Lewey v. Farmer, SD 31388.

Decision Date01 March 2012
Docket NumberNo. SD 31388.,SD 31388.
Citation362 S.W.3d 429
PartiesJames E. LEWEY, Plaintiff–Appellant, v. Larry L. FARMER, Defendant–Respondent.
CourtMissouri Court of Appeals

362 S.W.3d 429

James E. LEWEY, Plaintiff–Appellant,
Larry L. FARMER, Defendant–Respondent.

No. SD 31388.

Missouri Court of Appeals, Southern District, Division One.

March 1, 2012.

[362 S.W.3d 431]

Matthew J. Devoti, Casey & Devoti, P.C., of St. Louis, MO, for Appellant.

Deborah Bell Yates, Zimmer & Associates, of St. Louis, MO, for Respondent.


James E. Lewey (“Plaintiff”) appeals the trial court's judgment in his favor on a jury verdict awarding him $15,000 in damages for injuries resulting from a motor-vehicle collision caused by the undisputed negligence of Larry L. Farmer (“Defendant”). Plaintiff contends that the trial court erred in permitting Defendant to inquire about Plaintiff's prior low-back injury and treatment, in refusing a jury instruction directing the jury not to consider evidence of that low-back injury, and in denying Plaintiff's motion for a new trial or, in the alternative, additur, because the jury award was “grossly inadequate and failed to adequately compensate [Plaintiff] for the damages he suffered.” Finding no merit in these contentions, we affirm.

Factual and Procedural Background

Plaintiff and Defendant were involved in a motor-vehicle collision in March 2007 (“the accident”). It occurred when Defendant ran a red light, proceeded into an intersection, and struck the vehicle driven by Plaintiff. Defendant did not dispute that his negligence caused the accident. Plaintiff filed a petition alleging permanent injury to his head, neck, mid back, and upper back, along with mental anguish and severe pain. Plaintiff also alleged these injuries resulted in reasonable and necessary medical and hospital-care expenses, reductions in earnings from employment, permanent impairment of his ability to work, and permanent impairment of his ability to “enjoy the ordinary pursuits of life.”

Plaintiff was fifty-nine years old at the time of the accident and, at that time, operated three building and construction-

[362 S.W.3d 432]

related businesses. A couple of hours after the accident, Plaintiff reported feeling pain in his mid back and sought chiropractic treatment from Dr. Jack Kessinger. For several months following the accident, Plaintiff continued to visit Dr. Jack Kessinger, as well as his son, Dr. Jay Kessinger, and reported muscle spasms, neck pain, headaches, and continued upper- and mid-back pain. Plaintiff also visited other medical-service providers during this time for treatment of the same conditions.

Before trial, Plaintiff filed a motion to determine the value of medical treatment and presented affidavits from medical-service providers assessing the reasonable value of the services they individually provided to Plaintiff. The aggregate total of these services was $33,231.97. Defendant did not object to this valuation of the medical services but did state, “I want it on the record that that does not preclude me from arguing as to the necessity of the medical treatment that was performed after the accident being for reasons having to do with the accident.” The trial court responded, “Absolutely.” The sole issue before the jury was the total measure of damages suffered by Plaintiff.

Plaintiff had sustained a low-back injury in 1974. Surgery on Plaintiff's back was performed at that time. In 2001, Plaintiff began chiropractic treatments for low-back pain with Dr. Jack Kessinger and thereafter received numerous chiropractic treatments for his low-back pain from both Drs. Kessinger, including a treatment two weeks before the accident. Before trial, Plaintiff filed a motion to exclude evidence of his prior low-back injury and treatment for that injury, which was denied by the trial court.

At trial, Plaintiff's case consisted of his own testimony, the testimony of one of his treating chiropractors, Dr. Jay Kessinger, and the deposition of Dr. Thomas Musich. All three witnesses were questioned by defense counsel, over objection by Plaintiff, about Plaintiff's prior low-back injury. Defendant's case consisted of his own testimony and the testimony of Dr. Lehmann, who had examined Plaintiff after the accident. Dr. Lehmann also testified, over objection, about Plaintiff's prior low-back injury. During the instruction conference, Plaintiff submitted Instruction A to the trial court, which purported to withdraw from the jury's consideration all evidence of Plaintiff's prior low-back injury. The trial court rejected this instruction.

At the conclusion of the trial, the jury returned a verdict for Plaintiff in the amount of $15,000. Plaintiff moved for a new trial or, in the alternative, additur. The trial court denied that motion and entered judgment in accordance with the jury's verdict. Plaintiff timely appealed.

Point I—No Abuse of Discretion in Permitting Defendant to Inquire about Plaintiffs Prior Low–Back Injury

Plaintiff claims in his first point that the trial court erred in permitting counsel for Defendant to question Plaintiff, Dr. Jay Kessinger, Dr. Musich, and Dr. Lehmann about Plaintiff's prior low-back injury and subsequent treatment for that injury. Plaintiff argues the elicited testimony was irrelevant and served only to unduly confuse the jury.

This Court reviews trial court rulings on the admissibility of evidence for abuse of discretion. Howard v. City of Kansas City, 332 S.W.3d 772, 785 (Mo. banc 2011). The ruling of a trial court is reviewable only if it is clearly against the logic of the circumstances, unreasonable, arbitrary, and demonstrates a lack of thoughtful, deliberate consideration. Id. at 785–86. If the trial court's ruling is

[362 S.W.3d 433]

correct on any tenable basis, there is no abuse of discretion. Boswell v. American Ins. Co., 835 S.W.2d 454, 460 (Mo.App.1992).

In support of his point, Plaintiff focuses almost exclusively on the “narrowly tailored” allegations in his petition, which allege injury only to Plaintiff's neck, upper back, and mid back. He argues that because he did not plead any injury to his low back, any evidence about his low back was irrelevant. Plaintiff's reliance on his petition is misplaced, however, because it ignores that Plaintiff put his low back at issue at trial during his own direct examination before Defendant elicited any testimony about it.

When a party opens up a matter at trial, that party may not object to the matter's further development by the opposing party. Yaeger v. Olympic Marine Co., 983 S.W.2d 173, 187 (Mo.App.1998) (citing State ex rel. Mo. Hwy. & Transp. Comm'n v. Matula, 910 S.W.2d 355, 362 (Mo.App.1995)). Evidence that might otherwise be inadmissible cannot be excluded if the objecting party first introduces such evidence. Union Elec. Co. v. Metro. St. Louis Sewer Dist., 258 S.W.3d 48, 57 (Mo. banc 2008). Thus, “even if evidence was inadmissible and subsequent argument was improper[,]” a determination we need not address and do not make...

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4 cases
  • Emerson v. Garvin Grp., LLC
    • United States
    • Missouri Court of Appeals
    • April 23, 2013
    ...rulings. If the trial court's ruling is correct on any tenable basis, then there is no abuse of discretion. Lewey v. Farmer, 362 S.W.3d 429, 432–433 (Mo.App.2012). Applying that standard, the trial court cannot be faulted for following existing law. Even accepting the majority's premise tha......
  • Gold v. State
    • United States
    • Arkansas Supreme Court
    • May 23, 2013
  • State ex rel. Mo. Highways & Transp. Comm'n v. Boer
    • United States
    • Missouri Court of Appeals
    • January 27, 2016
    ...is no abuse of discretion if reasonable minds could disagree about the propriety of the trial court's decision.” Lewey v. Farmer, 362 S.W.3d 429, 435 (Mo.App. S.D. 2012).Point I—No Abuse of Discretion in Allowing Mr. Boer's Testimony of Other Sales All parties recognize and acknowledge that......
  • Walker v. Kelley
    • United States
    • Missouri Court of Appeals
    • October 18, 2016
    ...follows."Denial of a new trial based on an inadequacy in the jury verdict is reviewed for abuse of discretion." Lewey v. Farmer , 362 S.W.3d 429, 435 (Mo. App. 2012). "A trial court abuses its discretion when its ruling is clearly against the logic of the circumstances before it and when th......

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