Tharp v. Oberhellmann, 36442

• Decision Date: 08 July 1975
• Docket Number: No. 36442,36442
• Citation: 527 S.W.2d 376
• Parties: Otis THARP, Plaintiff-Respondent, v. Elmer C. OBERHELLMANN, Administrator of the Estate fo Maxwell Ferrell, Deceased, et al., Defendants-Appellants. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 376

527 S.W.2d 376

Otis THARP, Plaintiff-Respondent, v. Elmer C. OBERHELLMANN, Administrator of the Estate fo Maxwell Ferrell, Deceased, et al., Defendants-Appellants.

No. 36442.

Missouri Court of Appeals, St. Louis District, Division Three.

July 8, 1975.

Motion for Rehearing or Transfer to Court En Banc Denied

Sept. 8, 1975.

Leonard P. Cervantes, Igoe & Igoe, St. Louis, for defendants-appellants.

Robert E. Keaney, St. Louis, for plaintiff-respondent.

SIMEONE, Presiding Judge.

This is an appeal by the defendants-appellants, the minor children of Maxwell Ferrell, by their guardian ad litem, from a judgment entered by the circuit court of the City of St. Louis on June 25, 1974, barring them from maintaining an action for the alleged wrongful death of their father. We affirm.

On February 1, 1971, Maxwell Ferrell was an employee of the Lee Paper Company in the City of St. Louis. On that date he was operating a fork lift truck and was engaged in loading a truck owned by plaintiff Otis Tharp and operated by John Eugene Coleman. Coleman's truck had backed up to the loading dock, which was a few inches higher than the bed of the truck. A metal plank was placed between the loading dock and the truck, and acted as a bridge. Ferrell put ne 'pallet' of material onto the truck, and while backing up after depositing the second pallet, the metal plank moved, and the fork lift fell between the dock and the truck, 'pinning' Ferrell between the steering wheel of the fork lift and the seat of the lift. The steering column was bent. According to Mr. Coleman, the steering wheel pressed him in his 'mid section'--'slightly above his abdomen . . . with a radius of about four inches.' His legs were also pinned underneath. The 'steering column had bent and forced the steering wheel up against him.' Mr. Ferrell was removed, placed on the dock and taken to the hospital. There was skin torn from one of his calves; he suffered several broken ribs, fractures of the transverse process of L--2 and L--3 on the left side and L--3 on the right side, and blood was found in the urine.

On May 30, 1971--Memorial Day--Mr. Ferrell expired. Following his death, the administrator of his estate and his minor children, through their mother, filed separate actions for damages arising out of Mr. Ferrell's death against the plaintiff herein, Mr. Otis Tharp. ¹ On December 28, 1971, Mr. Tharp, the defendant in those actions, filed his petition in interpleader against the administrator of Ferrell's estate and the guardian ad litem of the minor children, alleging that two claims had been filed against him and praying the court to make its finding as to the cause of death of Maxwell Ferrell and to determine which of the claimants should be barred from further action against him. Rule 52.07; Plaza Express Company v. Galloway, 365 Mo. 166, 280 S.W.2d 17 (banc 1955).

The cause eventually came to trial. The central issue facing the trial court was to determine whether the accident of February 1, 1971, caused or contributed to cause the death of Mr. Ferrell or whether his death resulted from other causes. The whole thrust of the evidence of the defendants, minor children, was to show that the injuries received caused or contributed to cause the death. This evidence consisted of testimony of Mr. Ferrell's 'wife,' two physicians and a number of books and articles dealing with heart disease caused by nonpenetrating chest injuries. Mr. Ferrell was a good worker; before the accident he walked to work, played with the children and was able to ascend stairs without difficulty. His 'wife' testified that after the incident on February 1, he had to catch his breath while walking up and down the steps, had trouble sleeping, ha dto sleep in a chair, and could not engage in physical activities.

A physician, Dr. Frede Mortensen, testified for the minor children. It was his opinion based upon reasonable medical certainty that Mr. Ferrell suffered a nonpenetrating chest injury which resulted in a cardiac contusion or traumatic heart disease. In his opinion the evidence was 'very great that he had a cardiac contusion,' and that the incident of February 1 caused or contributed to cause Mr. Ferrell's death.

The defendants also introduced the deposition of Dr. Frank J. Cantanzaro, who stated that, in his opinion, Mr. Ferrell 'most likely developed traumatic heart disease from the chest injury . . . and died a sudden electrical cardiac death on May 30, 1971 as a result of the traumatic heart disease.' His opinion was that the injury did 'contribute materially to the patient's death.'

The thrust of the evidence for the plaintiff was that Mr. Ferrell died from causes other than the injuries suffered on February 1. Dr. George E. Gantner, Jr. testified that in his opinion, based upon available evidence, Mr. Ferrell died as a result of pre-existing arteriosclerotic heart disease, that Mr. Ferrell did not suffer injury to the heart and that there was no relationship between the accident and his subsequent death.

After extensive evidence on behalf of both the plaintiff and the minor children, the trial court concluded that the 'accident and injuries sustained by Maxwell Ferrell on February 1, 1971, did not cause and did not contribute to the cause of Maxwell Ferrell's death on May 30, 1971.'

The minors, through their guardian, duly appealed. On this appeal they make several points, but their principal contentions are (1) that the trial court erred in admitting the opinion of Dr. Gantner as to causal connection because the 'facts upon which an experts (sic) opinion is based must measure up to legal requirements of substantially (sic) and probative force,' and because an 'experts (sic) opinion must not be a mere guess or conjecture, but must be based upon facts and adequate data'; and (2) that the trial court erred in finding that the injuries sustained on February 1, 1971, did not cause or contribute to cause the death of Mr. Ferrell because the weight of the evidence was overwhelmingly against the judgment of the trial court and in such situation we may determine what judgment should be rendered.

This...