*1 supported by competent and substan- tial appellate evidence. Central
court’s conclusion was the fact that there
was no Douglas evidence that McDonnell
any way employees invited its to use that Id.,
path. contrast, By S.W.2d at 699.
the crosswalk in which the injured
case was served as an overt encour-
agement employees’ use as a means of
egress employer’s from the facility.
Although required the trial court is presented
under the facts here to dismiss
plaintiff’s petition, the dismissal is without
prejudice. Bean, Parmer v. (Mo.App.1982). Plaintiff is free to
raise her claim under the Workers’ Com
pensation Law, and the resolution of this any way upon
case does not reflect in
merits of that claim.2 provisional in prohibition absolute,
therefore made and the trial
court is directed to enter its order dismiss-
ing plaintiff’s petition prejudice. without
All concur. BREEDING,
Bobbie Gene
Plaintiff-Respondent, REPAIR, INC.,
DODSON TRAILER D.C., Inc.,
and Time
Defendants-Appellants.
No. 65739.
Supreme Missouri, Court of
En Banc.
Nov. 1984. conceivable, jurisdiction preliminary, having It is were the facts shown to be been made in appear different from any contrary showing by those which on the face default of plaintiffs petition deposition, that the merits, hearing not after a full it is Labor and Relations Industrial Commission Zahn, judicata without res effect. 655 S.W.2d at jurisdiction could conclude that does not lie 773-74; Cloyd, Cloyd v. Compensation under the Workers’ Law. Since the determination that the trial court is without *2 Louis, for Dod- Buckley,
Eugene K. St. Repair. son Trailer Time, Soebbing, St. for Ralph K. D.C., Inc. Louis, for Schlapprizzi,
Donald L. plaintiff-respondent.
GUNN, Judge. Breed- Plaintiff-respondent Bobbie Gene money judgment in an action ing obtained defendants-appellants damages against D.C., (TIME) TIME, and Dodson Trail- Inc. (Dodson) personal inju- Repair, er Inc. rear-end colli- in a vehicular ries sustained District of the Missouri The Eastern sion. remanded. Appeals reversed and Court as on this Court matter is now before original appeal by granting virtue of our ment require surgery. defend- Over plaintiffs motion to Rule objection transfer. 83.09.1 ant Dodson’s Dr. Luebbert then testified such costs of sur- following points appeal have been gery. raised defendants TIME and Dodson: alleged error in the admission point The defendants’ first of al tal emergency room concerning leged error is that Dr. Luebbert’s testimo *3 plaintiff’s 2) past history; alleged medical ny concerning possible surgery and its at allowing error in testimony physician aof and, thus, speculative tendant costs was possibility and cost of future The testimony inadmissible. was as fol 3) surgery; and excessive verdict. lows: 1) Defendant TIME also contends error: Q. you your Do feel in medical by plaintiffs admission of the Breeding that Mr. will in the need be physician prior which was taken to TIME’S of future treatment? being a party lawsuit; to the in the A. I do. [Dr. Luebbert] giving of an hypothesizing neg- instruction Q. take, And what form would ligence per on a city se brake ordinance Of Doctor? what form would that violation. be? We the judgment affirm of the trial A. I he feel that will need continued court. giv- conservative treatment as we’ve Plaintiff, self-employed oper- a truck tow en the past. him in I that if feel ator, towing was an automobile when the is successful that that all that he is stopped accident occurred. He had for a progresses will If he need. signal light a St. at Louis street intersec- point conservative treat- tion when by he was struck from behind a not ment does control him he will truck by owned defendant TIME and driv- surgery need on his neck. by en an employee of defendant Dodson. Luebbert, Immediately thereafter Dr. over impact The plaintiff’s head and neck objection, permitted testify was that the to strike passenger compartment of his $1,000 cost of any surgery such right hand, truck. His $1,500, $3,000 an with additional wheel, braced steering on the injured. was $4,000 hospital expense $300 Plaintiff not did seek immediate medical follow-up for the care. $400 attention, days two but after the accident The testified that not anx- while he went to a emergency room for undergo surgery, ious to he would submit treatment, complaining wrist, pain necessary to it if hardship to reduce the arm Following and back. examination and pain. x-rays, plaintiff was released advised gravamen complaint of defendants’ to consult if physician pain with own surgery is future and attendant ex- persisted. Continued discomfort resulted penses contingent upon the failure of plaintiff’s seeking further medical treat- Hence, they conservative treatment. ar- physician ment a year about two gue, no more than mere period. Six months after accident he McDowell, possibility, and under Hahn v. sought also the advice of Dr. William F. (Mo.App.1961), such testi- Luebbert, orthopedic surgeon. Dr. incompetent mony being as not fu- plaintiff’s diagnosed Luebbert ailment as consequence ture with “reasonable certain- right cervical arthrosis brachial ridicu- ty”. means, Testifying depositional litis. Dr. however, pain Hahn, readily distinguisha- Luebbert related that indefinitely condition would continue and if from circumstances case. In ble of this through stabilized conservative treat- Hahn the medical concerned the Benda, 1. The accident and trial were Gustafson
possible development
pain
of cancer in an area
swelling.
mediate
wrist and
Low
pain developed by
morning.
of a burn scar which had resulted from
back
next
injuries
yesterday
today
sustained in
Pain worse
an automobile acci-
...
than
disfigurement
dent. The
of accident.
was described as
nothing
spectacular
typical
more
than a
acknowledge
Defendants
that the
degree
scar from second and third
burns.
tal record is admissible within the business
testimony concerning
development
But,
hearsay
records
rule.
hypothesized
possibility
of cancer
they argue
specific
that the
disability,
existing
a new
unrelated to the
being past history
inadmissible
as
plaintiff.
ailment suffered
since the
related events that oc-
appeared
curred
to the time he
as a
That is not the circumstance of this case.
Rather,
patient. Support
position
for defendants’
closely
the situation here is more
history
that recitations of
akin to
sub-
Stephens Guffey,
the facts
(Mo.1966),
ject to exclusion is found in
Holmes v.
physician
which the
*4
Terminal
present
opinion
to
R.R. Association
St.
was allowed
his
as to the
of
1178,
(1953).
363 Mo.
surgery
estimated cost of low back
Holmes holds that:
employed
could be
to correct a condition
plaintiff
thought
from which the
to
physician,
stating
expert opin-
his
[a]
suffering.
expert
have been
The medical
patient’s condition,
ion on a
may testify
“although
thinking
testified
he was
to what he personally observed and also
terms of low back or disc
he had
(an
patient
to what the
to
said
yet
surgery,
recommended
and that he
rule)
hearsay
concerning
present,
the
his
yet.”
would wait awhile
409 S.W.2d at
existing symptoms
complaints.
and
testimony
69-70. Such
was held to
ad-
However,
be
may
he
not base his
missible.
upon
testify
pa-
or
to statements of
respect
past physical
tient with
to
condi-
case,
suggestion
Dr. Luebbert’s
tions,
in-
surrounding
circumstances
of surgery appears
legitimate
to be a
medi-
jury,
injury
or the manner in which the
cal alternative to the conservative treat-
was received.
plaintiff
receiving.
ment that the
Its
at 926.
Id. 257 S.W.2d
admissibility
compelling
is even more
than
testimony
in Stephens
referred to
Although
past physi
statements of
Guffey, particularly
light
plaintiffs
of
hearsay by
cal
condition
deemed
expressed
suggested
desire to forestall
sur- Holmes,
reviewing
the trial and
courts
gical procedures.
It is evident that Dr.
give
prejudicial
effect
consideration
Luebbert’s
does not reach
hearsay
of such
and find that its admission
conjecture
speculation
arena of
and
con-
prejudicially
is not
erroneous. Hunter v.
demned Hahn.
Inasmuch as the
Co.,
Railway
Louis
Southwestern
possible
was entitled to consider the
need
(Mo.1958);
Annin
Bi-State
surgery,
for
the estimated cost was also
Development Agency,
... was involved
of the collision
related
and
details
driving
April.
job
while
on the
on
record.
the medical
Annin v. Bi-State
towtruck;
driving
struck from be-
at 386.
Development Agency,
Was
657 S.W.2d
Further,
only natural for a
hind
tractor-trailer.
Jammed wrist
it would be
im-
against steering
Developed
physician to consider the circumstance
wheel.
arriving
diagnosis.
hearsay
past
the accident in
at a
medical
histo-
rule
“Certainly,
inquiry
some
as to the cause of
ry
gives just
abandoning
for
it:
reason
injury
proper
necessary
for intel-
People generally
phy-
realize that for a
ligent
patient.”
treatment of a
Hook v. St.
bring
to bear he
sician to
his skill
must
Co.,
Public
Louis
Service
pa-
accurate information
Also,
al-
patient
tient’s condition from the
himself.
ready had testified to
items of hearsay.
McCormick,
(Hornbook
2d Ed.
Evidence
Hunter v.
See
St. Louis Southwestern
Series)
logical-
Ch.
292. It would
Sec.
Co.,
Railway
at
ly
patient
pre-
follow that if the
can be
foregoing
(as
discussion leads to the
sumed truthful
in that circumstance
preservation
query
present
symptoms),
as to the need
to his
complaints
restricting
patient’s
inquiry
past
into a
he
equally reasonably
presumed
can
history, particularly
pertains
diag-
as it
concerning
portion
to be truthful
efforts.
It
nostic
was with some considera-
past
history necessary
medical
ease that the
skirted
ble
rule was
here
physician
correctly diagnose
transforming
illicit
licit
refer-
present
treat his
There
condition.
ence
two well reasoned cases—Hunter
appear
logical
therefore no
reason to
and Annin.
reliability
present
hold that
exists as to
symptoms
complaints
but fails to
plaintiffs
In this case the
declarations
past
physical
exist for
history.
hospital
were made to
personnel and en-
scribed on
purpose
records for the
injuries incurred in recog- an accident. As case contains no statement which is not Holmes, nized in present statements of reasonably pertinent proper diagnosis. symptoms freely and are conditions admit- The facts that an accident occurred and does, therefore, It substantially ted. seem plaintiff was from behind that struck are incongruous patient that a a Therefore, dispute. not the trial court to his doctor that his hurts arm is admissi- properly admitted the remarks long ble but reference injury to how hospital noted record. To the extent prevailed or may has what accident conflict that this causes with earlier injury is inadmissible hearsay. Holmes, such as those cases are decisions growing A jurisdictions number of and overruled. distinguished recognize authorities argue that the verdict Defendants principle physi- statements made to a $35,000 was so excessive as to indicate cian, records, contained in even prejudice part jury. of the bias on history, if characterized as ad- issue, reviewing verdict In the excessive missible insofar as such statements are only given to the evidence consideration is reasonably pertinent diagnosis and treat- supports the Brotherton v. award. why And ment.2 should not be the Railroad, Burlington 672 Northern rule? 133, 138 Graham, 604 Hughey v. Smith, (Mo.App.1980), though Evidence favorable to the verdict Judge con- 47-year- is a imposed by demonstrates that the strained follow strictures Holmes, neatly old, self-employed operator. truck Be- indites' flaw this tow Garza, 823, 120, (S.D. Fund, Injury Subsequent 277 Md. State v. 337 N.W.2d 824 353 A.2d 2. 263, 16, Gant, 178, 1983); State, (Alaska (1976); People P.2d Howe v. 611 20 265 58 Ill.2d 101, 564, 1980); Daniels, (1974); Cody State v. 180 Conn. 429 A.2d 317 N.E.2d dustries, Inc., 569 v. S.K.F. In 813, 558, 772, (1980); Feather, 816 State v. Red 205 Neb. 447 Pa. 291 A.2d 776 734, Jones, 768, (1980); (1972); (6th Ed.1972); § 289 N.W.2d 2 12:12 771 Booker v. Evidence McCormick, Center, 458, (1984); § Medical N.C. Evidence 313 Duke 297 256 S.E.2d see also: 189, 803(4); (1979); Murray, 202 Federal Rule of Evidence and § Bouchie v. 376 Mass. 37 A.L. 524, 778, 5(a). (1978); § 381 N.E.2d R.3d Candella v. 148; Co., he has had curtail Brown Leather 249 S.W. at injuries, cause of his activities, daily reducing Discovery, Depositions his work Am.Jur.2d su- previously He Unity identity to four or five hours. of interests and pra. “on-call”, day. 24 hours a He also party worked joined participating issues engage types in less strenuous has to disqualification also cause therefore, apparent, jobs. It is deposition. First National Bank of af- plaintiff’s injuries character of the has Switzer, 277 S.W.2d at Petersburg earning Additionally, capacity. fected his years he has suffered several of debilita- wrist,
ting give Ex- pain in his back and neck. The circumstances of this case pert testimony injuries finding preju indicated that his an additional reason for nature, progno- permanent with a are of Lueb- dice to TIME the admission of Dr. undergo that he will have to continued sis depositional testimony. Defendant bert’s surgery. conservative treatment or suggest TIME does not nor does the any surprise in the use of Dr. Lueb- reveal To obtain relief on the basis of TIME’S testimony. In answer to bert’s verdict, must excessive the defendants named interrogatories, Dr. Luebbert was glaringly demonstrate that the verdict expert upon whose testimo as the witness the conscience unwarranted so as to shock ny rely. intended to Dr. Lueb- Burlington North of the court. Fravel v. part statement also was made bert’s Railroad, ern file, TIME’Scounsel acknowl the court disclaiming au App.1984). And while It also edges deposition. that he read the take thority by appellate courts to correc significant deposition in the Dr. of discre tive action the event of abuse states that due to his Luebbert by the trial court in the treatment of tion una and office hours he would be schedule verdicts, trial will defer to the Court fore testify personally—a clear vailable to attending discretion court’s substantial uti warning that his would be awards. Fowler v. Park to the size Further, any uncertainty if lized at trial. Corp., appear trial as to Dr. Luebbert’s existed apparent of discretion exists No abuse ance, dispelled by the ambiguity was regard the award of dam this case with *6 plaintiff’s opening statement: ages. brought testimony will be Dr. Luebbert’s additional Defendant TIME raises two in person case not but you to this appeal, pertaining the first to points on its through deposition. his Both sides were deposition reading the of Dr. Luebbert’s and he sworn to tell out at his office was being TIME’S prior taken
which was gave deposition the the truth. He party defendant. you. testimony will be read to pri- Generally, deposition taken signals clear advice Despite strong joinder party of a to a case or to the use Dr. Lueb- plaintiff intended to party, this against the absent inadmissible trial, TIME no deposition in voiced bert’s op there has no for the reason that been trial, during opening prior objection proponent. the portunity to cross-examine except at the moment or at trial Petersburg v. National Bank First of in the third introduced deposition the was Switzer, (Mo.App.1955); Thus, case, Co., day proceedings. of Leather Legg v. Brown A.M. Shoe Co. dep- reading of the objection TIME’S 23 (Mo.App.1923); 147 Am.Jur.2d 249 S.W. § suppres- (1983). late. Motion for came too Discovery osition Depositions and deposition should have been exist, example, a sion of the For Exceptions however. apparent it it even made when became properly introduced deposition or absence read Dr. Luebbert’s joinder of one would be prior to the though obtained it made to reference was causes at least when parties its admission of the where in- TIME’S opening statement. during the v. prejudice. Legg A.M. Shoe Co. no lulling First, action an impermissible of there was circumstantial evidence plaintiff and the indicating trial court—a situation disrepair that the tractor was in which cannot be used to the defendant’s at the time it was delivered to co-defendant advantage. Empire Dodson, See Dist. Co. An employee Electric Dodson. of who in- Johnston, 241 Mo.App. accident, v. spected 268 S.W.2d tractor after stat- (1954); v. Wagner, hook-up Hutchens ed that the vehicle’s service line 105, 106 (Mo.App.1925). S.W. improperly. had effect been fastened improper hook-up of this trac- was that the objection TIME’S contention during operated tor had been with service no timely third of trial was is unavail- brake on the rear axle. The em- Dodson ing; it not. plaintiff’s was The tocsin of ployee further not re- stated he did deposition intended use of the was sounded having “anything member to do those prior and during opening to trial statement. lines to the accident.” A reasonable court, justifiably trial disconcerted inference, therefore, is that the lines had unexpected over the turn events thrust been improperly fastened bail- to the day, into the case on the properly third ment. prompt objection noted that by TIME have allowed for the to be Second, submitted his evening retaken in an hour or that even se, negligence per case based on granted. continuance could have been city on maintaining ordinance sets of two Blando, Mincey adequate 655 S.W.2d brakes violated. As App.1983), support. offers TIME no in Ruediger stated Bus American Lines, Inc., a deposition rejected 1967), that case was after objection knowledge immediate was raised at first of the defect is not an essential opportunity, and negligence no time existed element of for correc- where the act or tive measures. That the circum- omission involves a or violation a statute stance proved case. TIME’S complaint plaintiff having ordinance. “The came late too the trial of the regulations, allow court to violation it devolved take upon some remedial prove legal action without undue defendant excuse disruption judicial processes. duty avoidance of its failure observe the imposed by regulations.” Finally, argues TIME instructional error legal at 9. TIME offered reason or regarding inadequacy of its vehicle’s for failing excuse to maintain its vehicle brakes. Thus, operational with two sets brakes. accident, At the time defend negli made a case submissible ant employee Dodson’s driving was TIME’S gence verdict-directing and the instruction failed, tractor. The brakes and the tractor supported evidence. struck vehicles. The *7 judgment is affirmed. instructed to render plaintiff a verdict for if it that TIME provided found Dodson RENDLEN, C.J., BILLINGS, a vehicle that did two sets of DONNELLY, JJ., con- BLACKMAR and adequate brakes which contributed cur. plaintiff’s damages. WELLIVER, J., concurs result.
Acknowledging city that St. Louis ordi- required nance it to maintain two sets HIGGINS, J., separate opinion concurs truck, adequate TIME con- brakes its filed. 1) prove: tends failed HIGGINS, Judge, concurring. brakes to the time defective majority I the vehicle was bailed defendant concur with the in affirmance Dodson; knowledge judgment had against TIME de- any however, I specially, defective condition fendants. do so bail- my express ment to Dodson. Both fail. it is contentions neither neces- sary appropriate nor to tailor an overrule Holmes v. R.R. Terminal Association (1953), in Mo. charged deal with
order to the error
admission of record
case. excerpt, if erro-
Admission
neous, every- not prejudicial because
thing excerpt already recited by plaintiff’s established Hunter
prior to admission of the record. Railway Com-
v. St. Louis Southwestern (Mo.1958);Harris v.
pany,
Goggins, banc Zagorski,
State
In re H. ESTATE OF Verena
LAMY, Deceased.
No. 65590. Missouri,
Supreme Court of
En Banc.
Nov.