Hodges v. Johnson
| Citation | 417 S.W.2d 685 |
| Decision Date | 18 July 1967 |
| Docket Number | No. 8646,8646 |
| Parties | Wallis E. HODGES et ux., Plaintiffs-Respondents, v. Edna JOHNSON, Defendant-Appellant. |
| Court | Court of Appeal of Missouri (US) |
Daniel, Clampett, Ellis, Rittershouse & Dalton, Springfield, for defendant- appellant.
Sam F. Hamra, Jr., Springfield, for plaintiffs-respondents.
This appeal poses but two complaints: (1) the Greene County Circuit Court erred in permitting improper argument by plaintiffs' counsel, and (2) the verdicts are excessive. Only eight months elapsed from the November 24, 1965, automobile accident until the jury awarded Wallis E. Hodges $10,000 and his wife, Beverly R. Hodges, $2,500 on her derivative action for the loss of her husband's 'society, consortium, companionship, love, affection and support.' Having profited nothing in the trial court by after-trial motions, defendant positioned her predicament here.
At the time of the casualty Hodges was a twenty-nine year old traveling carpet and rug salesman whose employment afforded him a monthly drawing of $500, plus commissions and expenses. The record is wholly silent as to the amount of commissions, if any, plaintiff may have earned over the drawing account either before or after the accident. Before the collision, and when not traveling, Hodges was said to be a cheerful helpmate to his wife (who also worked) in performing household chores such as window washing, operating the vacuum sweeper and hanging and unhanging laundry. He was depicted as an avid shrub trimmer, yard tender, golfer, water skier, and bowler who enjoyed good health. The Hodges' marital life was described as 'very active.' They had three children.
Mr. Hodges was hospitalized following the accident until December 20, 1965, and returned to employment on January 31, 1966. The collision produced two or three fractured ribs (the doctors not in accord) that 'were in good apposition * * * (and) health (uneventfully) by normal intent or callus formation (without) misalignment.' Chest and back pains were experienced 'for a couple of months after I got out of the hospital and it has since gradually went out.' A cut to the right forearm one-half inch proximal to the ulnar styloid healed without infection, and one of plaintiff's doctors said, '(i)t is possible * * * he can have some residual pain there from an impinged (cutaneous) nerve or from strictly the scar formation.' Another physician agreed the affected nerves would 'take care of themselves over a period of six months to a year.' Hodges' doctors testified he had also experienced 'just a simple neck strain' or 'cervical sprain * * * localized primarily to this one ligament attachment * * * at the juncture of the neck and chest segments.' No doctor testified to any permanent physical disability although it was said Hodges will 'have some residual soreness * * * for awhile' or his condition 'could (last) * * * for an indefinite period.' But for the chest films evidencing fractured ribs, all x-rays were negative.
There was no testimony or claim Hodges lost any income because of the accident. His hospital and medical charges were $1,353.
When released from the hospital Hodges was 'much improved' although 'at that time I was unable to do anything, just loafed * * * around the house.' The doctor treating plaintiff in the hospital saw him after discharge on December 27, 1965, and January 10, January 31, and March 14, 1966. Prior to Hodges' final visit to this physician he had been released 'to full duty' and when last seen plaintiff 'had a few aches and pains but the primary complaint was to the right chest * * * and wrist.' This doctor 'could find nothing physicially wrong with him that would keep him from performing his normal activities' and no cervical collar was ever prescribed because 'there was no need for a collar, no, sir.'
Hodges consulted with another doctor on March 25, 1966. 'His chief complaints at the time * * * were of aching discomfort in the lower portion of his neck.' No cervical muscle spasm was evident, the neurological examination was negative, and 'he had near normal range of motion of his neck.' Plaintiff complained of pain on extreme neck movements, was given medication, a novocaine-cortisone injection 'around the spinus processes of the * * * 7th cervical and 1st thoracic vertebrae,' and 'a neck support to splint and rest his neck.' He again visited this doctor May 2, May 13 and July 22, 1966. 'The patient has improved slightly as of the time of my (last) examination and I'm not sure how much he will continue to improve.' Between June 8 and July 1, 1966, plaintiff received five treatments from a chiropractor who 'worked on my shoulder area and again down into my back and she laid me on my right side and worked in my neck.'
Plaintiff wore the neck collar 'steady * * * for a period of two months' and thereafter when driving 'any distance * * * and when I'm tired.' Hodges testified that because of his injuries the bowling 'was terminated;' 'I've hired a neighbor boy to od this (yard) work;' housework has ceased, and sports participation is at a bare minimum, all 'due to this hurting and pain in my shoulders and neck.' After returning to work and continuing up to trial time, Hodges said he deferred from carrying his rug and carpet sample albums (weighing three to twenty pounds) from his automobile into a customer's store because doing so 'was putting a strain on * * * my shoulders and my neck, and maybe a day or two after that I'd feel like an old man around ninety years old.' The only effect this had on his work was that 'occasionally (he) would have a customer come out to the car to look at the samples.' In describing her post-accident husband, Mrs. Hodges said, '(H)e's tired most of the time, he's irritable with the children, and he's nervous.' A neighbor observed plaintiff to be 'very sullen and rather crabby.'
In considering defendant's first complaint of error, we quote that portion of the closing argument to which the point is directed:
'(Plaintiffs' counsel): Count One is Wallis Hodges' claim for his injuries that he has sustained and his medical and hospital bills that he has incurred in the past and has to incur in the future. This is for his permanent physical disability. * * * This is for his loss of earning an income and earning capacity in the future. He is a commission salesman. How much is he going to lose the rest of his life because he has to get buyers to come out ot his car to look at samples.
'(Defendant's counsel): If Your Honor please, I object to that argument as purely speculative, there's no evidence in this case at all in regard to that.
'The Court: Sustained. I don't believe there's any evidence * * * of a permanent--it was indefinite. * * * I mean the disability.
'(Plaintiffs' counsel): On the disability, (the doctor) did state that it would be for an indefinite period of time.
'The Court: He said indefinite?
'(Plaintiffs' counsel): That's right.
'The Court: You can so argue.
'(Defendant's counsel): I'm also objecting that there was no evidence of loss of commissions or anything after he returned to work.
'The Court: He was speaking in terms of earning capacity, I believe * * * Proceed * * *
* * *'
No doctor testified Hodges would require future medical attention or future hospital care. As apparent from the colloquy, the trial court understood and plaintiffs' counsel tacitly admitted there was no evidence Hodges had incurred any 'permanent physical disability.' No claim was made plaintiff had lost any earnings or commissions. In fact, no evidence was tendered as to the amount of commissions Hodges had ever earned or received. The trial court properly sustained defendant's first objection to the argument, and, as this was the only relief requested, defendant stands satisfied in full. The dialogue that followed, however seemingly terminated in the court's permission and approval for counsel to argue and imply plaintiff had suffered loss of earning capacity.
It is axiomatic counsel should neither argue nor draw inferences from matters not in evidence and that a trial court errs in permitting such a discourse. 1 Evidence of substantial personal injuries or even of permanent injury is not sufficient of itself to show loss or impairment of earning capacity, past or future. 2 Recovery for loss of earning capacity is not to be permitted when formed from speculation and conjecture, but only when established with reasonable certainty. 3
Plaintiffs, backed by cited authority, remind us counsel is to be permitted wide latitude in argument and the breadth of the berth afforded is largely a matter for determination by the trial court in the exercise of sound discretin. We agree with these general pronouncements and the doctrine of due deference to be afforded the trial court in discretionary subjects. Nevertheless, we are not obliged to blindly ingest such expressions as anodynes to completely assuage the pain of errors committed by court and counsel. State ex rel. State Highway Commission v. Bloomfield Tractor Sales, Inc., Mo.App., 381 S.W.2d 20, 26.
Whether the statement, 'I'm also objecting that there was no evidence of loss of * * * anything after he returned to work,' was sufficiently specific to constitute an objection to any certain part of the argument, we need not decide. Cf., Fennell v. Illinois Central Railroad Company, Mo.App., 383 S.W.2d 301, 307(7). After the trial court made it clear plaintiffs' counsel would be permitted to argue concerning loss of earning capacity, defendant made no objection, general or specific, to either the court's remark or the subsequent argument of counsel. Previously cited authority and the record in this case could indicate error on the part of both court and counsel in permitting and making argument...
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