Simmons v. Jones, No. 8083

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: STONE; RUARK, P. J., and McDOWELL
• Citation: 361 S.W.2d 860
• Decision Date: 31 October 1962
• Docket Number: No. 8083
• Parties: Ray SIMMONS, a minor, by his next friend, Vivian V. Simmons, Plaintiff-Respondent, v. Leonard L. JONES, Defendant-Appellant.

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361 S.W.2d 860 Ray SIMMONS, a minor, by his next friend, Vivian V. Simmons,
Plaintiff-Respondent,
v.
Leonard L. JONES, Defendant-Appellant. No. 8083. Springfield Court of Appeals, Missouri. Oct. 31, 1962.

Page 861

Frank R. Birkhead, Carthage, for defenant-appellant.

Frieze & Crandall, Carthage, for plaintiff-respondent.

STONE, Judge.

In this jury-tried action for damages on account of personal injuries alleged to have been sustained in a rear-end vehicular collision, plaintiff, Ray Simmons, obtained a verdict for compensatory damages of $5,000 and for punitive damages of $1,000; and, from the judgment entered thereon, defendant, Leonard L. Jones, appeals. It should be recorded preliminarily that counsel, who had conducted the trial on defendant's behalf and had prepared his appellate brief, withdrew from the case without explanation four days before the date set for argument and submission in this court. Thereafter, in keeping with the highest traditions of professional service, Frank R. Birkhead, Esq., quickly stepped into the breach and ably presented defendant's cause on the brief theretofore filed. To clear away the procedural underbrush, we also

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observe that, since defendant's-appellant's motion for extention of time for filing the transcript on appeal was sustained on July 18, 1962, it necessarily follows that plaintiff's-respondent's motion to dismiss the appeal, predicated on defendant's failure to file the transcript within the time permitted by V.A.M.R. Rules 82.18 and 82.19, should be and accordingly is overruled.

Since defendant's liability for the accident has not been questioned seriously and since neither of his two points on appeal goes to the issue of liability, a brief factual statement concerning the collision will suffice. About 8:15 A.M. on Saturday, October 8, 1960, plaintiff (then twenty days short of his twentieth birthday), alone in his father's 1955 Ford tudor sedan, was traveling north on Garrison Avenue in Carthage, Missouri. As he approached the intersection of Garrison and 4th Street, the automatic traffic control signal light at that intersection changed to red or 'stop' for northbound traffic on Garrison and, in obedience thereto, plaintiff stopped. Some five to twenty seconds later (depending upon whose estimate of time is accepted), the automobile driven by plaintiff was struck in the rear by a northbound 1958 Chevrolet automobile then being driven by defendant as a speed of twenty-five to thirty miles per hour. At the moment of collision, plaintiff had his foot on the brake pedal but, even so, the impact forced his automobile forward ten to fifteen feet. In plaintiff's words, the impact 'knocked me down in the seat'--'I went over to the right side . . . down to the side, and I caught my (left) hand on the floor.' Defendant, forty-nine years of age, who had gone off duty at a nearby chemical plant at 7 A.M., made the familiar admission of having had two beers [cf. Jones v. Fritz, Mo.App., 353 S.W.2d 393, 394] and tendered the ready explanation that, at the time of accident, he was 'coming up town' for cigarettes before going home. But, without reciting the ugly details pertaining to defendant's condition and conduct immediately following the accident, it will suffice to say that plaintiff's evidence supported the pleaded charge that defendant 'was highly intoxicated and in a drunken condition.'

Defendant's first point is 'that the court erred in admitting evidence of life expectancy and instructing on future losses, without substantial evidence of permanency.' It may be conceded that, if proper disposition of this point necessitated determination of whether or not instant plaintiff made a submissible showing of permanent injury, we would be confronted with a question close and vexing on the medical evidence presented, although resolution of the question would be governed by a legal principle frequently anunciated with definitive clarity, i. e., that, even though the permanency of an injury need not be demonstrated with absolute certainty, it may not be found on the basis of conjecture, likelihood or even probability. State ex rel. Kansas City Public Service Co. v. Shain, 350 Mo. 316, 323, 165 S.W.2d 428, 430(2); Roderick v. St. Louis Southwestern Ry. Co., Mo., 299 S.W.2d 422, 425(2); Kiger v. Terminal R. Ass'n. of St. Louis, Mo., 311 S.W.2d 5, 14(17); Fann v. Farmer, Mo.App., 289 S.W.2d 144, 150(13); Berry v. McDaniel, Mo.App., 269 S.W.2d 666, 673(13).

However, as the language of the quoted point suggests and recognizes, in his instruction 1 (the only instruction on compensatory damages) instant plaintiff did not submit or seek to recover damages for permanent injury [contrast Leavitt v. St. Louis Public Service Co., Mo.App., 340 S.W.2d 131, 139-141; Heibel v. Robison, Mo.App., 316 S.W.2d 238, 241-242; Brown v. Kansas City, Mo.App., 311 S.W.2d 360] but rather (to borrow the terse terminology of the quoted point) for 'future losses' or (to paraphrase the language of instruction 1) for such future pain and suffering and such future loss of earnings (after plaintiff had attained the age of twenty-one years) as the jurors might find from the evidence that plaintiff was reasonably certain to sustain on account of his injury. For inclusion of future pain and suffering and future loss of earnings as elements which might be considered in assessing

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compensatory damages, 'substantial evidence of permanency' of plaintiff's injury was not an essential prerequisite, for, as many cases have pointed out, 'there is a distinction between damages which may reasonably result in the future and damages allowable as for a permanent injury.' Plank v. R. J. Brown Petroleum Co., 332 Mo. 1150, 1164, 61 S.W.2d 328, 334(6); Weiner v. St. Louis Public Service Co., Mo. (banc), 87 S.W.2d 191, 192; Gulley v. Spinnichia, Mo.App., 341 S.W.2d 301, 307; Heibel v. Robison, supra, 316 S.W.2d loc. cit. 242; Brown v. Kansas City, supra, 311 S.W.2d loc. cit. 362. See also Pender v. Foeste, Mo., 329 S.W.2d 656, 663, and Hoffman v. Illinois Term. R. Co., Mo.App., 274 S.W.2d 591, 593. Assuming, for the purposes of this...