Opinion
No. 27931.
June 20, 1950. Motion for Rehearing or to Transfer to Supreme Court Denied July 18, 1950.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, WILLIAM K. KOERNER, J.
Wm. C. Connett, IV., St. Louis, Edw. A. Haid, St. Louis, Bryan, Cave, McPheeters McRoberts, St. Louis, of counsel, for appellant.
Arthur J. J. Bohn, St. Louis, Mark D. Eagleton, St. Louis, for respondent.
This is an action for damages for personal injuries sustained by plaintiff, Eva Kasten, in a collision between a streetcar of defendant, St. Louis Public Service Company, and an automobile operated by plaintiff.
The accident occurred on May 13, 1948, at the intersection of Grand Boulevard and Miami Street in the City of St. Louis. Upon trial to a jury, a verdict was returned in favor of plaintiff for the sum of $10,000, which was reduced by remittitur to $7,500. Defendant has appealed from the judgment rendered on said verdict.
The first point made in appellant's brief is that the verdict is against the evidence. Such an assignment is too indefinite to be considered on appeal. Bennett v. Brotherhood of Locomotive Firemen and Enginemen, Mo.App., 82 S.W.2d 601; Harmon v. Irwin, Mo.App., 219 S.W. 392; Hooper v. Wineland, Mo.App., 131 S.W.2d 232; Martin v. Bulgin, Mo.App., 111 S.W.2d 963.
Appellant's next point is that the court erred in not sustaining appellant's motion for new trial. Such assignment is likewise too general and presents nothing for review. Pfotenhauer v. Ridgway, 307 Mo. 529, 271 S.W. 50; Garvey v. Piel, Mo. Sup., 43 S.W.2d 774; St. Louis-San Francisco R. Co. v. Dillard, 328 Mo. 1154, 43 S.W.2d 1034; Bachman v. Quincy, O. K. C. R. Co., 310 Mo. 48, 274 S.W. 764; Clark v. Atchison Eastern Bridge Co., 333 Mo. 721, 62 S.W.2d 1079; In re Nelson's Estate, Mo.App., 185 S.W.2d 890; Weil Clothing Co. v. National Garment Co., Mo.App., 148 S.W.2d 586.
Appellant next urges: (1) that the trial court should have sustained its motion for new trial on the ground of excessiveness of the verdict instead of entering an order overruling the motion upon plaintiff remitting the sum of $2,500; and (2) that the verdict, even as reduced by remittitur, is excessive. This necessitates a review of the medical testimony and other evidence bearing on the nature and extent of plaintiff's injuries.
At the time of the accident plaintiff was thrown from the automobile to the street, and by reason thereof was rendered unconscious for about one-half hour. From the scene of the accident she was conveyed in an ambulance to the City Hospital, where she remained for a period of four days. While at the hospital, according to her testimony, plaintiff suffered from extreme pain in her head and back. An examination at the City Hospital disclosed that plaintiff, as a result of the collision, sustained a concussion of the brain, fractures of the 4th, 5th, and 6th ribs on the left side of the body, a hemothorax in the left chest, a swelling in her left side at armpit line, a swelling in the occipital region of the scalp, a swelling in the parietal region of the scalp, and a laceration on her left knee.
While at the hospital plaintiff remained in bed. On Monday, May 17, 1948, plaintiff was taken to her home. Immediately upon arriving home plaintiff called her family physician, Dr. Eber Simpson, who examined and treated her that day. Plaintiff remained in bed at her home constantly for the next two weeks and was attended daily by Dr. Simpson, and then for the next two months she was confined to her bed most of the time, but made trips to the doctor's office for treatment. Thereafter, plaintiff continued to receive treatment at Dr. Simpson's office.
At the time of the trial, October 10, 1949, plaintiff was still under the care of Dr. Simpson. Plaintiff testified that she still suffered from pain in the left side of her body. She stated that the pain was: "Along underneath the breast, there at the rib section * * * I always have pain. But the stabbing pain is what is so terrific * * * I have been sitting perfectly still on a chair, and it would stab, and then again if I sneeze or cough, blow my nose terrifically, a little more than a little hard, move a little bit more than I should; what I mean is, in a turning away, then I get that. But I have had it just sitting perfectly still."
Testifying further, plaintiff stated: "I have terrible headaches * * * I have got headache a lot, and it is bad, and it will last, and sometimes my head feels like it's just blowing up, going to burst. * * * There are not many times that I don't have it. * * * I take medicine that Dr. Simpson has given me. I take aspirin a lot, and they will stop sometimes; sometimes I have got them for three or four days at a time. * * * I am very nervous. * * * I shake in the inside; I get sick to my stomach. * * * Well, everybody else can see that I am nervous and that I kind of fly off. * * * I don't sleep at all. I have a terrible time sleeping; I don't sleep good when I do sleep; I dream, wake myself up in a sweat and shaking all over. * * * I haven't had one good night's sleep since that accident, not one good night's sleep; and I have taken things to sleep, too. * * * I have two kinds of medicine; just exactly what they are for I am not in a position to say, I didn't see the prescription; but I do know that one is a nerve pill, I know one is a pain pill. * * * I take aspirin all the time."
Plaintiff testified further:
"I didn't do anything around the house for six months. * * * if I would just bend quickly, I mean turn quickly and forget myself and go to wrench around quickly, I would get a short, stabbing pain, and I couldn't do anything; I couldn't move a chair. * * * my husband telegraphed to my sister in Philadelphia and she came and stayed with me. * * * She was here for a little more than six months, a week or so.
"Q. And in that six months were you able to perform any of the normal duties of your household, running the household? A. No, sir."
According to Dr. Simpson's records, plaintiff made three or four trips monthly to his office for treatment. He stated she was using heat to her chest, and taking medicine to relieve pain and nervousness.
On his first visit to plaintiff, Dr. Simpson strapped her chest and applied ice packs to her head. He also gave plaintiff medicines to ease her pain and to quiet her nerves. The straps were removed on July 3rd. Dr. Simpson testified:
"She has, I would say, four main complaints: one is she complains of headaches, nervousness, can't sleep at night, and pains in the chest as she moves, shifts; as she lifts things up she has pain in the chest * * * at this time she is using heat to her chest and she is taking medicines * * * medicines for pain and medicines for her nervousness * * * She tells a great deal of being nervous, can't sleep; has a sort of fine tremor when she puts out her hands.
* * * * * *
"Q. The fact, Doctor, that this lady still has pain in her chest, left side of her chest, Doctor, the fact that she is still complaining of headaches and nervousness and inability to sleep after this length of time, can you give us any conclusion, Doctor, with reasonable degree of medical certainty as to how long she will continue to suffer from these pains and disabilities. A. She has been this way since the accident, that will be about eighteen months, I guess, roughly. I would have to conclude that having this long she may have them for the rest of her life, permanently."
The doctor further testified that with three fractured ribs there would be some injury to the soft tissues around the ribs, and that pain in the left side of the chest would be a reasonable complaint in view of the fractures and injuries she suffered.
On cross-examination Dr. Simpson testified that X-rays taken about a year after the accident showed that the ribs had healed. He stated there was no evidence of puncture of the lung, and that the swelling in the chest had gone; that the swelling on plaintiff's head disappeared within ten days after the accident; that the cut on the knee healed naturally, and that the swelling on the chest was present for four or five weeks, then disappeared. Dr. Simpson further testified:
"Q. So within six months of the accident all outward physical evidence of the injuries had disappeared, is that correct? A. In six months, yes; right.
"Q. The only things left were the subjective complaints of the patient? A. That's right; yes, sir.
"Q. And your conclusion is based upon her statements to you of what she sufferred from, is that right: sleeplessness and nervousness, is that right? A. Yes, sir, that's right."
The doctor further testified that the X-rays taken at the City Hospital and those taken by him failed to reveal any evidence of skull fracture. He stated:
"Q. So far as you could determine from the X-rays, there was no apparent cause of the headaches? A. That's right. Yes, sir.
* * * * * *
"Q. And your judgment as to the length of time or the permanency of these injuries is based upon her subjective complaints; you have no evidence, clinical evidence, that is, other than her complaints, as to how long they will last, is that correct? A. That's correct, yes, sir.
* * * * * *
"Q. Isn't it true that most people have broken ribs, where the lungs are not broken, I think the hospital record refers to it as a simple fracture; don't they completely recover? Isn't that the usual course? A. Yes, say 90%.
"Q. And as a result, 90% of the people have no subsequent discomfort, is that right? A. A simple fracture, yes, sir; that would be correct."
The doctor further testified that a concussion can be anything from a temporary one second blackout, to unconsciousness for days, and that an X-ray would not show a hemorrhage in the brain caused by a concussion; that the mere fact that it showed no fracture of the skull would not rule out justification for her headaches; that a severe concussion of the brain could cause her present headaches; that he would say that a blow to the head was serious which renders a patient unconscious for a period of one-half hour; that the tremor of the hands would be an objective symptom of nervousness; that the fact that the X-rays did not reveal a fracture of the skull would not in his opinion rule out the fact that there was a concussion. He further testified:
"Q. But where you have a serious concussion, Doctor, do you expect, can you reasonably expect disability and pain and nervous upset and headaches for a long period of time after such a concussion? A. That is possible.
"Q. Is it probable? A. Yes, it is probable.
* * * * * *
"Q. Let me ask you this — What does a thirty minute period of unconsciousness after receiving a blow to the head, being thrown to the street from a moving automobile, indicate to you? A. Something very serious.
"Q. And what sort of an injury? A Some sort of an injury to the brain itself."
Dr. Olney A. Ambrose testified on behalf of defendant. He stated that he examined plaintiff at his office on January 19, 1949. He further testified: "She said her only complaints were periodic pains in the left chest * * * headaches at times, and was very nervous. * * * A general inspection of her body was made. She weighs 172 pounds, 63 1/2 inches in height. I examined her head, mouth, nose and throat, nothing wrong. There were no abnormal markings over her skull. There is a small laceration, a scar on the anterior left knee. * * * The knee joint movements, however, were not interfered with. I made a rather careful examination of her chest, because she told me she had had broken ribs. I found no evidence of disease or injury to the lungs, and nothing wrong with the heart. Her blood pressure was normal, her pulse rate was normal. Her general physical condition at that time, taking everything into consideration was good. Then due to the fact that she complained of this nervousness I made a complete examination of her nervous system, in order to determine whether or not there was anything wrong with her brain or her spinal cord. Now, this is done with the making of tests, starting up from the back of the throat and going down to the soles of her feet. I found nothing from this physical examination of her nervous system to indicate any disease in the nervous system. I took X-ray films of the entire chest, and they showed that she had had fractures of the 4th, 5th, and 6th ribs on the left near the axillary line, and that good union had taken place. They were in normal position, had united, and were not making pressure on the lung. * * * My opinion would be from this examination that this patient received three fractured ribs on the left; a good result has been obtained in their treatment. The lacerated wound to the left knee left a scar; there is no structural change in the nervous system."
Dr. Ambrose further testified that he found no evidence of damage to the head, and that there were no scars visible on the head. Further testifying, the witness stated:
"Q. Did you find any other condition in Mrs. Kasten that could have caused her nervousness and headaches, as the result of your examination? A. * * * At the time of my examination she did not manifest any evidence of disturbance in the nervous system. She said that she was nervous. Well, of course, that is a subjective symptom. I have to take her word, her statement for that. All I can do or any other doctor is to try and find if there is a cause for that nervousness. There are many causes for nervousness; diseases of the nervous system, injuries to the nervous system, and then what we call functional nervousness which means anybody worried, disturbed, or got a lot on their mind would be nervous. That is what that kind of nervousness means; it is subjective, and the patient may show certain manifestations, they may cry, get jittery; but as I say, there are so many causes for that which isn't a disease of the nervous system.
"Q. But in your examination you found no evidence of what caused such a nervous condition? A. I did not; from my examination I couldn't account for her complaint.
"Q. By reason of your examination did you find any evidence in any way where the woman would be handicapped, would be unable to perform her usual tasks? A. No, sir, I did not. I didn't find anything that would interfere with her ability to do most anything she wanted to do. She told me, of course, here, that she was a housewife; I didn't know whether she was employed or not."
On cross-examination, Dr. Ambrose testified that a severe concussion can produce nervousness and headaches. He further testified:
"If the concussion is severe enough to produce continuous headaches it generally means that the brain has been injured, and we can discover that. If the concussion was of only short duration, of course a concussion is merely a shaking of the brain, then the headaches can last quite a little bit of time; but they clear up as it settles to its normal there. You see, the brain has waves running through it, like an electrical system; when they settle to their normal wave lengths you should have no headaches if your brain isn't damaged, but if your brain is damaged you might have headaches a long time. * * * All nervous disorders are divided into two classes, one where the nervous system consisting of the brain, spinal cord and the nerves leading from the cord to the skin, where they are injured, diseased, or torn like we saw in the war, gunshot wounds, involving nerve tissue, it is organic. There are numerous diseases that will cause organic nerve diseases; we know the commonest, polio. The functional nerve disturbance is merely an interruption of the normal flow from the brain down to your body and back again. There's nothing wrong there, but your telephone system is getting influenced from some place higher, you have got a death in the family, you are worried, disturbed, you think you have some disease although you haven't got anything, that worries you, may create a functional disturbance. It all depends on your background, how stable you are, how you take things; a psychiatric problem. That's what functional means.
"Q. If a woman of the age of 47 years is collided with by a streetcar and is thrown out of the automobile into the street and rendered unconscious for a period of half an hour, Doctor, is there sufficient trauma there and is there sufficient there to bring about a functional type of nervousness? A. Temporarily; yes, sir.
"Q. How long could that last? A. I can't tell; that's a question of individuality. Some may last quite a while, others over very quickly, * * * Depends on their makeup, what God has given them by way of nerves, * * * and their age, and their hereditary influence, their background.
* * * * * *
"Q. And such a person's headaches or nerves is just as real and disabling to them as though it was caused by disease? A. No, sir; it isn't. There's quite a difference if it is caused by disease, you have got something wrong in nerve tissue, that is different; but if it is only the function, passing through the normal channels, of the waves, it isn't a disease. 80% of headaches are due to nervousness; the other per cent. is due to brain disturbance.
"Q. Well, I mean to say this: if a woman is nervous, cries easily, is jumpy, and at times has a tremor of the hands, and is easily emotionally upset and has disturbed sleep, those are manifestations of a functional nervous disorder, aren't they? A. They are.
"Mr. Connett: Q. A person who has a lawsuit, who is involved in a lawsuit could be — and who was nervous as the result of it, that could cause headaches and severe headaches from time to time, couldn't it, Doctor? A. If she gets nervous; yes, sir. * * At the time this lady was in my office she wasn't manifesting any outward symptoms of nervousness. She was very pleased and composed and cooperative. She didn't have any evidence of organic nerve disease from the examination that I made, and she wasn't manifesting any outward symptom of nervousness when she was in the office."
Appellant assigns as error the action of the trial court in forcing a remittitur instead of granting a new trial. In support of this contention it is urged that there is no substantial basis in the evidence upon which the court could fix the amount of plaintiff's damages; that the trial court in fixing the amount of plaintiff's damages at $7,500 must have indulged in pure guess work.
The extent of personal injuries sustained by a plaintiff in a tort action, whether they be of a tangible objective nature or shown by subjective symptoms, are always difficult of ascertainment. It is sufficient, however, if the evidence shows their extent as a matter of just and reasonable inference; and if so shown it has always been the practice to permit a jury to exercise sound discretion and assess the damages based upon their own ideas of what is proper and reasonable, although the result may be only approximate. Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544; Midland Valley R. Co. v. Excelsior Coal Co., 8 Cir., 86 F.2d 177; Meltzer v. Pennsylvania R. Co., D.C., 29 F.Supp. 840; Northcutt v. St. Louis Public Service Co., Mo.App., 48 S.W.2d 89. The same rule applies where the trial court, in the exercise of its discretion, reviews the evidence on an issue of excessiveness raised by defendant's motion for new trial.
A review of the evidence, above set forth, shows that plaintiff sustained serious and substantial injuries for which an award of damages could be made without resort to guess work. Such being the case, the trial court did not err in ordering a remittitur instead of awarding a new trial on the ground of excessiveness. Jones v. Pennsylvania R. Co., 353 Mo. 163, 182 S.W.2d 157.
Is the verdict as reduced by the trial court excessive? In passing on this issue the appellate court must accept as true all evidence and inferences favorable to the verdict and disregard all evidence which conflicts therewith. Henderson v. Dolas, Mo.Sup., 217 S.W.2d 554; Biener v. St. Louis Public Service Co., Mo.App., 160 S.W.2d 780; Mickel v. Thompson, 348 Mo. 991, 156 S.W.2d 721; Peterson v. Kansas City, 324 Mo. 454, 23 S.W.2d 1045; Webb v. Missouri-Kansas-Texas R. Co., 342 Mo. 394, 116 S.W.2d 27. We cannot weigh the evidence or pass on the credibility of the witnesses. That is the privilege and duty of the trial court when considering the matter on motion for new trial. Hunt v. Gillerman Iron Metal Co., 327 Mo. 887, 39 S.W.2d 369; Stegner v. Missouri-Kansas-Texas R. Co., 333 Mo. 1182, 64 S.W.2d 691. The appellate court can only interfere where excessiveness appears as a matter of law, that is, when the verdict is clearly for an amount in excess of the very most that the proof of damages would sustain — Rothweiler v. St. Louis Public Service Co., Mo.App., 224 S.W.2d 569; and then only when the verdict is grossly excessive to such a degree that it shocks the conscience of the court. Mickel v. Thompson, 348 Mo. 991, 156 S.W.2d 721; Biener v. St. Louis Public Service Co., Mo.App., 160 S.W.2d 780; Rinderknecht v. Thompson, Mo.Sup., 220 S.W.2d 69; Montana v. Nenert, Mo.App., 226 S.W.2d 394. And, while it is our duty to give due consideration to the principle that there should be reasonable uniformity in verdicts for similar injuries, it is also our duty, when comparing awards, to take into consideration the changed economic conditions in recent years. Liles v. Associated Transports, Inc., Mo.Sup., 220 S.W.2d 36.
It may be conceded that the verdict, even as reduced by the trial court, is very substantial for the character of the injuries sustained. However, the trial judge, who heard the testimony and was in a better position to judge of the credibility of the witnesses, exercised his discretion and determined that the sum of $7,500 would be a fair and reasonable compensation for plaintiff's injuries. We have reviewed the evidence touching on this issue and have concluded that, under all the facts and circumstances of the case, this court would not be warranted in disturbing the verdict.
The judgment is affirmed.
HUGHES and McCULLEN, JJ., concur.