Damerel v. Sabina Realty Corp.

603 S.W.2d 96, 1980 Mo. App. LEXIS 2756
CourtMissouri Court of Appeals
DecidedAugust 4, 1980
DocketNo. WD 30689
StatusPublished
Cited by5 cases

This text of 603 S.W.2d 96 (Damerel v. Sabina Realty Corp.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Damerel v. Sabina Realty Corp., 603 S.W.2d 96, 1980 Mo. App. LEXIS 2756 (Mo. Ct. App. 1980).

Opinion

WASSERSTROM, Chief Judge.

By jury verdict, the plaintiff administrator received an award of $10,000 for personal injuries suffered by Myrtle Damerel during her lifetime. Defendant appeals. We affirm.

On October 7, 1977, Myrtle stumbled over an obstruction and fell in the hallway of a building where she occupied an apartment and which was maintained by defendant. Prior to this accident, Myrtle was spry and got along well on her own, although she was then 89 years of age and blind in one eye. Immediately after the accident, she was admitted to St. Luke’s Hospital where she underwent surgery to the left hip.

Following the surgery she received physical therapy and in early November was transferred to the Charlotte Extended Care Facility for further physical therapy. She was released from the latter facility on December 19, 1977.

On February 28, 1978, Myrtle was readmitted to St. Luke’s Hospital for congestive heart failure. Examination at that time disclosed that the left leg had become ulcerated. She remained in St. Luke’s on this second admission until March 8, 1978, and then entered Oak Grove Health Care Center on March 18, 1978. At the time of that [98]*98admission she was suffering from heart and kidney problems and arteriosclerosis and the ulcerations on her left leg were oozing and weeping. She was released from Oak Grove on September 10, 1978, but died September 18, 1978. Her death certificate showed the immediate cause of death was cerebral hypoxia as a consequence of pulmonary edema and congestive heart.

Defendant makes two points on appeal: (1) that the trial court erred in overruling its motion for a directed verdict, because plaintiff failed to allege and prove that Myrtle’s death did not result from the inju--ries suffered in the accident of October 7, 1977; and (2) that the element just mentioned was not covered by the verdict-directing instruction. These points, which essentially present a single contention, require reference to the statutory provisions which permit suit after the death of an injured person.

Section 537.020, RSMo 1978, permits survivorship of a cause of action to the personal representative of the person injured, provided that death did not result from the injury. If death did result, then a cause of action for wrongful death is provided by Section 537.080 in favor of certain specified kin, or if there be none such then to a personal representative. These causes of action are mutually exclusive. Ordinarily if an administrator sues under Section 537.020, he must allege and prove that death did not result from the injury. Harris v. Goggins, 374 S.W.2d 6 (Mo. banc 1964); Wallace v. Bounds, 369 S.W.2d 138 (Mo.1963); Plaza Express Company v. Galloway, 280 S.W.2d 17 (Mo. banc 1955). It is upon generalized statements of that rule contained in the cases just cited that defendant relies in the present case.

However, whether such allegation and proof are necessary depends upon the particular facts of each case. Long v. F. W. Woolworth Co., 159 S.W.2d 619 (Mo.1942). In the latter case, the administrator did not allege or prove that death did not result from the injury. The administrator received a judgment, but the Kansas City Court of Appeals reversed because the petition “did not affirmatively allege that plaintiff’s decedent did not die as a result of her alleged injuries.” On certification to the Supreme Court, that court reversed the court of appeals and sustained the judgment, holding that the allegation and proof in question were unnecessary because the cause of death had not been a real issue in the case. After referring to the general rule requiring the personal representative to make such allegations and proof, the Supreme Court went on as follows:

“There is and can be no question about the general rules with reference to the survival and abatement of actions announced by these cases and we do not believe it necessary to review them now. The cases do not, however, lay down a hard and fast rule inexorably applicable in all events to every instance of the injured party’s death and the continuance of his cause of action in the name of his personal representative. On the contrary, every one of the cases was decided by applying the statute to the particular facts and circumstances of each case as it came before the court. .
“This case demonstrates that the rule is not a fixed, definite formula applicable in any circumstance to every action for personal injuries continued by one’s personal representative under the survival statute. Each case must be determined on its facts and if it clearly appears that the action was in fact a continuation of the suit as originally instituted and that the plaintiff’s death was not due to the negligence and injuries complained of and there was and could be no issue as to the fact it is not necessary to plead and prove it. . . ”

The circumstances of this case bring it within the Long rule. First to be noted is the fact that the original petition and the first amended petition were both filed by Myrtle herself during her lifetime. After her death and the substitution of her administrator as plaintiff, the administrator made no amendment in the petition whatso[99]*99ever.1 As a result, the petition makes no reference to the death of Myrtle Damerel, and the petition describes and seeks damages solely for the personal injuries, physical pain and mental anguish suffered by her.

Next to be noted is that the proof of damages was directed solely to the nature and extent of Myrtle’s personal injuries. Important in that regard is the fact that the evidence showed Myrtle made a relatively good recovery from the broken hip; so much so that defendant’s counsel in his opening statement accurately forecast the medical evidence as follows: “The medical evidence in the case will be that Mrs. Dam-erel had a good result from the treatment and from the surgery and made rapid progress with the use of a walker while in the hospital and all in all she did make a good recovery from the surgery and from the injuries.” Consistent with that evidence, the death certificate showed that the cause of death was heart failure and made no mention of the October 1977 accident.

Most telling of all, defendant successfully objected to the introduction of the hospital records relating to the second hospital admission on February 28, 1978, the objection being “on the basis there is no cause or connection in the record relating this [second] hospitalization with the injury that is the subject of this lawsuit.” That objection and the ruling of the trial court sustaining it demonstrate that there was no contention or belief at trial that there was any causal relationship between the accident and the death.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kopoian v. George W. Miller & Co., Inc.
901 S.W.2d 63 (Missouri Court of Appeals, 1995)
Reynolds v. Grove Professional Pharmacy, Inc.
848 S.W.2d 631 (Missouri Court of Appeals, 1993)
Linzie v. City of Columbia, Mo.
651 F. Supp. 740 (W.D. Missouri, 1986)
Stiffelman v. Abrams
655 S.W.2d 522 (Supreme Court of Missouri, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
603 S.W.2d 96, 1980 Mo. App. LEXIS 2756, Counsel Stack Legal Research, https://law.counselstack.com/opinion/damerel-v-sabina-realty-corp-moctapp-1980.