Smugala v. Campana

• Decision Date: 11 July 1966
• Docket Number: No. 1,No. 50967,50967,1
• Citation: 404 S.W.2d 713
• Parties: Sylvester SMUGALA, Appellant, v. Vincent CAMPANA, Respondent
• Court: Missouri Supreme Court

Page 713

404 S.W.2d 713

Sylvester SMUGALA, Appellant, v. Vincent CAMPANA, Respondent.

No. 50967.

Supreme Court of Missouri, Division No. 1.

July 11, 1966.

Donald S. Hilleary, Clayton, for appellant.

Morris, Wuestling & James, William F. James, St. Louis, for respondent.

HENLEY, Judge.

This is an action for $40,000 damages for personal injuries. Plaintiff, a passenger in the automobile of defendant, was allegedly injured when defendant's automobile collided with the rear of another automobile. Judgment was for plaintiff for $850, from which he appeals. One of his two assignments of error is that the trial court abused its discretion in denying him a new trial on the ground that the verdict was grossly inadequate. The amount in dispute is the difference between that sued for and the amount of the verdict and judgment, or $39,150. Miller v. Harner, Mo., 373 S.W.2d 941, 942(1). This court has jurisdiction because the amount in dispute exceeds $15,000. Article V, § 3, Constitution of Missouri, V.A.M.S.; § 477.040, RSMo 1959, V.A.M.S.

On Wednesday morning, April 12, 1961, plaintiff and defendant, both employees of Sodemann Heat and Power Company, were enroute in defendant's automobile to Monsanto Chemical Company where they were to work that day. Defendant was driving and plaintiff was sitting on the right hand side of the front seat. While defendant was driving south on Lindbergh Boulevard approaching its intersection with Brown Road in St. Louis County, his automobile collided with the rear of an automobile stopped by a traffic light. Anticipating the collision, plaintiff braced himself with his feet on the floor and his hands on the dashboard. At impact, his body bent slightly forward from the waist but struck no part of the automobile. After the collision, plaintiff and defendant proceeded to their place of employment, where plaintiff worked the balance of that day and the whole of the next day, doing light work on the suggestion of his foreman. On Thursday evening, plaintiff went to his family doctor complaining of pain in his back. On the following Monday he was sent by his doctor to an orthopedist who examined and hospitalized him at DePaul Hospital where he remained for the next seven days. The hospital record shows a diagnosis on admission of: 'acute back strain and a questionable chip fracture (of the second lumbar vertebra) with a definite limitation of motion (in the back and lower extremities), where he experiences severe pain on extension, and rigidity of the back muscles.'

Plaintiff contends that as a direct result of the collision he sustained an acute back strain and a 'possible' fracture of the first and second lumbar vertebrae, which caused him to incur medical and hospital expense of $574.45 and lose wages in the sum of approximately $1,100; that the verdict of $850 not only fails to compensate him for that expense but fails to award him anything for his pain, discomfort and permanent injury; and, that the verdict was so grossly inadequate as to indicate bias and prejudice against him by the jury. He further contends that for these reasons the court erred in not granting him a new trial on all issues or on the issue of damages alone. Defendant contends that a consideration of the evidence pertaining to the extent of plaintiff's claimed injuries and damage demonstrates that there was a question for the jury in the first instance, and for the trial judge on motion for new trial, as to whether plaintiff received the injuries alleged or suffered the damage allegedly resulting therefrom in this collision; and, that the trial court did not abuse its discretion in overruling plaintiff's motion for new trial.

Plaintiff, aged 34 years at the time of trial in March, 1964, testified: that he was, and had been for several years, a sheet metal worker; that his employment as such required him to handle, fabricate and install sheet metal ducts for installation of air-conditioning equipment, guttering and furnaces, and to handle and lift heavy objects; that he had been steadily employed by the Sodemann Company for about five years before this automobile accident, but was now unemployed; that at the end of the day of this accident his back was sore and he was suffering pain although he had done only light work; that on Monday, after the collision on Wednesday morning, he entered DePaul Hospital suffering considerable pain in his lower back; that he was in the hospital seven days and received heat therapy treatments and 'rubdowns'; that he was fitted with a back brace or belt in the nature of a corset which he wore part-time while in the hospital and part-time after he returned to work; that on his release from the hospital he did not immediately go back to work but stayed at home; that he was released by his doctor to return to work and did return to his employment on May 2, but performed only light work.

He had suffered two prior injuries to his back, one in 1955 or 1956, and the other within a year before this collision. He testified that he received medical attention for both, but lost no time from work because of those injuries. He further testified that he had a stomach ulcer for which he was on medication at the time of this accident; that the ulcer had been dormant for several years and was aggravated by the automobile accident of April 12, as a result of which he has been and is highly nervous.

On May 9, about a week after he returned to work, he injured his back again while correcting his small son and was hospitalized therefor from May 11 to 17. He returned to his employment on June 26, doing only light work until he was 'laid-off' on August 12; this was a general 'lay-off' of employees by his employer for lack of work. He was unemployed until August 23, during which period, he says, he worried about this and the previous periods of unemployment and lack of income. He further testified that he went to work for Ryan Heating Company on August 23, and shortly thereafter became very tense and nervous because of worry; that he suffered a nervous breakdown and was hospitalized thirty-six days at Alexian Brothers Hospital; that he still suffers from this nervous condition and that as a result of this condition and his back injury he is unable to perform his usual work. After release from Alexian Brothers he injured his back again while picking up his son, and was unemployed until April, 1962.

On cross-examination, plaintiff testified: that he was released by his doctor to return to work shortly after his first hospitalization, probably about April 24, 1961; that he has had no treatment for his back condition since his hospitalization for the injury received at his home in May, 1961; and, that for about a year before this automobile accident he received treatment from a doctor for a nervous condition.

The records of DePaul Hospital for the hospitalization resulting from the injury at his home notes the April injury and then memtions that plaintiff had been having nervous spells for about a year, that he had a nervous attack the day before and 'forgot all about the back pain.' The hospital X ray report shows: 'No bony destruction was demonstrated. The intervertebral spaces are preserved. No evidence of fracture.'

Dr. Donald E. Callahan, a physician specializing in roentgenology, testified on behalf of plaintiff that at the request of the latter's family doctor he took X rays of plaintiff's lower back on April 14, 1961. He identified these X rays at the trial and testified that one view showed what appeared to him to be a slight deformity of the first lumbar vertebra, but that there was no evidence of fracture; that L--1 'is down just a little bit in front * * * suggestive of an injury * * * called a...