Massey v. Rusche, KCD

• Decision Date: 04 February 1980
• Docket Number: No. KCD,KCD
• Citation: 594 S.W.2d 334
• Parties: Rhonda MASSEY, pro ami, et al., Plaintiff-Appellant, v. Michael RUSCHE, Defendant-Respondent. 30151.
• Court: Missouri Court of Appeals

Page 334

594 S.W.2d 334

Rhonda MASSEY, pro ami, et al., Plaintiff-Appellant, v. Michael RUSCHE, Defendant-Respondent.

No. KCD 30151.

Missouri Court of Appeals, Western District.

Feb. 4, 1980.

Ross Eshelman, Poague, Brock, Wall & Eshelman, Clinton, for plaintiff-appellant.

J. Michael Cronan, Jackson & Sherman, P. C., Kansas City, for defendant-respondent.

Before HIGGINS, Special Judge, Presiding, WELBORN, Special Judge, and SWOFFORD, J.

SWOFFORD, Judge.

This appeal arises from a suit for damages for personal injuries alleged to have been sustained by Rhonda Massey, a minor, (hereinafter designated as Rhonda) due to the negligent conduct of the defendant (Count I of the amended petition), and by her parents for medical expense occasioned by the personal injuries to their daughter (Count II). A detailed summary of the evidence is not necessary for a determination of this appeal. It is sufficient to state that the plaintiff's evidence elicited sufficient facts from which a jury could conclude that on May 19, 1976, Rhonda sustained injuries by reason of a cellar door falling on her due to the negligent acts and omissions of the defendant. The defendant pleaded and offered proof that the defendant was not negligent or, if so, the plaintiff Rhonda was guilty of contributory negligence that would bar recovery. The case was submitted to the jury upon these theories of recovery and defense, and it returned a verdict for the defendant and against Rhonda on Count I, and against the defendant and in favor of Rhonda's parents on Count II, and awarded them damages in the amount of $1200.00, which was approximately the amount of the medical and hospital bills incurred by them due to Rhonda's injuries. ¹

No motion for a new trial was filed nor an appeal taken by the defendant or Rhonda's parents as to the judgment in favor of the parents on their cause of action on Count II, and the judgment became and is final.

Rhonda filed a post judgment motion in the trial court, which is captioned:

"PLAINTIFF RHONDA MASSEY'S MOTION, WITH RESPECT TO COUNT I

ONLY, FOR JUDGMENT N.O.V. ON THE ISSUE OF LIABILITY AND NEW

TRIAL ON THE ISSUE OF DAMAGES ONLY, OR, IN THE ALTERNATIVE,

FOR A NEW TRIAL ON ALL ISSUES"

As grounds for such motion, she alleged that the verdict as to Count II, the derivative cause of action by her parents constituted a solid finding against the defendant on the issue of negligence and liability, common to both Counts, and could only be reconciled with the verdict against her on Count I upon a finding that she received no injury and, therefore, sustained no damage, a result contrary to the undisputed evidence. Rhonda's post trial motion also charged error in giving two converse instructions upon plaintiff's theory of recovery, i. e. negligence and an unwarranted deviation from MAI 32.01 in another instruction. The request for relief sought by Rhonda is thus stated:

"WHEREFORE, plaintiff Rhonda Massey requests that the court, with respect to Count I only, set aside the verdict and enter judgment in her favor notwithstanding the verdict on the issue of liability and order a new trial on the issue of damages only, or, in the alternative, order a new trial on all issues."

The court below denied Rhonda's motion and this appeal followed.

There can be no valid dispute that Rhonda in fact did sustain physical injuries as a result of the cellar door falling upon her. The result of this trauma resulted in a severe bleeding from her nose and an obvious "pushing off of her nose" to one side; she was taken for emergency treatment to the hospital at Clinton, Missouri where they "pulled wood" out of her nose and sutured a cut on the left side thereof; she was then taken to a hospital at Kansas City where she remained for three days, during which time surgery under general anesthetic was performed by intercartilaginous incision to remove a large hematoma from the entire left side of the nose, and it was found by the doctors that there was a sutured laceration on the left side of the nose, a nondisplaced nasal fracture, and a permanent slight deviation of the septum to the right, and a slight permanent scar in the area. There was undisputed evidence that Rhonda sustained pain and suffering following this injury and for a period of time following the medical procedures above summarized.

Defendant did not dispute the cause of Rhonda's injuries, the nature of the medical attention she received, nor the fact that the medical expenses incurred by her parents amounted to approximately $1200.00. The only dispute as to the medical was in the area of the extent of the injuries, i. e. as to permanency, disfigurement and the need for further operative procedures.

The appellant Rhonda places primary emphasis in this appeal (Point I) on the fact that the verdict of the jury in favor of her parents on their derivative action for medical expenses (Count II) (from which no appeal was taken) and against her for her personal injuries (Count I) were inconsistent and were "impossible" verdicts. Her argument is that to find for her parents on Count II the jury necessarily found the defendant negligent and liable for any results of such negligence, and therefore, in the light of that finding (now final) the only way the jury could find against her on Count I was to find that she was not injured or damaged, which fact upon this record is undisputed.

The defendant counters this allegation of error by asserting that the request in the post trial motion for a new trial on the issue of damages only, coupled with a request for Judgment N.O.V., was a "nullity" by reason of the fact that Rhonda failed to file any motion for a directed verdict in the trial court and such alternative request for a new trial in her post trial motion can only be made when a motion for a judgment N.O.V. "is proper". While the wording of this argument is obscure and its meaning illusive, upon this record, it obviously is intended to present the position that Rhonda's basis for Point I on her appeal has not been properly preserved and should not, therefore, be considered. The question thus raised becomes therefore a threshold one in this decision.

The defendant-respondent, aside from his citation of the hornbook line of decisions holding that matters not properly presented to or preserved in the trial court cannot be considered on appeal, relies principally upon the terms of Rule 72.01 and the decision of Milner v. Texas Discount Gas Co., 559 S.W.2d 547 (Mo.App.1977). This reliance, under the facts before this Court here, is misplaced.

Rule 72.01 deals generally with the procedures relating to motions for directed verdicts and for judgments N.O.V., and the portion thereof relied upon by defendant-respondent herein provides "(b) * * * Not later than 15 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; * * * " (Emphasis supplied)

This rule was directly applied in the case of Milner v. Texas Discount Gas Co., supra. In that case (not involving a derivative action) the plaintiff sued for personal injuries received in a gasoline station as an alleged result of the defendant's negligence. A verdict was returned for the defendant and a judgment entered thereon, from which the plaintiff appealed asserting as one of her grounds for reversal that the trial court erred and abused its discretion in denying her after trial motion for a judgment N.O.V. in her favor on liability, and for a new trial on the issue of damages alone. There, the defendant had offered no evidence of any kind on the issue of liability. However, the court held that under Rule 72.01(a)(b) this point had been waived for appeal since no motion for a directed verdict had been proffered by the plaintiff at the close of all the evidence.

In the case at bar, the issues of negligence and contributory negligence were strenuously contested and no claim was made by either party that proof had not been offered to warrant the submission of both such issues to the jury, as was done. A motion for a directed verdict at the close of the evidence in the light of such facts would have been useless and unnecessary and premature. Rhonda's present complaint is based upon the fact that the jury's verdicts on Count I and Count II are at war, inconsistent, and conflicting. What...