Tryon v. Casey

• Decision Date: 03 April 1967
• Docket Number: No. 24591,24591
• Citation: 416 S.W.2d 252
• Parties: Elsie Fern TRYON and Walter Tryon, Appellants, v. Mary N. CASEY (Howerton), Respondent.
• Court: Missouri Court of Appeals

Page 252

416 S.W.2d 252

Elsie Fern TRYON and Walter Tryon, Appellants, v. Mary N. CASEY (Howerton), Respondent.

No. 24591.

Kansas City Court of Appeals, Missouri.

April 3, 1967.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 5, 1967.

Alan Slayton, Reese, Constance, Slayton, Stewart & Stewart, Independence, for appellants.

Houts, James, McCanse & Larison, Richard P. Bruening and Ralph H. Smith, Jr., Kansas City, for respondent.

CROSS, Judge.

Plaintiffs Elsie Fern Tryon and her husband Walter Tryon jointly maintain this suit in two counts against defendant Mary N. Casey (Howerton). Count one is an action by Mrs. Tryon for damages or account of personal injuries received when her standing automobile was struck in the rear by an automobile driven by defendant. Count two is plaintiff husband's suit for damages arising from his resulting loss of services. The case was tried before a jury which returned a $250.00 verdict on the first count for Mrs. Tryon and a $700.00 verdict for Mr. Tryon on the second count. Plaintiffs have appealed from the resulting judgment.

The collision occurred on the morning of October 30, 1963 at a street intersection in Independence and involved four automobiles traveling in line behind a school bus. Plaintiff, on her way to her regular work, had been driving northbound approaching the intersection behind two cars which were immediately following the bus, all vehicles traveling in the same lane. The school bus flashed its lights as it approached the intersection and came to a stop to pick up school children. The two vehicles in front of plaintiff and the car driven by plaintiff made a gradual stop. 'Everybody made a gradual stop'. Plaintiff came to a stop approximately ten feet behind the vehicle immediately in front of her. Within a few seconds after she had been stopped an automobile driven by defendant struck the back of her car, causing it to hit the car immediately in front of her, which in turn ran into the car it was following. Thomas Sugg, a police officer called to the scene of the accident, testified as a witness produced by plaintiffs that he found the four cars still parked on the street and that all of them were damaged. Defendant's car was the last in the row of cars. Immediately in front of it was Mrs. Tryon's car. The entire front of defendant's car including the bumper, both fenders, and the hood was 'heavily damaged'. The car was not driveable and was removed by a two truck. Mrs. Tryon's car was damaged on the rear. 'The trunk was bent in and the tail lights, the rear bumper was buckled.' The front left part of the Tryon car also was damaged where it had struck the car immediately in front of it (the second car in line) and inflicted damage to its rear bumper and trunk. That vehicle was further damaged in front when it was driven into the first car in line which thereby sustained damage to the rear 'on the bumper and the tail light was broken'. The persons involved in the accident were removed to the hospital by ambulance. The officer did not talk to them at the scene, but did so later at the hospital. The defendant gave him a statement that 'she was driving along and glancing out the window and her brother yelled at her to stop and when she looked up she bumped into the other cars'. Other testimony of the officer will be referred to later herein.

Defendant's version of the muliple collision corroborates the foregoing stated facts. She testified that on the morning in question she was driving an automobile to school accompanied by her brother. As she approached the intersection at a speed of 15 to 20 miles per hour there was traffic in front of her, consisting of a bus in front of some cars. While she was glancing 'out the window' her brother yelled a warning that cars were stopped ahead. She put on the brakes but didn't stop in time to avoid striking Mrs. Tryon's vehicle. The force of the impact knocked the Tryon car into the car next in front, and so completely 'smashed in' the front of defendant's car that it couldn't be driven away from the scene of the accident. No serious effort was made on defendant's behalf to establish that the collision resulted from any cause other than her own negligence.

The real trial issues contested were as to the extent of Mrs. Tryon's injuries, the quantum of pain and disability resulting therefrom, and the amount of damages plaintiffs should receive. Bearing on these questions Mrs. Tryon testified in substance as follows: After the collision she was dazed and became nauseated. By the time she got to the hospital she began to get stiff and sore and suffer pain in her neck and back and her knees. At the hospital she was X-rayed, examined and prescribed for by Dr. Link, her family physician. Mr. Tryon then drove her home. She remained nauseated and threw up several times. She was confined to her bed the rest of the day and most of the following day because of being stiff and sore. On the third day she went to Dr. Link and complained to him of stiffness and soreness in her neck and back, for which he gave a series of heat treatments and also cortisone injection. She remained generally under the charge of Dr. Link until April, 1964, and continued to have the same complaints of pain in her neck and back during this whole period of time. Sometime in November or the first part of December following the injury she noticed a new development--a numbness of her right arm which still persists along with her pain and difficulty with her neck and the upper part of her back. Sometimes the numbness is accompanied by headaches, and it is brought on by having her neck in 'a bind' or in an unusual position, such as 'when she had her head down or up'. Through December and January she consulted and received treatments for her conditions described previously, from Dr. John Meise, a chiropractor. Dr. Link had made arrangements for her to enter the hospital but no rooms were available. For that reason she started going to Dr. Meise because 'I wasn't getting any relief from this terrible headache and pain in my neck'. She also consulted Dr. Robert Finkle, an orthopedic specialist, in March, 1964. She was referred to him by Dr. Link because of the numbness and pain in her arm and neck. Dr. Finkle gave her a cortisone injection and referred her to the Independence Sanitarium and Hospital for a series of neck traction treatments.

Mrs. Tryon testified that because of the numbness and pain in her arm she is unable to do anything like ironing, sewing or bowling, 'anything in which my head is down'. She has lost control of her hand and drops things, such as a ball or a paint brush. She has discontinued bowling in 'the league', and no longer does her own interior decorating which she formerly did. For two weeks following the accident she was unable to do any housework and for five months thereafter she had to have extra help with her housework. Her two girls are 'carrying the load right now' with reference to her 'regular household duties, washing and cooking'. Prior to the accident Mrs. Tryon worked regularly at the 'Rapid Car Wash', a business owned by Mr. Tryon devoted to washing, cleaning and polishing automobiles for automobile dealers and the public. She had operated the office and assisted generally in various operations of the business. After her injury in October, 1963, she did not return to those duties until April, 1964. She still complains of numbness of her arm, pain that shoots down through her arm, and that her arm goes dead 'like a piece of wood'. She still has 'difficulty' with her neck and the upper part of her back which originated with the accident.

Total expenses incurred as a result of the accident, not inclusive of wages paid replacement help at the car wash, amounted to $698.94, were paid by Mr. Tryon, and were as follows: ambulance, $15.00; Dr. Vance Link, $60.00; Independence Sanitarium and Hospital, $53.00; Dr. John Meise, $75.00; Dr. Robert Finkle, $25.00; miscellaneous drugs, $28.94; heating pad, $10.00; having ironing sent out, $220.00; housework done by Mrs. Tryon's mother, $100.00; Mary Engle (housework and odd jobs), $112.00. It was also developed by Mrs. Tryon's testimony that on July 12, 1962, she was involved in an accident prior to the one giving rise to this suit. The 1962 occurrence was also a rear end collision. Mrs. Tryon was hospitalized at the Independence Sanitarium for eight days where she was treated for injuries similar to those received in the October 1963 collision. She testified that within a month after the 1962 accident she had recovered, was symptom free and had no medical service. She was off work at the car wash only ten days. Also, in the latter part of 1965 she was involved in a minor car accident and received injury limited to her left shoulder on that occasion. She was taken to the Independence Sanitarium and Hospital where Dr. Robert Finkle examined her and evaluated X-rays that were taken of the injured area. She later saw Dr. Finkle four times on account of the injury to her left arm and was off work following that injury only from 'Monday until Friday'. She states she entirely recovered from and has no residual disability from the 1965 injury to her left shoulder. Additional evidence material to the appeal issues will be referred to in our discussion of the points raised.

Plaintiffs' first point is a contention that the trial court erred in refusing to admit as evidence those portions of the office records of Dr. Robert Finkle which contained his findings and diagnosis resulting from his examination of Mrs. Tryon. The records in question were produced at the trial by Dr. Finkle's receptionist, June Wingo, who testified that she maintained and was custodian of all the records pertaining to the doctor's treatment and examination of patients. Counsel for defendant interrupted preliminary examination of the witness to admit identity of the documents as business records,...