Wise v. Towse

• Decision Date: 01 April 1963
• Docket Number: Nos. 23747,23748,23749,s. 23747
• Citation: 366 S.W.2d 506
• Parties: Forrest D. WISE, Respondent-Plaintiff, v. Edwin L. TOWSE, Appellant-Defendant. Bernice WISE, Respondent-Plaintiff, v. Edwin L. TOWSE, Appellant-Defendant. Mary Christine MOORE, Respondent-Plaintiff, Respondent-Plaintiff, v. Edwin L. TOWSE, Appellant-Defendant.
• Court: Missouri Court of Appeals

Page 506

366 S.W.2d 506

Forrest D. WISE, Respondent-Plaintiff, v. Edwin L. TOWSE, Appellant-Defendant.

Bernice WISE, Respondent-Plaintiff, v. Edwin L. TOWSE, Appellant-Defendant.

Mary Christine MOORE, Respondent-Plaintiff, Respondent-Plaintiff, v. Edwin L. TOWSE, Appellant-Defendant.

Nos. 23747, 23748, 23749.

Kansas City Court of Appeals, Missouri.

April 1, 1963

William H. Woodson, Spencer, Fane, Britt & Browne, Kansas City, for plaintiffs.

Arthur H. Stoup, I. L. Kraft, Koenigsdorf, Kaplan, Kraft, Stoup & Fox, Kansas City, for defendant.

HUNTER, Judge.

This is an appeal by three plaintiffs in three separate actions that were consolidated for trial and for appeal. The three suits are for damages for alleged personal injuries arising out of a motor vehicle collision. Our examination of the record discloses that each plaintiff has limited his prayer for damages to less than $15,000; namely, Forrest Wise $7,500; Bernice Wise $10,000, and Moore $2,500, and that the amount in dispute in each case is less than $15,000. Hence, this court has jurisdiction of the appeals. Section 477.040 RSMo 1959, V.A.M.S.

Plaintiff, Forrest Wise; his wife, plaintiff, Bernice Wise; and his word, plaintiff, Mary Christine Moore, an infant; and three others on May 2, 1958, were passengers in a slow moving, eastbound 1957 Cadillac automobile owned and operated by Joseph Gore on U. S. Highway 40 several hundred feet west of its intersection with Noland Road in Jackson County, Missouri, when the front end of an eastbound 1954 Plymouth automobile operated by defendant, Edwin L. Towse, collided with the rear of the Cadillac.

All three plaintiffs claimed damages for alleged personal injuries resulting from the collision. To each petition in his answer defendant stated, 'and though defendant expressly denies that plaintiff was damaged or injured as a direct and proximate result of said collision defendant admits defendant is liable to plaintiff for such actual damages, if any, as were sustained by plaintiff as a direct and proximate result of said collision.'

The consolidated cases were tried to the jury on the issue of whether plaintiffs were injured as a result of this rear end collision. The evidence on the respective issues of personal injury was conflicting. The defendant testified he was traveling between 35 and 40 miles per hour when he was only 50 to 75 feet from the Cadillac and first noticed it was 'stopped'. He applied his brakes. He admitted the resultant collision 'was severe'. By stipulation of the parties, the damage to the Plymouth was $398.00 and to the Cadillac was $1,018.00. Plaintiffs adduced considerable, albeit arguably weak, medical and other testimony to support their claims of some personal injuries. Defendant's evidence, mostly medical, was in refutation of such claims.

The jury, by its separate verdicts, was unanimous in favor of the defendant in the Forrest Wise and the Moore cases and ten to two in favor of the defendant in the Bernice Wise case. The trial court in ruling favorably to plaintiffs on the plaintiffs' joint motion for a new trial for specified instruction errors we shall proceed to discuss, refused to rule that the verdicts were against the weight of the credible evidence.

Did the trial court err as defendant contends in granting all three plaintiffs a new trial on the issue of damages for its assigned reason that Instruction No. 3 wrongfully withdrew from the jury plaintiffs' evidence as to the value of x-rays of the plaintiffs taken at the Osteopathic Hospital? The trial court had assigned as its reason for giving Instruction No. 3 that there was no testimony of the reasonableness of the charges for these x-rays. However, there was evidence to the effect that the charges for these x-rays were $25.00 for those of Forrest Wise, $30.00 for those of Bernice Wise, and $7.50 for those of Mary Christine Moore; that Forrest Wise had paid for all of them in the total sum of $65.00; and that the hospital maintained a regular price list for x-rays and the prices of these charges are those on this price list.

Quite recently, in the case of Hay v. Ham, Mo.App., 364 S.W.2d 118, we ruled that evidence of the nature present here is substantial evidence of the reasonableness of the charges for x-rays. The fact that these x-rays were billed at the rate on the hospital's regular price list and that plaintiff Forrest Wise paid that bill is subject to a fair inference that the charges made and paid were reasonable. Myers v. Karchmer, Mo.Sup., 313 S.W.2d 697(15). Stewart v. George B. Peck Co., 234 Mo.App. 864, 135 S.W.2d 405(8).

Defendant impliedly agrees with what we have said above by arguing that although the trial court may have assigned the wrong reason for giving Instruction No. 3 the instruction was properly given because there is no evidence that these x-rays were necessary.

The general rule is that charges for medical services such as those before us, which are items of special damage, must be supported by substantial evidence that they were reasonable and the services reasonably necessary in order for them to be recoverable. Spica v. McDonald, Mo.Sup., 334 S.W.2d 365; Girratono v. Kansas City Public Service Co., 363 Mo. 359, 251 S.W.2d 59(9-10); Heibel v. Robison, Mo.App., 316 S.W.2d 238. However, there is such substantial evidence in the record before us. While there is no direct testimony that these x-rays were necessary, such is a reasonable inference from the evidence showing that plaintiffs sought medical diagnosis and treatment for injuries resulting from the accident, and their examining doctor sent them to the hospital to have the x-rays made. Obviously he thought these x-rays necessary to his diagnosis and treatment or presumably he would not have prescribed that they be made. We should ascribe honest motives, good faith and proper conduct in such matters, at least to the extent of permitting a jury, if it wishes to do so, to infer as a reasonable inference that these medically prescribed x-rays were sufficiently necessary to permit reimbursement of their cost as an element of damage. Under the reasonable man test the defendant could be held to foresee that as a result of his negligence in so forcibly striking the rear end of the car in which plaintiffs were passengers the plaintiffs would be caused to seek medical examination, including x-rays, if prescribed by the examining doctor. The jury could find that these special damages were sustained by plaintiff Forrest Wise as a direct and proximate result of the collision, and defendant has admitted in his answer that 'defendant is liable to plaintiff for such actual damages, if any, as were sustained by plaintiff as a direct and proximate result of said collision.' We conclude the trial court committed reversible error as to plaintiff Forrest Wise in giving Instruction No. 3. The jury should not have been instructed to disregard the evidence of his payment for the x-rays, and it was error to withdraw it from the jury's consideration.

Defendant says if plaintiff Forrest D. Wise was found not to have received any injury by the jury as is evidenced by the jury's verdict then he wasn't prejudiced by Instruction No. 3 withdrawing from the jury consideration of his x-ray expense. However, the x-ray expense was an item of special damages to Forrest Wise which he supported by evidence, and the jury should have been allowed to consider that evidence. Even though the jury might find Forrest Wise suffered no actual injury to his person, if through defendant's admittedly negligent act of causing the collision this special damage proximately resulted to Forrest Wise, he is entitled to recover for it, for in such an instance actual loss has resulted from the commission of the negligent act. Defendant cites the cases of Eickmann v. St. Louis Public Service Co., 363 Mo.Sup. 651, 253 S.W.2d 122; Biscoe v. Kowalski, Mo.Sup., 290 S.W.2d 13; and Merritt v. Mantony, Mo.Sup., 353 S.W.2d 768, as precluding any recovery of medical expenses incurred if no actual injury to the person occurred. However, the Eickmann and Biscoe cases did not concern any question of special damage occasioned by and resulting from an admittedly negligent act, and as we view them are thus distinguishable. The Merritt case is also distinguishable in that the jury's verdict revealed the jury failed to reach the issue of damages and hence any error concerning the correct amount of damages was not prejudicial. In the case before us, the sole issue before the jury was the issue of damages or injury resulting from the admittedly negligent act.

These was no corresponding error concerning Instruction No. 3 as to the other two plaintiffs for they did not pay or contribute to the payment of the x-rays, and made no claim of any special damage for such items.

Since plaintiff Forrest Wise is entitled to a new trial on the issue of damages only, what we proceed to discuss involves the remaining two plaintiffs' claims that they are entitled to a new trial because the trial court was correct in holding Instruction No. 2 to be erroneous as depriving them of a judgment for nominal damages to which they were entitled as a matter of law.

Instruction No. 2 contained a typical burden of proof paragraph and further provided, '* * * you should not allow any recovery to plaintiffs, or any of them, for any injuries or damages which are based upon mere speculation or conjecture and which plaintiffs, or any of them, have failed to prove by the preponderance or the greater weight of all the credible evidence.' The defendant's position is that plaintiffs were not entitled as a matter of law to recover at least nominal damages, citing Eickmann v. St. Louis Public Service Co., 363 Mo.Sup. 651, 253 S.W.2d 122, and Biscoe v. Kowalski, Mo.Sup., 290 S.W.2d 133.

At the outset we note that plaintiffs did not offer any instruction concerning their right to nominal damages, and their verdict directing instructions...