Stephens v. GuffeyStephens v. Guffey
- Reporters:
- ,
- Before:
- Higgins
On December 23, 1963, at 4:30 p. m., Ruby Dee Stephens was driving her 1957 Oldsmobile and, while stopped at an intersection, was struck from the rear by Helen Joyce Guffey driving her 1959 Chevrolet sedan at a speed of 20 or 25 miles per hour. The impact was “fairly hard” and knocked Mrs. Stephens 30 to 35 feet forward. Repair estimate on the Oldsmobile was $330.-19; the Chevrolet sustained $400 damage. Mrs. Stephens had a verdict for $19,670 for personal injuries and $330 for property damage. Appellant’s points question neither the submissibility nor the property damage but are concerned with injuries and causation.
Appellant’s Point I is that the court should have ordered a new trial “for the reason that the verdict is too large to be sustained by the evidence adduced on any theory except that the plaintiff’s condition at the time of trial was the direct and proximate result of the accident which was shown in evidence and since the evidence on this point was too unsubstantial and uncertain to justify such finding the verdict is clearly erroneous and must be reversed.” Appellant concedes that plaintiff suffered an injury when struck from the rear by defendant on December 23, 1963, but takes the position that the verdict is so grossly excessive as to require reversal upon two theories: “First, the size of the verdict is such that to be sustained it must be based upon plaintiff’s evidence of continued complaints of pain and disability and repeated hospitalization with respect to conditions, the causes and nature of which were so uncertain as to be totally incapable of being proven to be the direct and proximate result of the accident. Second, since plaintiff’s own evidence shows that her continued complaints and disability may be the result of rheumatoid arthritis and drooping or sloped shoulders, neither of which was in any way connected with the accident, there was a failure of proof with respect to causation.”
Thomas Hubbard, Mrs. Stephens’s employer, observed her during her 8 a. m. to 4:30 p. m. working hours, and knew of no physical impediment prior to December 23, 1963. She was never off work and he knew of no complaints or trouble prior to the collision. After December 23, 1963, she seemed extremely tired and when she reached down to pick up something, “ * * you could hear her muscles * * * you could hear what Sounded like a squeak.” In respect to her walking, “She would kinda sidle * * * shuffle along instead of walking like a person normally would.” She was alert and able to get around well before the collision but became more cautious, less efficient, and slower afterward. Prior to December 23, 1963, she was cheerful, not emotionally upset, and a normal, active young woman.
Mrs. Stephens’s next employer, Merle Buck, hired her February 16, 1965, for part-time work with knowledge of her disability. He noticed “an apparent discomfort or disability * * * and the nature of this discomfort appears to be in the back, neck and perhaps legs. * * * I have observed a stiffness in the movement of the head and neck. I have observed an apparent stiffness in the spine — in the back in observing her walking and sitting down and rising from a chair.” She gets up “slowly and purposefully. * * * the” citations that I’ve made have been constant and continual.”
Thomas Coffman also observed Mrs. Stephens at her second employment. “ * * she seems to be slow rising, she watches herself the way she moves herself, and she seems to have * * * a stiffness of the neck and she just doesn’t move around the office like she should.” He watched her when she did not know it and “She seemed to walk slow, she is slow and cautious, she kinda seemed to guard herself.” Such movements are constant. She uses the office furniture for support.
Dr. James Denninghoff is a specialist in internal medicine. When he first saw Mrs. Stephens on December 24, 1963, she gave a history of the rear-end collision on the afternoon of December 23 and had pain in the neck on any motion of the head at that time. Upon examination “she had pain to where she couldn’t move her head in the directions I mentioned.” She had limitation primarily to the left. He had her take three ultrasound treatments and saw her next on December 28. She then seemed somewhat improved, “there was less soreness although there was some aching yet in the muscles * * *. At that time, because the symptoms were not very severe and because she did seem to be responding reasonably well, I recommended that she be put on some muscle relaxents and pain relievers and to see me if the symptoms should worsen as sometimes happens. Many times a person will seem to improve and then maybe a week or two or three or even four weeks later have a recurrence of symptoms sometimes even worse than the original symptoms.” Ten days later, January 8, 1964, she noticed that the neck was becoming more painful as she stayed up and she was advised to work only half days. On the 10th she was complaining of recurrent nausea after her neck tired. She was becoming “run down looking” and “it was obvious that she should be in the hospital and I put her there.” He placed her in the Boone County Hospital
Dr. Lester Wolcott, a specialist in physical medicine at the University of Missouri Medical Center, saw Mrs. Stephens in February, 1965, upon request for consultation from Dr. Warren Sights, Chief of Neurosurgery at the Center. “Dr. Sights’ examination, and borne out by my own, and noticeable on x-ray was a rather unusual slope or droop to the shoulders, and commonly we see what’s called a thoracic outlet syndrome, causing numbness and tingling in the hand which is intermittent as a result of this droop and nerve being compressed against the first rib at times, and he had felt on his examination that this was a possibility because of the postural relationship of the shoulders to the spine. I agreed and prescribed shoulder elevator strengthening exercises to hopefully do away with this particular postural condition. * * * She had also complained of the back pain with radiation into the right leg which he had ruled out to his satisfaction, and I did to mine, that this was not as a result of neurological difficulty, it is a primary condition.” In respect to her complaints of pain in the low back and right leg, he found tenderness over the areas of complaint by pressing with his hands and noting the patient’s response. He also found muscle spasm by palpation which was increased in those areas. Her low back pain followed the dermatomal pattern of the fifth lumbar vertebra sensory distribution. As far as he was concerned Mrs. Stephens was disabled; she has myositis or inflammation of her muscles, which is very often the result of trauma. He treated the myositis with moist heat, ultrasound, and gentle stretching. His referral was for treatment of the radiating pain in the right arm and hand, pain in the neck and low back, and radiation into
Dr. William D. Gaunt is a specialist in internal medicine at the University of Missouri. He saw Mrs. Stephens February 8, 1965, upon referral by Dr. Denninghoff for tests for rheumatoid arthritis. He made a complete physical examination of the patient following a recital of her complaints dating back to December 23, 1963. “Examination of the joints revealed tenderness anteriorly at the shoulders. * * * There was slight tenderness over the right hip * * * the right hip showed some limitation of motion as compared to the left. * * * There was some tenderness at approximately the second cervical vertebra and along the right neck muscles, posteri-orly in the back * * * there was tenderness medial to both of the shoulder blades— that’s toward the spinal column * * *. There was tenderness to palpation feeling at about the fourth lumbar vertebra and to the right of that in the lower back. * * * The right lumbar paraspinal muscles were somewhat tighter than the left * * * muscles of the upper and lower arms were slightly tender to palpation. * * * The right anterior thigh * * * and the right calf were slightly tender to palpation too. * * * The x-rays of the cervical spine showed minimal narrowing of the C7, T1 inner space. * * * I was unable to find any definite evidence of rheumatoid arthritis at present.” Her complaints of pain in his findings of tenderness to pressure were consistent with traumatic injury. “Q: Were there any symptoms which caused you to believe that she might have disc trouble in the lower back? A: She had tenderness at her fourth lumbar area and to the right of it and then with this muscle spasm, this raised the possibility of this consideration in the overall thinking about her problem as one possibility to think about.”
Dr. Glenn McElroy first saw Mrs. Stephens January 11,1964, at the Boone County Hospital upon referral by Dr. Denninghoff. She was then being treated conservatively and being given cervical traction. “ * * * she gave me a history of being in a car accident * * * on December 23, 1963, at which time the car in which she was driving was hit from the rear.” He recommended that conservative treatment by cervical traction, heat, and drugs be continued. Her first complaints were referable to her neck, upper back and upper extremities. “ * * * she developed some back pain — some low back pain which at first wasn’t too significant.” Dr. McElroy also admitted Mrs. Stephens to the hospital on three other occasions as her condition worsened and in the course of those he was her main treating doctor. “I referred her back to Dr. Den-ninghoff to rule out any arthritic process which may be causing this type of thing.” His January 11, 1964, examination “revealed very little positive findings. This mainly was soreness and discomfort and tenderness of the neck and upper back * * * X-rays * * * revealed some straightening of the normal cervical curve, and I felt that was due to muscle spasms * * * and it can be produced by trauma.” His treatment varied through the course of hospitalizations. “It was all conservative in nature, but it varied from neck to lower back and at times both.” The treatment was unsuccessful and he has never been happy with what he has accomplished. “She still has some abnormal finding, and we are worse than we were when I first saw her.” In 1964 he injected cortisone into her shoulder to increase circulation and to try to get rid of soreness in muscles and tendons. She has tendon involvement because “There is tenderness, there is limitation — some limitation of motion pain of her shoulder, then also she has in her right shoulder, what I call a popping tendon or snapping tendon.” Upon his May 11, 1965, examination, her complaints were “the same, if not more than they were before.” She bent over very well “but with evidence of muscle spasm and with evidence of pain and discomfort— not only in her lower back but also in her right lower extremity.” She guarded and protected her head and neck and her range of motion is limited and painful. She com
Appellant bases her Point I on Kimmie v. Terminal R.R. Ass’n of St. Louis, 334 Mo. 596, 66 S.W.2d 561, and Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644. In the first case plaintiff sought to recover for a malignant bone tumor alleged to have been suffered by a fall on defendant’s premises. The medical testimony was sufficient to show plaintiff’s condition but “ * * * The opinion of the doctors that it might, could, or would result from the fall is no more than an assurance that such a result was scientifically possible. * * * It was not substantial evidence that it did result from it and there was not here other ample evidence, ‘tending to exclude all other causes save the fall and to prove that the fall was the cause.’” 66 S.W.2d 1. c. 565 [4]. “Where there are other facts which tend to
The testimony here of Drs. McElroy and Denninghoff considered the history of accident, Harp v. Illinois Cent. R. Co., Mo., 370 S.W.2d 387, 392 [6, 7], and their testimony, taken with plaintiff’s own testimony and that of her employers, is substantial evidence by which plaintiff’s trial-time condition reasonably could be found to be connected to the admitted rear-end collision and injuries of December 23, 1963. The evidence was substantial that Mrs. Stephens was a healthy, active young woman prior to the accident and is now a person with objective findings as well as subjective complaints of neck and back injuries with attendant radiating nerve pain and numbness, and with some degree of permanency. Rheumatoid arthritis was considered, tested for, and ruled out by Dr. Gaunt, and the shoulder-droop problem was fully developed by Dr. Wolcott and rejected in favor of myositis as a cause of her disability. Plaintiff’s own evidence of her pain, discomfort, and disability following the accident and her freedom from such conditions prior to the accident and similar evidence from her employers was substantial evidence of “other facts” from which a jury might find that her trial-time condition was caused by the accident. Ketcham v. Thomas, Mo., 283 S.W.2d 642, 649-650 [10]; Stevens v. Westport Laundry Co., Mo.App., 25 S.W.2d 491, 495 [1]; Perringer v. Lynn Food Co., Mo.App., 148 S.W.2d 601, 611 [21, 22]. See also Rogers v. Thompson, Mo., 308 S.W.2d 688, 694 [3], and Schroeder v. Western Union Telegraph Co., Mo.App., 129 S.W.2d 917, 923 [11], which distinguish this case and the supporting citations from Kimmie v. Terminal R.R. Ass’n, supra, and Adelsberger v. Sheehy, supra. The same distinctions would apply to Leavitt v. St. Louis Public Service Co., Mo.App., 340 S.W.2d 131, where the evidence went no further than to show that plaintiff’s arthritis might or could have been aggravated by trauma, and Bertram v. Wunning, Mo.App., 385 S.W.2d 803, where the evidence stopped at testimony showing a hernia could have resulted from the accident.
Appellant charges error in permitting Dr. McElroy to testify to an estimate of additional hospital stay of two to three weeks at $25 per day, surgery fee of $400, and anesthetic fee of $50 for surgery “to correct a ruptured intervertebral disc when the doctor’s testimony (1) failed to show that the plaintiff was suffering from a ruptured intervertebral disc and (2) showed that such operation was not recommended by him and that he could not state with reasonable medical certainty that such would be required.” Appellant points to cross-examination testimony in which Dr. McElroy admitted that just because she has the symptoms consistent with ruptured in-tervertebral disc does not mean that she has such condition, and that other things could cause such symptoms; that he could not yet prove-nerve root pressure but the abnormal findings in plaintiff’s right leg were suggestive of some pressure; that although he was thinking in terms of low back or disc surgery he had not yet recom
Finally, appellant says the verdict for $19,670 for injuries is excessive requiring reversal or remittitur. Plaintiff’s injuries already have been mentioned in detail. At 29 years of age she had a life expectancy of 38.61 years, and she has some permanent disability and her condition is worsening. Her special damages, exclusive of hospitalization and fees for surgery not yet performed, are in excess of $5,400, and her ability to work full days, to do housework, and to engage in sports has been reduced.
“There is no precise formula for gauging whether a verdict is excessive. Each case depends on its own particular facts. Consideration must be given the nature and extent of the injuries and losses, plaintiff’s age and * * * diminished earning capacity, if any, the changing economic factors and the amount * * * awarded and approved in cases similar or of fairly comparable injuries.” Goodman v. Missouri Pacific R. R. Co., Mo., 312 S.W.2d 42, 49 [8]. These criteria negative a finding of excessiveness in this case. Hopkins v. St. Louis Public Service Co. (1964), Mo.App., 382 S.W.2d 442, upheld a judgment of $15,-000 for injury in a rear-end collision to the neck and shoulder with neck and shoulder pain, headache and numbness in the left hand following the accident. Mrs. Hopkins had ten days’ hospitalization with traction under a diagnosis of cervical spine sprain, partial separation of the acromioclavicular joint, contusion of the left knee and lord-osis in the cervical spine due to spasm. She could not sit well and would need treatment in the future “which might * * * include an operation to remove the cartilage between the joint so as to relieve the pressure on the nerves.” 382 S.W.2d 1. c. 446. She had lost some time from work and was now working irregularly. She had special damages exceeding $1,800. Riggs v. Metcalf (1958), Mo., 315 S.W.2d 791, upheld a judgment of $20,000 for a 29-year-old woman for whiplash injury in a rear-end collision. Mrs. Riggs had five days of hospitalization and six weeks of traction. She quit work and was limited in her housework. She
Appellant cites several cases in which the injuries and circumstances are not comparable to Mrs. Stephens’s condition: Salzwedel v. Vassil (1961), Mo.App., 351 S.W.2d 829, affirmed $6,000 for neck injuries but there was no medical or hospital expense, nor was plaintiff ever hospitalized. Ficken v. Hopkins (1965), Mo., 389 S.W.2d 193, affirmed a $5,000 verdict, but the injury was bruising and shock to a 62-year-old woman and there was no evidence of permanence or of special damage. Statler v. St. Louis Arena Corp., Mo., 388 S.W.2d 833, and Bowyer v. Te-Co, Inc., Mo., 310 S.W.2d 892, involved ankle fractures; Brown v. Kroger Co., Mo.App., 358 S.W.2d 429, involved a cut vein and no wage loss; and there was no permanent injury to the 20-year-old plaintiff in Gooch v. Lake, Mo., 327 S.W.2d 132.
Judgment affirmed.
HOUSER, and WELBORN, CC., concur.PER CURIAM:
The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.
All concur.