Morris v. McCauley's Quality Transmission Service

• Decision Date: 12 August 1976
• Citation: 132 Cal.Rptr. 37,60 Cal.App.3d 964
• Court: California Court of Appeals
• Parties: Dessiree MORRIS, a minor, by her guardian ad litem, Lois Morris and Lois Morris, Individually, Plaintiffs and Appellants, v. McCAULEY'S QUALITY TRANSMISSION SERVICE, a corporation, Defendant and Appellant. Civ. 46705.

Page 37

132 Cal.Rptr. 37

60 Cal.App.3d 964

Dessiree MORRIS, a minor, by her guardian ad litem, Lois Morris and Lois Morris, Individually, Plaintiffs and Appellants, v. McCAULEY'S QUALITY TRANSMISSION SERVICE, a corporation, Defendant and Appellant.

Civ. 46705.

Court of Appeal, Second District, Division 5, California.

Aug. 12, 1976.

Scarlett & Roberson and Robert L. Roberson, Jr., Los Angeles, for plaintiffs and appellants.

Gilliland, Koelsche, Roberson & Moser, James L. Moser, Los Angeles, Ellis J. Horvitz and Marjorie G. Romans, Encino, for defendant and appellant.

ASHBY, Associate Justice.

This action was brought by Dessiree Morris, a minor, by her guardian ad litem, Lois Morris, for personal injuries, and by Lois Morris, individually, for medical expenses incurred on behalf of Dessiree. The jury returned a verdict in favor of Lois (hereinafter Mrs. Morris) for the medical expenses in the amount of $600, but also a verdict in favor of defendant against the minor Dessiree. The trial court granted a new trial to Dessiree on the ground that the verdicts were inconsistent. The trial court did not grant a new trial as to the judgment in favor of Mrs. Morris, because defendant did not move for a new trial. Here, defendant appeals both from the judgment for Mrs. Morris and from the order granting a new trial to Dessiree. Dessiree appeals from that portion of the order granting new trial which fails to limit the new trial to the issue of damages, and also from an order granting certain costs to defendant.

The circumstances of the accident are relatively undisputed, but there is conflicting evidence as to the extent of Dessiree's injuries, and whether her subsequent medical problems were attributable to the accident. On December 10, 1971, Mrs. Morris took her 1962 Cadillac to defendant McCauley's Quality Transmission Service, from whom she had recently purchased the car, for repairs. Dessiree, who was then four years old, was in the right front passenger seat. Mrs. Morris got out and explained the engine trouble to defendant's service manager, Jackie Smith. He suddenly got into the car and drove it into the street to test it. He knew that Dessiree was still in the car and that she was leaning against the right door with her arm on the arm rest, but he took no special precautions to lock the door or otherwise assure her safety. He drove two blocks, and, after stopping and waiting for cross traffic, made a U-turn. During the U-turn, the passenger door came open and Dessiree fell out. Smith immediately stopped, pulled Dessire back into the car, and returned to the station. According to Smith, only Dessiree's right leg went down when she fell out, and she did not hit her head. Upon returning to the station, we saw only an abrasion and bleeding on Dessiree's right knee.

According to Mrs. Morris, Dessiree, who was crying when she returned to the station, was bleeding, bruised and scratched on her forehead, the top of her head, her knees and hands. She had a bruise on the right-hand side of her forehead.

Mrs. Morris wiped Dessiree's injuries with wet paper towels while Smith repaired the car, which took about an hour. During this time, Dessiree was crying and dozing. Smith asked Mrs. Morris if she wanted to take Dessiree to the doctor, and she said no, that Dessiree was 'more scared than hurt.'

Later that day, Mrs. Morris took Dessiree to Dr. Charles Bosley, an orthopedic surgeon. Mrs. Morris told him that Dessiree had fallen from a moving car, had not lost consciousness, but had sustained injuries to her head and neck, and multiple lacerations and abrasions. He examined Dessiree and took x-rays of her skull. He found a bruise (ecchymosis) on her right side of her head, and an abrasion on her right thigh. ¹ His diagnosis was cerebral concussion, and he advised Mrs. Morris to watch for symptoms of excessive sleeping, difficult arousing, projectile vomiting, or continuous head pain, and to see him immediately if these developed.

Approximately four and a half months later, on April 28, 1972, Mrs. Morris took Dessiree back to Dr. Bosley, after Dessiree started waking up with headaches and complaining of frequent headaches. Dr. Bosley referred Dessiree to Dr. William Cooper, a neurologist. Dr. Cooper received Dessiree's history from Mrs. Morris, including complaints of weakness in the legs and intermittent headaches approximately once per week since the accident, and, during the two to three weeks prior to the examination, daily headaches accompained by vomiting and questionable dizziness. He found a scar and bruise on the right front of her head. He took an electroencephalogram (EEG) which was abnormal and showed evidence of a discharging lesion corresponding to the site of the injury. The EEG was also consistent with possible convulsive seizures, and Dr. Cooper advised Mrs. Morris to watch Dessiree closely for possible convulsions. He concluded that Dessiree had suffered a concussion, and he gave her medication for the headaches.

Mrs. Morris testified that Dessiree had developed the following symptoms between the accident and the time of trial, which was January 1975: She wakes up nights and mornings with a headache, which she describes as something jumping up in her head; the headaches vary in frequency from one per month to three per week; her legs sometimes collapse from underneath her, and she drops things a lot; she sometimes stares blankly and does not respond when spoken to; she does not talk much, and sometimes complains that it bothers her when other people talk; sometimes she is very irritable and naughty, and intentionally knocks things off a shelf.

Dr. Cooper examined Dessiree again in November 1974 and found her EEG still abnormal. In his opinion the abnormal EEG is related to the injury suffered in the accident. The injury to the brain is permanent, and no surgery would cure it. The problem with Dessiree's legs giving way may be due to a convulsive seizure which has not yet had complete expression. Dessiree may suffer convulsive seizures or epilepsy in the future, particularly with the onset of puberty. She will require medication for headaches the rest of her life and may require additional medication if other symptoms, such as convulsions, develop. Dessiree's changes in temperament could be due to a brain disturbane. In Dr. Cooper's opinion, Dessiree's problems are related to the head injury she received in the accident.

Dr. Bosley's total bill was $260, and Dr. Cooper's total bill was $310.

Dr. Nicholas Bercel examined Dessiree on behalf of the defense on November 23, 1973. He is 'board certified' in neurology, psychiatry, and electroencephalography. He found a bump in the middle of Dessiree's forehead which was not overly sensitive, and two small well healed scars. ² He took an EEG which was abnormal, in that it showed a right temporal spike dysrhythmia. He took a history from Mrs. Morris and also reviewed Dr. Cooper's file. He disagreed with Dr. Cooper's conclusion that Dessiree had suffered a concussion. This is because Dessiree did not lose consciousness, and in his opinion there can be no cerebral concussion without a loss of consciousness. ³ In order to produce a right temporal spike, there must be a substantial brain injury, which is not common with mere concussions but with skull fractures. The most common cause of a spike is a birth injury. In Dr. Bercel's opinion, Dessiree's headaches could be due to the contusion on her scalp, which irritates the sensory nerves under the scalp. Her abnormal EEG was not necessarily correlated with her headaches. There was only a 10 percent chance that she would develop convulsive seizures, because she had gone two years without them. Children may complain or be mischievous or inattentive for many reasons not involving injury.

Dr. Bercel also based his testimony on records from Childrens Hospital which indicated that on July 14, 1971, five months before the accident, Dessiree underwent surgery to correct a 'lazy eye.' Eye surgery can cause headaches. There is a notation in the hospital file, dated October 12, 1971 (which was three months after the eye surgery but two months before the accident), as follows: 'Four-plus years old. Woke up vomiting. Complained of stomach and frontal headache. Headaches since eye surgery of july '71. And today she had a running nose. And the last few days she was lethargic.'

Mrs. Morris testified that she did not recall Dessiree's having headaches after the eye surgery. She had gone back to the hospital because of her ear. Dr. Cooper testified that he was aware of the eye surgery, that Mrs. Morris had told him Dessiree was free of headaches by the time of the accident, and that the hospital record indicated Dessiree was treated for infection of the right middle ear.

INCONSISTENCY OF VERDICTS

We agree with the trial court that the two verdicts are inconsistent. Mrs. Morris' cause of action was derivative of Dessiree's. (See Chance v. Lawry's Inc., 58 Cal.2d 368, 383, 24 Cal.Rptr. 209, 374 P.2d 185; Bauman v. San Francisco, 42 Cal.App.2d 144, 161, 108 P.2d 989.) The verdict in favor of Mrs. Morris for the approximate amount of medical expenses incurred on behalf of Dessiree necessarily implies that defendant was negligent, that Mrs. Morris was not contributorily negligent, and that the medical expenses incurred were proximately caused and reasonably required by defendant's negligence. The verdict in favor of defendant against Dessiree necessarily implies that defendant was not negligent, or that Dessiree failed to establish any substantial damages proximately caused by defendant's negligence, or both. ⁴ Such inconsistency of result based upon the same set of facts cannot be permitted to stand. The verdicts were 'against the law' and therefore constituted proper grounds for a new trial. (Code of Civ.Proc., § 657, subd. 6; Campbell v. Zokelt, 272 Cal.App.2d 315, 318--320, 77 Cal.Rptr. 561; Remy v. Exley Produce...