Stratton v. Webb, 57154

• Decision Date: 30 September 1987
• Docket Number: No. 57154,57154
• Citation: 513 So.2d 587
• Parties: Lemmie A. STRATTON & Campbell 66 Express, Inc. v. Rachel WEBB.
• Court: Mississippi Supreme Court

Page 587

513 So.2d 587

Lemmie A. STRATTON & Campbell 66 Express, Inc. v. Rachel WEBB.

No. 57154.

Supreme Court of Mississippi.

Sept. 30, 1987.

Katherine Ferguson Kirby, Gholson, Hicks & Nichols, Columbus, for appellant.

Jeffrey C. Smith, Sims & Sims, Columbus, for appellee.

Before HAWKINS, P.J., and ANDERSON and GRIFFIN, JJ.

ANDERSON, Justice, for the Court:

This is an appeal from the Circuit Court of Lowndes County wherein appellee Rachel Webb was awarded $245,000 damages for injuries resulting from an automobile accident. The trial court ordered a remittitur of $100,000 or in the alternative a new trial. Appellee agreed to the remittitur, but appellant brought this appeal alleging error in the trial below.

Appellee in response cross appealed alleging error in the order of remittitur.

Rachel Webb was involved in a motor vehicle accident on November 1, 1978, on Highway 82 in Columbus, MS. Her pickup truck was struck from the rear after she stopped in the left lane of traffic in order to allow the car in front of her to make a left turn. Just after stopping, she felt an impact that caused her head to hit the windshield. She remembered nothing else other than feeling the impact and then immediate, severe pain in the lower back and leg area.

The empty six-wheel tractor truck which struck Webb belonged to Campbell 66 Express, Inc. and was driven by Lemmie Stratton in the course and scope of his employment.

As a result of the accident, Webb was hospitalized for seven days. She was treated by Dr. J.H. Holleman, given a myelogram, and diagnosed as having a severe sprain of her back and neck.

When Webb's pain persisted, Dr. Holleman referred her to Dr. Wiley Hutchins, an orthopedic surgeon. He diagnosed Webb as having early hypertrophic arthritis of the lumbar spine with superimposed strain--his primary diagnosis being strain or sprain of the lumbar spine.

Again, Webb's pain persisted and Hutchins then referred her to Dr. Thomas McDonald, a neurosurgeon. After examination, myelogram and x-rays, his diagnosis was sprain with an expectancy for full and complete recovery with no permanent disability.

In September 1979, Webb went to Dr. John G. Gassaway, an orthopedic surgeon who continued to be her treating physician at the time of trial. His preliminary diagnosis, after the first examination was a chronic lumbosacral (lower back) strain. He noted her pain had not been alleviated by prior treatment and in January 1980 suggested the possible need for surgery. Webb at that time rejected the surgery, opting to continue working.

On August 22, 1980, Gassaway noted that Webb demonstrated evidence of a ruptured L-5 at S-1 disc. [This was prior to a December 3, 1980, accident which appellants claim to be a superceding cause of injury.] He also stated that to a reasonable medical certainty Webb had significant injury or disease prior to the December 3 accident and her complaints had been consistent throughout this time.

Dr. Gassaway subsequently performed surgery on Webb in May 1982 (hemilaminectomy at L-4, 5 in the lower spine). Webb's relief as a result of the surgery was short-lived. The pain returned after several weeks and Gassaway stated that to a reasonable medical certainty Webb had no significant recovery from the initial injury. He also testified that Webb, who was 38 years old at the time of the accident, had probably a 15-25% disability rate (as determined in worker's compensation cases).

Webb had suffered several injuries after the November 1 accident and prior to trial. She was kicked in the head by a pony around November 19, 1979. She claimed this did not result in any serious injury to her head and did not affect her back at all.

On December 3, 1980, while working as a security guard, Webb was injured in a moped accident. The only evidence introduced was that Webb was riding a moped but does not remember how the accident occurred, and there were no witnesses. She suffered a concussion and shoulder injury and was hospitalized for a period of time, remaining comatose for eleven days. Worker's Compensation records introduced by appellant show that Webb received 8.5% disability payment for chronic cervical strain as a result of that accident.

The truck driven by Webb belonged to her husband's employer, Ranchers and Farmers Livestock of Macon, MS. Appellants claim that the only damage to Webb's truck was a damaged bumper which cost $153 to repair. However, the bumper was a heavy-duty one used for work such as towing cattle trailers. Webb's husband testified that other damage was done to the vehicle which the owners chose not to repair. According to Marvin Webb, the bed of the truck was jammed against the cab and the truck was shaken loose. According to Stratton slight damage was caused to the left front fender of the Campbell 66 truck. Webb's medical expenses, including the 1982 surgery totalled $8,200.

I.

Appellants first argue that the testimony of Dr. Gassaway, Webb's only expert witness relative to her medical condition, was insufficient to sustain the verdict. Gassaway, who began treating Webb some ten months after the accident, testified that he could not positively state the cause of plaintiff's medical condition. Therefore, appellants' claim that Webb's injury was not traced with reasonable certainty to any wrong of the appellant.

Both parties cite a case wherein the facts and alleged errors were remarkably similar to the case at bar. In Dennis v. Prisock, 254 Miss. 574, 181 So.2d 125 (1965), after remand 221 So.2d 706 (Miss.1969), the plaintiff allegedly sustained back injuries as a result of an automobile accident. As in the case sub judice, plaintiff had several subsequent serious accidents prior to trial which defendants claimed to be the cause of the injury in question. This Court reversed on the grounds that the plaintiff "failed to trace the injuries to her back with requisite certainty to an efficient cause to which defendants are responsible." The facts underlying this holding are as follows:

Dr. Dyer, plaintiff's witness, was the only doctor who testified. Over objection, he stated as his opinion that Mrs. Prisock sustained the disc injury to her back in the collision involving appellant's truck on July 6, 1959. Yet he had no knowledge of plaintiff's fall down a flight of stairs on March 19, 1959, and the surrounding facts. He did not know she fell in the summer of 1960, of the automobile collision of September 10, 1960, and of a fall on April 24, 1961, or of the injuries resulting from them. She told him about the September 1, 1959, accident, but he did not treat her for it, although he prescribed some sedatives over a period of time. His reason for concluding that the July 6, 1959, collision caused the ruptured disc was "that the first time I saw this patient with a back injury was at that time." He thought he was thus justified in presuming that was her original injury. However, he did not know that she was wearing a back brace after March 19, 1959, and it would change his opinion considerably if the brace was for a back injury. The first time he...