Koenke v. Eldenburg
| Decision Date | 18 December 1990 |
| Docket Number | No. WD,WD |
| Citation | 803 S.W.2d 68 |
| Parties | Leonard KOENKE, Jr., et al., Appellants, v. Donald ELDENBURG, M.D., Respondent. 42713. |
| Court | Missouri Court of Appeals |
James F. Crews, Mary Kay Sommer Lutz, Tipton, for appellants.
Mark T. Kempton, Andrew Carroll, Sedalia, for respondent.
Before KENNEDY, P.J., and SHANGLER and GAITAN, JJ.
Leonard Koenke, Jr., surviving husband of Dorothy Koenke, sued Dr. Donald Eldenburg for Dr. Eldenburg's alleged negligence in failing to make an early diagnosis of a malignant melanoma which caused Dorothy Koenke's death. A jury rendered a verdict for defendant, and Koenke appeals from the ensuing judgment.
Dorothy Koenke consulted Dr. Eldenburg on August 11, 1978, complaining of a lesion on her right heel. Dr. Eldenburg diagnosed the lesion as a plantar wart and prescribed radiation therapy. He referred her to Dr. Daum, a radiologist, who gave a course of X-ray treatments. In the following three years, Dorothy Koenke consulted Dr. Eldenburg for various conditions, including a lesion on her right heel. Whether the lesion was the same or a different one from the one which was present on August 11, 1978, is a disputed point. On March 10, 1981, Dr. Eldenburg had the lesion biopsied and diagnosed it as a malignant melanoma, from which malignancy Dorothy Koenke died on December 19, 1981.
Plaintiff says the trial court erred in denying plaintiff's motion for a change of venue from Pettis County, made on the ground that the defendant had an undue influence over the inhabitants of the county. Rule 51.04(a)(2). The defendant filed a denial of the cause alleged in the application, and an evidentiary hearing was held. Rule 51.04(e).
On the evidentiary hearing the plaintiff presented testimony that Dr. Eldenburg was chief of staff of Bothwell Hospital of Sedalia, Pettis County's only hospital; that he and his partners had an extensive medical practice throughout Pettis County; that he had practiced medicine in Pettis County for 21 years; that he enjoyed a reputation as a skilled physician in the vicinity; and that he was a well-known and popular man. Leonard Koenke, Jr., on the other hand, was a resident of adjoining Morgan County, where the decedent had also lived before her death. While this evidence, if believed by the trial court, would perhaps have supported the granting of a change of venue upon plaintiff's motion, we are unable to say such a result was mandated thereby. The burden to prove the grounds alleged in the motion was upon plaintiff. State ex rel. Missouri Highway & Transp. Comm. v. Johnson, 658 S.W.2d 900, 903 (Mo.App.1983); Chandler v. New Moon Homes, Inc., 418 S.W.2d 130, 135 (Mo. banc 1967); Clemons v. Becker, 283 S.W.2d 449, 451 (Mo.1955). The granting of a change of venue for cause under Rule 51.04 is within the trial court's discretion, and the court's ruling is reviewable for abuse of discretion. Firestone v. Crown Center Redevelopment Corp., 693 S.W.2d 99, 101 (Mo. banc 1985). We are unable to say that the trial court abused its discretion in denying plaintiff's motion for change of venue.
Plaintiff orally renewed his motion for change of venue after the voir dire of the jury panel on April 4, 1989. Of the panel of 30, four of the veniremen said they were patients of Dr. Eldenburg and would be biased in his favor. Two others were present or former patients of Dr. Eldenburg, but said they could be impartial. This entire panel, however, upon plaintiff's motion and with defendant's consent, was discharged by the court upon other grounds. The court denied plaintiff's renewed motion for a change of venue.
Of the later panel, from which the jury was selected for the trial of the case, some were excused for cause because they were patients of Dr. Eldenburg or had some other relationship to him and indicated an inability on that account to be impartial. The number of such excusals does not seem to be out of the ordinary. Nothing in the voir dire answers of the veniremen indicated they were under any undue influence of the defendant. This time the motion for change of venue was not renewed by plaintiff, and a jury of twelve jurors and an alternate were selected.
We cannot convict the trial court of error in its denial of the motion for change of venue, made after the evidentiary hearing, or upon plaintiff's renewal of the motion after voir dire of the first jury panel.
Plaintiff says the trial court erred in denying plaintiff's challenge for cause to venireperson Evelyn P. Howard. In his motion for a new trial, plaintiff listed the challenged juror as Jeanne Marie Kennedy, not Evelyn P. Howard. Plaintiff subsequently requested leave to amend his motion for a new trial to substitute the name of Evelyn P. Howard for that of Jeanne Marie Kennedy as the challenged juror.
This allegation of error is not preserved for review because it was not presented in plaintiff's motion for a new trial. Rule 78.07 requires that allegations of error be presented in a motion for a new trial and no allegations of error will be considered on appeal unless presented in a motion for a new trial. M.P. Industries, Inc. v. Axelrod, 706 S.W.2d 589, 592 (Mo.App.1986); St. John Bank & Trust Co. v. St. John, 679 S.W.2d 399, 404 (Mo.App.1984); Pruitt v. Community Tire Co., 678 S.W.2d 424, 429 (Mo.App.1984). The alleged error was attempted to be raised by an amended motion for a new trial, but the amended motion for a new trial was filed more than 15 days after the entry of judgment and was therefore without effect. Rule 78.04; Greco v. Robinson, 747 S.W.2d 730, 734 (Mo.App.1988); Lloyd v. Garren, 366 S.W.2d 341, 344 (Mo.1963). This allegation of error is dismissed for failure to preserve the issue for appellate review.
Plaintiff charges error in the trial court's refusal to admit photographs, taken on March 23, 1981, and in April and August of 1981, of the lesion on Dorothy Koenke's heel. The photographs were included in the medical records of M.D. Anderson Hospital of Houston, Texas. They have not been filed here, but plaintiff says they show "a rather large gruesome sore." We are unable to see that plaintiff was prejudiced by the exclusion of these photographs; they do not tend to support plaintiff's position on any disputed point. Defendant himself had biopsied the lesion on Dorothy Koenke's heel on March 10, 1981, 13 days before the first of the photographs, and had determined that the lesion was a malignant melanoma. As of that time and later there is no dispute about the lesion and its malignant character. Defendant's negligence, says the plaintiff, lay in his failure to diagnose the malignancy earlier. The photographs would have no tendency to show that the condition shown in the pictures existed earlier. Defendant on August 16, 1978, had diagnosed a lesion on plaintiff's heel as a plantar wart, a benign lesion. Plaintiff says it was the same lesion as the one later diagnosed as malignant melanoma. Defendant, on the other hand, claims the plantar wart was healed and the melanoma was another and a different lesion. The photographs do not help to resolve that issue. Since the jury found against plaintiff on the issue of liability, the issue of damages--on which the photographs might have been relevant--passed out of the case.
If the court was in error in excluding the photographs, the error was not prejudicial to plaintiff. "No appellate court shall reverse any judgment unless it finds that error was committed by the trial court against the appellant materially affecting the merits of the action." Rule 84.13(b); Wilson v. Lockwood, 711 S.W.2d 545, 554 (Mo.App.1986); Williams v. Venture Stores, Inc., 673 S.W.2d 480, 483 (Mo.App.1984).
Plaintiff complains of the trial court's response to the jury's request during their deliberations of "chart from M.D. Anderson." The M.D. Anderson hospital records, consisting of 405 pages, had been identified as business records and admitted in evidence, subject to specific objections to any part of the records which might later be offered to be read to or exhibited to the jury. (If there was any part of these records which was read to or exhibited to the jury, plaintiff's brief does not tell us what it was or where it might be found in the transcript.) When the court received the note from the jury, plaintiff's counsel took the position that the M.D. Anderson records should be sent to the jury in their entirety, but the trial court indicated that they could not be sent to the jury. After some discussion with counsel, he sent to the jury the message, "The chart is not in evidence." Plaintiff objected to the court's message, urging instead that the court advise the jury that "It's not available for your inspection and use at this time."
Plaintiff does not maintain here that the trial court should have sent the M.D. Anderson records to the jury at their request, but argues that ...
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...which is claimed to be the source of prejudice then no prejudice has been demonstrated." (citation omitted)); Koenke v. Eldenburg , 803 S.W.2d 68, 71 (Mo. App. W.D. 1990) ("[s]ince the jury found against plaintiff on the issue of liability," any error by trial court in excluding evidence re......
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