OPINION
GANTT
Judge.
Action
for personal injuries. Judgment for plaintiff for $ 10,000.
Defendant appealed. On November 18, 1930, as plaintiff was
driving a loaded truck in St. Louis, defendant's street
car collided with the rear of said truck, throwing plaintiff
against the steering wheel and injuring him. For twelve years
he engaged in heavy work for the same employer. The truck was
loaded with three hundred pound bales of broom corn. The
collision caused a bale to fall to the street. It was
reloaded by others, and plaintiff drove to the place of
delivery, where others unloaded the corn. He then drove to
business headquarters and went to his home. He was attended
by Dr. Yeck, the family physician. He suffered pain in his
back, could not remain in bed any length of time, and at the
time of the trial Dr. Yeck was attending him. He could do no
lifting, and was unable to engage in heavy work. He lost
seven months' time, and at intervals thereafter worked
thirteen weeks at lighter work between July, 1931, and the
first of the year 1932. Thereafter he worked as night
watchman until shortly before the trial, when the position
was discontinued. At the direction of Dr. Yeck, he wore a
brace, used medicine prescribed by the doctor, who at times
applied heat to his back to relieve the pain. He had
experienced no trouble with his back before the collision. He
admitted that prior to the injury he had a condition in his
back and spine known as arthritis. However, he contended
that, as a result of the injury, said condition was
aggravated; that the use of said parts were impaired and
rendered painful; that
in the future he will suffer pain; and that said injury is
permanent.
Defendant
challenges the instruction on the measure of damages, in that
it authorized a recovery for permanent injury. The rule is
stated as follows: ' 'To justify a recovery for
apprehended future consequences, there must be such a degree
of probability of their occurring as amounts to a reasonable
certainty that they will result from the original injury. To
say of a thing it is permanent means that it will continue
regardless of a contingency or fortuitous circumstance'
Lebrecht v. United Rys. Co. of St. Louis (Mo. Sup.)
23(S.W. 112, 114. Proof of a condition which may cause
future trouble is not necessarily proof of a permanent
injury, the former may persist after the trial but not
continue to exist permanently while the latter is a physical
or mental impairment or disability which will last throughout
life, and there is a distinction between damages which may
reasonably result in the future and damages allowable as for
a permanent injury. Bante v. Wells (Mo. App.) 34
S.W.2d 980; Stahlberg v. Brandes (Mo. App.) 299 S.W
836; Colby v. Thompson (Mo. App.) 207 S.W. 73. To
recover damages for permanent injury the permanency of the
injury must be shown with reasonable certainty and while
absolute certainty is not required mere conjecture or
likelihood, or even a probability, of such injury will not
sustain the allowance of damages therefor.' Plank v.
P. J. Brown Petroleum Co., 332 Mo. 1150, 61 S.W.2d 328,
loc. cit. 334.
On the
question, Dr. Briggs, an X-ray specialist, testified for
plaintiff as follows:
Direct
examination:
'Q.
Doctor, will you show to the jury these pictures, showing
exactly what, if anything, you found in them? A. In Exhibit
A, this is a picture of the lumbar region of the back, that
is, the hollow of the back, as is seen from front to back,
and you will notice between the first and second vertebrae a
bridging of bone, and the same thing exists between the
second and the third. That is, those bones, instead of being
movable, are joined together by an arch of bone. On the
fourth, on the lower part, on the right side, there is a long
spur of bone that comes out in a curve that looks very much
like the spur of a rooster. On the fifth, right side, there
is another bone spur that comes out almost straight. You will
get a trace of the same thing on the left side, but not as
marked as this on the right. Now, Exhibit B is another view
of the lumbar region, lower down, that takes in the upper
part of the sacrum and the sacroiliac joint. This shows the
same thing, the spurring on the fifth, the long spur on the
fourth, and the connecting arch between the third and second.
In Exhibit C we have got a different view of the back, from
front to back, and that takes in everything from the twelfth
thoracic and part of the eleventh, on down to the sacrum.
'Q.
What part of the back is that? A. That is the last vertebrae
that have ribs attached to them, and then all of the small of
the back. This shows the same thing all the way through.
Exhibit B is a side view of the back. This shows your bridges
of bone very beautifully, showing there is no motion between
that first and second, and between the second and third. That
is, that back is like a broom handle in that part. It is
perfectly stiff and rigid.
'Q.
Doctor, were any of those conditions, in your opinion, caused
by an accident? A. I don't think so; I think they were
caused by an infection.
'Q.
Is there such a thing as people around 43 or 44 years of age
having that as a natural thing? A. This is much more advanced
than they usually have at that age.
'Q.
That was taken some two or three months after this accident
occurred? A. Yes, sir.
'Q.
What do you say as to the likelihood of a person with a back
of that character being injured in an accident? Do you think
it would injure him more or less? A. As far as the symptoms
are concerned, pain and limitation of motion, a back of this
sort is much more sensitive to trauma than an ordinary back.
Where the normal back might respond to an injury in a day or
so, a back of this sort might give rise to symptoms of pain
and limitation of motion and muscle spasms that might last
over a week anyhow.
'Q.
Why is that, doctor? A. In the first place, you have got an
unnatural growth of bone, and a blow might easily knock that
soft tissue into a spur and cut it.
'Q. This man for some twelve years prior to the accident
was occupied in doing heavy lifting and operating a truck.
Would you see any reason why he couldn't do it with that
back? A. No, not at all.
'Q.
Does it cause him any pain? A. Not necessarily. Sometimes we
see those things and the patients don't know they have
them.
'Q.
You say a back of that character is much easier injured than
a normal back? A. I don't know about it being easier to
injure, but it is easier to get more symptoms after the
injury.
'Q.
Is there any kind of treatment if a man with a back in that
condition suffers a bruising of his back, what sort of
treatment is advisable? A. I don't think there is any
good treatment. Sometimes they use ultra violet, sometimes
infra red, sometimes other treatments, but there is nothing
that will cure those spurs. They are there, they will stay
there, and if you cut them off they will grow back.
'Q.
is it a painful condition that gives rise after an injury? A.
Yes; they usually suffer first from a muscle spasm, and that
lasts anywhere from four to six or eight weeks at the
outside. Then, there is a limitation of motion and that is
usually a temporary thing, but the pain lasts a long time.
'Q.
And you say there is no particular thing you can use to cure
it? A. No; I have seen the things cut right off, and they
grow right back.'
Cross-examination:
'Q.
And that condition you found there in the back, you say it
had continued five or six years prior to the taking of the
X-ray pictures? A. That is my opinion.
'Q.
And that condition is what is called chronic arthritis? A. It
is chronic arthritis of the hypertrophic type.
'Q.
And it is a condition, in your opinion, that was not due to
any injury? A. I don't think it had its origin in injury.
'Q.
And existed long before November, 1931? A. I should say so.
'Q.
And that is a condition which you say cannot be cured, that
is, this arthritic condition? A. I have never seen it cured.
'Q.
It is a condition that is common to advancing years? A. Yes,
that is from 40 to 60, although this is much more advanced
than you ordinarily find it.'
Redirect
examination:
'Q.
But they do find out they have the condition after an
accident has occurred? A. A good many of them do.
'Q.
Is it a usual thing for an injury to aggravate a condition of
arthritis? A. It could. The arthritis is a progressive thing,
and an injury may accentuate that growth.'
Recross-examination:
'Q.
And it may not? A. It may not.
'Q.
All you can say is it existed for several years before this
accident? A. Yes, sir.'
The
witness only stated that plaintiff's back was more
sensitive to trauma than an ordinary back for the reason that
a blow might knock the soft tissues into a spur causing
muscle spasm from four to eight weeks, temporary limitation
of motion, and pain lasting a long time. He further stated
that such an injury could aggravate a condition of arthritis.
On the
question, Dr. Yeck also testified for plaintiff as follows:
'Q.
What did you find on your examination, doctor? A. Slight
abrasions to the back and left hip.
'Q.
New,...
