Howell v. Welders Products and Services, Inc.

• Decision Date: 08 December 1981
• Docket Number: No. WD,WD
• Citation: 627 S.W.2d 311
• Parties: Gary and Sandra HOWELL, Appellants, v. WELDERS PRODUCTS AND SERVICES, INC., Respondent. 31681.
• Court: Missouri Court of Appeals

Page 311

627 S.W.2d 311

Gary and Sandra HOWELL, Appellants, v. WELDERS PRODUCTS AND SERVICES, INC., Respondent.

No. WD 31681.

Missouri Court of Appeals, Western District.

Dec. 8, 1981.

Rehearing Overruled Jan. 12, 1982.

J. D. Williamson, Jr., John K. Weilert, Independence, for appellants.

Pieter A. Brower, Kansas City, for respondent.

Before SOMERVILLE, C. J., and CLARK and LOWENSTEIN, JJ.

LOWENSTEIN, Judge.

This is an appeal from the trial court's grant of a motion for directed verdict at the close of plaintiff's evidence in favor of defendant-respondent Welders Products and Services, Inc. and against plaintiffs-appellants Gary R. and Sandra Howell. Appellants brought a two count action for negligence, alleging (1) respondent's failure to provide sufficient means for lifting approximately 600 pound cylinders of liquid nitrogen into Mr. Howell's place of employment and (2) consequent consortium damages to Mrs. Howell.

Appellants' points on appeal concern two major issues which may have justified the trial court's failure to submit the case to the jury: (1) whether or not there was substantial evidence to attribute the cause of Mr. Howell's injury to the lifting of the cylinders; and (2) whether respondent had a duty to provide adequate means to transport the cylinders into Mr. Howell's place of work.

The judgment of the trial court is affirmed.

On appeal of the grant of a directed verdict, the reviewing court must consider the evidence in a light most favorable to the appellant, giving it the benefit of all reasonable inferences, and disregarding evidence favorable to respondent. Southwestern Bell Telephone Co. v. Chester A. Dean Construction Co., 370 S.W.2d 270, 274 (Mo.1963). Further, negligence is ordinarily a jury question, and where different reasonable conclusions may be supported by the facts of a case, the question of negligence is almost always for the jury. Fortner v. St. Louis Public Service Co., 244 S.W.2d 10, 13 (Mo.1951).

In this case, the evidence shows that Mr. Howell (hereinafter appellant) was the chief chemist and Assistant Director of the Kansas City Regional Crime Lab at the time of the alleged accident. Appellant had responsibility for making sure that a continuing supply of liquid nitrogen was available to keep operative the lab's x-ray spectrometer. Appellant arranged with respondent over the telephone for delivery of 5' X 2', six hundred pound cylinders of the liquid nitrogen to the crime lab. The director of the lab would sign the purchase orders. Delivery of the cylinders necessitated lifting the special dolly which the tanks were on up three stairs to the lab, a task which respondent's deliveryman could not accomplish alone. The deliveryman would invariably solicit assistance in lifting this dolly up the steps, and inevitably several of the lab employees would lend a hand.

Appellant, at the request of the director of the lab, complained to respondent about this mode of delivery, which culminated in several visits by three of respondent's representatives to examine the transportation problem in the fall of 1975. These representatives acknowledged that lab personnel should not have to assist its deliveryman, but no other method of delivery was provided. On July 19, 1976, appellant, along with two other employees, volunteered to help with the delivery of one of the cylinders, as he had done approximately 15-20 times before. This time, however, immediately after lifting he felt "a light-headed feeling" and complained of feeling "strained all over." Appellant testified that a few days after this incident he would awaken with a "catch" in his hip or back, the pain becomming progressively worse. On cross-examination, appellant testified that one week after the lifting incident he was leaning over a bed while investigating a homicide, and that when he straightened up felt a pain in his back similar to the pain he had been experiencing in the mornings since July 19th. Appellant testified that he had never had back problems before the July 19th lifting incident. The crime lab ceased doing business with respondent after this incident and thereafter built a ramp over the three steps to facilitate easy access to their building.

Over a month after the lifting incident, appellant first consulted with a Dr. Devins, who referred him to Dr. Glaser, the doctor who testified at trial. By this time, appellant testified he was dragging his leg around because it had no feeling in it, and that the pain had become severe. Dr. Glaser prescribed medication and total rest, and referred him to a neurologist, who performed a myelogram. Apparently no further treatment, beyond medication, was prescribed. When the pain persisted, appellant went into the hospital, a second myelogram was performed, and herniated disc was diagnosed. Surgery was performed the following day. Appellant testified that he did not relate the lifting incident to Dr. Glaser at the first appointment because he thought he was suffering from bone cancer or arthritis.

Dr. Glaser testified in answer to a hypothetical question based on the facts surrounding the lifting incident that the lifting incident "certainly could have caused the herniated disc." When respondent added to the hypothetical the homicide investigation incident and asked if the doctor was unable to attribute which incident caused the disc problem, the doctor answered "yes." The majority of the doctor's testimony contrasted a sudden onset as opposed to a gradual onset type of herniated disc condition, adding that he saw much of both types. Finally, the doctor testified that appellant had "a permanent impairment or function as a result of that particular medical problem."

Although the trial court did not state its reasons in its order sustaining the directed verdict, the court did tell the jurors upon their dismissal that "some of the basis" for the rulings was that the medical testimony as to causation was too uncertain to make a submissible case.

Even though "(t)he record tends to show that the trial court sustained defendants' motion on the theory that there was no adequate showing of proximate cause ... if the motion for a directed verdict was properly ruled, the reason assigned is immaterial." Stewart v. Zuellig, 336 S.W.2d 399, 402 (Mo.1960); Hedgcorth v. Missouri Pacific Railroad Co., 592 S.W.2d 473, 476 (Mo.App.1979). Thus,...