Miller v. Harner, 49523

• Decision Date: 13 January 1964
• Docket Number: No. 1,No. 49523,49523,1
• Parties: Howard Cyril MILLER, Appellant, v. Boyd Cleo HARNER, Respondent
• Court: Missouri Supreme Court

Page 941

373 S.W.2d 941

Howard Cyril MILLER, Appellant, v. Boyd Cleo HARNER, Respondent.

No. 49523.

Supreme Court of Missouri, Division No. 1.

Jan. 13, 1964.

Robert L. Shirkey, Rogers, Field & Gentry, Kansas City, for plaintiff-appellant.

Lewis W. Sanders, Gordon, Sanders, Adams & Niewald, Kansas City, for respondent.

HOLLINGSWORTH, Judge.

On May 5, 1960, plaintiff, Howard Cyril Miller, an employee of Navajo Freight Lines with its principal offices at Albuquerque, New Mexico, operating an International tractor-trailer unit southward on the right side of the center of U. S. Highway 69, approached a bridge about two miles south of Cameron, Missouri. At the same time defendant, Boyd Cleo Harner, an employee of Universal Trailer Manufacturing Corporation, operated a Ford truck pulling a house trailer northward across the bridge. As Harner crossed the bridge, he so operated his truck and house trailer as to cause portions thereof to proceed along the left of the center of the highway. After his truck passed over the bridge, Harner steered the truck toward the right side of the highway, which caused the house trailer as it followed the course of the truck to come into contact with the rear view mirror attached to the left front side of Miller's approaching tractor. That contact bent the mirror backward into the cab of Miller's tractor, where it struck him in such manner as to knock him into the gearshifts, causing him to be injured.

In this action, plaintiff, alleging negligence on the part of Harner in the operation of his truck and house trailer attached thereto, sought damages in the sum of $150,000 for injuries, loss of earnings, medical expense, etc., allegedly sustained and directly caused by the collision. The jury returned a verdict in favor of plaintiff for the sum of $4,000. Plaintiff appealed on the sole ground that the trial court abused its discretion in denying him a new trial on grounds of gross inadequacy of the verdict.

For jurisdictional purposes in a situation such as is here presented, the amount in dispute, in the absence of exceptional circumstances not here shown, is taken to be the difference between the amount sought in the petition and the amount of the verdict, in this case in excess of $15,000. Jurisdiction is therefore vested in this court. Article V. Sec. 3, Constitution of Missouri V.A.M.S.; Section 477.040, RSMo 1959, V.A.M.S.; Glore v. Bone, Mo., 324 S.W.2d 633, 634[1, 2]; Mitchell v. Mosher, Mo., 362 S.W.2d 532, 533.

Plaintiff's basic contention on appeal is that as a direct result of the collision he sustained injury to an intervertebral disc in the lower portion of his spine, generally referred to in the evidence as the disc between vertebrae L-5 and S-1 (lumbar 5 and sacral 1), necessitating surgery, which caused him to incur medical and hospital expense in the sum of $2,272.83 and loss of earnings in excess of $6,900; and that the verdict of $4,000 not only fails to compensate for that expense but awards him nothing for past and future pain and permanent partial disability directly resulting from the collision. Defendant, on the other hand, contends that consideration of the evidence pertaining to the extent of plaintiff's physical infirmities and the results normally expected to flow from them demonstrates that there was a question for the jury in the first instance and for the trial judge on motion for new trial as to whether plaintiff received the injury alleged or suffered the infirmities allegedly resulting therefrom in this accident; and that the trial court did not abuse its discretion in overruling plaintiff's motion for a new trial on the issue of damages only.

Plaintiff, born and reared in Ohio, aged 34 at the time of trial in February, 1962, testified: He resided in Albuquerque, New Mexico, where he had been employed as a truck driver for Navajo Freight Lines, with a regular run from Albuquerque to Chicago and return for the past five years. Prior thereto, he had driven trucks, both as a 'wildcatter' and as an employee of others, including, among others, Ralph Malone, an independent operator, 'Kroger' and Riss & Company. At the age of 18 to 20 years, plaintiff, while driving a milk truck, sustained an injury to his back and went to see Dr. John A. Judy at Dayton, Ohio, on two occasions. The injury was not severe and he did not have to wear a brace. Since that time, he continuously had earned his livelihood in the trucking business, which for many years required him to lift and unload heavily weighted crates, containers and materials. In recent years, however, there has been a change in trucking; drivers are not required to do much lifting.

In November, 1952, while working for Malone, he sustained another injury to the middle of his back, just above the belt line, when a truck driven by him hit a bridge abutment. He was hospitalized and a 'spinal fusion' operation was performed on his middle back. Following that injury and operation, he was unable to work for a period of some 8 to 12 months; then, after passing a physical examination, he returned to work for Malone as a truck driver.

Before going to work for Navajo, he took and passed the physical examination required by I.C.C. Since recovery from the injuries sustained in 1952, he not only worked regularly as a truck driver but was able to do almost everything he wanted to do, such as swimming, playing ball, wrestling with his children; he had no physical handicap whatever, until the collision of May 5, 1960, involved in this lawsuit, which occurred about 3:30 p. m.

The rear view mirror attached to the cab of the tractor extends out from the left side of the tractor about four inches and weighs about 20 pounds. When defendant's trailer hit that mirror and knocked it inside the cab, it struck plaintiff on the elbow, knocked his right hip over into the gearshifts and bent him 'real sharp' over the gearshifts. The next thing of which he was conscious was that his assistant driver was holding him up and trying to steer the outfit. The mirror was against plaintiff's shoulder. His outfit was stopped some distance beyond the point of collision. Plaintiff, after trying to push the mirror back out the window, got out of the cab, was faint and dazed, sat down on a ditch bank, and finally walked back to the scene of the collision. His elbow, neck, head and back were hurting, the principal pain at that time being in his elbow. A highway patrolman took him to the Cameron Community Hospital about 5:00 p. m. There he saw Dr. Bloom, who examined and had x-rays taken of him, during which plaintiff fainted. He suffered pain in his head, back, neck and right hip and his hip was placed in traction for varying periods of time during the 13 days he remained in the hospital.

The Cameron Community Hospital records, as read into evidence by counsel for plaintiff, show: On admission to the hospital on May 5, 1960, 'acute post traumatic arthrities of the left elbow'; that plaintiff was given sedatives and treated for pain in back and hips and placed in pelvic traction; that on May 18 his condition warranted dismissal; and that he was discharged on that date with final diagnosis: 'Acute post traumatic arthritis, left elbow; whiplash injury cervical and lumbar spine', at which time he was 'improved'.

He was taken to Kansas City and from there traveled by air to Albuquerque. He has not seen Dr. Bloom since leaving the hospital at Cameron. On arrival at Albuquerque, he consulted Dr. Eugene P. Szerlip, a bone specialist, who caused him to be hospitalized for four of five days, during which time his hip and back were causing him much pain, which extended from his low back to the groin, and his left leg was numb.

Dr. Szerlip prescribed a girdle which had steel stays in the back of it and extended from his rib cage down to about his hips. After discharge from the hospital and wearing the brace awhile, he was again hospitalized for a period of five days under Dr. Szerlip's care. Dr. Mosier, a neurosurgeon, was also called into consultation by Dr. Szerlip. After being discharged from the hospital, his elbow, neck and head were not so painful, but the pain in his hips, groin and leg worsened. He returned to work for Navajo in August or September, 1960, and was placed on the extra board, which enabled him to take selected short trips. That work required him to do no loading or unloading. His condition became no better and Dr. Szerlip again had him hospitalized at St. Joseph's Hospital on September 6th or 7th, at which time he made a discogram of the low back, following which he advised an operation, but plaintiff did not submit to it until November, 1960. At that time a degenerated disc was removed from his lower spine and he was fitted with a brace, which holds his back stiff.

By April, 1961, the pain in his elbow, head and neck and a burning sensation in his shoulder had pretty well cleared up. Since returning to work in April, 1961, he did only 'solo' operations and short runs, no lifting for about three weeks, then returned to his Albuquerque-Chicago run, where he has worked since. He, however, still suffers pain around his hip bones, which extends to his knees and down his left leg, of which he does not have good control; cannot bend over a washbowl, lace his shoes or put on his socks. He was advised by Dr. Szerlip not to lift more than 35 pounds in weight.

In the year 1959, plaintiff's annual income paid on a driven-mileage basis was in excess of $11,000. In 1960, it was $7,818,21, the reduction being due to loss of time because of injuries sustained by him in the collision here involved. In 1961, he worked eight and a half months for which he received $9,151.50. His average income when he went back to work in 1961 was $1,076 a month. His loss of earnings, due to inability to work, was in excess of $6,900. The outlay for doctors and hospitalization incurred by him as a direct result of the injuries in the collision upon...