Jurcich v. General Motors Corp.

• Decision Date: 15 June 1976
• Docket Number: No. 36154,36154
• Citation: 539 S.W.2d 595
• Parties: Emil JURCICH, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, and Katherine Cronen, Defendants-Respondents. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 595

539 S.W.2d 595

Emil JURCICH, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, and Katherine Cronen, Defendants-Respondents.

No. 36154.

Missouri Court of Appeals, St. Louis District, Division Two.

June 15, 1976.

Motion for Rehearing or Transfer Denied July 9, 1976.

Application to Transfer Denied Sept. 13, 1976.

Gerritzen & Gerritzen, St. Louis, for plaintiff-appellant.

Joseph M. Kortenhof, St. Louis, for defendants-respondents.

KELLY, Judge.

Emil Jurcich, plaintiff in the trial court, brings this appeal from a judgment of the Circuit Court of the City of St. Louis wherein the trial court sustained the joint motion of the defendants, General Motors Corporation and Katherine Cronen, for a directed verdict at the close of the plaintiff's evidence and entered judgment on behalf of both of the defendants. We affirm.

Appellant's Second Amended Petition on which the cause came on for trial pleaded a cause of action in fraud in five counts. The allegations of the petition essential to an understanding of the case are that on June 5, 1967, plaintiff, while in the employ of General Motors Corporation, Fisher Body Division, was working on an assembly line and while in the act of crossing the assembly line was struck in the back by a seat press being pushed down the assembly line and sustained injury to his lower back; that he reported to the plant dispensary shortly thereafter and informed Katherine Cronen, who was employed by General Motors Corporation as a nurse in the plant dispensary, of the fact and nature of his injury and that he was suffering pain in his lower back. He further alleged that a record was made of his complaints and that Miss Cronen examined him and found redness in the area of his back involved and Miss Cronen applied an ice pack to his lower back for 15 to 20 minutes, gave him some medicine for pain, advised him to use heat at home and gave him an appointment to see the company doctor; that the diagnosis at the plant dispensary was contusion of the left lumbar region; that on June 6, 1967, he again appeared at the company dispensary and it was found that he had spasm of the lumbar spine and he was given a muscle relaxant known as 'Maolate;' that on June 9, 1967, he again was seen at the plant dispensary, reiterated his complaints of back pain and was given an appointment for June 10, 1967; that on June 10, 1967, and also on June 20, 1967, he again appeared at the dispensary and Miss Cronen, in her individual capacity and acting also as agent for the employer, gave him a pill, representing to him at the time that it was pill to relieve his pain, with the knowledge, orders and consent of the defendant corporation. Plaintiff further alleged that Miss Cronen and the corporate defendant, at the time she made this representation to plaintiff that the pill was a pain pill, knew that said representation was false and that the pill given to him was a placebo of sugar glucose with no medicinal value at all and containing no pain relieving ingredient whatsoever, and that plaintiff relied upon the fact that it was a pain pill. He further alleged that he had no knowledge of the fact that he was receiving a placebo and believed the false representation made to him by Miss Cronen that the pill was a pain pill and that be had a right to rely upon the representation as made to him by Miss Cronen, and that he did rely thereon. He alleged that he would not have taken the pill had he known that it was a sugar pill and not a pain pill and he was thereby misled, tricked and defrauded by Miss Cronen and his employer.

Plaintiff's Second Amended Petition continued that as a direct result of this deception he was caused to have a continuous amount of pain and muscle spasm in the lower back, whereas if the pill had been a pain pill, as represented by the defendants, it would have relieved the back pain he was experiencing and the muscle spasm resulting therefrom. He sought actual damages 'for the pain and suffering he was falsely permitted to endure by reason of the false pain pill' against both defendants in an amount of $1,000.00, and further prayed for punitive damages against General Motors Corporation in an amount of $50,000.00 and against Katherine Cronen in an amount of $1,000.00.

Counts II, III, IV and V adopt the allegations heretofore set out and plead separate Counts for the dispensing of a placebo on each of five separate dates, being, July 5, 1967, July 6, 1967, August 29, 1967, and January 15, 1968, respectively. In each separate Count he seeks the same specified amount of actual and punitive damages against each of the defendants as prayed for in Count I, totalling $5,000.00 actual and $250,000.00 punitive damages against General Motors Corporation and $5,000.00 punitive damages against Miss Cronen.

Defendants filed a joint answer admitting much of Mr. Jurcich's allegations contained in his Second Amended Petition, including the dispensing of the placebos by the plant physician, etc.

Many of the facts in this case are not actually disputed. In reviewing the question whether appellant made a submissible case in the trial court and whether the trial court erred in sustaining defendants' motion for directed verdict at the close of plaintiff's evidence, we must consider the evidence from the viewpoint most favorable to the plaintiff and give him the benefit of every reasonable inference which the evidence tended to support. Mathes v. Trump, 458 S.W.2d 297, 298(1) (Mo.1970). Viewed in this light we find that the evidence developed at trial is that appellant sustained an injury to his low back arising out of and in the course of his employment when he was struck in the back by a seat press on June 5, 1967, and that he shortly thereafter went to the plant dispensary operated by his employer, General Motors Corporation, where he made known the fact of the accident and the nature of his complaints to Miss Cronen, a registered nurse in the employ of General Motors Company in the plant dispensary; that Miss Cronen examined him and noticed a redness in the area of appellant's low back, applied an ice pack to this area for 15 to 20 minutes, gave him two aspirins and furnished him with an additional twelve aspirins to take with him, and directed him to take one aspirin every four hours as needed for pain; that on June 6, 1967, appellant returned to the dispensary where he 'thought' he saw Miss Cronen and she again gave him some medicine to relieve his pain. On both of these occasions the medicine given to him afforded him some relief from his pain.

Appellant further testified that on June 9, 1967, he returned to the plant dispensary and asked the nurse if he could see the doctor. On June 10, 1967, he saw Dr. Patient, the plant physician, ¹ and the doctor gave him some medicine which did not relieve the pain very much. ² Appellant's next visit to the dispensary was on June 20, 1967, when he saw a nurse, who she was he could not say, ³ and asked for something for pain. He was given a capsule and, relying on the fact that he had requested something to relieve him of the pain he was experiencing in his low back, he took the capsule expecting it to give him relief from his pain.

On June 21, 1967, appellant visited a private physician, Dr. Hill, because his back was still bothering him, and Dr. Hill prescribed a one week supply of Robaxisal-PH, a muscle relaxant with phenobarbital.

On July 5, and 6, 1967, appellant returned to the plant dispensary complaining of back pains and on each of these occasions he was given a pill or a capsule, neither of which afforded him any relief for his pain. The records of the dispensary record that the medication dispensed on both of these dates were placebos. The placebos dispensed on July 5, 1967, were delivered to the appellant by a nurse, Elizabeth Lackey, and those on July 6, 1967, by nurse, Glenda Tippett. Around the middle of July a 'model change layoff' occurred and as a result of this layoff appellant did not return to work until approximately the third week in August. About one week after appellant had returned to work he again went to the plant dispensary on August 29, 1967, seeking some relief for his aching back. On this occasion Miss Cronen dispensed the pills which admittedly were placebos.

On September 5, 1967, appellant went on sick leave, and on the next day he visited Dr. Cole, an associate of Dr. Hill, and Dr. Cole observed marked muscle spasm in the lower dorsal area of appellant's back, indicative of the fact that appellant was still experiencing pain in that region. Dr. Cole prescribed robaxin and phenaphen with codeine and recommended that appellant wear a back brace and not work for a month.

On October 11, 1967, appellant returned to work. Between October 15 and 25, 1967, he was hospitalized in St. Elizabeth's Hospital where he was placed in traction and given heat massage and exercise for his back. On January 2, 1968, he returned to work wearing a back brace. Again on January 15, 1968, he went to the plant dispensary, requested some medicine for pain and was given what he thought was a pain pill, by Miss Cronen. What he actually received was a placebo.

Appellant filed a claim with the Workmen's Compensation Commission for his back injury and this claim was heard sometime in January, 1971. He was awarded a 20% permanent partial disability rating by the referee. At this hearing on his Workmen's Compensation Claim, appellant learned for the first time that some of the medications he had received from the plant dispensary included the placebos mentioned above.

At trial, appellant attempted to introduce evidence testimony relative to the bills of Dr. Hill and Dr. Cole. Respondents objected on the ground that these bills were covered by the Workmen's Compensation award and the objection was sustained. An offer of proof was made that if the witness was permitted to testify his answer would be that he paid $100.00 to the doctors 'for the...