and repainted the inside of the entire house. He finished the basement, put in a half-bath and remodeled all of the bathrooms.

After the accident on July 2, 1986, Robert Gardner's health changed drastically. After the accident he walked bent over and slow and he was always leaning on something. Robert Gardner had never been a complainer but after the accident he complained of being in pain. He was no longer able to work on his house or do any of the errands or housework that he once did. His grandson and daughter had to take over these chores. Mr. Gardner now requires a cane to walk and even has difficulty dressing himself. About all Robert Gardner is able to do since the accident is to sit or lay around at home, at times needing assistance to move from one room to another. There hasn't been a day since the accident that Robert Gardner has not been in pain. Most of the time he stated that he is "hurting real bad" and lays on a heating pad to attempt to relieve the pain.

Prior to the accident on July 2, 1986, Robert Gardner was not experiencing any pain but immediately after the accident he had pain in his neck and back and his legs were numb and described by him as without any feeling. His legs have felt numb since the day of the accident.

On August 12, 1983, Robert Gardner was seen by a physician who referred to his health as excellent. In May of 1985, he was seen by a physician who described his health at the time as remarkably good.

Robert Gardner has been seen by a number of doctors since the accident. For nearly two years Robert Gardner underwent a variety of tests in an attempt to treat the injuries he sustained in the accident. He had physical therapy, drugs, heat treatment, medical and chiropractic attention.

Immediately after the accident Robert Gardner was taken by ambulance to the emergency room at St. Mary's Hospital. Mr. Gardner was not admitted to the hospital at that time. A few days later Mr. Gardner went to see his doctor, Dr. Pepple, in regard to his injuries and Dr. Pepple continued to treat Robert Gardner thereafter. Dr. Pepple, an internist, stated that in his opinion Robert Gardner suffers from soft tissue injuries to the neck and lower back which are the result of the July 2, 1986, automobile accident. Dr. Pepple stated that Robert Gardner's injuries are permanent and that he was not aware of any surgery or other treatment that would help to improve Mr. Gardner's condition. Dr. Pepple observed that Mr. Gardner experiences pain and struggles to move around. Dr. Pepple opined that Robert Gardner would not be able to do much of anything around the house.

Dr. Pepple referred Mr. Gardner to Dr. Ahmed, a neurologist. Dr. Ahmed stated that, in his opinion, Robert Gardner's low back problems stemmed from a ruptured disc in his low back, which was a permanent injury that had been caused by the accident.

As part of his evidence Robert Gardner introduced the Mortality Tables as published in Chapter 442 of...