Ray v. Wisdom

• Citation: 166 S.W.3d 592
• Decision Date: 05 July 2005
• Docket Number: No. ED 85102.,ED 85102.
• Parties: Sarah E. RAY, Appellant, v. Stanley A. WISDOM, Respondent.
• Court: Missouri Supreme Court

Page 592

166 S.W.3d 592

Sarah E. RAY, Appellant, v. Stanley A. WISDOM, Respondent.

No. ED 85102.

Missouri Court of Appeals, Eastern District, Division Three.

July 5, 2005.

G. William Wynne, St. Louis, MO, for appellant.

Michael P. Shea, Benicia Baker-Livorsi, Co-Counsel, St. Charles, MO, for respondent.

NANNETTE A. BAKER, Judge.

Sarah E. Ray ("Wife") and Stanley A. Wisdom ("Husband") were married on June 28, 1997 in St. Louis County, Missouri. On March 11, 2003, Wife filed a divorce petition in the Circuit Court of St. Charles County. In the first count of her petition, Wife sought a decree of dissolution of her marriage to Husband and alleged the requisite separation of the parties. In the second count, Wife sued Husband for "Tortious Infection" with a sexually transmitted disease.

Wife was diagnosed with genital herpes in August of 2002 by her treating physician, Dr. Hani Charles Soudah ("Dr. Soudah"). Wife had been married to Husband for approximately five years at that time. She testified that from approximately a year prior to the marriage of the parties through the date of the separation in 2002, Wife had sexual relations only with Husband. Wife testified that she first experienced symptoms of genital herpes while she was still living with Husband. She testified that she first started exhibiting symptoms which, in her lay opinion, were attributable to genital herpes in March, 2002. She experienced swelling, pain and blisters in the vaginal area. Wife did not seek medical advice concerning the symptoms until her annual physical examination on August 12, 2002. She believed she had some sort of cyst or ingrown hair, and did not realize something was wrong until the third time the symptoms came back. Wife admitted that it is possible to have one or two genital herpes outbreaks before a person should recognize that something is wrong.

Since the initial diagnosis, Wife has had "flareups" of the disease every two to three months. Dr. Soudah prescribed Famvir, to be taken when she experiences symptoms. The "flareups" included lesions, pain and swelling, fatigue and headaches. The pain and discomfort have necessitated cancellation of appointments and other plans.

Wife also stated that she had difficulty discussing the disease with a man in whom she was interested. Instead, she told him that she was not interested in him "in that way". At the time of trial, she was still unable to tell a man that she has genital herpes, and that relations with her would involve risk. She sought out and began meeting with a therapist/counselor to help with these issues, incurring costs in the process.

Husband testified that, during his marriage to Wife, he had a sexual relationship with a female who was an employee of the United States Postal Service, where he also worked. He testified that the woman had never indicated to him that she had a sexually transmitted disease. Husband maintained that he did not knowingly give Wife genital herpes. Husband also testified that he did not know he had the disease until November 2003. He was alerted that Wife had the disease when she sued him. Then he was tested, and although he tested positive for the disease, as of the date of trial he testified that he had never had any outbreaks. Furthermore, Wife testified that she never saw any evidence that Husband had any outbreak of herpes during their time together.

Husband was questioned on cross examination regarding the possibility that he had experienced symptoms of genital herpes without realizing it. He answered that he had "so many medical conditions that they intertwine, I mean, you know, I spent two years in Vietnam, I was exposed to Agent Orange and I've got diabetes because of that. That thing alone makes you depressed and all kinds of other things on its own and you take in all the other medical conditions I got, its just I don't know." He stated that he has never discussed his herpes infection with a physician. Nor has he sought medical advice about how to avoid spreading the disease.

Both parties were sexually active before their marriage. As a result, Husband and Wife underwent premarital HIV testing, which was negative. Neither party was tested for any other sexually transmitted diseases when they got married in 1997.

Dr. Soudah testified on behalf of Wife. Dr. Soudah had been Wife's regular family physician since 1996. He is board certified in internal medicine. After he diagnosed Wife with genital herpes, Dr. Soudah advised Wife that the disease was transmitted only by sexual contact. He testified that it presents either on the skin or in the external genitalia. He also testified that sometimes some patients have fevers, chills, fatigue, or a lymph node enlargement.

Dr. Soudah testified that, in his opinion, the incubation time of genital herpes can be from three to seven days and that the incubation period has been documented in "the literature" from one day to up to 26 days. He testified that it is possible for someone to infect another person even if they have not manifested any symptoms. He also stated that the herpes virus was incurable and sometimes people would not have symptoms but still be able to transmit the disease. He said that it was very unlikely for a person who never exhibited symptoms to transmit the disease to another person. He also testified that a person who has the virus would exhibit symptoms at some point. He stated that it was very unlikely that Wife had the disease before she got married but did not show symptoms until 2003. He testified, "So if she had no symptoms and she was not treated before, the likelihood that she had the disease is zero." He stated that most patients seek treatment initially and that was documented in "the literature."

At the conclusion of Wife's case, Husband moved for a directed verdict. Husband's motion for a directed verdict was sustained. Specifically, the court found that there was no evidence that Husband had symptoms. The court concluded there was no evidence that Husband knew or should have known that he had genital herpes, and thus had no duty to protect Wife from infection. This appeal follows.

Wife's first claim is that the trial court erred in granting Husband's Motion for Directed Verdict in that there was sufficient evidence put forth at trial to withstand Defendant's Motion for Directed Verdict. She also claims the trial court also erred in denying her motion for new trial. In her second point, Wife asserts that the trial court erred in entering a Directed Verdict for Husband because the trial court required that Husband have actual knowledge of his infection, or that he admit to awareness of having symptoms of genital herpes, in order to establish a case for negligent transmission of the virus. We find that the trial court erred in sustaining Husband's Motion for Directed Verdict. We reverse and remand for a new trial.

Husband first asserts that the appeal should be dismissed because Wife's points relied on do not meet the requirements of Rule 84.04.¹ However, because Wife's arguments under these points are sufficient to inform this court and opposing party of the precise matters presented for review, this contention is denied. See Adams v. Adams, 108 S.W.3d 821, 832 (Mo.App. W.D.2003).

Standard of Review

In reviewing a directed verdict granted for a defendant, an appellate court views the evidence and permissible inferences most favorable to the plaintiff, disregards contrary evidence and inferences, and determines whether the plaintiff made a submissible case. Thong v. My River Home Harbour, Inc., 3 S.W.3d 373, 377 (Mo.App. E.D.1999). Directing a verdict is a drastic measure. Id. A presumption therefore is made in favor of reversing the trial court's judgment sustaining a motion for directed verdict unless the facts and inferences therefrom are so strongly against the plaintiff as to leave no room for reasonable minds to differ as to a result. Id. If reasonable minds can draw different conclusions from the facts, a directed verdict is not proper. Schaffer v. Bess, 822 S.W.2d 871, 876 (Mo.App. E.D.1991).

Each and every element essential to establish the liability of a defendant must be supported by substantial evidence. Bond v. California Comp. and Fire Co., 963 S.W.2d 692, 696 (Mo.App. W.D.1998). In this regard, substantial evidence is competent evidence from which a trier of fact can reasonably decide the case. Id. A directed verdict is proper only if one or more of the elements of a cause of action are not supported by substantial evidence. Id.

Preservation

Husband contends that the issues were not properly preserved for review and a plain error standard should be used. Husband asserts that Wife's post trial motion, which was titled "Memorandum in Support of Petitioner's Motion for New Trial and in the Alternative for Other Relief" was insufficient to preserve issues because it was not denominated "Motion for New Trial" as is required by Rule 78.07. Even though the motion was not denominated "Motion for New Trial," it did comport with Rule 78.07 in that it made allegations of error and requested a new trial be granted. It was sufficient to put the trial court on notice of the errors Wife was claiming.

Husband also claims that this motion was untimely in that the judgment was not a final judgment when this motion was filed. The original cause in this case contained multiple counts, including a tort count and a dissolution count. This court has previously recognized that in multi-count cases such as this one, disposing of the tort count first is desirable so that the trial court can consider the evidence presented and the jury verdict on the tort count when deciding the dissolution count. See, State ex rel M.D.K. v. Dolan, 968 S.W.2d 740 (Mo.App. E.D.1998). Generally, a decision is not final if the decision or order disposes of less than all claims. Avidan v. Transit Cas. Co., 20 S.W.3d 521, 523 (Mo. banc 2000). An appeal will only lie...