Keehn v. Realty Inv. Co. , 328 Mo. 1031 ( 1931 )

The only question of substance raised on this appeal is whether the damages awarded by the jury are excessive. Whether they are or not depends chiefly upon whether there was any substantial evidence tending to show that there was a reasonable certainty that respondent's condition at the time of the trial, resulting from the fall of the elevator in which she was a passenger, was permanent. If the condition is permanent the damages assessed are inadequate; if not, they are excessive.

I. The epitome of the evidence relating to the nature and extent of respondent's injuries contained in the principal opinion does not, in my opinion, accurately reflectPermanent the record.Condition:SpeculativeEvidence.

When the elevator was brought back to the main floor following its drop, plaintiff walked out into the lobby and waited an interval before going to the street to take a car. She was very nervous. Presently she walked out into the street unassisted and entered a street car. It was necessary for her to change cars enroute home; this she did without assistance, and after leaving the car walked a half block to her home. She then went to bed; she was suffering from acute pains in her head, back, ankles and feet; the calves of her legs were numb. Shortly after supper she called the family physician, Dr. Striegel. He found her in a highly nervous condition, and prescribed a sedative. She went to work the next day as usual and continued to work for a period of about three weeks thereafter, though suffering from extreme nervousness all the while.

On the evening of the second day following her injury Dr. Striegel made an examination of respondent's back. He found a discolored place about the size of the palm of the hand over the right lumbar region, but no other evidence of external injury. According to his diagnosis: "there was injury to the lumbar region; to her back and kidneys . . ., — a sprain or an injury to the muscles and ligaments."

At the end of approximately three weeks following the first visit to respondent, there having been no improvement as to her nervous condition and menstrual irregularities having developed, Dr. Striegel sent her to an X-ray specialist, Dr. Belton. The latter reported to Dr. Striegel by phone and letter that "the (right) kidney was out of place; had slipped down." Thereupon Dr. Striegel further diagnosed the injury as "a sort of a traumatic misplacement of the kidney." He also gave it as his opinion that the menstrual disturbances came from weakness of the ovaries, "due to shock and the nervous condition."

Following the taking of the X-ray Dr. Striegel bound the lower part of his patient's back with adhesive tape and put her to bed, where she remained for a period of six weeks. As respondent's ailment, manifesting itself in headaches, dizziness and nervousness, did not yield to Dr. Striegel's treatment, he recommended that she consult a neurologist.

At the trial (approximately a year and a half after the casualty giving rise to this controversy) plaintiff testified:

"I am suffering with terrible hearaches, and I have to go to bed, and the only relief I have is to take aspirin, and the pains come down the back of my neck; and terrible nervousness; suffer constantly with nervousness. There are no amusements at all I care for any more. The crowd annoys me. . . . The crowd gets on my nerves and I feel just like tearing them up. I want to get away from them. . . . I have no relief whatever from my back since that time, and pains in my back and over the hip and down the right side. . . . They are more severe (when I menstruate). At times I am very dizzy. I can't do anything but lie down. If I get up I fall over, and I am cold and numb."

Plaintiff further testified that prior to her experience in the falling elevator she had suffered none of the conditions just described, but had been in all respects normal.

On the 22nd day of October, 1927, Dr. Gray Briggs, an X-ray specialist, at Dr. Striegel's request, took an X-ray picture of respondent's kidneys, one of the right kidney and one of the left. The films were introduced in evidence. They showed both kidneys were in their normal position. Dr. Briggs testified, however, that a kidney displaced by trauma in the course of time often resumed its natural position.

On September 11, 1926, Dr. Arthur H. Deppe, who had been engaged in the practice of medicine for eighteen years and who for the greater part of that time had specialized in nervous and mental diseases, made a very thorough examination of respondent. Following that examination he saw her from time to time up until the trial of the case in January, 1928. Called as a witness by respondent, he testified:

"The results of my findings were that she appeared to be undernourished, which, of course, I had to determine on her history as to her former weight. At the time I examined her, her weight was one hundred, nineteen and a half pounds. There was a decided flushing about the face and neck and upper part of her chest. Her hands and feet were cyanotic; they were moist and cold as compared with the other parts of her body. In scratching along the skin with the finger nail, it raised a welt, which we called dermographia, or skin writing. Her pulse was found to be one hundred and twelve. It was noticed that the right lobe of her thyroid gland was slightly enlarged; that she had rather markedly dilated pupils. It was also noticed that her tendon reflexes were very active. They were equal. There was noticed, in testing the sensation, pathology; that she was unable to distinguish the point from the head of a pin and light touch over the entire right leg. The upper level of this disturbance of sensation extended to the groin. There was no evidence of paralysis. There was no evidence of any muscle atrophy. There was a slight Romberg. That is, with her toes and heels together and her eyes closed there was a swaying of the body. My conclusions at that time were that she was suffering from a functional neurotis, the objective evidences of which were a rapid pulse, the flushing about the face and neck, tremor of the extended fingers and protruded tongue, the skin writing, or otherwise called dermographia, the cold, cyanotic hands and feet, and the Romberg. At this time I might add that she complained of some tenderness of the calf muscles on pressure. The disturbance to sensation found in the right leg, that is, her ability to distinguish the head from the point of a pin and light touch over the right leg, was not due to any pathology of the central nervous system, but was due to a functional neurosis. . . .

"Q. Now, what do you mean by functional neurosis? A. That is a neurosis in which the symptoms are subjective. They may refer to any part or any organ of the body, for which they are unable to find any evidence of pathology, but for which we have objective evidences in the imbalance of the sympathetic nervous system.

"Q. Subjective injuries are those that you can't see — that you take the patient's word for? A. Symptoms that the patient complains of.

"Q. And objective, are those that you can see? A. Yes.

"Q. Now, in the instant case, you couldn't see any objective symptoms of injury, could you? A. No.

"Q. You had to take the patient's word on the subjective part? A. Yes.

"Q. You have to depend entirely on the veracity of the patient, isn't that true? A. On her history.

"Q. What she tells you about it? A. Yes. . . .

"Q. If you assume, Doctor, that this girl, prior to the time of her injury, was a girl who was alert and cheerful, had no nervous manifestations, worked steadily, and then she had this accident and the attendant maladies after this accident, would you say that this accident, in your opinion, was the cause of those things or not? A. Yes; I would.

"Q. Assuming, Doctor, that those affects have continued to exist down to the present time, taking into consideration her appearance today, would you say that, in your opinion, she is reasonably certain to continue to suffer with them in the future? A. Well, that is speculative. You can't say anything about it. Some of those cases clear up and some of those cases go on and don't clear up. She showed very little improvement while under my observation, and I would think that under treatment that she should have shown some appearance that she is going to get well. Of course, something might happen later in life. She might show some improvement. I can't say she is going to be this way all her life, and I can't say she won't, but she hasn't made any improvement since I have seen her. In fact, her condition on October 17th was worse than when I first saw her."

With respect to the permanency of respondent's injury Dr. Striegel testified as follows:

"Q. Doctor, I will ask you this: Having in mind the duration of those complaints, from June 8, 1926, up to the present time, the condition of the back, headaches, nervousness and menstrual disturbance, I will ask you if, in your opinion, she is reasonably certain to continue to suffer with those ailments in the future? A. The possibilities are that she is.

"Q. And would you say, having in mind the duration of those matters up until the present time, that those injuries are of a permanent character, in your opinion? A. Yes, sir."

The foregoing is a summary of all the evidence having any bearing on the question of whether respondent's condition as testified to by herself and her physicians is reasonablycertain to be permanent. It discloses that at the time of the trial respondent was suffering from no discoverable objective physical injury; she was nervous, but the nervousness was purely functional; there had been no organic injury to the central nervous system. Not an organ or tissue exhibited the slightest abnormality. The slightly enlarged lobe of the thyroid gland was merely a symptom of nervousness, nervousness having caused the gland to become somewhat overactive — a temporary condition so far as could be determined at the time of Dr. Deppe's examination. Now, if respondent had been crippled or maimed or had sustained some visible or tangible physical injury, the jury might have been able to have formed some just conclusion as to the permanency of such injury without the aid of experts. But it is manifest that from the data afforded by the evidence no layman could draw therefrom a valid inference as to whether respondent's condition would be projected into the future for any definite length of time. Such an inference could be drawn only by one having the requisite experience capacity — an expert in that particular field. [See Scanlon v. Kansas City, 28 S.W.2d 84, 95; Greenleaf on Evidence (17 Ed.) 522, sec. 430a.]

Two witnesses, Dr. Striegel and Dr. Deppe, were called upon to give their opinions as experts as to whether respondent's condition was permanent. Dr. Deppe unquestionably had the requisite experience capacity to draw from the facts presented such deductions as they warranted. When asked whether plaintiff was reasonably certain to continue to suffer in the future the maladies which manifested themselves following the casualty, he said: "Well, that is speculative. You can't say anything about it. . . . I can't say that she is going to be this way all her life, and I can't say she won't."

Dr. Striegel when first asked as to the permanency of respondent's injuries said it was a possibility. Counsel then put the answer into his mouth in this fashion: "And you say, having in mind the duration of those matters up until the present time, that those injuries are of a permanent character, in your opinion?" and he assented with a "yes, sir." This "yes, sir" in response to the question so carefully framed by counsel is the only bit of evidence in the case that plaintiff's injuries are of a permanent character. Can it be considered substantial evidence?

At the time he examined and treated respondent Dr. Striegel had been engaged in the general practice of medicine between eight and ten years. It does not appear that he had ever given any especial attention to mental and nervous diseases or that he had ever before had a patient who exhibited symptoms in any respect like those manifested by respondent. Indeed, he confessed his inability to diagnose her ailment or treat her for it by recommending that she consult a neurologist. It is very generally held that a general practitioner of medicine is at least prima-facie competent to give an opinion in a case such as this. [State v. Liolios, 285 Mo. 1, 15.] And his opinion when given is of course evidence. Its weight and value as evidence, however, depend upon his knowledge, experience and impartiality — matters that ordinarily rest with the jury. But certainly it is competent for the court to determine as a matter of law whether an opinion in a given case has any probative value. [See Keller v. Supply Co., 229 S.W. 173, 175.] The opinion in question here is not in harmony with the opinion previously expressed by the same witness in answer to a similar question, it does not have the support of any other evidence in the record, on the contrary it is in direct conflict with it. When those things and the manner in which the opinion was elicited are all considered it cannot be regarded as having any substantial weight or value as evidence.

If the conclusion reached in the preceding paragraph is sound, it follows that there is no substantial evidence that respondent's injuries are of a permanent character. The mere possibility that she will continue to suffer from them in the future is not sufficient to authorize the consideration of future consequences as an element of her damages. The law in this respect is well settled: Consequences which are contingent, speculative, or merely possible are not to be considered. To justify a recovery for apprehended future consequences, there must be such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury. To say of a thing it is permanent means that itwill continue regardless of contingency or fortuitous circumstance. [Wilbur v. Railway Co., 110 Mo. App. l.c. 698, 85 S.W. 671; Smiley v. Railway Co., 160 Mo. 636, 61 S.W. 766; Pendenville v. Transit Co., 128 Mo. App. l.c. 605, 107 S.W. 453; Steimann v. Transit Co., 116 Mo. App. l.c. 678, 94 S.W. 799; Lebrecht v. United Rys. Co., 237 S.W. 112, 114. See also Clark v. Railway,23 S.W.2d 174.] If the ailments from which respondent was suffering at the time of the trial are to continue with her during the remainder of her life, the damages awarded will not compensate her. On that hypothesis an assessment of $25,000 or $30,000 would not be unreasonable. On the other hand, if her condition is temporary $15,000 is greatly excessive. Sufficient time has now elapsed for respondent's physicians to be able to say with some degree of certitude whether there has been, or will be, a substantial amelioration of the condition in which she was immediately following the casualty and as a result of it. In the interest of the due administration of justice the judgment should be reversed and the cause remanded for another trial.

II. The only instruction asked or given on behalf of plaintiff was one on the measure of damages. It was as follows:Double "The court instructs the jury that if under theDamages. evidence and the other instructions of the court, you find in favor of the plaintiff, then in assessing her damages you will allow her such sum as you believe and find from the evidence will fairly and reasonably compensate her:

"1st. For such pain and suffering of body and mind, if any, plaintiff has suffered by reason and on account of her injuries, if any, suffered on the occasion in question.

"2nd. For such pain and suffering of body and mind, if any, plaintiff is reasonably certain to suffer in the future by reason and on account of her injuries, if any, suffered on the occasion in question.

"3rd. For such permanent injuries, if any, plaintiff will suffer by reason and on account of the injuries, if any, sustained on the occasion in question.

"4th. For such loss of earnings, if any, you may find from the evidence plaintiff has suffered by reason and on account of said injuries, if any, suffered on the occasion in question, not however, to exceed the sum of $20 per week for such loss of earnings, if any.

"5th. For such future loss of earnings, if any, you find from the evidence plaintiff is reasonably certain to lose in the future by reason and on account of said injuries, if any, suffered on the occasion in question."

Plaintiff's injuries were, and are, caused by an intangible thing which manifests itself only in "pain and suffering of body and mind." There was no evidence that she has any injuries which can either now, or in the future, manifest themselves otherwise than by pain and suffering and a diminution of earning power. It is clear therefore that the court directed the jury to compensate plaintiff for overlapping elements of damages. The instruction was erroneous, even if warranted by the evidence.

It has become a common practice in personal injury cases for the plaintiff to ask no instruction defining the issues in the case, but to secure one on the measure of damages only. The natural implication which it gives rise to in theInstruction: minds of the jurors is that they are expected toMeasure of return a verdict for the plaintiff on someDamages Only. undefined ground, the court deeming it necessary to advise them only as to the damages which might be awarded. And the instruction on the measure of damages frequently, as in this case, catalogues at length in overlapping clauses, and to the extent of the overlapping duplicates, every conceivable element. The practice is vicious. Only the reversal of judgments obtained by means of it will end it. Mild criticism will no longer suffice.

For the reasons foregoing I dissent from the principal opinion.White and Ellison, JJ., concur.