Wailand v. Anheuser Busch Inc.

• Decision Date: 03 August 1993
• Docket Number: No. 60510,60510
• Citation: 861 S.W.2d 710
• Parties: Kathleen WAILAND, et al., Plaintiffs-Appellants, v. ANHEUSER BUSCH INC., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 710

861 S.W.2d 710

Kathleen WAILAND, et al., Plaintiffs-Appellants, v. ANHEUSER BUSCH INC., Defendant-Respondent.

No. 60510.

Missouri Court of Appeals,

Eastern District,

Division Three.

Aug. 3, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Sept. 8, 1993.

Application to Transfer Denied Oct. 26, 1993.

Leonard P. Cervantes, Mario Silva, Frank Carretero, St. Louis, for plaintiffs-appellants.

Daniel T. Rabbitt, Steven J. Hughes, St. Louis, for defendant-respondent.

STEPHAN, Judge.

Plaintiffs Kathleen Wailand, and the surviving children of William Wailand (appellants), appeal from a jury verdict in favor of defendant Anheuser-Busch. Appellants brought their wrongful death action against Anheuser-Busch (respondent) for injuries sustained by William Wailand (Wailand) arising out of allegations of a dangerous condition on respondent's loading dock that caused Wailand to fall and strike his head. Appellants assert that this fall caused the stroke which eventually took Wailand's life. Appellants charge error to the trial court for (1) admitting the entire portion of Wailand's death certificate, (2) admitting expert testimony, and (3) improper jury instructions. We affirm.

The evidence at trial established that on June 30, 1986, Wailand, an over-the-road truck driver, arrived at respondent's loading dock with a cargo of beer from their Columbus, Ohio, brewery. While waiting for his truck to be unloaded, Wailand tripped over a load lock ¹ protruding from its storage rack on the dock, and hit his head on a wall. Afterwards, Wailand returned to the cab of his truck, where he was later found by the loading dock supervisor curled up in a fetal position and drooling profusely. An ambulance rushed Wailand to a nearby hospital.

Upon his arrival, the emergency room personnel observed no physical signs of injury to Wailand's head, but still administered a CAT scan designed to identify trauma to Wailand's brain. This test uncovered no evidence of trauma and led them to believe Wailand had suffered a stroke. An ultrasound confirmed their initial diagnosis and revealed a complete blockage of Wailand's right internal carotid artery which had cut off the blood supply to his brain, and caused the stroke. Wailand slipped into a coma and died approximately three weeks later from pneumonia, a complication stemming from the stroke.

At trial, the case primarily turned on causation, and on the issue whether respondent negligently stored its load locks, creating an unsafe condition. Through expert medical testimony, appellants advanced the theory that Wailand's stroke stemmed from his fall. The gist of their contention is that respondent's negligence, coupled with Wailand's preexisting condition of arteriosclerosis which narrowed his arteries and restricted blood flow, caused the stroke that ultimately resulted in his death. Appellants assert that the fall caused a hyperextension of his neck, which in turn, caused a tear in his right carotid artery. A blood clot then formed at this spot, blocked off the blood supply to his brain, and caused the stroke. Respondent contends that the stroke was unrelated to the fall. The jury found in favor of the respondent.

Appellants' first point alleges the trial court erred in admitting the entire certified copy of Wailand's death certificate as evidence that his death was not accidental. Specifically, appellants charge error to admission of questions 28 and 29(a). Appellants contend that the answers to these questions were inadmissable conclusions of law.

Under Missouri law, a certified copy of a death certificate is prima facia evidence of the facts stated therein. § 193.255 R.S.Mo.1986. This assertion is limited to statements of fact contained in the death certificate, not conclusions of the person completing it. Callahan v. Connecticut Gen. Life Ins., 357 Mo. 187, 207 S.W.2d 279, 286-287 (1947).

In the present case, Wailand's treating physician, Dr. Crafts, executed the death certificate and indicated in question 28 that the case was not referred to the medical examiner. Generally, a death certificate executed by one having no personal knowledge of the facts is inadmissable. Callahan, 207 S.W.2d at 286. However, the statements required of the attending physician found in the death certificate are usually facts within their personal knowledge. Id.

Clearly, Dr. Crafts' based his decision not to refer the case to the medical examiner on personal knowledge. Dr. Crafts treated Wailand from the time he was admitted into the hospital on June 30, 1986, until Wailand's death on July 26, 1986. He also had knowledge of Wailand's medical history, including his preexisting condition of arteriosclerosis, hypertension, high blood pressure, and the symptoms he experienced stemming from the accident. In addition, before making the ultimate decision not to refer Wailand's case to the medical examiner, Dr. Crafts consulted two CAT scan examination results that revealed no evidence of trauma to Wailand's brain as a result of the fall. Based on medical test results and personal observations, Dr. Crafts concluded that Wailand had "a fairly standard stroke," and made an informed decision not to refer the case to the medical examiner. Therefore, Crafts' answer to question 28 on the death certificate was properly admitted into evidence as a statement of fact based on personal knowledge, and was not a conclusion of law.

Appellants' complaint about question 29(a) is similarly without merit. Question 29(a) asks the executor of the death certificate to specify whether death was by accident, suicide, homicide, undetermined, or under pending investigation. Dr. Crafts left this question blank, giving rise to the inference that he did not believe Wailand's death stemmed from the fall.

This issue, whether such an inference is permissible, was indirectly addressed in Jones v. Atlanta Life Ins. Co., 289 S.W.2d 438, 440 (Mo.App.1956), a case strikingly similar to this one. In Jones, the decedent, who had preexisting conditions of arteriosclerosis and hypertension, fell and struck her head. Id. at 440. Although there were no visible signs of external injuries or damage to decedent's head, she died three hours later from a cerebral hemorrhage. Id. At trial, the issue focused on causation, and the plaintiff offered expert medical testimony that the jarring or shaking of brain tissue during decedent's fall could have caused a blood vessel in her brain to rupture, thereby causing the stroke. Id. Weighing the evidence, the jury found for the plaintiff. Id.

The court allowed a death certificate containing a blank space after the question "If death was due to external causes, fill in the following ___," to be used as evidence that decedent did not die as a result of a fall. Id. The admission of this evidence allowed the jury to speculate that the person who filled out the death certificate did not believe that the fall caused decedent's death.

Likewise, the trial court in this case did not err in allowing question 29(a) and other blank portions of Wailand's death certificate as evidence that Wailand did not die as a result of the accident on respondent's premises. This evidence, along with Dr. Crafts' decision not to refer the case to the medical examiner because he felt Wailand had a "fairly standard stroke" and his awareness that accidental deaths were to be referred to the medical examiner, supported respondent's theory that the stroke was not caused by the fall. The blank portions of the death certificate were not conclusive, but instead constituted proper evidence for the jury to weigh against appellants' experts who testified that the fall on respondent's loading dock caused Wailand's stroke.

Appellants have also relied on Callahan and Lynde v. Western and Southern Life Ins. Co., 293 S.W.2d 147 (Mo.App.1956), for the proposition that introduction of the death certificate containing question 29(a) was in error. These two cases involved insurance policy claims and dealt with a standard portion of the death certificate inquiring whether cause of death was due to accident, suicide, homicide, or undetermined. In these cases, the person filling out the death certificate did not have personal knowledge concerning the details of the deaths, but nevertheless answered the question on the certificate. In each case, the courts correctly held that these statements on the death certificate were inadmissible conclusions. Callahan, 207 S.W.2d at 287; Lynde, 293 S.W.2d at 150-51.

We do not consider these cases to be applicable. When a person dies as a result of violence by homicide, suicide, or accident, the case must be referred to the medical examiner to determine the cause of death. § 58.720(1), R.S.Mo.1986. Dr. Crafts testified by deposition that, if he suspected the death was related to an accident, the law required him to refer the case to the medical examiner. Moreover, Dr. Crafts' belief that Wailand died from a stroke, "period", precluded him from filling out this portion of the death certificate. Since he based this decision on his personal knowledge of Wailand's medical condition, the admission into evidence of both question 29(a) and the blank answer following it did not constitute an inadmissable conclusion. Point denied.

Appellants' second and third points focus on the testimony of Doctors David Crafts and Mary Case. Each testified that the circumstances surrounding William Wailand's death were such that the matter was not required to be reported to the Medical Examiner of the City of St. Louis in accordance with § 58.720(1), R.S.Mo.1986. That section provides that whenever a person dies as a result of "Violence by homicide, suicide, or accident ..." the incident is to be reported to the medical examiner who shall investigate and certify the cause of death. Respondent argued that the failure of Doctor Crafts to make such a report to the medical examiner was an expression of opinion that...