Mitchell v. Mosher
| Decision Date | 11 December 1962 |
| Docket Number | No. 49342,No. 1,49342,1 |
| Citation | 362 S.W.2d 532 |
| Parties | Clarence MITCHELL, a Minor, by His Father and Next Friend, James Mitchell, Appellant, v. Carl MOSHER and Andrew M. Munro, Respondents |
| Court | Missouri Supreme Court |
James F. Koester, St. Louis, for appellant.
Samuel Richeson, Dearing, Richeson & Weier, Hillsboro, Ralph M. Crow, Breuer, Northern & Crow, Rolla, for respondents.
Plaintiff, a minor suing by next friend, sought damages in the sum of $75,000 for personal injuries sustained when an automobile operated by defendant Carl Mosher, in which plaintiff was a passenger, came into head-on collision with an automobile operated by defendant Andrew M. Munro. Oscar O. Groff, whose automobile was stopped upon the highway at the scene of the collision, was also named as a party defendant. Trial of the issues resulted in a verdict in favor of plaintiff against defendants Mosher and Munro in the sum of $2,500 and a directed verdict in favor of defendant Groff. Plaintiff appealed to the Springfield Court of Appeals from the judgment rendered in accordance with the aforesaid verdict. That court transferred the cause to this court on grounds the amount in dispute vested jurisdiction in this court. Mo.App., 352 S.W.2d 932. After the appeal reached this court, it was dismissed as to defendant Groff. The amount in dispute, exclusive of costs, ($75,000 sought, $2,500 awarded) being in excess of $15,000, jurisdiction lies in this court. Article V, Sec. 3, Constitution of Missouri, V.A.M.S.; Sec. 477.040 RSMo 1959, V.A.M.S.; Glore v. Bone, Mo., 324 S.W.2d 633, 634[1, 2]; Pinkston v. McClanahan, Mo., 350 S.W.2d 724, 725.
Plaintiff has briefed and urges but one of the assignments of error set forth in his motion for new trial: that the trial court erred in denying him a new trial because of gross inadequacy of the verdict. A brief statement of the nature of the collision sheds some light upon the question before us. The collision occurred on State Highway No. 19, nine miles south of Owensville, Missouri, immediately south of the crest of a hill, at about 12:35 a. m., on May 3, 1959. The northbound Mosher car, in which plaintiff was riding as a passenger in the front seat, came up to the scene of an earlier collision. There two automobiles, both facing north, rested partly upon the east lane and partly upon the east shoulder of the highway. Mosher slowed his car and started around the left side of them. As he was passing the second (Groff) automobile, defendant Munro, southbound, at 45 to 60 miles an hour, came over the crest of the hill and into head-on collision with the Mosher car, knocking it backward a distance of 30 feet to and against a stone wall erected upon or adjacent to the west shoulder of the highway.
Plaintiff, then aged 17 years, was thrown forward and his head went through the windshield of the Mosher car. He went immediately to see a doctor at Owensville, who 'checked [him] over', but gave him no treatment and made no mention of finding any injury to his back. He returned to and examined the scene of the collision and then went home, arriving around 3 or 4 o'clock in the morning. On the next day, he consulted Dr. Fiedler, an osteopathic physician at Bland, Missouri, who sent him to the Charles E. Still Osteopathic Hospital at Jefferson City. He remained in the hospital for a period of five days, under the care of Dr. Richard A. Michael, an osteopathic physician.
The records of the hospital were placed in evidence. To the extent read into the record, these records showed, in substance, that plaintiff was a 17-year-old white male, well nourished, whose chief complaint was radiation of pain in the left scapular region, caused in a car wreck, and that X-rays showed radiographic evidence of compression fractures in the dorsal region. The diagnosis was compression fractures of dorsal vertebrae. The treatment consisted of a body cast made of plaster of paris being placed upon him.
Plaintiff testified: He never had any trouble with his back prior to the collision. At the time of the collision and for some time prior thereto, he was regularly employed by the Brown Shoe Company at Dixon as a 'laster', for which he was paid the sum of $1.00 per hour. He wore the cast fitted to his body at the Still Hospital, which extended from his shoulders to his hips, for six weeks, during which time he stayed 'mostly in bed'. At the end of that period, the cast was removed by Dr. Michael and a Taylor brace was fitted to his back. He wore the brace regularly for a period of six months; since then he has worn it two or three times a week, when his back hurts the most. He was unable to do any work of any kind for eight months. He then went to work at Monarch Furniture Company in St. Louis, where he remained employed for four months, but was unable to defray his living expenses on the wage there received. He then went to work for Kingsford Charcoal Company, where he was paid $1.35 to $1.40 an hour. That job, among other tasks, required him to left bags, some weighing as much as 50 pounds. At the end of ten months, he was unable to continue because of his back and inability to sleep and quit that job on October 22, 1960. For five months thereafter he was unable to find employment. About three weeks before trial time he found a job at Buford Transfer Company, Belle, Missouri, where he is now employed, although his back still hurts when he twists or bends his body.
Dr. Richard A. Michael, a qualified osteopathic physician, testified: He graduated in 1944. He specializes in general surgery and is a member of the staffs of the Still Osteopathic Hospital, the Callaway County, Phelps County and Pulaski County Hospitals. He caused X-rays to be made of plaintiff's back upon the latter's admission to the hospital on May 4, 1959. They revealed multiple injuries in the dorsal spine, compression fractures to the fifth, sixth, seventh and eighth dorsal vertebrae. A compression fracture flattens, mashes down the vertebra and causes it to be wedge-shaped. Such a fracture is caused by severe flexion or forcible bending of the spine. An X-ray, taken in September following the collision in May, still showed the injured condition found in the first X-rays taken. When fractures such as those shown occur, they cause the muscles and ligaments between the vertebrae to become bruised and torn and fibrous excess growth sets up. That occurred in plaintiff's back. The body cast, as described by plaintiff, was applied, followed by the Taylor brace. The brace consisted, primarily, of a rod which fitted the contour of his back and was held in place by straps which extended around his body and fastened in front. Its purpose was to keep his spine from being bent forward during the period it was worn. Plaintiff will require further medical care; bending or twisting of his body will always cause him pain. His spine is permanently injured to the extent of 20 per cent of its condition prior to his injuries; and it is the witness' belief that the condition thus shown is the result of the collision.
The evidence adduced by defendants, insofar as material to the question presented on appeal, was that of Dr. Fred Tietjen, a duly qualified doctor of medicine, residing in Jefferson City, specializing in orthopedic surgery and maintaining offices in Jefferson City and Rolla. He testified: He graduated from medical school in 1948 and is on the staffs of the Phelps County Hospital and St. Mary's...
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