Settell v. Horgan, 23684

• Decision Date: 03 December 1962
• Docket Number: No. 23684,23684
• Citation: 362 S.W.2d 769
• Parties: Kenneth R. SETTELL, Plaintiff-Respondent, v. Michael G. HORGAN, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 769

362 S.W.2d 769

Kenneth R. SETTELL, Plaintiff-Respondent, v. Michael G. HORGAN, Defendant-Appellant.

No. 23684.

Kansas City Court of Appeals, Missouri.

Dec. 3, 1962.

McKenzie, Williams, Merrick, Beamer & Stubbs, James L. Williams and Keith K. Couch, Kansas City, for appellant.

Robert A. Schroeder, Robert A. Nelson, Walter A. Raymond, Kansas City, for respondent.

MAUGHMER, Commissioner.

Plaintiff, Kenneth R. Settell, had a $7,500 verdict and judgment against Michael G. Horgan, defendant, for personal injuries sustained in a collision of their two automobiles. On his appeal defendant presents two and only two assignments of error. He says the trial court erred in giving Instruction #5 because it is not supported by any evidence of the permanency of plaintiff's injuries and, second, either a new trial or a remittitur should have been ordered because the judgment for $7,500 is excessive.

The accident occurred about 11:00 a.m. on December 15, 1959, at the intersection of 12th and Chestnut streets in Kansas City, Missouri. Plaintiff was operating his tractor-trailer north on Chestnut street and defendant was driving his Ford automobile west on 12th street.

Since the question as to defendant's negligence and consequent liability is neither disputed nor preserved by the appeal, we go directly into the evidence touching permanency of the injuries and the alleged excessiveness of the allowance.

Instruction #5, given by the court, is as follows:

'The Court instructs the jury that if you find the issues in favor of plaintiff, KENNETH SETTELL, you will assess his damages at such sum as you find and believe from the evidence will compensate him for the injuries, if any, sustained by him as shown by the evidence; and in estimating such damages you will take into consideration the physical injury, if any, inflicted; the bodily pain, if any, and mental anguish, if any, which he has endured and suffered and which he is reasonably certain to endure and suffer in the future; the character and extent, his injuries, if any, and whether they are temporary or permanent; his loss of earnings, if any, and the sums, if any, which he has expended for medical expenses by reason of such injury'.

Defendant's assignment of error as to this instruction is restricted to the assertion that 'it is not supported by any evidence of permanency'. It is fundamental that an instruction should never submit an issue which is not supported by evidence. Heibel v. Robison, Mo.App., 316 S.W.2d 238, 241.

The question of the sufficiency of evidence to support an instruction for permanent injury is fully discussed by the court en Banc in Weiner v. St. Louis Public Service Co., Mo., 87 S.W.2d 191, 192, where it adopted, approved and quoted as follows from Lebrecht v. United Rys. Co. of St. Louis, Mo., 237 S.W. 112, 114:

"'To justify a recovery for apprehended future consequences, there must be such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury. To say of a thing it is permanent means that it will continue regardless of a contingency or fortuitous circumstance.' * * * Proof of a condition which may cause future trouble is not necessarily proof of a permanent injury, the former may persist after the trial but not continue to exist permanently while the latter is a physical or mental impairment or disability which will last throughout life, and there is a distinction between damages which may reasonably result in the future and damages allowable as for a permanent injury. * * * To recover damages for permanent injury the permanency of the injury must be shown with reasonable certainty and while absolute certainty is not required mere conjecture or likelihood, or even a probability, of such injury will not sustain the allowance of damages therefor."

This declaration of the rule has been reiterated and approved by our courts many times during the ensuing years. Plank v. R. J. Brown Petroleum Co., 332 Mo. 1150, 61 S.W.2d 328, 334; Brown v. Kansas City, Missouri, Mo.App., 311 S.W.2d 360, 362; Heibel v. Robison, Mo.App., 316 S.W.2d 238, 242, and Gulley v. Spinnichia, Mo.App., 341 S.W.2d 301, 307.

When the accident occurred plaintiff was twenty-seven years old. He finished the ninth grade, served in the army and has been a truck driver and farmer. At the time of the injury he was employed by Midwest Fruit Company as a truck driver with earnings of $87 per week. He is lefthanded. In describing his injuries plaintiff said: 'It knocked me out', that he was stunned, his left forearm and wrist were 'hurting terrifically', his head and neck hurt and there was a numbness in his back. He testified that he was taken to General Hospital in an ambulance where x-rays were taken. Mr. Settell remained in the hospital for a few hours and on the next day saw Dr. Duncan, the company doctor, who gave him treatments for about three weeks, when he 'went back to work'. It was his testimony that his wrist, neck and shoulder got worse and he had 'sharp pains like a dull toothache'. He had never previously received any injury to his left arm, wrist, shoulder or back.

Plaintiff next consulted Dr. Campbell McCullough, an orthopedic surgeon, as his private physician. He saw this doctor more than sixty times and the bill was $960. Dr. McCullough's treatment consisted of heat treatments and traction. Mr. Settell said he worked for 'the Churchill people' for about one year after the accident, that 'every time I would start to pick up something my wrist would start hurting and after I was there approximately half-hour, if I was lifting freight, I would start getting headaches and my neck would get sharp pains'. Plaintiff drove a cab for a while and then resumed as a truck driver for Midwest. He testified that the operation of the big truck caused his wrist to swell and he had pain in his neck. He took aspirin, anacin and bufferin regularly for the pain.

Dr. McCullough testified that he first examined plaintiff in December, 1959. He described plaintiff's complaints of pain and found some limitation of motion in the left wrist. There was tenderness in the main muscle upper half shoulder blade. He prescribed and gave modified diathermy. The doctor had x-rays made of both wrists, scapula, shoulder joint and cervical spine. He said these pictures revealed limitation of motion in the neck--right looked 20 percent of normal and the 'left 20 on forward flexion and extension, bending head and back'. He also found the left shoulder blade and neck lacked 'about 10 percent in abduction'. Dr. McCullough declared these findings showed abnormality and were deviations from normal. He also found muscle spasm in the neck. There were no fractures. There was some atrophy of the left forearm muscles and the grip of the left hand was less than with the right, although patient was left-handed. On the question of permanency Dr. McCullough made these statements: 'He has some permanent disability related to...