Wheeler v. Evans

• Citation: 708 S.W.2d 677
• Decision Date: 04 February 1986
• Docket Number: No. WD,WD
• Parties: Sandra Sue WHEELER, Plaintiff-Appellant, v. Ralph P. EVANS, Defendant-Respondent. 36717.
• Court: Court of Appeal of Missouri (US)

Page 677

708 S.W.2d 677

Sandra Sue WHEELER, Plaintiff-Appellant, v. Ralph P. EVANS, Defendant-Respondent.

No. WD 36717.

Missouri Court of Appeals,

Western District.

Feb. 4, 1986.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

March 27, 1986.

Application to Transfer Denied

May 13, 1986.

Roger G. Brown, Jefferson City, for appellant.

Kelly Pool, Jefferson City, for respondent.

Before SOMERVILLE, P.J., and PRITCHARD and BERREY, JJ.

BERREY, Judge.

Plaintiff below, appellant herein, appeals a jury verdict in her favor. The jury found total damages of $8,572.75; however, the jury found plaintiff to be thirty-nine percent at fault thus reducing plaintiff's damage award to $5,229.38. Plaintiff alleges four points of error. This court affirms.

On the evening of March 2, 1981, plaintiff was at home watching television with her family when she received a telephone call from a friend who needed a ride home from the Wal-Mart store where she worked. Proceeding west on Missouri Boulevard in a 1972 Dodge Charger, plaintiff prepared to make a left hand turn in the first entrance to the Wal-Mart parking lot when she was struck from behind by the defendant.

At this particular point on Missouri Boulevard, there are five separate lanes of traffic: two east bound lanes, two west bound lanes and a center left turn lane. Plaintiff testified she was entirely in the center left turn lane with her turn signal on as she waited for oncoming traffic to pass before completing her turn. Mr. Evans, the defendant, testified he did not see a turn signal flashing on plaintiff's car. He stated that he rear-ended plaintiff's car while he was still in the second west bound lane of traffic. He testified he was traveling thirty to thirty-five miles per hour and did not see plaintiff's car until he was perhaps fifty feet away from it. At that point he stated he slammed on his brakes; evidence revealed forty-five feet of skid marks in the second west bound lane.

Plaintiff testified she did not see defendant prior to the collision. She stated she had no recollection of the actual impact or collision. She stated she was knocked across the double lane of east bound traffic and that the front wheels of her car were over the curb of the west side of the entrance way. After the accident, plaintiff stated she was confused and backed up her car to the center lane to avoid tying up traffic.

Mrs. Wheeler stated that as Mr. Evans approached her car after the collision he seemed a "little wobbly," "his words and voice were slurred," and that he appeared to be intoxicated. She testified that she "smelled the alcohol on his breath."

Defendant testified he had been at a nearby bar with business associates and had had more than one beer. He stated that he did not feel dizzy or that his ability to operate a car was impaired. After the accident defendant was given a breathalyzer test which registered a blood alcohol content of .12 percent. A blood alcohol content of .10 percent is presumptively intoxicated. See § 577.037.1, RSMo (Supp.1984). The defendant later pled guilty to the municipal charge of driving with excessive blood alcohol content.

Plaintiff was transported to Memorial Hospital by ambulance subsequent to the accident. She was examined and released. Plaintiff's family doctor gave her muscle relaxers and pain pills and prescribed physical therapy.

A week to ten days following the accident, plaintiff testified she suffered from headaches, pain in her neck, back, shoulders, arms, right leg and hip and experienced numbness in her arms, fingers and toes.

The results from plaintiff's CAT scan, myelogram and x-rays performed by Dr. Curtis Cox, a neurologist, were all normal. Dr. Cox ordered no activities for three months and then referred her to Dr. John Hart, an osteopath, for physical therapy. She underwent physical therapy with Dr. Hart for four to six weeks.

Because plaintiff was not satisfied with the results of the physical therapy, Mrs. Wheeler sought the services of a chiropractor, Dr. Janice Sines, who was referred by plaintiff's attorney. She stated she receives temporary relief from Dr. Sines.

As a result of plaintiff's symptomatologies, she testified that she could not actively pursue her housework; that her work as a waitress has been impeded as she does not move as quickly and cannot carry the heavy loads; and that her general movement is limited and painful. She testified that she is unable to engage in many recreational activities she once enjoyed and that she is unable to have sexual relations with her husband except possibly once every six months.

Additional medical evidence presented by plaintiff included testimony by Dr. Anasseril E. Daniel, a psychiatrist. Dr. Daniel stated that after three examinations he thought plaintiff suffered from post traumatic stress disorder as a result of the car accident.

Plaintiff claimed she incurred $6,528.30 in medical expenses, of which over half of these expenses were for her chiropractic care. She asserts lost wages in the amount of $2,352.45.

I

In appellant's first point of error, she alleges the trial court erred in its refusal to submit the punitive or exemplary damage instruction, MAI 10.02. Specifically, appellant asserts that by Mr. Evan's driving after he had consumed a quantity of alcohol which is in excess of the legal limit, his action constituted a conscious disregard for the safety of others and warrants the submission of punitive damages. Based on the facts in this case, this court rejects appellant's contention.

Punitive damage instruction may be submitted where the evidence reveals that the act in question has been intentionally done without just cause or excuse. Pollock v. Brown, 569 S.W.2d 724, 733 (Mo. banc 1978). This court has said that "[t]he wrongful act or conduct must be accompanied by aggravating circumstances, so that the wrongdoer must know that when he commits the act that it is wrongful, or that there must be such recklessness that conscious wrongdoing is necessarily implied." Asher v. Broadway-Valentine Center, 691 S.W.2d 478, 485 (Mo.App.1985).

In its most recent pronouncement, the Supreme Court reinterated "that punitive damages can be awarded in a negligence action but only when the defendant knew or had reason to know that there was a high degree of probability that the action would result in injury." Hoover's Dairy Inc. v. Mid-American Dairymen, 700 S.W.2d 426 (Mo. banc 1985).

Cases from other jurisdictions note that as a person becomes more intoxicated his ability to retain the necessary scienter lessens and thus he cannot be held liable for punitive damages. Baker v. Marcus, 201 Va. 905, 114 S.E.2d 617 (1960); Madison v. Wigal, 18 Ill.App.2d 564, 153 N.E.2d 90 (1958); Brake v. Harper, 8 N.C.App. 327, 174 S.E.2d 74 (1970). In those jurisdictions, however, the defendant's state of mind is viewed separately and apart from his conduct. Id. This is contrary to the law of Missouri in which the defendant's conscious wrongdoing may be "necessarily implied" from his reckless conduct. Asher, supra, at 485. Although getting behind the wheel with a blood alcohol content above the legal limit is conduct which becomes negligence per se, Bowman v. Heffron, 318 S.W.2d 269, 274 (Mo.1958), this fact does not by itself establish it as the sole proximate cause of the injury which is needed for the submission of the punitive damage instruction.

It has been noted that a person cannot be punished solely because he was drunk or is an alcoholic. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.E.2d 758 (1962). The Supreme Court in Arizona recognized that intoxication cannot be equated with liability for punitive damages. It stated:

The law of torts does not permit such a sweeping inference; it eliminates the necessity of showing proximate cause and makes a driver, who has had some alcoholic beverage previous to driving, an insurer in strict liability for punitive damages, whether or not the consumption of alcohol has anything whatever to do with a subsequent accident.

Smith v. Chapman, 115 Ariz. 211, 564 P.2d 900, 903 (1977).

Determining whether defendant's conduct is the proximate cause of plaintiff's injuries is usually left for the jury. Kinealy v. Southwestern Bell Telephone Co., 368 S.W.2d 400, 402 (Mo.1963). The causal connection may be proven through circumstantial evidence if the facts proved are so connected that its existence may be reasonably inferred. George v. Howard Construction Co., 604 S.W.2d 685, 692 (Mo.App.1980). Yet, where the evidence which links defendant's conduct to the plaintiff's injury is based on speculation and conjecture, plaintiff has not met all the elements for submission. ¹ Id. at 692.

The evidence in this case did reveal that defendant had a blood alcohol content of .12 percent. Plaintiff did not present additional evidence that defendant's intoxication caused him to rear-end the plaintiff's car. ² In an excellent article on the subject of punitive damages and drunk driving, the author noted:

It would be possible for a drunken driver to commit a negligent act in such a manner as not to indicate intoxication. For example a drunken driver could be well within the speed limit, drive a straight line and have a rear-end collision with a car stopped at an intersection. Rear-end collisions are very common and are mostly due to inattention, not intoxication. In such an instance, it is extremely unlikely one could get punitive damages and it is arguable that one should not.

Punitive Damages and the Drunken Driver, 8 Pepperdine L.Rev. 117, n. 102 at 133-134. See Detling v. Chockley, 70 Ohio St.2d 134, 436 N.E.2d 208, 212 (1982).

This court believes the facts in this case fall into the very narrow rear-end exception as noted above. The plaintiff urges that the instant fact pattern is similar to that in Rustin v. Cook, 143 Ariz. 486, 694 P.2d 316 (Az.App.1984), in which the Arizona appellate court...