Stanziale v. Musick
| Decision Date | 08 July 1963 |
| Docket Number | No. 1,No. 48855,48855,1 |
| Citation | 370 S.W.2d 261 |
| Parties | Charlene STANZIALE, Appellant, v. Robert E. MUSICK, Respondent |
| Court | Missouri Supreme Court |
Kaer P. Vanice, II, Kirchner & Vanice, Kansas City, for appellant.
Hale Houts, J. D. James, Edwin W. Rooker, Houts, James, Randall, Hogsett & McCanse, Kansas City, for respondent.
In this jury-tried action for damages in the sum of $50,000 for personal injuries claimed to have been sustained in a rearend collision on Meyer Boulevard in Kansas City, Missouri, about 7 P.M. on July 21, 1958, plaintiff appeals from the judgment entered upon the unanimous jury verdict for defendant at the conclusion of the trial on January 21, 1961.
Plaintiff, a married woman then thirty-three years of age, was one of a group of six ladies en route to the Starlight Theater in a 1954 Ford sedan then being driven by Mrs. Ed Kelly. Plaintiff was riding on the right side of the front seat, and Mrs. Rosemary Weilert, then six and one-half months pregnant, was riding in the middle of the front seat. Mrs. Kelly, headed east on Meyer Boulevard, brought her automobile to a stop just west of Oak Street in obedience to an automatic traffic control light at the intersection of Meyer and Oak. 'A few seconds' later, the rear end of the standing Kelly Ford was struck by the front end of defendant's 1950 Buick sedan also headed east on Meyer. Defendant, accompanied by his wife and three minor children, was on the way home at the close of his day's work at an A & P market.
As defendant left the market, it 'just started to mist rain, a light mist,' and that continued during the brief period of about five minutes to the time of accident. Traveling east on Meyer at twenty to twenty-five miles per hour, defendant observed the Kelly automobile, eastbound in front of him, stop at the intersection; and, at a point estimated to have been fifty to sixty feet behind the Kelly automobile, defendant applied the brakes on his automobile. When he did so, 'the wheels locked and started sliding so I (defendant) immediately released them and applied them again and I did that two or three times and every time I applied them it would slow me down but it wouldn't stop.' By witness Wessling, a sergeant in the traffic safety bureau of the Kansas City police department with fifteen years' experience in accident investigation, defendant adduced evidence without objection that a mist or light rain forms a 'scummy surface' on paved roadways, making them 'extremely slick' for vehicular traffic and creating 'a deceptive condition' for drivers without adequate knowledge and realization of the unique and unusual danger inherent in such situation; that, by reason of its oil base, 'asphaltic concrete,' such as that on Meyer, becomes 'particularly slick as compared to * * * concrete'; and that such unusually hazardous condition continues until it has rained long enough and hard enough to wash off the streets. Defendant testified that, prior to application of the brakes, he was not aware of the particularly slick condition of the roadway. 'I didn't know the streets were slick'--'I had never had it just like that before.'
In any event, the front end of defendant's Buick admittedly struck the rear end of the standing Kelly Ford. However, the evidence favorable to the verdict, the benefit of which must be accorded to defendant-appellee on this appellate review [see cases collected in West's Missouri Digest under Appeal and Error, k930(1)], was to the effect that the Buick had been traveling only three to five miles per hour at the time of collision, that it has stopped at the point of impact, that the Ford had moved forward 'just about six inches,' and that neither automobile had been damaged.
Immediately after the accident, plaintiff and Mrs. Kelly, the driver, alighted from the Ford, and defendant and his wife got out of the Buick. Defendant's wife walked forward to the Kelly Ford and 'asked the group, as a whole,' whether anyone had been injured. Borrowing plaintiff's language, 'everybody said no excepting myself and I never answered.' When asked upon cross-examination why she had remained silent if (as she had testified) her head had been jerked and she had suffered a sharp pain in her neck--'it felt like a hot knife struck right here (indicating),' plaintiff said 'I didn't think there was any sense in making a statement there'--'I stood there, everybody else was talking so why should I be lipping?' The parties re-entered their respective vehicles without even exchanging names and addresses, and Mrs. Kelly started forward. But, at plaintiff's suggestion, Mrs. Kelly stopped, alighted from her automobile a second time, walked back to defendant's automobile, and obtained his name and address. Plaintiff's suggestion was prompted (so she said upon trial) by the fact that Mrs. Weilert, riding in the middle of the front seat of the Kelly Ford, was pregnant. We note parenthetically that Mrs. Weilert, called as a witness for plaintiff, testified that she had suffered no ill effects as a result of the accident. With her companions, plaintiff proceeded to the outdoor theater and sat through the performance, interrupted by a shower. She voiced her first complaint, that of a headache, when the group stopped at a drive-in on the way home.
Plaintiff was employed as assistant librarian at the research center of Spencer Chemical Company in Merriam, Kansas. Following the accident on the evening of Monday, July 21, 1958, she continued at her regular work through Friday, August 8, 1958, excepting for the loss of one-half day on Monday, July 28, and the entire day on Tuesday, July 29. Her first medical consultation was on Friday, August 1, with Dr. John L. Barnard, an orthopedic surgeon. In the detailed history then taken by Dr. Barnard (the accuracy of which was, upon trial, disputed by plaintiff but confirmed by the doctor), it was recorded, in part, that: It may be proper at this point to observe that plaintiff's cause of action was pleaded, tried and submitted on the theory that the rear-end collision of July 21, 1958, had been the sole and direct cause of her alleged injuries, and not on the theory that a pre-existing condition had been aggravated by that collision.
At the time of Dr. Barnard's initial examination on August 1, 1958, plaintiff stated (according to the doctor's office records) that 'there are three areas of discomfort in the back--in the upper back and across the shoulders, in the middle of the back, and at the end of her spine,' that she had taken chiropractic treatments for her lower back, but that she had 'no particular complaint of the low back at the present time.' X rays disclosed no evidence of bone injury; and, although plaintiff had various subjective complaints, 'the only objective sign of any injury * * * was a little bit of spasm in the right side of the back.' His diagnosis was myositis (inflammation) of the posterior cervical muscles and right trapezius.' He advised, and plaintiff took, physical therapy treatments periodically until October 20, 1958. When plaintiff complained of more severe pain in both shoulders and the back of her head on August 8 (one week after initial examination), Dr. Barnard fitted her with a plastic cervical collar which she wore until October 27, 1958. She returned to work on Tuesday, December 9, 'took a day's vacation on the 10th,' and then worked regularly until January 28, 1959, when she slipped on ice and fractured a bone in her left foot. She did not work for Spencer thereafter and her employment was terminated 'pretty much by mutual agreement' on February 6, 1959.
In the meantime, she had consulted Dr. A. D. Murray, a chiropractor, on December 5, 1958, had told him that she had sustained 'a whiplash injury to the neck' in the rear-end accident of July 21, 1958, and had taken a series of eleven chiropractic adjustments terminating on January 16, 1959, which, according to Dr. Murray's written report in evidence, had resulted in 'abatement of all symptoms being effected' excepting only 'a residual, though diminished, burning sensation in the left arm.' She also had returned to Dr. Barnard on January 5, 1959; and, in response to her complaints then altogether subjective, he had resumed physical therapy treatments, which continued intermittently until March 6, 1959. On April 3, 1959, Dr. Barnard advised plaintiff 'to settle her case' and dismissed her from treatment.
Plaintiff thereafter had no medical attention or chiropractic adjustments prior to September 25, 1959, on which date an automobile driven by her was struck on the driver's side by another automobile with sufficient force to inflict damage of $335.09 upon plaintiff's automobile. Three days later, to wit, on September 28, 1959, plaintiff returned to Dr. Murray, the chiropractor. In his written report 'made to someone at the request of the plaintiff' and here in evidence without objection, it was shown that plaintiff had told him that the collision of September 25, 1959, had caused 'my neck to be snapped back and forth causing pain,' and that the chiropractor had diagnosed her condition as 'whiplash strain of cervical musculature and ligamentous tissue with subluxation' of several vertebrae and had stated that the accident of September 25, 1959, was the 'sole cause' of her subsequent disability. A series of twenty-eight chiropractic adjustments followed before (according to Dr. Murray's report) plaintiff's disability ended on 'approximately Nov. 30, 1959.'
While driving her automobile, plaintiff was involved in...
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