Rogers v. Spain

• Court: Missouri Court of Appeals
• Writing for the Court: WOLFE; ANDERSON, J., and R. KENNETH ELLIOTT; RUDDY
• Citation: Rogers v. Spain, 388 S.W.2d 518 (Mo. App. 1965)
• Decision Date: 16 February 1965
• Docket Number: No. 31552,31552
• Parties: Ida ROGERS, (Plaintiff) Respondent, v. Ruby Hazel SPAIN, (Defendant) Appellant.

Page 518

388 S.W.2d 518

Ida ROGERS, (Plaintiff) Respondent, v. Ruby Hazel SPAIN, (Defendant) Appellant.

No. 31552.

St. Louis Court of Appeals, Missouri.

Feb. 16, 1965.

Motion for Rehearing or for Transfer to Supreme Court Denied

March 18, 1965.

Roberts & Roberts, Raymond R. Roberts, Farmington, for appellant.

Tyree C. Derrick, St. Louis, Robert A. McIlrath, Flat River, for respondent.

WOLFE, Acting Presiding Judge.

The plaintiff Ida Rogers brought this suit against defendant Ruby Hazel Spain to recover damages arising out of personal injuries which she sustained. The injuries were inflicted upon the plaintiff when the automobile in which she was riding as a passenger was struck by an automobile driven by the defendant. There was a verdict and judgment for the plaintiff, and the defendant prosecutes this appeal.

The facts giving rise to the action occurred on December 15, 1959, at about 3:45 p. m. Cleon Rogers, a son of the plaintiff, lived at Mine LaMotte with his mother and father. He was going to drive his Pontiac automobile out to a place where he had seen a cedar tree which he wanted to get to use as a Christmas tree. He invited his mother and father to ride with him. The plaintiff sat in the front seat with her son, and her husband sat in the back seat, as their son drove his car over Village Creek Road near Fredericktown, Missouri.

Village Creek Road is a gravel road 20 to 22 feet wide with a ditch on either side. It goes to the southeast in the direction that the plaintiff was traveling. Cleon Rogers, the plaintiff's son, testified that while traveling on his side of the road, at a speed of about 20 to 25 miles an hour, he came to the crest of a small hill. There he saw the defendant's automobile coming from the opposite direction about 150 feet away and on his side of the road. He applied his brake at once and pulled as far as he could to the right without going into the ditch. But the defendant came on and veered toward him. When he had almost stopped his automobile, he was struck head on by the defendant's automobile. His mother, the plaintiff, was thrown forward, striking her head upon the windshield and suffering two cuts on her face. She was bleeding profusely as he helped her from the car. He applied a compress to stop the bleeding and held it upon her wounds until she was sufficiently conscious to hold it herself. He then went to a nearby house to phone for help. He testified that the defendant came over to the car while he was attending his mother and said, 'It's my fault and I'm very sorry.' There is no dispute about the fact that the collision took place on the plaintiff's side of the road; nor is the fact that she was traveling on the right side prior to the occurrence controverted. The skid marks her son's car made in stopping were in his proper lane, and there were skid marks left by the defendant's car which were in the plaintiff's lane.

The defendant in her own behalf testified that she was driving to Mine LaMotte and had driven onto the Village Creek Road from some other road where she had forded a creek, and that her brakes may have been wet. She said that she could have swerved to her right 'if she hadn't been so scared.' She said that when she applied her brakes they grabbed because of being wet, and the car swerved to the left.

The plaintiff was found to be suffering from a fractured left hip and many abrasions and bruises, in addition to the cuts mentioned. The evidence relating to this will be further stated in discussing the points raised in relation to it.

The first point raised is that the trial court erred in failing to strike the testimony of Dr. Hoffman because the doctor testified that there was an aggravation of arthritis and that the plaintiff did not plead a pre-existing condition of arthritis. The defendant cites us to Simon v. S. S. Kresge Co., Mo.App., 103 S.W.2d 523, and May v. Hexter, Mo.App., 226 S.W.2d 383. In both cases we held that under a general charge of injury, the defendant was to be held for such results as would naturally follow. It might be a natural result of such an injury if there was in fact a preexisting arthritic condition, but it would not be a necessary result of it, and consequently a special pleading is required to show the existence of the arthritic condition if the plaintiff expects to recover for such an item of special damage.

The doctor in the instant case stated that the plaintiff suffered a fracture of the acetabulum, which is the hip socket. He said there were several fragments, and that the fracture extended into the left hip socket. He said that the fracture caused traumatic arthritis on the head of the left femur. The following questions and answers were relied upon by the defendant:

'Q. Doctor, are you assuming that the collision caused it, is that it, caused the arthritis? In other words, that the collision itself actually caused the arthritis?

'A. Her fracture of the acetabulum----

'Q. Actually caused the arthritis?

'A. Yes, it would be enough to aggravate it, yes, sir.'

After this counsel for the defendant moved to strike the testimony relating to aggravated arthritis.

The doctor, however, later explained by saying that the traumatic arthritis that appeared on the X-ray was shown to have increased in a later X-ray. Nothing was ever said by the witness about a pre-existing arthritis. He at all times insisted that the arthritic condition was traumatic. We must therefore rule this point against the appellant.

The next point raised by the appellant is, 'The court erred in failing to strike the testimony of Dr. Taylor that the plaintiff's pain would most likely be permanent but could get entirely well as far as he knew because such testimony was speculative.' The testimony of which the appellant complains is as follows:

'Q. * * * Do you know whether or not this is a permanent pain that she had?

'A. She still had it when I last saw her in June, 1961.

'Q. And from that would you assume, to a reasonable degree of medical certainty, that she would continue to have it, Doctor?

'A. Most likely. But it could get entirely well too as far as I know. But then the probabilities are that she would continue to have it.'

Counsel moved to strike the...