Harrison v. Weller, 8724
| Decision Date | 22 December 1967 |
| Docket Number | No. 8724,8724 |
| Citation | 423 S.W.2d 226 |
| Parties | Glendola HARRISON and Armon Harrison, Plaintiffs-Respondents, v. Andy WELLER and Sterling Aluminum Company, a corporation, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Manuel Drumm, Sikeston, for defendants-appellants.
McHaney & Welman, Kennett, for plaintiffs-respondents.
The occurrence which activated this damage suit transpired April 29, 1964, in Cardwell, Missouri, when a tractor-trailer unit driven and owned by defendants collided with a pick-up truck occupied by plaintiffs Armon and Glendola Harrison, husband and wife. Nearly three years later on April 12, 1967, a jury in the Circuit Court of Mississippi County awarded damages to Mrs. Harrison in the sum of $7,500 for her personal injuries. Her husband was allowed $4,000 for the cost of medicines and medical services furnished Mrs. Harrison and because of the alleged loss of his wife's consortium, services and association. This appeal, perfected by defendants when their after-trial motions came to naught, does not involve the issue of liability.
Mrs. Harrison, forty-four years of age at the time of collision, was never hospitalized and Dr. English, the only treating physician, ministered unto her but six times on April 29, 30, May 4, 11, 23, and on June 29, 1964. Mrs. Harrison was dismissed from Dr. English's care on this last date and he did not again see her until the day before trial 'in preparation for coming up here for this lawsuit.' The total doctor bill, including 'x-rays and everything,' was $123 and the cost of medicines 'was approximately $50, I guess.'
The accident occurred near Dr. English's professional rooms and he examined Mrs. Harrison cursorily at the scene before taking her to his offices for a thorough inspection. The doctor said Mrs. Harrison was found to have unspecified injuries 'to her neck' and left lung, a fracture of the seventh left rib, a cut to her middle right finger, pleurisy over the left chest, and multiple contusions and bruises over the chest, upper back, left shoulder, left hip and to the left side of her head. Twelve days after the accident Mrs. Harrison complained of dizziness 'when she would lie down.' The physician said this was 'vertigo.' Twenty-four days following the collision, Mrs. Harrison complained 'of wanting to cry all the time (and) had a headache.' X-rays were then made and revealed Mrs. Harrison 'had two fractures of the eighth left rib and the fracture of the seventh left rib.' On June 29, 1964, sixty days after the accident when Mrs. Harrison was finally dismissed from medical care, 'she had no headache or dizzy spells' but said she 'was very nervous.' The doctor's handwritten record of this examination states: Mrs. Harrison, on this date, according to the record, had no pain, soreness, tenderness or limitation of motion to any part of her body.
Mrs. Harrison told the jury she was home abed four or five days following the accident and wore an elastic rib bandage for three weeks. The next month she rested in the mornings and afternoons, did 'cooking mostly, some washing' but no 'cleaning house.' Thereafter, she was 'up' continuously during normal waking hours and by the time of trial had been performing all household duties for a considerable period. 'Outside chores' in her gardens and 'mowing the lawn' had been restricted and since the accident she had not helped her husband with his farming which previously consisted of assisting him 'haul his beans to the elevator and I filled the drills for him and rode the drill, see that it was working right, and I have driven a tractor for him.' Mrs. Harrison, according to plaintiffs, had intermittently experienced headaches, dizziness, nervousness and crying spells to the time of the hearing. Differing from the dizzy spells described to Dr. English while under his care, Mrs. Harrison testified she got dizzy 'when I would look up' and that is why she required her daughter's assistance to 'hang out the clothes.' In explaining her 'nervousness' Mrs. Harrison related 'Be times I just want to cry * * * when I have one of those nervous spells I (usually) have a headache * * * maybe every month, maybe sometimes more than once a month.' Asked if she had 'any explanation as to why you have these crying spells,' Mrs. Harrison answered 'No, I don't.'
What the examination of Mrs. Harrison by Dr. English on the day before trial consisted of was not asked or recorded. His recitation relative thereto was replete with history, matters in the past, and what Mrs. Harrison recounted to him concerning her past complaints and past conditions. Such testimony is within the hearsay rule (Schears v. Missouri Pacific Railroad Company, Mo. (banc), 355 S.W.2d 314, 317(1) and 319) but was not objected to by defendants on that ground. For example, Dr. English said Mrs. Harrison had told him When inquiry was made of Dr. English as to 'Mrs. Harrison's present condition,' he replied 'she has some injury to her brain * * * (and) some injury to her left ear.' He equivocally explained what he meant 'by that' in stating, 'Well, at the time of this accident the left side of her face was bruised, and the dizziness that she had was injury to her nerves that go to the left ear * * * and to the center part of the brain.' The testimony of the physician who examined Mrs. Harrison on behalf of the defendants was to the effect 'I didn't find anything wrong with her on examination' except for 'her story or residual complaints' and he 'couldn't say' what the complaints of 'headaches and the crying and the infrequent dizzy spells' were due to and could not relate them to 'some injury she sustained in the accident.'
Save the single inquiry if the 'inflamation of the lower lobe (of the lung, we assume) on the left side,' diagnosed May 4, 1964, was 'a direct result of the automobile accident,' no question was propounded to Dr. English if, in his opinion, there existed any possibility, probability, chance, assurance, likelihood or reasonable medical certainty the accident could, might, would or did cause or produce Mrs. Harrison's injuries, complaints, or conditions as related in the testimony. No hypothetical question in any form was asked Dr. English. The doctor did testify no 'permanent condition' resulted from the fractured ribs but he was never asked his opinion if any of the other injuries, complaints or conditions would result in any permanent or future pain, disability, discomfort or damage. The testimony of Dr. English was the only medical evidence offered by plaintiffs and the need of future medical treatment for Mrs. Harrison was never indicated.
Defendants contend the verdicts are excessive and the trial court erred in giving instructions 5 and 6 (MAI 4.01 Modified-Measure of Damages) because the evidence did not establish plaintiffs had sustained any permanent or future damages as a direct result of the accident and in permitting plaintiffs' counsel, over objection, to argue to the jury 'specifically concerning (certain) injuries' when there was insufficient evidence to causally connect them to the collision. We shall consider the penultimate assignment first.
Instruction 6 only differed from Instruction 5 as we indicate by brackets, as follows:
'If you find the issues in favor of the plaintiff Glendola (Armon) Harrison on Count I (II) of the petition, then you must award the plaintiff Glendola (Armon) Harrison such sum as you believe will fairly and justly compensate the plaintiff Glendola (Armon) Harrison for any damages you believe she (he) sustained and is reasonably certain to sustain in the future as a direct result of the occurrence mentioned in the evidence (of the injuries to his wife, Glendola Harrison).' The italicized portion of the instructions (our addition) appears in brackets in MAI 4.01 with the admonition 'This may be added if supported by the evidence.' Missouri Approved Jury Instructions, p. 25. The Committee's Comment cautions that The transcript indicates this advice was not followed.
The obvious deficiency in defendants' complaint with regard to there being no evidence of permanent damages to support the instructions, lies in the fact neither instruction employs the word 'permanent' nor the phrases 'permanent injury' or 'permanent damages.' Neither does MAI 4.01. While permanent injury may include future damage, the converse is not necessarily true. It has long been recognized ...
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