Thomas v. Jones

• Decision Date: 14 November 1966
• Docket Number: No. 1,No. 51675,51675,1
• Citation: 409 S.W.2d 131
• Parties: Lois Wood THOMAS, Plaintiff-Appellant, v. Kenneth Lee JONES, Defendant-Respondent
• Court: Missouri Supreme Court

Page 131

409 S.W.2d 131

Lois Wood THOMAS, Plaintiff-Appellant, v. Kenneth Lee JONES, Defendant-Respondent.

No. 51675.

Supreme Court of Missouri, Division No. 1.

Nov. 14, 1966.

Motion for Rehearing or to Transfer to Court En Banc Denied

Dec. 12, 1966.

Neale, Newman, Bradshaw, Freeman & Neale, Jean Paul Bradshaw, Warren S. Stafford, Springfield, for plaintiff-appellant.

Glenn A. Burkart, Harold F. Glass, Mann, Walter, Burkhart, Weathers & Schroff, Springfield, for defendant-respondent.

WELBORN, Commissioner.

Action for $50,000 damages for personal injuries sustained in automobile collision. At trial on issue of damages only, jury returned verdict for plaintiff for $7,000.00. Plaintiff's motion for new trial was overruled and she has appealed.

Plaintiff Lois Wood Thomas was injured on September 29, 1962, when the automobile, in which she was a passenger, driven by her husband, collided with a vehicle operated by defendant. Plaintiff's husband died at the scene of the accident. Prior to the filing of the present action, plaintiff's action for the wrongful death of her husband had been tried in the Greene County Circuit Court, resulting in a verdict and judgment in favor of plaintiff for $15,000.00. This action was filed in Wright County and taken to Webster County on a change of venue. On the trial, defendant admitted liability and the question of damages was the only issue submitted.

On this appeal, plaintiff's first six assignments of error relate to allegedly erroneous rulings of the trial court on plaintiff's objections to argument of defendant's counsel, cross-examination of plaintiff, the admission of testimony on the trial of the wrongful death action as admissions against interest, and the exclusion of evidence offered by plaintiff. Plaintiff's seventh assignment of error is that the verdict is so inadequate as to reveal prejudice on its face. Defendant contends that any error in the first six assignments was cured by the substantial verdict in plaintiff's favor. Although defendant does answer the plaintiff's charges of error at the trial, he contends that the only essential issue presented on this appeal is whether or not the jury's verdict was so stockingly inadequate as to indicate that it was the product of passion and prejudice or gross abuse of the jury's discretion.

If plaintiff's contention of inadequacy of the verdict should be sustained, further allegations of error need not be considered. Grodsky v. Consolidated Bag Co., 324 Mo. 1067, 26 S.W.2d 618, 623--625(6, 7); Hemminghaus v. Ferguson, 358 Mo. 476, 215 S.W.2d 481, 486(4, 5). We, therefore, consider this assignment first.

Plaintiff was fifty-five years old at the time of the collision. Defendant's counsel admitted at the trial that she sustained 'great injuries' in the collision. Her undisputed injuries included contusion of the brain; serious cuts over the right eye, in the forehead, in the lip, through which a broken tooth protruded, and a deep cut in the right arm; contusions over her chest; a badly bruised right thigh; fractures of the second and third metacarpals of the left foot. She was treated at the scene of the collision by Doctor Sample and removed by ambulance to the hospital at Mansfield, where she remained under the care of Doctor Sample for four days. In addition to her external injuries, Doctor Sample found that the cut in her forehead had severed a nerve and that there was deviation and partial paralysis of the right eye, causing it to turn inward.

She was removed to the Lebanon Hospital for care by her family physician, Dr. Paul Jenkins. Doctor Jenkins concluded that she needed specialized neurosurgical and orthopedic care, and she was taken to Burge-Protestant Hospital in Springfield on October 5, 1962. There she was under the care of Dr. William Snead, an orthopedist, and Dr. Howard McAlhaney, a neurosurgeon. Doctor Snead placed pins in her toes and applied traction to the broken metatarsals and placed a cast on her foot and leg. Doctor McAlhaney treated the cerebral contusion. Plaintiff was discharged from the hospital on October 13, 1962. At that time she was wearing a walking cast which remained on until November 16. Doctor Snead testified at the trial that the fractures had healed with a strong union, with some slight displacement. He stated that, upon his most recent examination of plaintiff, she complained of pain in the foot after standing. He attributed the pain to the displacement. He provided plaintiff with a specially built-up shoe to wear. Doctor Snead stated that the condition of her foot is permanent. He said that it would give her pain and discomfort after long standing or walking, but that she could stand on her feet for short periods of time and handle business.

Doctor McAlhaney's examination of March, 1964, revealed residuals of a cerebral contusion. Plaintiff complained of headaches, dizziness, proof memory and difficulty in organizing her thoughts. Examination in March, 1965 revealed the same complaint and findings. Doctor McAlhaney's opinion was that plaintiff was not at that time able to engage in gainful employment. He stated that only time would tell whether the condition was permanent.

Doctor Jenkins last saw plaintiff in September, 1964. His opinion, arrived at then, was that plaintiff 'has permanent mental impairment, she has permanent physical impairment in that she staggers, and that she has poor balance, she thinks slowly, she reacts slowly.' He stated that she would not be able to stand a regular job and that her condition would not improve.

At the time of the trial in April, 1965, plaintiff's cuts had healed, leaving scars and some disfigurement. She complained of headaches, dizziness and pain in her left foot. She said that she had difficulty walking because of a problem in retaining her balance. Her medical expenses amounted to approximately $1,650.00.

Defendant offered no medical testimony. His position was that, although plaintiff did sustain serious injuries, she had made a remarkable recovery. Defendant points to Doctor Snead's testimony that the fractures of her foot had healed with a strong union and that there was nothing in her foot that would keep her from moving around normally. He points to Doctor McAlhaney's testimony that plaintiff's vision problem had cleared before she left the hospital and that he found nothing abnormal on recent neurological examination.

Defendant points to plaintiff's testimony that Doctor Snead had prescribed no treatment or exercise for her left foot since 1962; that, although she complained of forgetfulness, that condition was improving; that the protracted litigation in which she had engaged had adversely affected her physical condition 'to some extent.'

Plaintiff and her husband, who was seventy-two years of age at the time of his death, had operated a cleaning business in Lebanon for several years. Prior to 1957, the business was operated as a partnership, the plaintiff's brother as a partner of plaintiff's husband. In 1957, the partnership was changed to show plaintiff and her brother as the partners. According to plaintiff, the change was made because her husband's social security had been paid up. Thereafter, plaintiff was in a position to earn social security credit. According to plaintiff's brother, plaintiff worked regularly at the business, nine hours a day. Prior to the accident, she checked in orders at the counter, gave out orders, inspected and assembled orders 'or anything that might come up. There was just something to be done all the time.' She did most of the book work for the partnership. Plaintiff's brother stated that plaintiff and he managed the business, with incidental assistance from plaintiff's husband, who had not participated in the management since 1955 and did only delivery work.

Plaintiff did not return to work at the business after the accident. In January, 1963, she sold her interest in the business to a sister for $6,000.00.

Partnership information returns were introduced in evidence, showing, for the years 1957 to 1962, partnership net income of from some $12,500 to nearly $15,000, which according to the returns, was divided equally between plaintiff and her brother. Plaintiff received no income from the business after the sale of her interest.

Defendant showed that, in the wrongful death action, plaintiff testified that she had never tried to run the business without her husband and that she could not run it without him; that she relied upon him and could not have earned what the partnership did without her husband; that, if she had been in good health, she and her brother and his wife could not have continued to operate the business.

Considering the evidence in the light most favorable to the verdict (Glore v. Bone, Mo.Sup., 324 S.W.2d 633, 635(3); Hemminghaus v. Ferguson, 358 Mo. 476, 215 S.W.2d 481, 486(6, 7)), we are unable to concluide that the amount of the verdict is grossly and shockingly inadequate. Defendant's cross-examination of plaintiff's witnesses brought out matters which tended to minimize the permanent effect of plaintiff's injuries. The inconsistencies between plaintiff's testimony at this trial and at the wrongful death trial regarding her husband's contribution to the cleaning shop earnings could have the effect of heavily discounting plaintiff's claim for loss of earning capacity. We do not find such inadequacy in the verdict as would justify, for that reason alone, our overruling the trial court's denial of plaintiff's motion for a new trial. Glore v. Bone, supra; Conner v. Neiswender, 360 Mo. 1074, 232 S.W.2d 469; Polizzi v. Nedrow, Mo.Sup., 247 S.W.2d 809; Spica v. McDonald, Mo.Sup., 334 S.W.2d 365.

Does this conclusion, as defendant contends, foreclose consideration of plaintiff's other assignments of error?

The rule which defendant invokes does preclude appellate relief, on the basis of trial error on the issue of liability, in favor of a plaintiff who has...