Wilkins v. Cash Register Service Co.

• Decision Date: 21 January 1975
• Docket Number: No. 35263,35263
• Citation: 518 S.W.2d 736
• Parties: Shirley WILKINS and Reevis Wilkins, Plaintiffs-Respondents, v. CASH REGISTER SERVICE COMPANY, Defendant-Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 736

518 S.W.2d 736

Shirley WILKINS and Reevis Wilkins, Plaintiffs-Respondents, v. CASH REGISTER SERVICE COMPANY, Defendant-Appellant.

No. 35263.

Missouri Court of Appeals, St. Louis District, Division One.

jan. 21, 1975.

Amelung, Wulff & Willenbrock, James J. Amelung, St. Louis, for defendant-appellant.

James F. Koester, St. Louis, for plaintiffs-respondents.

KELLY, Judge.

Defendant appeals from a judgment for the plaintiffs in the sum of $15,000.00 on plaintiffs' claim for personal injuries and future surgical, hospitalization and medical expenses and for plaintiffs and against defendant on its counterclaim. We affirm.

Defendant does not challenge the sufficiency of the evidence to support the judgment insofar as the fault issue is concerned but contends that the verdict of the jury was so grossly excessive as to demonstrate bias and prejudice so that the entire case must either be reversed and remanded for a new trial on all of the issues or, in the alternative, this court should order a remittitur. As further grounds for a reversal and remand for a new trial there are other complaints of trial error which we shall hereinafter consider.

The facts of the collision from which this litigation has its origin are somewhat simple. On February 12, 1970, plaintiff-wife ¹ was operating her 1967 Pontiac motor

vehicle northwardly on Ninth Street in the City of St. Louis, missouri, at approximately 6 p.m., when a 1969 Ford Econoline van type truck being operated eastwardly on Cole Street by an agent of the defendant came into collision with the motor vehicle operated by the plaintiff in the intersection. Plaintiff was in the west curb lane of Ninth Street and defendant's van was in the south curb lane of Cole Street. There were two traffic lanes to the right of plaintiff when the van pulled into her path across her lane of travel when she was traveling approximately 20 miles per hour and 10 feet from the intersection. She sounded her horn, slammed on her brakes and skidded into the van so that the left front part of her automobile struck the right front side of the van. Plaintiff's two daughters were passengers in her car at the time of the collision and the elder daughter corroborated plaintiff's version of the manner in which the collision occurred. The younger daughter did not testify. Louis Ruddy, operator of the van, testified that he made the stop at the stop sign, looked to his right and saw that the way was clear, started across the street, and let his clutch out too quickly so that the engine of the van died. He applied the brakes and attempted to start the engine of the car again but was not successful and plaintiff collided with the right side of the van.

I.

PLAINTIFF'S INJURIES.

The plaintiff testified that at the time of the collision she flew forward striking her chest and stomach on the steering wheel, that her head and left elbow struck something and her head snapped back. At the scene she was too concerned about her daughters and did not become conscious of pain until she arrived home. She made no complaints of injury to anyone at the scene and refused medical attention offered by the police at that time. Plaintiff denied that she had any injury prior to the collision or any condition or trouble concerning her neck or her arm. Following the collision she was aware of her left arm hurting her and as the shock wore off she became aware of her neck hurting her. She sustained a knot on her head and a resulting headache. This collision occurred on a Thursday, she called her family physician on Friday morning but this call was relative to her daughters and not herself. Neither she nor the girls went to see this physician, Dr. B. Todd Forsyth, for any of the injuries she contends she sustained in this collision. The following Monday she went to Dr. Maurice L. Arms, a chiropractor, who had been recommended to her by a friend, at which time she was complaining about the knot on her head, her left elbow, which was black and blue, her chest, her stomach, and the entire right side of her body from her neck down through her right arm. Thereafter she saw Dr. Arms two or three times a week for the first year following the collision and three times in 1972. Dr. Arms referred her to Dr. Jacques Paul Schaerer at the end of 1971 because her condition was not improving despite a course of treatment including infrared heat, a metholator, ultra-sound and intermittent cervical traction. Dr. Arms' diagnosis was acute cervical strain and acute sternocostochondratis. He saw her a total of 26 times over a period of approximately 10 months; 5 times in 1971 and twice in 1972. Because of her long-term complaints that the muscles continued to be tight and stiff in the neck and shoulders on her right side he referred her to Dr. Schaerer for a neurological evaluation. In response to a hypothetical question he opined that the collision was the cause of her complaints and that her complaints of numbness and tingling in the fingers of her right hand and weakness in her right arm were symptomatic of a ruptured disc. He saw her last on November 22, 1972, in preparation for his trial testimony, at which time she continued to complain of the numbness and tingling sensation in the fingers of her right hand and his examination Dr. Jacques Paul Schaerer testified for the plaintiff by deposition. He testified that he specializes in the field of neurological surgery which includes the diagnosis and treatment of ruptured discs. He examined the plaintiff on December 22, 1971, at which time she complained of intermittent aching pain over the back of her neck radiating into the right shoulder and arm, and often all the way down into her right hand with generalized numbness associated with tingling in the right hand. She also complained of occasional dull ache and pain between the shoulder blades and of being more nervous and irritable since the date of the collision. The numbness in her right hand had grown worse whereas her other complaints had remained essentially the same. She denied having sustained any prior injury to her head, neck or low back. Examination revealed limitation of motion in the neck on hyperextension and rotation was limited to about 20% of normal and 30% of normal upon movement to the left with pain in the end position. He found suboccipital tenderness on the right where the head joins the neck in back and tenderness over the cervical spine in front and laterally in its mid-portion on the right side. He found marked spot tenderness over the upper medial angle of the right shoulder blade with spasm of the levator scapulae muscle on the right side and limitation of motion in the right shoulder joint, diminished reflex in the right tricep muscle and diminished sensation to pin prick over the ulnar aspect of the right hand. Fist grip measured 40 pounds on the left and 20 pounds on the right although patient was right handed. The clinical picture was one of a cervical discogenic pain syndrome with associated neurological findings indicating involvement of the C--7 and C--8 nerve roots. He was of the opinion that the source of the pain was a ruptured cervical disc. He testified that this was a painful injury and would not heal itself. In his opinion plaintiff was suffering from a ruptured disc in the neck, therapy would do her no permanent good and if she desires relief, surgery was indicated. The surgery required to afford her relief would require the removal of the damaged disc, replacing it with bone and a fusion of the two vertebrae above and below the disc space. If such an operation were performed he would expect that she would be hospitalized for a period of 10 days and convalescent for at least six months. He further testified that the hospital charges would run between $1500.00 and $2000.00 and his surgical fee would be $1500.00; that these charges were fair and reasonable. In response to a hypothetical question, he also gave an opinion that the collision of February 12, 1970, caused the condition he found in the plaintiff when he examined her.

still revealed spot muscle tautness throughout the cervical region, restriction of head movement, and hypersensitivity at the levels of C--5, C--6 and C--7.

At trial time plaintiff's main complaints were concerned with the right side of her neck, her right shoulder, right arm and right hand, which she testified frequently gets numb. She testified that she is aware of some aches all the time, generally in the right side of her neck, sometimes in both shoulders and sometimes all the way down her right side. When she reads a newspaper or tries to sew a button on a garment her arm becomes numb. She described the feeling in her arm at various times as cold, having needles in it, and numb. She is right handed and the strength in the right hand has been lessened since the collision so that she now uses her left hand more often than she formerly did. She is not getting any better and will undergo the surgery suggested by Dr. Schaerer when she gets the money to pay his fee and the hospitalization. Because Dr. Arms' treatments are not benefitting her any longer she now attempts to get relief by taking hot showers, using hot towels and things of that nature. On cross-examination she denied having any prior complaints in regard to her right arm or hand and fingers and, more specifically, she denied seeing Defendant called as witnesses, Dr. George L. Hawkins and Dr. Robert Mueller. Dr. Hawkins examined the plaintiff for defendant on January 26, 1972, obtaining a history of her complaints and conducting an examination relative to those injuries she contended were sustained in the auto collision of February 12, 1970. He concluded that she had no findings to account for her extensive complaints, appeared normal on examination and that the numbness of which she complained was not factual and could not be produced by an injury to her cervical spine. He found no evidence that she...