Pietrowski v. Mykins

• Decision Date: 26 June 1973
• Docket Number: No. 34836,34836
• Citation: 498 S.W.2d 572
• Parties: Paul S. PIETROWSKI and Nana R. Pietrowski, Plaintiffs-Appellants-Respondents, v. William MYKINS, Administrator of the Estate of Eben Parrish, Deceased, Defendant-Respondent-Appellant. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 572

498 S.W.2d 572

Paul S. PIETROWSKI and Nana R. Pietrowski Plaintiffs-Appellants-Respondents, v. William MYKINS, Administrator of the Estate of Eben Parrish Deceased, Defendant-Respondent-Appellant.

No. 34836.

Missouri Court of Appeals, St. Louis District, Division Two.

June 26, 1973.

Motion for Rehearing or Modification Denied Aug. 16, 1973.

Deeba, DeStefano, Sauter & Herd, James B. Herd, St. Louis, for plaintiffs-appellants-respondents.

Heege & Heege, George F. Heege, III, Clayton, for defendant-respondent-appellant.

KELLY, Judge.

This is an appeal by Paul S. Pietrowski and Nana R. Pietrowski, husband and wife, from a judgment of the Circuit Court of the City of St. Louis, wherein Mr. Pietrowski was awarded $3,000.00 on Count I of their petition and the respondent prevailed on Mrs. Pietrowski's suit for loss of consortium on Count II of their petition. Both plaintiffs have appealed. The respondent also appeals from the judgment entered by the trial court after it denied respondent's motion to set aside the second jury verdict and reinstate the first jury verdict of May 18, 1971.

The litigation grew out of a rear-end collision which occurred at approximately 3:00 p.m., Friday, March 31, 1968, near the intersection of Magnolia Avenue and Kingshighway Boulevard in the City of St. Louis, Missouri. Mr. Pietrowski, and electrician in the employ of the Hampton Electric Company, had just completed a job assigned to him and was sitting in the company owned truck behind a line of traffic facing westwardly on Magnolia Avenue, waiting to make a left turn at Kingshighway Boulevard when Mr. Parrish, operating his Chevrolet Sport Van westwardly along Magnolia Avenue, collided with the rear end of the truck in which Mr. Pietrowski was seated, driving said truck forward and into the rear end of an automobile stopped directly in front thereof. The liability issue was not seriously contested by respondent and for that reason the factual aspects of the collision need not be further developed. However, respondent contested the appellants' claims on the issue of whether or not the injuries complained of by Mr. Pietrowski were a direct consequence of this incident and whether or not Mr. Pietrowski was credible.

The injuries Mr. Pietrowski alleged he received in the accident first became noticeable the Sunday following the accident, although he testified that he was nervous at the scene immediately following the collision. He complained that he sustained injury to his right elbow, his left knee, upper back, low back and both shoulders and when he reported to work the following Monday he was sent to Dr. Weinburg, the 'company doctor.' He remained under Dr. Weinburg's care for approximately 3 months and then he was referred by Dr. Weinburg to Dr. Costain, another 'company doctor,' who treated him for a period of 4 months. Because of the persistence of the pain in his left knee his attorney referred him to Dr. Jerome Gilden, an orthopedic specialist, and by the time of trial he had seen Dr. Gilden a total of 8 times. His complaints at trial were constant pain in the low back, 'of the dull variety,' weakness of the left leg, and sharp left knee pain. He testified that both as a result of his injuries and time lost making visits to doctors' offices and physical therapy treatments at Alexian Brothers Hospital he lost 200 hours pay at the basic scale of $5.50 per hour which he was receiving at the time of the accident. Neither Dr. Weinburg--who had died prior to the trial--nor Dr. Costain were called as witnesses; however, Dr. Gilden testified that his original diagnosis was 'residuals of soft tissue injury of the sprain (sic) in the dorsal area of the back,' which was later altered to 'soft tissue injury superimposed on a pre-existing curvature of the spine or pre-existing scoliosis.' He diagnosed the condition of the left knee as 'synovitis' and was of the opinion that this was a permanent injury.

At the respondent's request Mr. Pietrowski was examined by Dr. Newton White, an orthopedic specialist. Dr. White was called by appellants as their witness. He testified that after his single examination of Mr. Pietrowski his diagnosis was: (1) cervical sprain, (2) lumbo-sacral sprain, (3) a torn medial meniscus of the left knee, and (4) a slight tear of the medial collateral ligament.

Both Drs. Gilden and White were of the opinion that these injuries were caused by the accident.

For the purposes of simplicity we shall hereinafter in this opinion refer to the plaintiffs in the trial court as the appellants and the defendant, as respondent.

Appellants offered no evidence of the cost of medical treatment, therapy at Alexian Brothers Hospital, or other incidental expenses in connection therewith.

On appeal appellants present the following points for review:

1. The trial court erred by permitting respondent's counsel to interrogate Dr. Gilden on cross-examination regarding the contents of a medical report of Dr. Weinburg over objection that it was hearsay.

2. The trial court erred in reading to the jury instructions numbers 3 and 5 because they were in conflict with appellants' instructions numbers 2 and 4--their verdict directors--because appellants' instructions referred to the negligence of Eben Parrish, the deceased, whereas instructions 3 and 5, which conversed instructions 2 and 4 respectively, told the jury that their verdict must be for the defendant unless they believed 'that Defendant was negligent;' the defendant is the administrator of the estate and could not have been guilty of any negligence whatsoever.

3. The trial court erred in resubmitting Mrs. Pietrowski's claim--Count II--to the jury after the jury had returned into the court a verdict on both Count I and Count II because by refusing to accept the verdict on Count I which found the issues in favor of Mr. Pietrowski but awarded him no damages, and then explaining to the jurors that the verdict was not in proper form the trial court inferentially advised the jury that the verdict it had simultaneously returned on Count II was, in the court's opinion, a proper verdict.

With respect to appellants' first point, respondent's counsel, on cross-examination, asked Dr. Gilden if he might inspect the doctor's file, which the doctor had with him on the witness stand and to which he had referred in answering questions propounded to him by appellants' counsel. The file was handed to him, he inspected it for a short time, and after establishing that Dr. Gilden's file contained copies of medical reports of each of the other doctors who had examined Mr. Pietrowski, he further developed that these had been sent to Dr. Gilden by appellants' counsel sometime prior to trial. Respondent's counsel then directed Dr. Gilden's attention to what he identified as a 'copy of a standard form, surgeon's report from Dr. Weinburg dated 10--30--68' in Dr. Gilden's file and asked: 'Doctor, on this report from Dr. Weinburg does it have on there no time lost, is that right on there?' Objection was interposed by appellants' counsel that this was hearsay. A dialogue between counsel ensued and the Court then ruled:

'It's been proven they are unavailable by a lady so in view of the unavailability of the records, I'll permit him to interrogate with reference to this record providing it is signed by Dr. Weinburg.'

Respondent's counsel then inquired of Dr. Gilden: 'Is there a signature on that thing?' Dr. Gilden's response was: 'Yes.' Counsel then asked: 'Does it show an entry of no lost time?' Appellants' counsel renewed his objection, but the court said: 'Yes. Your objection goes to the whole line. Let's proceed.' It was then elicited from the witness that in two spaces on the form, first 'date disability began' and secondly at Item 20 'patient was able to resume regular work,' the entry 'no lost time' appeared.

Appellants take the position that this evidence was admitted in violation of the hearsay rule and that it was prejudicial in that it tended to negate Mr. Pietrowski's testimony with respect to his work loss and directly affected the issue of his credibility and veracity.

Respondent does not deny the hearsay nature of the testimony but contends that the entries read by Dr. Gilden from the 'surgeon's report' were properly admitted because:

1) Dr. Weinburg is deceased;

2) He was the treating physician;

3) His original records are unavailable;

4) His records were not incorporated in the hospital records of Alexian Brothers Hospital;

5) He was the 'company doctor' and since Mr. Pietrowski had admitted that he had filed a claim against his employer under the Workmen's Compensation Laws the doctor was required by law to furnish a report to the Division of Workmen's Compensation in the regular course of his business as the 'company doctor' and said report was admissible before the Commission;

6) Counsel for Mr. Pietrowski had obtained this surgeon's report and then forwarded it to Dr. Gilden on Mr. Pietrowski's behalf; and

7) Failure to permit full interrogation by the use of a medical record made in the regular course of business of a treating physician which is in the possession and control of plaintiffs' counsel would allow a concealment of evidence where the deceased physician's records are otherwise unavailable.

It is so fundamental that this 'surgeon's report' constituted hearsay that we need not cite legal authorities to that effect. Nor does the fact that it is contained within Dr. Gilden's files make it any the less so. Whitehead v. Martin, 446 S.W.2d 505, 507(2) (Mo.App.1969). Unfortunately this 'surgeon's report form' was neither marked as an exhibit nor offered and received in evidence; it is not, as such, before this court. Nor is there any evidence that it was a 'certified copy' of the 'record of a person furnishing the employee with medical aid' so as to be admissible in any proceedings before the Division of Workmen's Compensation as required by § 287.140(6) RSMo 1969...