Greco v. Hendricks

• Decision Date: 13 July 1959
• Docket Number: No. 46913,No. 1,46913,1
• Citation: 327 S.W.2d 241
• Parties: Raymond GRECO, Appellant. v. William J. HENDRICKS and Paxton-Gallagher Company, a corporation, Respondents
• Court: Missouri Supreme Court

Page 241

327 S.W.2d 241

Raymond GRECO, Appellant. v. William J. HENDRICKS and Paxton-Gallagher Company, a corporation, Respondents.

No. 46913.

Supreme Court of Missouri, Division No. 1.

July 13, 1959.

Motion for Rehearing or to Transfer to Court en Banc or to

Modify Opinion Denied Sept. 14, 1959.

Melvin L. Kodas, Billy S. Sparks, Kansas City, for appellant, Langworthy, Matz & Linde, Kansas City, of counsel.

Harold T. VanDyke, Kansas City, for defendants, Davis, Thomson, VanDyke & Fairchild, Kansas City, of counsel.

COIL, Commissioner.

A jury awarded Raymond Greco $32,000 in his action to recover for personal injuries and property damage allegedly sustained as the result of a collision between his automobile and one operated by defendant Hendricks as the agent of defendant Paxton & Gallagher Company. Within the prescribed 90-day period, the trial court overruled defendants' motion to set aside plaintiff's verdict and to enter judgment for defendants, and ordered that 'The court finds the verdict to be excessive, therefore: If the plaintiff will remit Twelve Thousand Dollars ($12,000.00) and accrued interest on or before April 7, 1958, from the verdict of the jury heretofore entered herein in the sum of Thirty-Two Thousand Dollars ($32,000.00) the motion of defendants will be overruled, otherwise the 'Motion for New Trial' will be sustained for the reason 'The verdict is excessive." Plaintiff failed to file a remittitur and appealed from the order granting defendants a new trial. He contends the order was void for uncertainty and that consequently the original judgment for plaintiff is in full force and effect and should be affirmed, and, alternatively, that the trial court abused its discretion in granting a new trial on the ground of excessiveness of verdict.

There is no merit in plaintiff's initial contention that the trial court's order of March 25, 1958, was subject to various interpretations and thus so vague and uncertain as to be void and of no effect. Plaintiff says that it is impossible to tell what he was to remit as interest because the language that 'If the plaintiff will remit Twelve Thousand Dollars ($12,000.00) and accrued interest on or before April 7, 1958, from the verdict of the jury' etc., may mean the accrued interest on the entire $32,000 or the interest on $12,000.

The trial court's order clearly granted defendants a new trial as of the date of the order on the ground that the verdict was excessive and additionally granted plaintiff the privilege, through remittitur, of retaining that portion of the judgment which the court considered not excessive. Carver v. Missouri-Kansas-Texas R. Co., 362 Mo. 897, 245 S.W.2d 96, 105; Wicker v. Knox Glass Associates, 362 Mo. 614, 242 S.W.2d 566, 568; Steuernagel v. St. Louis Public Service Co., 361 Mo. 1066, 238 S.W.2d 426, 429. We think it is clear enough that the court meant interest which had accrued on the $12,000 he was requiring the plaintiff to remit, but, in any event, the language referring to interest was surplusage because the $32,000 judgment had been set aside and if a remittitur of the principal amount specified had been made, a new judgment for $20,000 would have resulted. Thus, it seems clear that no amount of interest was involved.

Furthermore, it is abundantly clear that plaintiff could have defeated defendants' new trial by complying with the remittitur order the court by entering a remittitur in the exact language of the court's order. In that event, plaintiff would have had a $20,000 judgment as of the date of the original judgment.

About 8:30 p. m. on November 13, 1955, plaintiff, 21 years of age and a member of the United States Air Force stationed at Grandview Air Base near Kansas City, was driving north on U. S. Highway 71 when, at a place about one-fourth mile north of Missouri Highway 150, a southbound car operated by defendant Hendricks swerved into the northbound lane and plaintiff, unable to avoid a collision by swerving, collided with the right rear side of the southbound automobile.

Following the collision plaintiff's back bothered him and he reported to the base infirmary and that night and the next day received heat treatments. The next morning he was examined and X rayed at the base hospital. Plaintiff said that at that time he had pain in the middle of his lower back and his right kneecap bothered him. The doctor prescribed further heat treatment and placed a bandage on his right knee. He continued on duty as motor pool dispatcher, but returned for sick call for the next two or three days and then entered the base hospital where he remained in bed three days and received heat treatments every two or three hours and some medicine for pain. His back was bandaged with adhesive tape and he returned to duty. His back continued to hurt, but his knee was better and apparently gave no further trouble. He returned to the base hospital at intervals for further heat treatments. In December 1955 he was examined by an orthopedic surgeon in Kansas City. Thereafter he was treated by a general practitioner in Grandview from approximately January to May 1956, who administered heat therapy after reading X rays of him. Plaintiff continued to experience pain in his back and was sent to Fort Leavenworth in February 1956 for a 1-day examination by an orthopedic specialist. In March 1956 he was sent to Scott Air Force Base for examination. He said that by that time he was beginning to experience numbness in his right leg. At Scott he remained in bed for twenty days, was then examined, and an orthopedic belt (canvas with metal stays) was prescribed and he was put on light duty. After returning from Scott Field he again was treated by the physician in Grandview. In the latter part of May 1956 he was sent to Sheperd Air Force Base for two weeks for examination. He was discharged from the Air Force on June 25, 1956--his regular discharge had been scheduled for May 21, 1956, and his discharge was not because of physical disability.

After discharge he returned to his home in Glasgow, New York, where he was treated by his family doctor on ten occasions and then referred to a neurosurgeon in Albany, New York. In the meantime, both before and thereafter, he received about sixty chiropractic treatments and about fifty heat treatments from other doctors. He also entered a veterans' administration hospital in Albany. He said that his back got continuously worse and his right leg was numb on its right side and at times he experienced pain in his right ankle and foot. As a result of his 10-day stay in the veterans' hospital he was awarded 'ten per cent disability.' By August 1957 (the trial was in January 1958) plaintiff had discontinued treatment by any doctor except one in his home town in New York whom he continued to see every month or two (although he was examined prior to trial by Kansas City doctors). Plaintiff continued self-administered heat treatments two or three times a week.

Plaintiff had entered the Air Force at 19 and had been in prior good health. He had theretofore worked in a dress factory at $35 per week. Since his discharge he had helped in his father's barbershop which was operated on a part-time basis and, in connection therewith, took care of some sort of a recreation room at the rear of the shop. His father paid him $15 a week. He had run errands for a relative and had sold Christmas trees in season. He said that he continued to receive the $15-a-month pension, that his back continues to hurt, he continues to experience numbness in his leg and intermittent pain in his ankle, that walking too much, riding in an elevator, or doing anything which causes a jerk, or bending over to pick up anything causes increased pain in his back. He also said that his back condition had interfered with obtaining a job, both because his back hurt and because people would not give him a job when he mentioned a bad back or a bad leg. He had been in an automobile accident in July 1956 while on his way to treatment for the November 1955 accident when his stopped automobile had been struck in the rear by another automobile causing $131 property damage to his car, but, even though he said his back hurt a little more as a result thereof, he received no additional personal injury in that accident.

Plaintiff had incurred doctor bills of about $375, the damage to his automobile was $1,195, and a disc operation would cost $600.

Extracts from the records of the Veterans' Administration showed that plaintiff had been awarded the ten per cent disability apparently for an aggravation of a congenital condition, viz., the partial sacralization of lumbar vertebra No. 5.

Plaintiff adduced three medical witnesses, an orthopedic surgeon, a neurosurgeon, and the general practitioner who had treated him in Grandview. Inasmuch as the question on this appeal is whether the trial court abused its discretion in holding the $32,000 verdict excessive and in ording a remittitur verdict excessive and in ordering a remittitur evidence from the standpoint most favorable to the action of the trial court. Consequently it will be unnecessary to state plaintiff's medical evidence in detail.

Suffice to point out that the orthopedic surgeon who examined plaintiff on December 30, 1955, made a diagnosis of soft tissue injury usually called lumbosacral strain or sprain and recommended conservative treatment, i. e., heat, a back support, and pain medicine. He examined plaintiff again on January 15, 1958, and made a diagnosis of nerve pressure irritation due to the protrusion of a ruptured disc at the fifth lumbar The doctor's opinion was that the plaintiff would require an operation to eliminate his back pain and to eliminate pressure on the nerve which, if continued long enough, would destroy the nerve. But he thought plaintiff did not have to have an operation immediately if he could 'hold off for awhile.'

Doctor Doane of Grandview treated plaintiff the first six...