Havel v. Diebler, WD

• Decision Date: 21 July 1992
• Docket Number: No. WD,WD
• Citation: 836 S.W.2d 501
• Parties: Teresa M. HAVEL, Appellant, v. Karren L. DIEBLER, Respondent. 45027.
• Court: Missouri Court of Appeals

Page 501

836 S.W.2d 501

Teresa M. HAVEL, Appellant, v. Karren L. DIEBLER, Respondent.

No. WD 45027.

Missouri Court of Appeals Western District.

July 21, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

Sept. 1, 1992.

Douglass F. Noland, Norton & Norton, P.C., Kansas City, for appellant.

William P. Coates, Jr., McAnany, Van Cleave & Phillips, P.A., Kansas City, for respondent.

Before HANNA, P.J., and FENNER and ULRICH, JJ.

ULRICH, Judge.

Teresa M. Havel appeals the judgment awarding her $3,500 ¹ for injuries she sustained resulting from an automobile collision. On appeal, Ms. Havel contends that the trial court erred by (I) submitting a jury instruction that was not MAI-approved nor supported by the substantive law; and (II) failing to grant her new trial motion because the verdict did not adequately compensate her for her injuries. The trial court's judgment is reversed with instructions to the trial court to enter judgment of $5,000 in favor of Ms. Havel.

The record on appeal establishes the following facts. On June 14, 1989, Ms. Havel was in her automobile stopped at a yield sign at the intersection of Englewood Road and Antioch Road in Clay County, when the vehicle she was in was struck from behind by Karen Diebler's vehicle. The impact from the collision threw Ms. Havel backward into her seat and moved her vehicle approximately five feet forward. Ms. Diebler admitted that the vehicle she was then driving struck the rear of Ms. Havel's car. Ms. Diebler further testified that she was not looking at Ms. Havel's car at the time of the collision.

Ms. Havel was taken to North Kansas City Memorial Hospital where she was X-rayed, given pain relief medication, and discharged. Ms. Havel continued to complain of ringing noise in her ears and of pain to her upper back. She sought various medical treatments for pain. Dr. Timothy Wilson, Ms. Havel's physician, testified about objective findings of injury in Ms. Havel's trapezius muscle and diagnosed Ms. Havel in August of 1989 with a "very mild lumbar strain." Ms. Havel also obtained chiropractic treatment.

Ms. Havel presented medical expenses totalling $3,006.92. She also presented written estimates for automobile repair of $267.31 and $175.31, and a lost wages' claim for $513.03.

Ms. Havel claimed that, as a part of her damages, she was denied admittance into the United States Air Force. Ms. Havel had applied to join the Air Force as an meteorologist. She took a written examination but was disqualified for Officers' Training School because of a claimed spinal problem resulting from the accident and the pendency of the resulting lawsuit. Technical Sergeant Blake R. Highland of the United States Air Force, a witness called by Ms. Havel, opined that the vehicular accident and Ms. Havel's medical history related to the accident prevented her admittance into the United States Air Force. However, Sgt. Highland testified that Ms. Havel's successful completion of Officers' Training School and her appointment as an officer in the United States Air Force were not guaranteed had the accident not occurred. He stated that a number of factors other than passage of the initial physical examination determine whether a person becomes an Air Force officer. Mr. Havel agreed that she was never guaranteed that she would successfully complete Officers' Training School.

In addition to the speculative nature of Ms. Havel's admittance into the Air Force, Ms. Diebler controverted Ms. Havel's claim of damages for non-acceptance into the Air Force with the following evidence. Ms. Havel's physician diagnosed her complete recovery on October 21, 1989. However, she never reapplied to the Air Force after that date and before she had attained her thirtieth birthday, the cut-off age for applying to attend United States Air Force officer training school. Additionally, Ms. Havel's Air Force medical report does not mention any neck, back, or spine problems that allegedly resulted from the car collision. Furthermore, evidence disclosed that had Ms. Havel been commissioned a second lieutenant in the Air Force, she would have received a salary of approximately $20,000, in contrast to her current salary of $31,100.

The jury also received evidence that controverted Ms. Havel's claims of pain and suffering. A month after the accident, Ms. Havel's treating physician found normal range of motion in her neck and normal low back region without discomfort. On October 2, 1989, Ms. Havel reported to her treating physician that her low back felt normal. She was released from further treatment, and Dr. Wilson reported that the cervical strain had been resolved. Once released from Dr. Wilson's care in October 1989, Ms. Havel had no restrictions placed on any of her physical activities. Furthermore, evidence disclosed that Ms. Havel exercises regularly, participates in aerobic dancing, and missed no work because of her alleged ailment, except for the five days immediately following the accident. In October 1990, when Ms. Havel saw Dr. Wilson again, she made no complaints about her back or neck related to the accident. Finally, Ms. Diebler presented the videotaped deposition testimony of her expert medical witness, Dr. Ernest Neighbor, who opined that Ms. Havel had not suffered significant injury in the accident and that she was not permanently injured.

After receiving all the evidence, the jury returned a verdict assessing Ms. Havel's damages at $5,000. The jury assessed Ms. Havel's fault at thirty percent. It is from this judgment Ms. Havel appeals.

I

Ms. Havel contends for her first point on appeal that the trial court erred in submitting a jury instruction that was neither MAI-approved nor supported by substantive law. ² Ms. Havel claims that this jury instruction, which submitted that she "failed to keep proper control of her vehicle," is prejudicially erroneous because, according to Missouri law, it gives the jury "a roving commission."

The Missouri Supreme Court in Miles v. Gaddy, 357 S.W.2d 897, 900 (Mo. banc 1962), condemned instructions that submit as a ground of negligence a party's failure to control a motor vehicle. The Supreme Court determined that the "failure to control the operation of a motor vehicle is a charge of general negligence and that an instruction which submits it is confusing and constitutes a roving commission." Id. The Supreme Court concluded that "the submission ... of failure to control the motor vehicle as a hypothesis of negligence is not a correct statement of either statutory or case law and its inclusion renders the instruction prejudicially erroneous." Id. at 901.

Submissions of "failure to properly control ... motor vehicle" instructions have since been condemned by other Missouri court decisions following Miles. See McIntyre v. Whited, 440 S.W.2d 449, 451 (Mo.1969) (submission of a "failure to control" instruction is prejudicially erroneous); Hicks v. Graves Truck Lines, Inc., 707 S.W.2d 439, 447 (Mo.App.1986); Lucky v. Avon Products, Inc., 589 S.W.2d 364, 366 (Mo.App.1979) (by submitting a failure to control instruction, "the trial court failed to confine the jury's consideration to the factual issues and gave the jury a roving commission. Such a submission of general negligence has been frequently condemned."). ³ The trial court's submission of Instruction No. 8 was prejudicially erroneous.

II

Ms. Havel asserts for her second point on appeal that the trial court erred and abused its discretion in not granting her motion for new trial on the issue of damages because, Ms. Havel contends, the amount of the verdict was inadequate to compensate her for her damages. Ms. Havel submits that medical expenses, lost income, automobile damage, permanency of her medical condition,...