Pulem v. George, 24727

• Decision Date: 07 October 1968
• Docket Number: No. 24727,24727
• Citation: 433 S.W.2d 83
• Parties: Carolyn PULEM, a Minor, by Her Mother and Next Friend, Rachel Blankenship, Respondent, v. Charles R. GEORGE, a Minor, by His Mother and Guardian Ad Litem, Catherine L. George, Appellant.
• Court: Missouri Court of Appeals

Page 83

433 S.W.2d 83

Carolyn PULEM, a Minor, by Her Mother and Next Friend Rachel Blankenship, Respondent, v. Charles R. GEORGE, a Minor, by His Mother and Guardian Ad Litem, Catherine L. George, Appellant.

No. 24727.

Kansas City Court of Appeals, Missouri.

Oct. 7, 1968.

Forest W. Hanna, Kansas City, Sprinkle, Carter, Sprinkle, Larson & Hanna, Kansas City, of counsel, for appellant.

John R. Moore, Platte City, for respondent.

HOWARD, Presiding Judge.

This suit for personal injuries growing out of a one-car accident resulted in verdict and judgment for the respondent in the amount of $7,500.00. Appellant has duly appealed to this court. We shall refer to the parties as they appeared below.

The plaintiff was the girl friend of the defendant. When high school let out October 6, 1964, the defendant picked up the plaintiff and two other girls in his automobile. Plaintiff was sitting in the right front seat, defendant was driving, and the two other girls were in the back seat. They were going toward downtown Platte City when one of the girls in the back seat said something to defendant and he turned to look toward the back seat. One of the girls said 'Look Out' and he turned back around just as the car ran off the road and hit a culvert. The plaintiff was thrown forward in the car. She was not knocked unconscious but remembered only parts of who happened thereafter. She received a cut below her lower lip and above her chin which required eight sutures to close. This was a through and through cut. She also received a cut under her chin which required three sutures to close and a cut on her nose which required two sutures to close. She received a broken nose, a fracture of the right cheek bone, a blow to the back of her head on the right side and a blow to the mouth. Her four upper front teeth were damaged. One-third of one tooth was broken off and another tooth ws cracked. She received a soft tissue injury to her right foot which became badly swollen. She was taken to the hospital where she was treated and remained for ten days. After spending four more days at home, she returned to school on October 20. She used a wheelchair to get from class to class for fourteen days, and remained on crutches until November 6, 1964, when she began to put weight on her foot and by the end of December, she was able to return to fairly full activities around the home. She did not return to gym or band until March 1, 1965. As a result of the accidnet, she has a bump on her nose, a scar below her lower lip, a scar under her chin, and the injured foot is one-half size larger than the other foot. She has occasional cramping in the foot but no other pain and the four front teeth which were damaged are sensitive to cold and the dentist testified that they should either be extracted or that she should receive root canal treatment for them. There is a cap over the broken tooth. She last saw her doctor on October 18, 1965, at which time he considered her recovered. He estimated her period of total disability as the ten days, from October 6 to October 16, 1964, and that her period of partial disability terminated on January 18, 1965.

Shortly after the trial of this case and before the transcript was prepared, the reporter died unexpectedly. Efforts by the attorney for the appellant and by the court to secure someone else to transcribe the reporter's notes were unsuccessful. Therefore, appellant filed a motion in this court for a remand for new trial because of the inability to secure a transcript of the proceedings. This motion was denied and the parties have prepared a narrative statement of the case which has been approved by the attorneys for both parties and by the trial judge.

The first point of defendant's brief in this court urges that we reverse the judgment and remand for a new trial because of his inability to secure a full and complete transcript. He states that the narrative statement prepared by the parties 'is an unsatisfactory solution to the problem under all of the circumstances and its result(s) are grossly prejudicial to the appellant.' However, he does not point out how he has been prejudiced by this situation or wherein the agreed statement is inaccurate or what, if anything material to his cause, has not been included in the agreed statement. Furthermore, we have examined the motion for new trial which consists of 14 numbered paragraphs. Only 4 of these paragraphs preserve anything for appellate review. The other 10 paragraphs are of such a general nature that they do not preserve anything for our consideration either with or without a transcript. The points preserved are that the trial court committed error (1) because the verdict was excessive and indicates passion, prejudice and misconduct on the part of the jury; (2) because the verdict was excessive; (3) because the trial court refused to direct a verdict for defendant; and (4) because there is a failure of proof of the causal connections between the accident and plaintiff's injuries.

As to the directed verdict, both the plaintiff and the defendant agreed on how the accident happened as we have recited above, and nothing further need be said to demonstrate that under such circumstances the defendant was not entitled to a directed verdict. Defendant has briefed the question of the excessiveness of the verdict and also his claim that such excessiveness was a result of passion and prejudice on the part of the jury. In this connection he has also argued the claimed failure to prove that plaintiff's injuries were caused by the accident. His brief does not point out how his submission of these questions has in any way been affected by his inability to secure a full and complete transcript.

In State v. McCarver, 113 Mo. 602, 20 S.W. 1058, the Missouri Supreme Court had before it a case wherein a defendant had received a sentence of 25 years in the penitentiary. During a delay caused by the refusal of the clerk to perform his duties, the transcript of the evidence was lost and the reporter's notes were lost. The court stated that 'In any ordinary case, we should have great hesitancy in reversing * * *' because of the absence of a transcript. The court then went on to point out that the appellant was without fault and concluded that '* * * in order that right and justice may be done, and a grievous wrong, perhaps, averted * * *.' the judgment below would be reversed and the cause remanded for a new trial. In the later case of State v. Thompson, 130 Mo. 438, 32 S.W. 975, the Supreme Court held that the appellant had not shown due diligence in securing the transcript before the reporter died or in otherwise preserving the evidence and therefore refused to grant relief because of the absence of a transcript. In several cases following these two Supreme Court decisions, the three courts of appeal have reversed and remanded because of the inability to secure a transcript where the appellant exercised due diligence and was entirely without fault or blame and where the complaints on appeal could not be passed upon in the absence of a transcript. Such relief has been denied where the appellant did not exercise due diligence or was otherwise at fault. See Woods v. Bottmos, Mo.App., 206 S.W. 410; Stevens v. Chapin, 206 Mo.App. 594, 227 S.W. 874; Larson v. Shockley, Mo.App., 231 S.W. 1030; Scharff v. Holschbach, 220 Mo.App. 1139, 296 S.W. 469; and Green v. Kansas City, Mo.App., 77 S.W.2d 652.

In the more recent case of Longmire v. Diagraph-Bradley Stencil Machine Corp., 237 Mo.App. 553, 173 S.W.2d 641, the St. Louis Court of Appeals held that there was no authority to reverse and remand the cause because of the inability to secure a transcript. It held that State v. McCarver, supra, presented a unique situation and that the decision of the Supreme Court in that case did not authorize the granting of such relief in civil cases.

In the case at bar, while the defendant has shown due diligence and is without fault, he has not shown that he is injured in any way by his inability to secure a full and complete transcript of the record. He has not been prevented from presenting his...