Hines v. Sweet, 10098

• Decision Date: 12 May 1978
• Docket Number: No. 10098,10098
• Citation: 567 S.W.2d 435
• Parties: Blaine HINES and Anna Maude Hines, Plaintiffs-Appellants, v. James Henry SWEET, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 435

567 S.W.2d 435

Blaine HINES and Anna Maude Hines, Plaintiffs-Appellants, v. James Henry SWEET, Defendant-Respondent.

No. 10098.

Missouri Court of Appeals,Springfield District.

May 12, 1978.

Motion for Rehearing or to Transfer Denied June 6, 1978.

Application to Transfer Denied July 24, 1978.

L. R. Buehner, Buehner & Buehner, Joplin, for plaintiffs-appellants.

Jon Dermott, Ronald E. Mitchell, Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for defendant-respondent.

Before BILLINGS, C. J., and STONE and TITUS, JJ.

STONE, Judge.

This is a second appellate chapter in the above-captioned case, which was instituted by plaintiffs Blaine Hines and Anna Maude Hines, as the natural parents of Sally Ann Alderman (nee Hines), against defendant James Henry Sweet, for the recovery of damages on account of the allegedly wrongful death of Sally on May 1, 1970, by reason of injuries sustained by her in a vehicular collision on April 22, 1970. Sally's husband having failed to sue within one year after her death, her parents instituted this action for wrongful death on December 7, 1971. § 537.080(2), RSMo 1969, V.A.M.S. Upon trial to the court and jury in October 1973, judgment for defendant Sweet was entered upon a unanimous jury verdict; but in January 1974, plaintiffs' motion for new trial was sustained for error in an instruction given at defendant's request. Upon appeal to this court, that order was affirmed and the cause was remanded. Hines v. Sweet, 518 S.W.2d 710 (Mo.App.1975).

The subsequent retrial resulted in a unanimous jury verdict for plaintiffs Hines and assessment of plaintiffs' damages at $5,000, for which judgment was entered. Plaintiffs again appeal, presenting only a single point directed to the alleged inadequacy of the verdict. Before specifically treating of that point, our study of the transcript prompts the following observations.

Plaintiffs Blaine and Anna Maude Hines had two sons and two daughters. At the second trial presently under review, Anna Maude, the mother, testified that Brenda, the oldest child, was twenty-one months older than Sally, and that Sally was four years older than Phillip and six and one-half years older than Frank. And, the father's testimony at the second trial on May 27, 1975, disclosed that Frank was then twenty-two years of age. From the facts thus revealed by plaintiffs' testimony at the second trial, it necessarily follows that, when Sally died on May 1, 1970, slightly more than five years prior to that trial, Frank then was seventeen years of age and Sally was between twenty-three and twenty-four years of age.

However, in carefully reviewing the transcript, we note that in the course of reading into evidence life expectancies from one of the mortality tables appearing in 42 V.A.M.S. at page 801, plaintiffs' counsel stated that Frank "was at the time of this incident (resulting in Sally's death), 17 years old," and that "Sally . . . was 19 years of age at the time of her death (9 days later on May 1, 1970)." ¹ (All emphasis herein is ours.) Likewise in plaintiffs-appellants' brief filed in this court, counsel stated no less than three times (twice in the statement of facts and once in the argument section) that Sally was 19 years of age at the time of her death, and in each instance also has declared in the same paragraph that Frank was then 17 years of age.

A meticulous search of the transcript reveals no testimonial support for the assertions of plaintiffs' counsel that Sally was 19 years of age at the time of her death. The only evidence of Sally's age, other than the afore-mentioned testimony of plaintiff Anna Maude Hines, the mother of Sally and Frank, was Sally's birth certificate received in evidence as plaintiffs' exhibit 7. Since that certificate obviously would have afforded reliable, if not conclusive, proof on the factual conflict concerning Sally's age, it was the duty of plaintiffs-appellants to file that exhibit with the clerk of this court which has not been done. Missouri Court of Appeals Rules, Springfield District, Special Rule 4; Ryan v. Equitable Life Assurance Society of U. S., 560 S.W.2d 884, 886-887(3) (Mo.App.1977); Kewanee Oil Co. v. Remmert-Werner, Inc., 508 S.W.2d 23, 27 (Mo.App.1974); Lange v. Baker, 377 S.W.2d 5, 7(4) (Mo.App.1964).

In view of the utilization of and reliance upon actuarial tables in the presentation of plaintiffs' case, and the emphasis upon the purported special relationship between Sally and Frank, we have been moved to examine the entire record in this court on the prior appeal, as we are authorized to do. Collins v. Leahy, 347 Mo. 133, 137-138, 146 S.W.2d 609, 611(2) (1940); Hardin v. Hardin, 512 S.W.2d 851, 854-855(2, 3) (Mo.App.1974); Langdon v. Koch, 435 S.W.2d 730 733(4) (Mo.App.1968). See also Wessels v. Smith, 362 S.W.2d 577, 578(3) (Mo.1962).

From that examination of the transcript on the first appeal docketed as our Case No. 9664, we glean the following. In the opening statement of plaintiffs' counsel, we find the representation and assurance that "(t)he evidence will be that, as I say, Sally was just short of 24 years of age when she died, and we will have evidence about what her life expectancy was . . . ." The evidentiary portion of the transcript on appeal was abbreviated by the fact, as recited in the transcript, that "(t)he testimony of certain witnesses has been omitted from this transcript by agreement of counsel." Accordingly, none of the testimony by members of the Hines family was included. However, in the closing argument of plaintiffs' counsel which was reported, we find the positive statement (presumably conforming to the untranscribed evidence) that: "Sally was seven years old when Frank arrived. Now, you folks, in your own experience, know what the coming of a baby, a new baby in the family would be to a seven year old girl."

Similarly, in his opening statement to the jury at the first trial, defendant's counsel told the jury that he anticipated the evidence would show that at the time of accident Sally "was an adult, she was 23 years of age," and in his closing argument advised the jury that "you must bear in mind that this was a young woman, 23 years of age." Even though appellants' adhibition of mortality tables and their presentation and argument in the second trial now under review apparently were predicated, at least to some extent, on the metachronism that Sally was born nineteen years before the accident which took her life in 1970, defendant-respondent neither objected at trial to the assumption by plaintiffs' counsel that Sally was nineteen at the time of her death nor appealed from the judgment nisi. Hence, we proceed to treat of the single point in plaintiffs-appellants' brief on this appeal, which was directed to the alleged inadequacy of the verdict and charged that the trial court "committed prejudicial error in excluding proposed testimony from the witness Dr. Patterson, and the proposed witness Robert Dieckhoff, that Frank Hines, retarded son of plaintiffs (Hines) and brother of the deceased Sally Ann Alderman, needed care of a type offered by group care homes and that such care was available in the area at a cost of approximately $275 per month, because such evidence was admissible . . . to establish damages to the plaintiffs that they were reasonably certain to sustain in the future as a direct result of the death of their daughter, whom the evidence established was reasonably certain to render service to her parents or either of them by furnishing such needed care to her retarded brother."

Frank lived with his parents (plaintiffs Hines) in their home on a tract of "just under 40 acres" in the "north edge" of Newton County. At the time of the second trial in May 1975, both plaintiffs were 63 years of age and Frank was 22 years of age. Aside from the fact that plaintiff Blaine "used to could castrate pigs" but no longer could do so, he led a "normal life" and his health was "all right." Plaintiff Anna Maude forthrightly declared "I am in good health."

Plaintiffs' witness, Dr. Ronald R. Patterson, then medical director of the Joplin Regional Diagnostic Clinic, pictured Frank as a Mongoloid who physically was "a healthy young man" but mentally had an "intelligence" level of "approximately age five" and accordingly needed supervision like any other child of that age.

In response to the interrogative guidance of their counsel, plaintiffs Blaine and Anna Maude testified in detail concerning Sally's deep affection for her retarded brother and her patient and continuing efforts to help him improve his speech and develop his limited capabilities, which need not be detailed here in view of the thrust in the above-quoted single point on appeal presented by plaintiffs-appellants.

None of the seven cases cited by plaintiffs-appellants involved a factual situation similar to the case at bar, and none of those cases was an action by parents for the recovery of damages by reason of the death of a child. In fact, six of those seven cases are cited by plaintiffs-appellants to the single long-settled proposition that, if the right to recover damages is established, difficulty in calculating or measuring the exact amount of damages will not prevent some recovery. ²

We recognize that family circumstances and finances may be considered in a wrongful death action by the parents of a deceased child and that recovery may be had for the parents' pecuniary loss occasioned by the child's death; ³ and we are cognizant that such pecuniary loss embraces not only the monetary contribution, if any, of the deceased but also such elements of pecuniary value as enter into the domestic relationship of parent and child. ⁴

The seventh and final case cited by counsel for plaintiffs-appellants, namely, Lebrecht v. United Rys. Co. of St. Louis, 237 S.W. 112, 114(2) (Mo. 1921), stated and applied the following principle which was controlling in Lebrecht and which is quoted...