Opinion
No. 28176.
November 20, 1951. Rehearing Denied December 21, 1951.
APPEAL FROM THE CIRCUIT COURT, CITY OF St. LOUIS, B. RICHARDS CREECH, J.
Carroll J. Donohue, Salkey Jones, and Carl R. Gaertner, all of St. Louis, for appellant.
Champ C. Stonebraker, Charles E. Gray, and Chelsea O. Inman, all of St. Louis, for respondent.
This is an action for damages for personal injuries, brought by James H. Arl against St. Louis Public Service Company. A trial jury awarded plaintiff $4,000.
The sole question for decision on this appeal is whether the verdict is excessive. It is elementary that in determining that question we should consider the facts most favorable to plaintiff, together with all the reasonable inferences which may be drawn therefrom. Stated in this light, we find that on November 16, 1949 while plaintiff was standing on the treadle of a streetcar, holding onto a horizontal bar between the exit doors, preparatory to alighting at 12th and Clark streets in St. Louis, the car gave a sudden jerk, breaking the bar loose from its morning and throwing plaintiff into the "well" of the car; that the small of his back struck the center partition, his head struck the side of the well and he bumped his elbow. Helped up by passengers, plaintiff left the streetcar and walked to his place of work across the street at City Hall. He noticed a bump on his head immediately and was conscious of his elbow and back having "hit something". His arm was skinned and his shirt was torn. An hour later "it" started to bother him, got worse, and about two hours after the incident plaintiff went to his family Dr. Simpson, who X-rayed and taped his back, gave him a sedative and some capsules to take. His elbow was numb, he had pain in the back, a bump on the head and a headache which lasted two days. Upon leaving the doctor's office plaintiff went to the public service company offices and reported the accident, then went home and went to bed. He remained in bed three or four days, during which period he soaked his back from time to time in hot water. The third day after the accident he again visited Dr. Simpson. He remained away from work for three weeks and two days as a result of the accident, and during that period visited the doctor three times. On those occasions his back was taped and he received more capsules to take. His back was taped for about a month. Some six weeks after the accident his visits to the doctor fell off to once every two weeks, and he received treatments every two weeks up to the time of the trial, which occurred in October, 1950. The doctor examined his back and gave him capsules on these visits. On advice plaintiff soaked his back in hot water every day.
Plaintiff, 26 years of age, worked for Lawyers Title Company. His work required him, day after day, to lift tax books, some of which weighed as much as 35 pounds. The books are located on racks; some on the bottom rack, others as high as a man can reach. Sometimes workers must climb ladders to reach books. Previous to the accident plaintiff had no difficulty in handling the books. Upon returning to work after the accident he was unable for three weeks to perform that work. For about four weeks his supervisor assigned other employees to lift all of the books for him. He would "sit down real easy and he couldn't bend over properly and couldn't lift anything heavy." Thereafter he could not perform all of his duties; he could "pull" the light books but not the heavy ones. He could not bend entirely; could not get the lower books or lift the heavier books. This condition persisted up to the time of trial, according to his supervisor. Plaintiff testified that he cannot stoop to pick up books and that it hurts him if he tries to lift too much. He cannot bend over and pick up things from the floor — he has to "squat down" in order to do so. He has pains in his back after he is on his feet too long. The small of his back starts aching when he is tried. At the time of the trial he said he could touch his hand a couple of inches below his knees, whereas prior to the accident he could bend over and touch his toes. Now he can bend over "about a 30 degree angle"; if he goes down farther the muscles in the back of his legs and in his back tighten up and he cannot bend any more. At the time of trial he testified that he has a sore place in his neck; has frequent headaches; and at night after working all day his back feels tired and aches — a constant, dull ache. If he works around the house any time he tires and plains start bothering him. Prior to his employment with the title company plaintiff did overseas service, loading ammunition trucks and equipment without any difficulty.
Dr. Simpson was unable to attend the trial. By agreement two written reports made by him were read to the jury. The first, dated January 17, 1950 gave the prognosis as "good", estimated the total disability at 3 weeks and the cost of medical treatment at $50. From the X-rays taken on the date of the injury the doctor found no fracture or dislocation of the lumbar spine, but the report indicated a sacroiliac strain on the right side. The diagnosis was: "Contusion of the lumbar vertebrae, sacroiliac strain and surgical nervous shock." The second, dated January 20, 1950, read as follows:
"History: On November 16, 1949, Mr. Arl was injured as he was thrown backward as the streetcar on which he was riding stopped suddenly.
"Examination: Mr. Arl came into my office on November 16, 1949, limping and complaining of a great deal of pain in lumbar region and sacroiliac region of the back.
"X-ray: An x-ray of the lumbar region and sacroiliac region was taken on November 16, 1949, and there appeared to be no fracture or dislocation of the lumbar spine, but did reveal a sacroiliac strain of the right side.
"Diagnosis: Contusion lumbar vertebrae, sacroiliac strain, surgical nervous shock.
"Prognosis: At this time Mr. Arl is working, and has improved."
It was admitted by counsel that if the doctor were present he would further testify that during his entire treatment of plaintiff there was muscle spasm and muscle rigidity surrounding the lumbar area of the spine.
Dr. Sylvester H. Pranger examined plaintiff on July 31, 1950 and again a week before the trial. He testified that on the first examination plaintiff's chief complaint was a feeling of stiffness in his back and inability to bend forward fully and completely; that when he tries to place his hands on his knees he has a feeling of a crawling or tight sensation behind the knees and in the back; that after working and towards evening the back begins to ache and feels stiff. He found that plaintiff had difficulty in moving his back, in getting up and down from a sitting position or from lying down, and in getting up on the examining table. His movements were not as free as one would expect in a 26 year old man. He had deep tenderness over the occiput. He had a tendency to hold his muscles rather rigid in standing erect, the sternomastoid muscle. There was definite tenderness over the lumbar and erector spinal group of muscles, and some rigidity on deep palpation. He noticed some rigidity, some spasticity when his back was arched. X-rays of the lower lumbar vertebrae showed a fusion defect in the lamina of the vertebrae at the junction of the 4th and 5th. He found it difficult to say whether it is a congenital, developmental thing or the result of an injury. He explained that muscle rigidity is a defensive mechanism indicating reaction to pain. When there is an irritation beneath the muscles nature tries to hold the parts together tightly in a splinting action to prevent their movement. He had definite muscle spasm. His diagnosis: Low-back sprain, with residual lumbar myositis and fibro-myositis as a result of the injuries. Myositis means inflammation, soreness, tenderness of the muscle. After a time the muscle tissues are replaced with scar tissue, which never returns into new muscle tissue. X-rays revealed a sacralization, or abnormal position, of the process of the 5th lumbar vertebra which was to be regarded as developmental, but if subjected to trauma there could very well be some change. The doctor testified that plaintiff has not been able to bend forward completely, and cannot get his hands any farther down than his knees.
On the second examination Dr. Pranger found practically the same condition that he found in July. He gave as his opinion that the cause of plaintiff's disability was the blow received November 16, 1949; that the injury to the lower back involved the muscle and tendon structure that supports the bony framework; that the muscles are tense, tight, will not relax and remain spastic in an effort to keep the spine erect. With reference to permanence he said: "After this length of time, I would say that the prognosis was pretty doubtful as to his recovery of any flexion of his back. * * * I would say that this condition would have to be regarded more or less permanent." He said that the nerves would be involved and would be responsible for a good deal of pain and distress.
Defendant's Dr. Ambrose was asked this question on cross-examination: "Q. Assuming, Doctor, that the man in bending over, in attempting to bend over would have a tight feeling right in the middle portions of his legs; what would that indicate to you?" His answer: "That would indicate some irritation of the sciatic nerve."
It must be borne in mind that plaintiff lost no wages; that no special damages such as medical expenses, etc. were proved; that no hospitalization was required; that there were no broken bones or lacerations; and that there was no evidence that plaintiff's earning power has been impaired.
The controlling rules to be applied in the solution of this problem are these: The function of assessing damages is peculiarly that of the jury, whose duty in a case of liability is to award such a sum as will reasonably compensate the plaintiff for the injuries sustained. The jury's discretion is conclusive on appeal unless the verdict is so grossly excessive as to indicate an arbitrary exercise and abuse of discretion. A verdict is excessive when it offends against all sense of right, indicates that it resulted from passion and prejudice and shocks the judicial conscience, but an appellate court should not interfere with the action of the jury unless the injustice of the size of the verdict is manifest. In sizing up a verdict an appellate court should give consideration to economic conditions, current costs, and the purchasing power of the dollar at the time the verdict is rendered. In these days of inflation a higher level of maximum damages is warranted. Counts v. Thompson, 359 Mo. 485, 222 S.W.2d 487. The failure of the trial court to set aside the verdict as excessive is a further consideration.
While each case must stand upon its own facts, a reasonable uniformity must be maintained in the amounts allowed in comparable cases.
In ascertaining the permissible range in the size of verdicts under the rule of uniformity we find that somewhat similar injuries and disabilities have been held to support verdicts as follows: $4,350 in June, 1950 in Doutt v. Watson, Mo.App., 231 S.W.2d 230; $5,000 in September, 1949 in Harvey v. Gardner, 359 Mo. 730, 223 S.W.2d 428; $5,000 in December, 1950 in Smith v. St. Louis Public Service Co., Mo.App., 235 S.W.2d 102; and $5,000 in Jones v. Terminal Railroad Association of St. Louis, Mo.App., 246 S.W.2d 356. See cases cited therein.
The recent cases of Kulengowski v. Withington, Mo.App., 222 S.W.2d 579, and Roberts v. Carter, Mo.App., 234 S.W.2d 324, cited by appellant, reveal lesser injuries than this plaintiff suffered. In neither of them did plaintiff sustain any limitation or impairment of the ability to bend forward, as is disclosed in this case. The case of Harding v. Kansas City Public Service Co., Mo.App., 188 S.W.2d 60, in which a $5,000 verdict was held excessive and reduced to $3,000, was decided in 1945, in a different economic era. We have considered the cases from foreign jurisdictions cited by appellant, but need not resort to them for light in view of the fact that there are many cases in our own jurisdiction from which we may draw our conclusions.
After allowing for all of the various considerations to which we have referred we conclude that under the facts and law the award in this case, while liberal, is not large enough to require appellate interference. It is therefore the recommendation of the Commissioner that the judgment of the trial court be affirmed.
The foregoing opinion of HOUSER, C., is adopted as the opinion of the court.
The judgment of the circuit court is, accordingly, affirmed.
BENNICK, P. J., and ANDERSON and HOLMAN, JJ., concur.