Miller v. Haynes

• Decision Date: 24 March 1970
• Docket Number: No. 33494,33494
• Citation: 454 S.W.2d 293
• Parties: Ruby MILLER and James Miller, Plaintiffs-Respondents, v. Jerry L. HAYNES, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 293

454 S.W.2d 293

Ruby MILLER and James Miller, Plaintiffs-Respondents, v. Jerry L. HAYNES, Defendant-Appellant.

No. 33494.

St. Louis Court of Appeals, Missouri.

March 24, 1970.

Motion for Rehearing or to Transfer to the Supreme Court

Denied May 13, 1970.

Rader & Grimm, Bradshaw Smith, Cape Girardeau, for defendant-appellant.

Oliver, Oliver & Jones, Cape Girardeau, for plaintiffs-respondents.

BRADY, Judge.

Action for personal injuries arising out of an automobile collision. Jury verdict was for Ruby Miller in the amount of $10,000.00 for her injuries and James Miller in the amount of $3,500.00 for past and future medical expenses, additional help in the home and on the farm, and past and future loss of his wife's companionship, services, society and consortion. Defendant raises three allegations of prejudicial error: (1) as to the admission of testimony of plaintiffs' medical expert, over objection, as to Mrs. Miller's possible future medical treatment; (2) in allowing Mrs. Miller and her husband to testify over objection as to the number of their children, give their names and ages, and to identify some of them as present in the courtroom on the day of trial; and (3) refusal to allow inquiry by defendant's counsel as to whether Mrs. Miller was wearing a seat belt at the time the collision occurred.

The facts bearing on these issues, taken in the light required of us by the verdict for plaintiffs, are that the accident furnishing the basis for this action occurred in the State of Illinois where plaintiffs were residents. Defendant is a resident of Missouri. As Mrs. Miller was proceeding toward her home from a shopping trip she noticed a woman standing in the road waving at her to stop and also noticed that an automobile was off of the road near where this woman was standing. Upon stopping the 1966 automobile belonging to the plaintiffs, Mrs. Miller discovered this woman, later identified as a Mrs. Clark, was injured. She drove Mrs. Clark to a farm house, a distance of about a city block, where they made some telephone calls to get assistance. She then put Mrs. Clark in her automobile and started to bring her into town for medical assistance. As she neared the spot where she had picked up Mrs. Clark she noticed a car coming around a curve and down a hill immediately ahead of her. This was the defendant who, when Mrs. Miller first saw him, was then in the center of the highway. She immediately began applying her brakes and driving over toward the righthand side of the road. Prior to the time the impact occurred she was completely stopped and off the road as far as she could get her automobile without it falling down the ditch Mrs. Clark's automobile had descended. Defendant testified that as he approached the scene he noticed the Clark car in the ditch and was looking at it, and when he looked back at the road he saw Mrs. Miller's automobile right in front of him. She had been stopped for a short period of time and she had had time to brace herself before the impact occurred.

Taking the view the law of Illinois governed the necessity for and form of the allegations of their petition plaintiffs alleged therein that neither the collision nor Mrs. Miller's injuries were caused or contributed to by her negligence. Defendant's answer was a general denial and also set up the defense that the accident and Mrs. Miller's injuries were caused by her contributory negligence. Plaintiffs filed a motion for a more definite statement seeking to have defendant allege the specific acts or omissions to act which he claimed constituted Mrs. Miller's contributory negligence. The motion was sustained and defendant amended its answer setting out numerous allegations of alleged careless and negligent conduct by Mrs. Miller. That pertinent to this appeal is that it was alleged she '* * * carelessly and negligently failed to wear her seat belt.' This amendment was accomplished in chambers on the day of and immediately prior to trial. Plaintiffs' counsel then moved the amended answer as to Mrs. Miller's contributory negligence in failing to wear her seat belt be stricken and defendant's counsel be instructed not to mention it or argue it. After hearing argument on the matter the trial court sustained plaintiffs' counsel's motion.

At that time and thereafter during the course of the trial defendant made numerous requests of the trial court for permission to inquire of various witnesses concerning seat belts in the plaintiffs' car, whether or not they were being used on this occasion, and their effect on this accident. The trial court denied all such requests. As a result of such denials defendant made the following offers of proof which the trial court refused: that Mrs. Miller did not have her seat belt engaged at the time of this accident; that the automobile she was driving was equipped with seat belts; and that the Illinois state patrolman who investigated the accident 'had training concerning the use of seat belts and that their use does minimize injuries; that the State Patrol recommends their use and that he is cognizant of the fact that the United States Congress has recommended their use as a safety feature.' Defendant also made an offer of proof that if permitted to do so the treating physician would testify Mrs. Miller's injury would have been less serious had she been wearing seat belts.

Neither in the original answer nor in the amendment made in chambers the day of trial did defendant raise any issue as to mitigation of damages. Defendant does not raise any allegation of error on this appeal as to the trial court's action with regard to striking from his answer the reference to Mrs. Miller's failure to use her seat belt.

Mrs. Miller's major injury was a posterior superior dislocation of the hip joint with a fracture of the posterior rim of the socket or acetabulum of the pelvis. The testimony was her injuries were permanent. Mr. Miller testified to special damages totalling $2,409.42. It is unnecessary to burden this opinion with detailed facts bearing upon defendant's allegation of error as to the admission of testimony by plaintiffs' medical expert, over objection, as to the necessity for, description, and cost of possible future surgical procedures for Mrs. Miller. It is sufficient to state the medical expert testified certain conditions sometimes develop from injuries to the hip joint such as sustained by Mrs. Miller and that he could not tell at the time of trial whether or not such condition might exist in the future. He was then allowed to relate 'other surgical operative' procedures 'possibly necessary' in the event such a condition did develop. He testified these could include some four weeks of hospitalization and two or three years of postoperative visits accompanied by physiotherapy. He gave his estimate as to the surgical fees for the operation as being approximately $500.00 to $600.00 and the hospital rate at approximately $33.00 per day for the four-week stay. His testimony was that he did not expect or anticipate this condition to develop in Mrs. Miller's hip and that there was nothing in existence at the time of trial indicating future development of a condition requiring such procedures and treatment.

Over objection that evidence relating to the number of plaintiffs' children, their names or ages was immaterial, irrelevant and introduced only for the purpose of invoking prejudice and sympathy, Mr. Miller was allowed to testify they had four children and to give their names and ages. Later during the trial Mrs. Miller was asked if they had four children and answered they had four and that three of these were in the audience in the courtroom.

With respect to defendant's first allegation of prejudicial error it is clear plaintiffs' medical expert was allowed to testify as to a condition which could but which he did not then know would develop, which he did not expect or anticipate occurring, and of which he could then, some two years and eight months after the accident, see no evidence. Such testimony is markedly distinguishable from that involved in the line of cases represented by Stephens v. Guffey, Mo., 409 S.W.2d 62. There the testimony was admissible because it was related to a condition which in the positive view of the doctor was suggested to be or could be a condition from which Mrs. Miller was suffering as a result of the accident. In this case it was purely speculative and was improperly admitted. Hahn v. McDowell, Mo.App., 349 S.W.2d 479.

We also hold that, under the facts and circumstances of this case, it was error to permit the plaintiffs to testify as to the number of their children, give their names and ages, and comment upon the presence of three in the courtroom. With regard to the comment three of the children were present in the courtroom the transcript discloses the question asked was: 'And you all have four children? A. Four children, three--(interrupted)' When the interruption was completed the testimony given was that three of the children were in the courtroom. The comment regarding their presence was not responsive to the question and was clearly objectionable, subject to a motion to strike and to have the jury disregard the answer. In passing upon the other testimony regarding the number and names and ages of the children, defendant relies upon Donze v. Swofford, Mo.App., 368 S.W.2d 917, and cases of a similar nature. That line of cases is not controlling upon the issue presented here. Under the circumstances of Donze, supra, the question and the answers given bore no possible relation to the issues in the case and were injected solely to arouse sympathy. That is not true in the instant appeal. Here the wife was injured and in a separate count the husband alleged he had had to employ additional help in the home and on the farm. It is quite possible that the names would indicate the sex of the children which would have some bearing upon their ability to...