Keller v. Anderson Motor Service, Inc.
| Decision Date | 10 May 1983 |
| Docket Number | No. 44262,44262 |
| Citation | 652 S.W.2d 735 |
| Parties | William KELLER, Plaintiff-Appellant, v. ANDERSON MOTOR SERVICE, INC., a Corporation, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Anthony J. Coultas, St. Louis, for plaintiff-appellant.
Geoffrey Farrow, St. Louis, for defendant-respondent.
Plaintiff appeals from the action of the trial court in sustaining defendant's motion for new trial in a personal injury case in which a verdict of $100,000 was returned in plaintiff's favor. We affirm.
The evidence supported a finding that a truck operated by Gerald Manley struck the pickup truck operated by plaintiff at an intersection and that Manley had violated the electric signal at the intersection. Defendant asserts that it was entitled to a directed verdict because of the absence of evidence that Manley was its agent in the operation of the truck. This contention was not specifically raised in the motions for directed verdict as required by Rule 72.01(a) and has not therefore been preserved for appellate review. Christ v. Tice, 578 S.W.2d 319 (Mo.App.1979) .
Plaintiff allegedly sustained injury to his neck, back and left elbow. Defendant asserts that plaintiff failed to establish that the injuries were proximately caused by the accident and that therefore it was entitled to a directed verdict on that ground. We will discuss the elbow injury more fully later. For present purposes, it is sufficient to say that plaintiff adduced evidence that he sustained injury at least to his neck, either original or as aggravation of preexisting arthritis. See, Miller v. Gulf, Mobile, and Ohio R.R. Co., 386 S.W.2d 97 (Mo.1964) [8-10]; Simon v. S.S. Kresge Co., 103 S.W.2d 523 (Mo.App.1937) . We find no merit to defendant's claims that it was entitled to judgment as a matter of law.
We turn to plaintiff's contention that the trial court erred in sustaining defendant's motion for new trial. The court's action was based upon the admission into evidence of a hypothetical question to plaintiff's treating surgeon and the doctor's answer. The doctor did not testify at trial and the question and answer were read from his deposition taken one week before trial. Some background must be set forth. The treating surgeon excised the olecranon bursa from defendant's left elbow several months after the accident. In deposition he testified that the history given by the patient indicated no prior difficulties with the elbow. The undisputed evidence from plaintiff and from his regular physician was that in the two months preceding the accident plaintiff's left elbow had been aspirated twice for bursitis. The hypothetical question concerning causation for plaintiff's bursitis omitted these two prior treatments. 1 Defendant objected to the question at deposition on the general grounds that it omitted material facts. With the hypothesis that plaintiff had no prior elbow problems prior to the accident the doctor opined that the bursitis was caused by the accident. On cross-examination the surgeon was asked a hypothetical question on causation which included the omitted facts of prior aspirations. The answer to that question negated the accident as the cause of the bursitis. At trial defendant objected specifically to the question and answer elicited on direct examination. The trial court overruled the objection on the basis that Rule 57.07(d)(3)(B) required a specific objection at deposition. The cross-examination testimony was also admitted. On motion for a new trial the court concluded it had erroneously admitted the question and answer elicited on direct examination.
The trial court's action on the motion for new trial was correct for at least three reasons. First, the answer on cross-examination completely vitiated the answer on direct in view of the admitted existence of the two prior treatments. The original answer was of no...
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Carter v. St. John's Regional Med. Center, 24247.
...judge and opposing counsel to take any corrective action needed before the case is given to the jury. See Keller v. Anderson Motor Serv., Inc., 652 S.W.2d 735, 737 (Mo.App.1983). In applying the "specificity" rule, Missouri appellate courts have ruled that general objections such as "lacks ......
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Seabaugh v. Milde Farms, Inc., No. 73372
...to give opposing counsel the opportunity to respond. Chism v. Steffens, 797 S.W.2d 553, 559 (Mo.App.1990); Keller v. Anderson Motor Service, Inc., 652 S.W.2d 735, 737 (Mo.App.1983); Halford v. Yandell, 558 S.W.2d 400, 404 (Mo.App.1977). Here there was no objection to the scientific basis of......
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Brooks v. Ssm Health Care
...are waived unless seasonable objection thereto is made during the deposition." Rule 57.07(c)(4); Keller v. Anderson Motor Service, Inc., 652 S.W.2d 735, 737 (Mo.App. E.D.1983). To hold otherwise would encourage delay that might be remedied with a few questions. Washington, 897 S.W.2d at The......
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Stone v. Duffy Distributors, Inc.
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