Kruss v. Sink & Edwards, Inc., 369A57

• Decision Date: 09 December 1970
• Docket Number: No. 2,No. 369A57,369A57,2
• Citation: 148 Ind.App. 183,264 N.E.2d 320
• Court: Indiana Appellate Court
• Parties: Willetta KRUSS, Appellant, v. SINK & EDWARDS, INC., Craig A. Hawks, Appellees

Page 320

264 N.E.2d 320

148 Ind.App. 183

Willetta KRUSS, Appellant, v. SINK & EDWARDS, INC., Craig A. Hawks, Appellees.

No. 369A57.

Appellate Court of Indiana, Division No. 2.

Dec. 9, 1970.

Richard W. Yarling, Indianapolis, for appellant; Yarling, Winter, Tunnell & Lamb, Indianapolis, of counsel.

Glenn E. Davis, Kitley, Schreckengast & Davis, Beech Grove, for appellees.

WHITE, Judge.

This is an appeal from a verdict and judgment for the defendants in an action for personal injuries arising out of a collision, during mid-afternoon of June 5, 1965, between an automobile driven by Willetta Kruss, plaintiff-appellant, and a truck owned by defendant-appellee Sink & Edwards, Inc., and driven, in the course of his employment, by its employee, defendant-appellee Craig A. Hawks, age 20. Riding with defendant-driver was a fellow male employee, age 52. Both vehicles were travelling east-bound, in the same traffic lane, on East 38th Street, a multi-lane street in the City of Indianapolis. Plaintiff, age 49, was alone in her 1958 Buick Electra automobile. She was immediately ahead of defendant's G.M.C. two-ton pick-up truck as they approached the Fall Creek Boulevard intersection. There was an interval of about two and one-half car lengths between the vehicles, both of which were travelling at a speed of approximately twenty-five to thirty miles per hour. The defendant-driver turned his head to the left to check traffic in the lane to his left, preparatory to changing to that lane. When he looked forward again plaintiff's automobile had begun to stop because traffic ahead was stopping. Defendant-driver veered to his left and applied his brakes, but his truck nevertheless struck the rear of plaintiff's automobile. There is some discrepancy in the evidence as to the force of that collision, whether and how far plaintiff's car was pushed forward and the extent of the damage to her car. The evidence most favorable to defendants-appellees is that the damage was almost negligible, that the car was not pushed forward and that, at the scene, plaintiff did not complain of any injury in this accident, although she did mention that she had sustained a whip-lash injury to her neck in a previous accident.

Both drivers and defendant's passenger got out of their vehicles and were apparently out of them about twenty-minutes. During that time they exchanged information and defendant-driver went to a nearby filling station where he telephoned his father, an officer of the defendant corporation. Both drivers and defendant's passenger returned to their vehicles and drove from the scene without apparent difficulty. Later that day plaintiff went to the emergency room of Community Hospital, Indianapolis, where she was seen by the same general practioner-physician whose patient she had been since 1955, who had given her regular B--12 and other routine injections six days earlier, and who had attended her in connection with a similar automobile accident in which she was involved on February 20, 1963. He referred her to a neuro-surgeon to whom he had also referred her after the 1963 accident. Both these doctors testified at the trial and both expressed the opinion that plaintiff's present complaints were the result of the latest accident which had aggravated her pre-existing injury of 1963, which had ceased to give her trouble prior to the second injury.

The medical evidence most favorable to defendants was given by their witness, a neuro-surgeon who had examined her only one time, nearly seventeen months after the second accident. The narrative summary of his testimony must favorable to defendants-appellees follows: ¹

'On October 25, 1966 I made an examination of the plaintiff for the Hortford Insurance Company. According to the histories taken, the patient complained of pain referrable to the neck, jaws, headaches, pain in both arms and shoulders and numbness and tingling in both hands and in her fingers. She dated the onset of these complaints to trauma sustained approximately three years before when the vehicle she was in was struck from behind as she was making a left turn off 38th Street at Emerson. She said that she sustained permanent damage at that time to her neck and that she had considerable numbness of her left hand. She improved following this traumatic incident but still had some symptoms which she felt became much worse following a second accident which occurred on June 9, 1965 when a truck hit the car which she was driving forceably from behind again. She stated she went on the day of the accident to Community Hospital where x-rays were made and after that received a great deal of treatment from Dr. John Nohl and was seen in consultation by a neuro-surgeon. She stated she had many allergies, that she had a thyroidectomy in 1957 and that she had also had surgery to her bladder, abdominal surgery including cholecystectomy. An appendectomy had been done 19 years ago, and a rectal operation had been done two years before.

'I made a detailed neurological examination of Mrs. Kruss, and she was co-operative, intelligent and quite talkative and revealing in her conversation. I felt that the neck movements at the time of the examination were quite free and in no way was there any limitation or any abnormality of tone or contractal (contractile) state of those muscles. Examination of the reflexes were symmetrical on the two sides and were normal in amount. The lower reflexes were not quite as active as in the upper extremities, but it was still felt she was in normal limits. No pathological reflexes were observed. It was noted that there were many breaks in her skin which were typical of simple scratching. It was noted in doing tests for depression of the nerves in her arms that her pulse was quite rapid. On testing her arms with pin prick and light touch, I found no evidence of any impairment anywhere. She was able to grip well with either hand, and the coordination seemed satisfactory, and the speed was equal on the two sides. Her gait was normal, and she was even able to walk one foot in front of the other without any indicated impairment. I felt on the basis of what I was able to see that there was no evidence of any impairment to the patient as a result of those alleged injuries of June 9, 1965. I felt that there was a great deal of nervousness involved, but I just didn't feel that there was any evidence of any traumatic disorder here at all. I did not find any muscle spasm in the plaintiff at the time of my examination. I found no evidence of myositis which is an actual inflammation of the muscles that can be determined by specific testing.

'I understand the history of Mrs. Kruss to have been that she had pain in the back of her neck, swelling in her lower jaws, headaches, pain in both arms and shoulders, numbness and tingling in both hands and fingers following her first accident in 1963 but that those symptoms improved and then following the second accident became much worse and persisted for sixteen months until the time I saw her. The fact of the persistence of symptoms from the time a person is struck by a truck does not necessarily indicate the person was injured in the accident. The symptoms here are general and could be the result of an enormous number of things. They are symptoms of often simple, general, nervous tension which can be entirely unrelated to accidents. We are hearing subjective complaints which have no visible link that I can see with the supposed traumatic event. The symptoms Mrs. Kruss enumerated to me could very well be the symptoms of nervousness and not symptoms of injury. I think it's common that people are nervous after an injury. A common result of a rear end collision is sprain or strain of the neck, but not injuries that produce serious neurological deficits. I cannot equate the symptoms in this case with injury to the neck.'

We have dwelt on defendants' medical evidence in considerable detail to demonstrate our reason for rejecting plaintiff's contention that 'the evidence is without conflict and leads to but one reasonable conclusion, to wit: that the appellant was entitled to recover a verdict against the appellees'. Plaintiff, while conceding that this testimony negates permanent injury, nevertheless insists that the neuro-surgeon did not testify that plaintiff did not receive some injury. Her counsel calls attention to the neuro-surgeon's testimony in answer to the question whether he found anything which indicated that plaintiff 'had cervical strain or sprain or any other injury at the time of the examination. The answer was:

'No. The history was suggestive that she had a strain, that the ligaments were stretched. By the time I saw her I felt quite clearly that those ligaments had repaired themselves and that the persistence of symptoms was simply on the basis of nervousness and other factors.' (Emphasis added.)

Attention is also called to the same witness's testimony said to be a concession that plaintiff's nervousness was the result of the accident. In context, that testimony was as follows:

'A. In other words, we're talking about symptoms of nervousness. We're not talking here, I mean, the symptoms that she enumerated to me could very well be the symptoms of nervousness, not symptoms of injury. We're not involved here with disability incident to any deficit in neurological apparatus.

'Q. Now, nervousness itself could be caused, could it not, or result from an automobile collision?

'A. Uh, I think it's common that people are nervous after an injury. I think everyone is. I don't deny that.'

In our opinion there is nothing in these fragments of this doctor's testimony which preclude the jury from inferring, from the whole of his testimony, that his opinion concerning plaintiff's complaints on the day of the examination was also true of her complaints on the day of the injury and during the intervening period. That opinion was this: 'We are hearing subjective complaints which...